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April 01, 2013

Tort Transformation in the Cultural Quicksand of Language and Values

The history of the tort of intentional infliction of emotional distress.

Clay Calvert

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Call it a trifecta for trouble: a tort sprung by practical jokers, born of verbal bullies, and fashioned by ivory tower academics in the pages, no less, of elite law journals. With that twisted lineage, is it any wonder that intentional infliction of emotional distress (IIED) has been derisively dubbed—albeit largely accurately so—a trash tort and parasitic?

IIED is often considered a theory merely to be pled alongside something else: either a more established, traditional cause of action such as libel, or a claim grounded in tangible, physical injuries. IIED also might be appended parasitically to a statutory claim—for example, a debtor suing an overly aggressive creditor under an abusive debt-collection practices statute might toss in an emotional distress claim. In brief, IIED seems somewhat akin to a legal garnish, that tiny sprig of parsley filling space near the edge of a hamburger-and-fries platter.

It is enough to make one want to run to the nearest window, throw it open, and scream—in somewhat mad-as-hell, Network-like fashion—“Outrageous!” Although promotional posters for that 1976 film, written by Paddy Chayefsky, called it “a perfectly outrageous motion picture,” it’s no joke that courts across the country today use an “outrageousness” assessment to determine IIED liability. Borrowing from a comment in the Restatement (Second) of Torts, they have determined that the gold standard for establishing IIED liability is this maddeningly subjective test: whether “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim ‘Outrageous!’” (E.g., Lopez v. Target Corp., 676 F.3d 1230 (11th Cir. 2012)).

The Tort of Outrage

If ever there was a tort in need of transformation, at least when it comes to injuries spawned by hurtful speech that violates society’s ever-shifting and hard-to-grasp senses of decency and outrage, it is IIED or, as it is known in Florida, the tort of outrage. The responsibility for that transformation has been left mainly in the capable hands of the justices of the U.S. Supreme Court. And for 25 years they have tackled that task, bookended by the free-speech-friendly decisions in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and Snyder v. Phelps, 131 S. Ct. 1207 (2011).

For plaintiffs’ attorneys going up against media defendants or groups engaged in the offensive-speech business, IIED can be one of those “let’s throw it up on the wall, maybe it will stick” kind of torts. But when IIED does indeed happen to stick at trial, as it did in both Falwell and Snyder, it is left to appellate courts—and sometimes the Supreme Court—to sweep up the mess and strike a balance between the First Amendment interest in free expression and compensation under state tort doctrines.

In those two high-profile cases, the nation’s high court substantially confined the scope of the IIED tort, at least in cases in which the speech at issue involves a public figure (Falwell) or matters of public concern (Snyder). What constitutes a matter of public concern is not easy to fathom—such as trying to define “news” in an infotainment-saturated society—but it nonetheless triggers the heightened First Amendment scrutiny that keeps IIED claims somewhat in check.

The ability to communicate instantaneously at a time when standards of decency are evolving so quickly makes the issue even more complex. Insults are hurled at the speed of a tweet, but public pushback demands some legal limitations on expression. As a result, speech-based IIED claims are mired in a cultural quicksand of a coarsening verbal terrain.

Just recall the massive negative reaction Rush Limbaugh received last spring for his on-air “slut” remark about a Georgetown law student named Sandra Fluke. We expect insults from Limbaugh—that’s part of what makes him loved in some quarters and loathed in others—but some remarks apparently cross a fickle line. And the line is indeed fickle—moving up and down the verbal fighting field, never stationary and always ephemeral.

In some ways, then, IIED is like obscenity under the test fashioned by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). In both areas of the law, one does not know at the time one engages in speech whether the speech constitutes an offense. That determination comes only later, when a judge or jury employs speculative notions of community standards: for obscenity, local mores of what appeals to a prurient interest; for IIED, national standards of what breaches the boundaries of acceptable conduct in a civilized society.

