holding that because Texas has no cause of action for negligent infliction of emotional distress, the trial court improperly entered a permanent in *72 junction enjoining residential picketing
How later courts described this case
- holding that because Texas has no cause of action for negligent infliction of emotional distress, the trial court improperly entered a permanent in *72 junction enjoining residential picketing
- finding permanent injunction against selected residential picketing by anti-abortion protestors improper because court had made no determination of legal liability
- defining elements of claim to include “(1) an intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person”
- holding that no action for negligent infliction of emotional distress exists in Texas
Written by the judges who cited it.
The opinion
GAMMAGE, Justice,
dissenting.
I join in Justice Spector’s dissent, but write separately because I differ with her opinion in regard to the Aquinos’ right to damages. I would recognize the Aquinos’ right to recover for the outrageous conduct directed toward them.
Justice Spector notes, as did the court of appeals, that the demonstrators are a group who zealously voice their views. 800 S.W.2d at 303. At trial, the demonstrators asserted their objective in picketing the Aquino home was to intimidate Dr. Aquino. The demonstrators picketed Dr. Aqui-nos’ home only at times when they knew he personally would not be there. The timing of their picketing was directed to another purpose they stated — to disrupt the Aqui-nos’ family life.
DAMAGES
Article I, § 8 of the Texas Constitution provides that “[ejvery person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege_” Tex. *520 Const, art. I, § 8 (emphasis added). This provision does not permit recovery of damages for protected speech. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 , 108 S.Ct. 876 , 99 L.Ed.2d 41 (1988). But if damages arise from independent conduct unrelated to protected speech, recovery may be allowed. See United States v. O’Brien, 391 U.S. 367, 381-82 , 88 S.Ct. 1673, 1681-82 , 20 L.Ed.2d 672 (1968) (affirming defendant’s criminal conviction for burning draft card because he was convicted for the “noncommunicative impact” of his conduct); James v. Brown, 637 S.W.2d 914, 917 (Tex.1982) (recognizing that unavailability of defamation action did not preclude separate and independent negligence claim).
In other words, liability under Article I, § 8 may arise only where the conduct is so excessive and intrusive that it does not deserve constitutional protection. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989) (regarding ability to bring defamation action when speech loses protection under art. I, § 8). Where unprotected conduct is intertwined with protected expression and a claim for damages arises from the unprotected conduct, liability may arise. See James v. Brown, 637 S.W.2d at 917 . Much of the demonstrators’ conduct cannot be considered integral to their ability to deliver their message. Indeed, the record reveals that some of their conduct 1 involved not just “mere advocacy, but ... [also included] ... overt act[s] of intimidation” unrelated to protected expression. See United States v. Lee, 935 F.2d 952, 956 (8th Cir.1991). The presence of such conduct tends heavily to support the jury's finding that the demonstrators caused the Aquinos mental anguish. To award damages as a consequence of unprotected collateral conduct does not chill free expression, and recovery should be allowed in this case.
When the exercise of their free speech rights to picket Dr. Aquino’s clinic did not achieve their objective, petitioners went beyond protected expression. They intentionally engaged in conduct calculated to intimidate and harm Dr. Aquino and his family through outrageous actions at his private residence. What they could not win through the persuasion of protected free speech they sought to win through intimidation 2 and coercion. The evidence presented to the jury is adequate to support the trial court’s damages finding on this ground. 3 In addition to injunctive relief, I would allow the Aquinos their damages for the intentional intimidation by petitioners.
. See factual discussion above, as well as Justice Spector’s recitation of the undisputed facts of petitioners’ conduct intended to intimidate the Aquino family. 853 S.W.2d at 521.
. Petitioners apparently took to heart the message, if not the tactics, of Robert Ringer, Winning Through Intimidation (1974).
.Whether evidence of actual malice relating to protected expression is sufficiently clear and convincing to cross the constitutional barrier is a question of law for this court’s independent review. Doubleday & Co. v. Rogers, 674 S.W.2d 751, 755 (Tex.1984).