Speech has the potential to cause devastating emotional injury. Yet it has been less than a century since intentional infliction of emotional distress—a tort designed to punish a person who, through outrageous conduct or speech, intentionally causes severe distress to another—has entered the scene. When the tortfeasor acts through speech alone, the First Amendment is inevitably implicated. In 2011, the Supreme Court took its most recent stance on the constitutionality of punishing distressing speech when it decided Snyder v. Phelps. Despite the reprehensibility of the speech involved, the Court properly immunized the speech from tort liability for emotional distress. The Court has already suggested that IIED actions face a constitutional bar for public figures and for private figures embroiled in a matter of public concern. This Note picks up the IIED doctrine where Snyder left off and argues that the First Amendment should bar most IIED actions even against a private figure where the speech relates to a matter of private concern. This result flows from the difficulty in distinguishing between public and private matters, the danger of silencing unpopular speech, and the positive value that injurious speech can have.