Other common complaints about IIED include how to prove an injury such as mental distress and, in turn, how to determine the dollar value of such an injury in the absence of any physical harm. Furthermore, the tort may impose a chilling effect on protected speech interests. And trying to fathom just what is or is not extreme and outrageous speech-based behavior is a difficult challenge that often leads to inconsistent results.

Evolution of the Tort

So how did it get to this point? The evolution and transformation of the tort follows an interesting arc that can be traced from cases with, well, outrageous fact patterns, to law journal articles written by legal luminaries. In fact, none other than William L. Prosser wrote on the subject 21 years before the great tort classifier published his more famous 1960 “Privacy” article in the California Law Review. From these beginnings grew a four-pronged tort recognized today across the United States—featuring, thanks to Falwell and Snyder, a constitutional overlay that resembles the First Amendment gloss of actual malice added to defamation law in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

It was all just a practical joke, three of the defendants in Nickerson v. Hodges, 84 So. 37 (La. 1920), openly admitted. They had played it on Carrie E. Nickerson, a 40-something unmarried saleswoman who once was committed to an insane asylum. That’s a sympathetic plaintiff—and a recipe for legal disaster—if there ever was one.

Nickerson, it seems, had been told by a fortuneteller that a pot of gold was buried on a certain piece of property. After she unsuccessfully dug for it for several months, some of the defendants filled an old kettle with rocks and dirt, burying it near where Nickerson had been searching. They also placed a note, freshly backdated decades before, “directing whoever should find the pot not to open it for three days, and to notify all the heirs.” Eventually, with the aid of a relative of one of the practical jokers, Nickerson discovered the pot and diligently followed the instructions. By this time, many people were in on the gag, though she was not. When the pot was opened at a bank-held ceremony and its worthless contents revealed, Nickerson went into a rage and threw the lid of the pot at one of the defendants, believing she had been robbed.

In the resulting lawsuit, she sought $15,000 in damages for, among other things, mental suffering and humiliation. The Supreme Court of Louisiana felt her pain, writing that “the results were quite serious indeed, and the mental suffering and humiliation must have been quite unbearable, to say nothing of the disappointment and conviction, which she carried to her grave some two years later, that she had been robbed.” The court awarded Nickerson’s heirs $500, but it also emphasized that had she been alive, it might have granted her a significantly more substantial sum.

At the heart of Nickerson v. Hodges rests the notion that some speech is so uncivil, if not just downright mean, that its violation of a person’s emotional tranquility and peace of mind merits monetary compensation. This is especially true when the plaintiff—such as the former asylum resident, Carrie Nickerson—is particularly susceptible to mental distress.

Citing Nickerson and a string of other cases, including England’s more famous practical joke opinion, Wilkinson v. Downton, [1897] 2 Q.B. 57 (Eng.), Professor Calvert Magruder provided what was probably the first coherent articulation of what would become the IIED tort in a 1936 article called “Mental and Emotional Disturbance in the Law of Torts.” 49 Harv. L. Rev. 1033 (1936). Significantly, Magruder suggested that the tort did not necessarily depend on a demonstrable physical injury, thereby giving rise to the notion that emotional injuries need not be parasitic to tangible ones but could stand on their own as legally compensable interests:

[O]ne who, without just cause or excuse, and beyond all the bounds of decency, purposely causes a disturbance of another’s mental and emotional tranquillity [sic] of so acute a nature that harmful physical consequences might be not unlikely to result, is subject to liability in damages for such mental and emotional disturbance even though no demonstrable physical consequences actually ensue.

In articulating this nascent tort, Magruder recognized countervailing interests and dangers. For example, he wrote about opening the proverbial floodgates to lawsuits filed over what essentially were bad manners and about the difficulty of fixing a monetary value on mental anguish. But first and foremost for Magruder was a practical concern: in today’s terms, that society should not raise a bunch of wimps—or, at least, should not have the law safeguard their easily bruised souls. As Magruder put it, “a certain toughening of the mental hide is better protection than the law could ever be” against “the frictions and irritations and clashing of temperaments incident to participation in a community life.”

