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The following selection is excerpted from �鶹��ýIOS’s Guide to Free Speech on Campus.

It is not a crime to do or say something that will cause another person severe emotional distress. The law, however, does recognize that people have a civil obligation not to inflict severe emotional distress on their fellow citizens intentionally and without good reason. Someone who disregards this obligation is said to have committed a tort, or private civil (as opposed to criminal) wrong. A person who has committed a tort is liable to the injured party for money damages determined by a court in a civil trial, much as a person who has injured another by his or her negligent driving is liable to pay money damages.

To prove intentional infliction of emotional distress in court, a person must first show that he or she suffered severe emotional distress and that the distress was a result of the defendant’s intentional or reckless speech or conduct. Next comes the hard part: The plaintiff (the person suing) must show that the defendant’s actions were “outrageous.” The particulars vary from state to state, but the burden for proving outrageousness is always extremely high, especially in speech cases, because of the premium the Constitution places on free expression. According to the guidelines many states have followed in crafting their tort laws, conduct must be “beyond all possible bounds of decency” and “utterly intolerable in a civilized community” to qualify as legally outrageous and beyond the pale. It must be “so severe that no reasonable man can be expected to endure it.” “Mere insults” do not qualify.

Whether racial epithets alone can qualify as “outrageous” depends to some extent on the state in which you reside. Some state courts have granted money damages to people who were the victims of racist tirades; other state courts have declined to do so. In every jurisdiction, speech must be utterly extreme to qualify as outrageous, but it pays to know your state law, since claims of intentional infliction of emotional distress are more difficult to make in some jurisdictions than in others.

However, it also pays to know your federal First Amendment law, since the First Amendment imposes very severe limits on how restrictive a state’s “intentional infliction” law may be when dealing solely with offensive speech. The Supreme Court of the United States, in a famous lawsuit by the Reverend Jerry Falwell against Hustler Magazine and its publisher Larry Flynt, refused to apply the “intentional infliction of emotional distress” doctrine to even the most biting and insulting of parodies (Hustler v. Falwell). Such parodies, said the Court, are intended to inflict emotional distress on their targets, and the fact that they do so successfully is not a legitimate reason to suppress the speech. Because the parody cartoon of Falwell losing his virginity to his mother in an outhouse could not reasonably be understood as describing actual facts about him, it was fully protected by the First Amendment. (The Court’s decision in the case was unanimous.)

Time, place, and manner limits on speech

The government is allowed considerable discretion in what kind of time, place, and manner restriction it imposes, as long as the restriction is truly viewpoint neutral.

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Similarly, in 2011, the Supreme Court found that the Westboro Baptist Church’s protest of the funeral of a Marine killed in Iraq was protected by the First Amendment, despite the fact that the church’s speech was intentionally inflammatory and “may have been particularly hurtful” to the family of the fallen soldier. Signs carried by church protestors read, among other things, “Thank God for Dead Soldiers” and “You’re Going to Hell.” In Snyder v. Phelps, the Court found in an 8-1  — and citing its ruling in Hustler — that the First Amendment “can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress.” Because the church’s protest was in a public place and involved “broad issues of interest to society at large, rather than matters of ‘purely private concern,’” the Court found that the prospect of tort liability for the church’s speech was “unacceptable” and that the speech at issue was protected.

What this means is that even the most painful speech, if it has a socially useful purpose, is constitutionally protected. Hustler’s vicious barbs against Reverend Falwell were deemed permissible criticism of a public figure, and Snyder’s signs qualified as commentary on a “matter of public concern.” Speech classified as “intentional infliction of emotional distress,” therefore, has to be in some sense gratuitous and serving no valid social or communicative purpose. Anyone interested in better understanding the line between protected and unprotected hurtful speech would do well to read the Hustler and Snyder opinions. In each case, the Court concluded that speech aimed at communicating disdain and even hatred is constitutionally protected precisely because it communicates information and ideas. For speech at the heart of the First Amendment’s protection — criticism of public figures and discussion of matters of public concern — its “outrageousness” is often part of its message, and therefore cannot be the basis for tort liability. 

To learn more about your rights, explore �鶹��ýIOS’s Guide to Free Speech on Campus.