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51 New Eng. L. Rev. On Remand 1 (2017)

handle is hein.journals/remand51 and id is 1 raw text is: 









       Intentional Infliction of Emotional

   Distress & The Hulk Hogan Sex Tape:

   Examining a Forgotten Cause of Action

     in  Bollea v. Gawker Media, the Gap It

  Reveals in IIED's Constitutionalization,

  and A Path Forward for Revenge Porn

                            Victims





                            CLAY CALVERT*

                            ABSTRACT

This Article examines Hulk Hogan's  successful, yet largely overlooked,
cause of action for intentional infliction of emotional distress (IIED) before
a Florida jury in 2016 in Bollea v. Gawker Media, LLC. In doing so, the Article
explores critical factual differences between Bollea and the U.S. Supreme
Court's two decisions constitutionalizing the IIED tort, Hustler Magazine v.
Falwell and Snyder v. Phelps. Despite such distinctions, the Article discusses
the trial court's instruction to the jury to consider a First Amendment-
based, public-concern defense-one closely akin to that in Snyder-on Hulk
Hogan's  IIED claim. The Article also proposes a jury instruction on the
extreme and outrageous conduct element in IIED that would require jurors
to consider the substantive value of the speech in question. Finally, the
Article suggests that Hulk Hogan's victory for IIED bodes well for revenge
porn victims who pursue civil lawsuits pivoting on this cause of action.



  * Professor & Brechner Eminent Scholar in Mass Communication and Director of the
Marion B. Brechner First Amendment Project at the University of Florida, Gainesville, Fla.
B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge
School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University.
Member, State Bar of California. The author thanks graduate student Austin Vining of the
University of Florida for his research and editorial assistance with several early drafts of this
Article. He also thanks Berl Brechner for his consistent and continued support of the Marion
B. Brechner First Amendment Project.


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