Seth Rich lawsuit against Fox News stands on unusual legal ground

Mary Rich and her husband, Joel Rich talk about the loss of their son in their home in Omaha, Nebraska, on January 11, 2017. (Photo by Matt Miller for The Washington Post via Getty Images)

The parents of Seth Rich, the Democratic National Committee staffer murdered in 2016, filed a lawsuit last week against Fox News. Their complaint alleges that the network conspired with Fox reporter Malia Zimmerman and guest commentator Ed Butowsky, also named as defendants, to push a “sham story” about Rich that ultimately traumatized his parents.

Jill Abramson wrote Tuesday that the suit is more important than Stormy Daniels’ legal effort to terminate her non-disclosure agreement, and media critic Erik Wemple ranked the “fraudulent story on Seth Rich” and its journey to the Fox News website “among the most baroque and shameful episodes in modern media history.” Yet the lawsuit is not a sure winner for the parents; it evokes emotional distress, historically a hard claim to win against the media.

ICYMI: A newspaper’s column about the term “racist” shocked readers

Some necessary background: Rich was fatally shot in his Washington, DC, neighborhood in the early hours of July 10, 2016. Since then, police have not identified any suspects or motives, beyond the possibility that Rich was killed during an attempted robbery. Right-wing groups began floating the conspiracy theory that Rich was the source of the DNC emails that WikiLeaks released, day by day, in the final stretch of the presidential campaign, to Donald Trump’s apparent advantage. The theory held that Rich had been killed in retaliation for leaking the emails.

Egged on by Butowsky, Zimmerman effectively laundered that theory through a wholly deficient story published on May 16, 2017, on Fox News’s website. As the story fell apart over the course of a few days, Fox hosts Sean Hannity, Steve Doocy, and Lou Dobbs—all seemingly immune to reason and professional responsibility—dished on the story on their programs. So did Fox contributor Newt Gingrich, as a guest on Fox Friends. Hannity tweeted about the story. Elsewhere, Rush Limbaugh and Alex Jones raged into the abyss about it.

A week later, Fox retracted the story, stating, “The article was not initially subjected to the high degree of editorial scrutiny we require for all our reporting. Upon appropriate review, the article was found not to meet those standards and has since been removed.” The same day, Rich’s parents, Mary and Joel, published a Washington Post op-ed in which they pleaded with “conservative news outlets and commentators” to stop politicizing their son’s death.

Now they are suing.

The complaint includes four causes of action against all defendants: intentional infliction of emotional distress; aiding and abetting intentional infliction of emotional distress; conspiracy to commit intentional infliction of emotional distress; and tortious interference with contract. The complaint also includes one cause of action against Fox News alone: negligent supervision and/or retention. Libel is not an available route because the news coverage focused on Rich, and death wipes out libel claims, so relatives can’t bring them.

(Notably, the network is already fighting a related lawsuit, filed in August by a private detective and former Fox News contributor who investigated Rich’s murder for Mary and Joel. He claims that Fox fabricated quotes attributed to him in the retracted story, in an effort to smear Seth. Mary and Joel claim in their suit that Butowsky convinced them to hire the detective to investigate their son’s murder, with the ulterior motive of advancing the smear campaign around Seth.)

Let’s focus on the primary legal theory: intentional infliction of emotional distress (IIED). It allows a plaintiff to sue where another’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

To that end, the complaint argues that Fox, Zimmerman, and Butowsky “intentionally exploited” Seth’s murder “through lies, misrepresentations, and half-truths—with disregard for the obvious harm that their actions would cause Joel and Mary.” The stated harm includes the inability of Seth’s parents to “com[e] to terms with his murder because they were repeatedly forced to relive it”; “symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder … and [of] obsessive compulsive behavior”; “feelings of anxiety…triggered by…stories in the media and by their feeling that they never know what is going to come next”; and, for Mary, “symptoms consistent with Social Anxiety Disorder.”

ICYMI: NewYork Times columnist in hot water 

Generally, courts are reluctant to recognize media liability for emotional distress. Often, the intangible nature of the harm is not persuasive, while the First Amendment values at play are. For example, an IIED claim failed where a plaintiff sued a news outlet that disclosed the graphic details of a loved one’s death in the emergency room. And in the most famous case in this area, Hustler Magazine, Inc. v. Falwell, the US Supreme Court considered claims, one of them IIED, brought against Hustler by the Reverend Jerry Falwell, who sued because of a parody ad that portrayed him as a drunkard who had sex with his mother in a fly-infested outhouse. The court, observing that the parody was gross and offensive, cited the First Amendment to reject Falwell’s IIED claim.

Generally, courts are reluctant to recognize media liability for emotional distress.

Historically, too, courts have been suspicious of efforts by public officials and figures to evade constitutional protections for expression by recasting libel claims as other torts, such as IIED. Public officials and figures used to think of IIED as an attractive alternative to libel, because for years in IIED cases they did not have to prove the kind of fault that such libel plaintiffs did (i.e., actual malice). That made it easier for public officials/figures to win IIED claims. But that changed with Hustler, which extended the actual malice standard to IIED.

That said, courts are most likely to recognize media liability in IIED cases involving plaintiffs who are private people subjected to extraordinarily aggressive or invasive reporting practices. For example, an Orlando television station settled an IIED case after a Florida court refused to dismiss a suit over the station’s decision to broadcast images of a girl’s skull. WESH-TV had aired a close shot of a police officer lifting a skull—that of the plaintiff’s daughter, who had been abducted three years earlier—from a box. The broadcast began with a story about the memorial services held that day for the girl; her parents, not warned of the skull footage, watched in horror. In another case, CBS settled after it broadcast a video of a woman’s conversation with an intervention specialist at a woman’s home following an alleged attack by her husband. She said the CBS camera crew members misrepresented themselves, claiming to be a crew from the district attorney’s office.

Mary and Joel Rich seem to have as strong an IIED case as any, based on the coverage they were subjected to, the harm they suffered, and the overwhelming likelihood that they would be treated as private people and not public figures. But the inconsistency of the decisions in this area, and the general reluctance of courts to recognize media liability for emotional distress, makes the suit’s success less than assured. Ultimately, this would be a great libel case, but may or may not work as an IIED one.

RELATED: “I spent 45 minutes on the phone with Megyn Kelly asking her to not run that show”

Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.