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22. What is the best argument that the photographer can make in support of a motion for summary judgment?
When the picture appeared in the press, the prisoner suffered severe emotional distress because he believed that his business associates and friends would think he was consorting with gangsters. The prisoner suffered no physical harm as the result of his emotional distress. The prisoner brought an action against the photographer for intentional and reckless infliction of emotional distress.
The warden of a state prison prohibits the photographing of the face of any prisoner without the prisoner's consent. A news photographer wanted to photograph a notorious mobster incarcerated at the state prison. To circumvent the warden's prohibition, the photographer flew over the prison exercise yard and photographed the mobster. A prisoner, who was imprisoned for a technical violation of a regulatory statute, happened to be standing next to the mobster when the photograph was taken.
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A is incorrect. The photographer clearly pointed his lens to take a picture, knowing to a substantial certainty that the mobster and his companions would be photographed as a result.
B is incorrect. Severe emotional distress can be evidenced physically, but physical harm is not required.
C is incorrect. The issue of a reporter's privilege to photograph is a disputed material fact which gives rise to a question for the jury.