Jennifer Taub
+ Your AuthorsArchive @jentaub Law Professor and author of the new book BIG DIRTY MONEY (Viking 2020). Penguin paperback edition comes out September 28, 2021. Feb. 04, 2019 3 min read

NEW: I just attended oral argument for the appeal brought by Seth Rich’s parents against Fox News


The Riches sued Fox for intentional inflection of emotional distress. This case is related to a conspiracy theory broadcast by Fox News that in 2016 Seth, a DNC staffer, had leaked DNC emails to WikiLeaks prior to being shot and killed.


In August, the federal trial court dismissed the case, and the parents are appealing that dismissal. As the Washington Post explains here, "The May 2017 story stated, falsely, that investigators had evidence showing Rich leaked thousands of DNC emails to WikiLeaks"


"The lawsuit describes months of strategic planning among [Fox News reporter Malia] Zimmerman, [Ed] Butowsky and [Fox News contributor Rod] Wheeler to convince the Riches that evidence linked Seth Rich to the DNC leaks." . 


At oral argument today, Judge Calabresi told Rich's counsel Arun Subramanian "You have to convince us that this is outrageous to the parents. .not to the son. The defamation case died with the son." Also that the propensity for parents' vulnerability and defendants' awareness


Judge Calabresi suggested that the outrageous conduct here involved interfering with the parents' investigation including by planting a person from Fox News (Wheeler) to pretend he was working solely for them


Attorney Subramanian contended that at pleading stage (before discovery) the Rich family does not need to provide evidence of the parents' propensity for vulnerability (for emotional distress) and does not need to provide evidence of Fox News' awareness of their vulnerability


He also asserted that this was "not just a dressed-up defamation claim."


Judge Christopher Droney asked attorney Subramanian whether there was any allegation that Fox News was aware that Zimmerman and Wheeler would act inappropriately before they did so


Attorney Subramanian responded that there was evidence that Fox knew that both Wheeler and Zimmerman should be watched carefully


Attorney Terry for Fox News began by stating that it was unprecedented for a family to seek recovery for the defamation suit against a deceased relative.


Judge Calabresi interrupted and said that if Seth Rich were in a coma, then couldn't a defamation suit brought by Seth proceed regardless of first amendment claims. And then also, couldn't this separate cause of action be brought by parents?


Judge Calabresi added that the only question then would be whether New York recognizes this separate cause of action -- whether there was "outrageous conduct" by Fox with respect to the parents


Attorney Terry says New York Court of Appeals has rejected claims for intentional infliction of emotional distress with more outrageous facts (Note that NY CT App is the highest court in the state of New York and though this case is in federal court, New York law applies)


Judge Droney asked about the contract that Zimmerman orchestrated with Wheeler, asking wasn't that directed at the parents?


Judge Calabresi suggested that what was outrageous conduct was the parents having Fox News saying that the person we thought was "our guy [Wheeler] . . came out with teh conclusion that our son was a traitor."


Calabresi added, "Why isn't THAT the question You are using us to say our child is a traitor."


Further, when counsel for Fox News argued that the case could not move forward because the parents were hurt due to defamation, a claim that is dead now, he said, "Isn't what made them destraught a question of damages?" In other words, post trial on the merits


Attorney Terry returned to the main argument he is making on behalf of Fox News "a defamation claim cannot be restyle as an intentional infliction of emotional distress case." He also said, that the conduct should not be recognized as outrageous as a matter of law


Terry said that NY courts have dismissed intentional infliction of emotional distress cases e.g where reporters told rape victims their names would not be published then publishing them. He said that wasn't treated as outrageous conduct, so this should not


Terry added that Seth's parent must also prove that Fox's conduct was INTENDED to cause them harm


Judge Calabresi said that in order to prove intent, "wrecklessness" would suffice. He also suggested that perhaps given this "odd situation" the 2nd circuit could certify to the NY Court of Appeals this question of whether these facts amounted to "outrageous conduct."


You can follow @jentaub.


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