Just like an academic, you might say to yourself—propose something, point out the theoretical problems, and then leave it to attorneys and judges to sort it all out in practice. But the problem that troubled Magruder still animates and agitates the IIED tort today: Just how thick-skinned should we expect people to be? Just how much verbal abuse should we expect them to tolerate? Must we have what Tom Petty and the Heartbreakers aptly called “rhino skin” on the 1999 album Echo?

Context of Speech

In a 1938 opinion, just two years after publication of Magruder’s article, the Supreme Court of Mississippi weighed that balance and found in favor of a 14-year-old girl who apparently talked and giggled too much during the movies. She sued the theater after she was denied reentry on a later occasion and was told by the ticket taker that she had been “guilty of indecent and low-down conduct” and was “unfit and an improper character to enter the show.” Saenger Theatres Corp. v. Herndon, 178 So. 86, 87 (Miss. 1938). Finding for the plaintiff, who went to bed crying that night and had to be given sedatives to quiet her down, Mississippi’s high court focused not only on the words that injured her but also on the age and gender of the victim and the fact that the words were spoken by a grown man. In other words, the court found that context can be key for determining the outrageousness of the defendant’s speech, and that age, gender, and authority differences between the speaker and the plaintiff can be pivotal.

In some ways, not much has changed today regarding the relevance of age differences, power imbalances, or other special relationships (e.g., employer-employee or teacher-student), in finding IIED liability. More than 60 years after Herndon, for instance, a federal court declined to dismiss an IIED claim filed by a female high school sophomore against an adult male football coach who made sexually inappropriate comments and physical advances. The court remarked that “in light of the parties’ age and relative power, [the coach’s] actions were extreme and outrageous.” DiSalvo v. Lower Merion Sch. Dist., 158 F. Supp. 2d 553, 561 (E.D. Pa. 2001)). So speech-based IIED claims are about more than words: They are about who says the words, the manner in which the words are said, the individuals to whom they are directed, the reasons why they are said, and the impact they carry.

Former baseball slugger Dave Kingman, who was prone to strikeouts, was no fan of female sports writers, especially when they intruded into the all-male domain of the locker room to gather quotes. So while playing for the Oakland Athletics in 1986, Kingman put a live rat in a box and had it delivered to Sacramento Bee reporter Susan Fornoff during the first inning of a game she was covering. Kingman called it a practical joke. But could it also have been a viable IIED claim? The answer may lie in the rat jurisprudence of IIED law.

Back in 1931, Maryland’s highest court affirmed a judgment of $1,000 for Sophia Roch and against the owners of the grocery store where she shopped. Roch had ordered a loaf of bread, but the store manager put a dead rat in the delivery box—apparently he lacked Kingman’s manly moxie to make it a breathing one—and sent it to Roch’s home as a practical joke. Great Atl. & Pac. Tea Co. v. Roch, 153 A. 22 (Md. 1931). When she opened the box, Roch was so frightened and shocked that she fell. She suffered physical injuries, but she suffered emotional distress as well.

Eight years later, Professor William L. Prosser entered the scene, stage right. He cited Roch as an extreme example of a practical joke gone wrong, in an effort to get the courts to recognize “the intentional infliction of extreme mental suffering by outrageous conduct” as a stand-alone independent tort. William L. Prosser, “Intentional Infliction of Mental Suffering: A New Tort,” 37 Mich. L. Rev., 874, 892 (1939). But like Magruder before him, Prosser recognized that there should be limits. He noted that people must be expected to stomach a certain level of insults, and he wrote, colorfully, that “there is no occasion for the law to intervene with balm for wounded feelings in every case where a flood of billingsgate is loosed in an argument over a back fence.” [Etymological full disclosure: The author needed to look up the origin of “billingsgate” to learn that it refers to the type of vulgar, coarse, and offensive language commonly used by vendors at the Billingsgate Fish Market in London. He vows to use this SAT-like word some day in a barroom conversation.]

