Hustler Magazine v. Falwell and the Role of the First Amendment

Abstract

This Essay considers whether any legitimate free speech concerns raised by the tort of intentional infliction of emotional distress could be addressed by nonconstitutional restrictions on the tort or, at least, by constitutional restrictions less dramatic than those imposed in Hustler. If the tort of intentional infliction of emotional distress is to be "constitutionalized," then the most defensible approach is to immunize only those other- wise tortious speech-acts addressing a matter of public interest and concern, regardless of whether the plaintiff-victim is thought to be a public figure or not.