A recent wrongful discharge First Circuit decision, Soto-Lebron v. Federal Express,
http://www.ca1.uscourts.gov/pdf.opinions/06-2501-01A.pdf, provides further fodder for my neverending meditation on the relationship between causes of action and, when, for example, a plaintiff cannot circuvent the requirements of cause of action #1 by trying to shoehorn his allegations into a different cause of action.
This time the two causes of action are defamation and intentional infliction of emotional distress. I discussed this general topic in my June 16 entry, reviewing the First Circuit’s decision in our Fiacco case. In Soto-Lebron, the Court of Appeals noted that a plaintiff cannot re-plead defamation as intentional infliction of emotional distress because that "would divorce it from the well developed law of defamation with its attendant privileges and defenses." Do you see a parallel with trying to circumvent the well developed law of e.g. product liability, by asserting a nuisance or negligence claim? While obviously there’s no First Amendment concern when speech is not at issue, the general disapproval of trying to circumvent established law seems applicable.
In Fiacco, we argued that truth is a defense to a claim based on speech, whether the plaintiff calls that claim defamation or intentional infliction of emotional distress. While it’s clear that this is the case when the plaintiff is a public figure, the law is not as established on this point when malice need not be proven. The Court in Fiacco didn’t have to rule on this defense, because it found that the plaintiff was a public figure.
In Soto-Lebron, the plaintiff was wrongfully terminated, and in the course of the discharge, the defendants wrote false things about him. The First Circuit, as noted, rejected the distress claim (affirming a libel finding) on the basis that when the complaint is about the speech, the claim needs to be analyzed under defamation law. The Court then distinguishes a case in which other things were going on, independent of the speech (threats, physical intimidation, blocking exits, pushing).
The Court’s reasoning affirms the point in my June 16 entry – if the complaint is about the speech itself, it should be reviewed under defamation law, whatever name the plaintiff wants to give to the cause of action, and the defenses to such a claim should apply. If the allegation is about something else – perhaps associated with the speech, but not the speech itself, e.g. physical acts, then it might make sense to analyze the claim relating to those other acts under existing distress law.
A final interesting point discussed in the Soto-Lebron case goes to damages. The Court holds that $1.8 million is grossly excessive for libel damages when the only harm was distress from the speech (as opposed to any economic harm connected to that speech). Without saying what amount would not be excessive, it goes into some detail about the existing case law and sends the matter back for a new trial on damages.