Schmidt, Sethi & Akmajian Blog

Torts/Constitutional Law—First Amendment Defense to Emotional Distress Claim

Posted by Ted A. Schmidt | Aug 26, 2015 | 0 Comments

Rodriquez v. Fox News, LLC, 718 Ariz. Adv. Rep. 14 (App. Div. I, August 4, 2015) (J. Johnsen)


This negligent and intentional infliction of emotional distress claim was brought on behalf of children who inadvertently watched a You Tube replay of a Fox News video of their father being pursued by police after a carjacking and ultimately shooting and killing himself.  The trial court's dismissal of the case was affirmed by the Arizona Court of Appeals based upon the First Amendment to the U.S. Constitution.

The court found that broadcasts of “public concern” have the highest protection against tort claims, whereas broadcasts of private matters require less protection.

Speech deals with matters of public concern when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," or when it "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public."

Courts should not serve as censors.  Here the newscast was of public concern. It was a live telecast of an ongoing police chase that was endangering the public as it took place.  The public has a high interest in police practices as well as a current and ongoing dangerous crime being committed in the community.  The telecast was during a news program and there  was no evidence that it was an attempt “to mask a personal attack or otherwise was "contrived to insulate speech on a private matter from liability.” The actual suicide at the end of the video cannot be separated from the overall telecast to render it a private matter unprotected by the First Amendment.

Lastly the court found that to require a news agency to cut away when a telecast of public concern becomes violent or graphic or to use a tape delay technique in order to accomplish this would but an unacceptable “chill” on the First Amendment protection.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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