Rich Family Sues Fox Over “Sham Story”

150px-Foxnewslogo.svgThe family of the late Democratic National Committee Staffer Seth Rich has sued Fox News for intentional infliction of emotional distress and related torts in the airing of allegations of a conspiracy involving Rich and Wikileaks.  Despite my great sympathy for this family in the loss of Seth Rich, the complaint (below) is in my view without serious merit.  The causal connections are too attenuated and liability would undermine first amendment protections for the free press.

Rich was shot and killed in July 2016 while walking in Georgetown.  He was shot in the back several times and died hours later in a hospital.  Police saw the crime as a likely mugging, but critics immediately latched on the fact that the 27-year-old staffer had access to key information at the DNC and might have had a role in the Wikileaks material released during the election.

The family denounces the reporting as a “sham story” advanced by Fox News Investigative Reporter Malia Zimmerman and Fox News Commenter Ed Butowsky.  While claiming intentional infliction of emotional distress, it reads more like a defamation action on behalf of the deceased.  I have long advocated the statutory elimination of the torts doctrine barring defamation actions on the part of the deceased. The rule that “you can’t defame the dead” often protects outrageous lies written about famous deceased persons as detailed in this prior column.  However, it remains the common law and the parents could not file such an action even if the filing was within the statute of limitations (which it is not).

Torts doctrine has occasionally been limited to offer breathing space for constitutional rights like the freedom of speech and free press. Defamation is a good example where the New York Times v. Sullivan opinion imposed a higher burden on public figures and public officials in seeking recovery for defamation.  The intentional infliction of emotional distress has also been curtailed out of the same concerns.

The Supreme Court ruled 8-1 in favor of the Westboro Baptist Church in a case in 2011. Westboro is infamous for its deranged, homophobic protests at funerals of fallen U.S. troops. The father of a fallen Marine sued the small church under claims of harassment and an intentional infliction of emotional distress. I have previously written that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column.

The Court held that the distasteful message cannot influence the message: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Chief Justice John Roberts added

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

The same logic could apply here.  Rich himself could well have sued if he were alive for defamation. However, the family is likely too removed to maintain this type of claim (even if one were to dismiss the first amendment concerns).  Likewise, the complaint contains an interference of contract claim that seems utterly meritless.  In the end, success on these claims would require major extensions of not just the underlying torts but concepts of factual and legal causation.

 

Here is the filing: Rich Complaint

85 thoughts on “Rich Family Sues Fox Over “Sham Story”

      • Jill, I watched Holly Seeliger and Niko House’s joint show – that’s how I found out about Clevenger’s FOIA lawsuit. Very interesting – Seth Rich stuff comes up around 2:27

            • Anybody can file a law suit. Political conservatives, with the bottomless pit of money from the richest 0.1%, have a particular penchant for politically motivated suits. America First Media is as credible as the unbiased Zero Hedge, Hannity, Fox and Judicial Watch (sarcasm).

              • Linda – Judicial Watch has some 35 active FOIA suits filed and they are hoping the change in Sec. of State will speed up the release of the Hillary emails (at the current pace they won’t get them all until the end of 2018). They have a couple of suits against the current administration. One against Mueller.

  1. @lizlaw, March 15, 2018 at 3:23 PM

    “Why don’t you tell us what ‘sites’ you found this on. Doctors are forbidden from revealing information like this, which is a violation of federal law, HIPPA. I can’t believe any fourth year surgical resident would be so stupid to jeopardize his career like this. So I call BS.”

    I provided one site in my post, and to see several others, just use your search engine to find the many sites discussing the “surgical resident who operated on Seth Rich.”

    So far as HIPPA is concerned, there are provisions permitting the disclosure of a decedent’s health history:

    Permitted Uses and Disclosures

    “Permitted Uses and Disclosures. A covered entity is permitted, but not required, to use and disclose protected health information, without an individual’s authorization, for the following purposes or situations: (1) To the Individual (unless required for access or accounting of disclosures); (2) Treatment, Payment, and Health Care Operations; (3) Opportunity to Agree or Object; (4) Incident to an otherwise permitted use and disclosure; (5) Public Interest and Benefit Activities; and (6) Limited Data Set for the purposes of research, public health or health care operations.18 Covered entities may rely on professional ethics and best judgments in deciding which of these permissive uses and disclosures to make.”

    https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html

    If Rich was, as more than one line of evidence suggest, the leaker to Wikileaks of the DNC emails, then his being at physical risk for being discovered as such is by no means beyond the pale.

    • Podesto gave the leakers his password (unintentionally). Why would anyone murder, even a speculated, bit player when it is apparently easy to get passwords and to hack? The DNC wasn’t warned about Seth Rich, it was warned about Russian hackers. And, the DNC dropped the ball.

  2. I agree that there needs to be a higher standard whenever we are talking about issues that are directly manifest in the Constitution. I also contend that the intentional infliction of emotional distress should not be allowed as a main claim, but only as a secondary claim. To allow it as a primary claim would allow for suits only on the grounds of the distress caused. However, just saying something that might be disagreeable does not rise to the level of intentional, since it is a different issue entirely.

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