The 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.