The Survival of “End-Run” Theories of Tort Liability after Hustler v. Falwell

Abstract

The Supreme Court's decision striking down a verdict for the Rev. Jerry Falwell in an intentional infliction of emotional distress suit against Hustler Magazine was widely praised as a major victory for freedom of expression. Careful examination of the decision and subsequent cases in the lower courts, however, reveals that the Hustler decision is unclear and limited. It has not dealt decisively with plaintiffs' use of alternative theories of liability to avoid otherwise insurmountable First Amendment barriers to actions for libel or invasion of privacy. The lower courts have done a more effective job of resolving the issue without Hustler.