Prosser’s reference to a fence to illustrate his point actually helps illustrate the problem at the heart of IIED today. Like fences, much of the law is about establishing boundaries—about drawing those metaphorical lines that tort professors make law students wrestle with in first-year classes. But that line-drawing task is particularly difficult when it comes to distinguishing mere insults and indignities that are not actionable as IIED from extreme and outrageous speech for which a valid claim might lie. If Kevin Pollak’s character in A Few Good Men, Lt. Sam Weinberg, was correct when he said that a fence line is a big wall that separates the good guys from the bad guys, then outrageousness in IIED represents the most shoddy variety of fence line: Its porousness and permeability prevent predicting whether certain speech is actionable.

By 1988, when the Supreme Court began to transform and constitutionalize emotional-distress claims in Hustler Magazine v. Falwell, the tort’s four basic elements were fairly well established: (1) the defendant’s extreme and outrageous conduct; (2) the defendant’s intent to cause the plaintiff to suffer emotional distress, or at least the defendant’s reckless disregard of that result; (3) causation of harm; and (4) the plaintiff’s severe emotional distress.

The first element had come to mean conduct that exceeded the bounds of decency in a civilized society, as the Oregon Supreme Court put it in Patton v. J.C. Penney Co., 719 P.2d 854, 855 (Or. 1986), conduct at the “outer end of some gradation or scale of impropriety and social disapproval.” The more outrageous the conduct, the more genuine the claim for an intangible injury such as emotional distress was presumed to be. A high hurdle of outrageousness thus became a litmus test for the legitimacy of emotional-distress claims that were now untethered from physical injuries. Mere insults and indignities were not enough to cut it. In light of the Restatement (Second) of Torts and other later writings by Prosser, courts were looking for situations in which the defendants abused positions of power or knew that plaintiffs (such as the simpleminded Carrie Nickerson) were particularly susceptible to emotional distress.

The fourth element also was designed to ensure legitimacy, requiring the plaintiff to prove not just some distress, but severe distress. Once again based largely on comments from the Restatement, “severe” had come to mean distress so substantial and enduring that reasonable people in the position of the plaintiff could not be expected to tolerate it.

At the micro level, the tort was thus a legal mechanism designed to compensate individuals for their emotional distress; at the macro level, it was a tool for policing the rules of civility and punishing the bullies who violate them. The Supreme Court of Wisconsin explained it in Alsteen v. Gehl, 124 N.W.2d 312, 358 (Wis. 1963):

In recognizing this cause of action, we give legal support to the basic value commitment of our society and our legal system—respect for human personality. . . . By holding the bullying party liable, we simultaneously affirm the injured party’s value as a person, and express our moral disapproval of a person who treats others as mere things to be manipulated for his own ends.

Public Figures in Hustler v. Falwell

It seems almost natural that Larry Claxton Flynt—he of the eighth grade education and the multimillion dollar adult empire—would provide the factual fodder for reshaping the IIED tort in speech-based cases. After all, Flynt’s flagship magazine, Hustler, constantly tests and challenges the boundaries of decency, while the claim of IIED polices notions of civility and decent discourse. What’s more, Flynt revels in exposing hypocrisy; with his attempt to paint the Reverend Jerry Falwell as a hypocrite, he also exposed weaknesses in an academic-fashioned tort that was being used—increasingly and in rather cynical fashion—to make end runs around the strictures of libel and privacy law.

The facts of Hustler v. Falwell are well known, even if one has never read the case and has seen only Milos Forman’s The People vs. Larry Flynt. In November 1983, riffing off Campari’s double-entendre-laden ad campaign that featured celebrities such as Jill St. John describing their first time with the red aperitif, Hustler published a full page of text laid out just like a Campari ad. At the bottom, it was labeled “ad parody—not to be taken seriously.” The text consisted mainly of a mock interview with Jerry Falwell, the founder of Liberty University, a leader of the Moral Majority, and a growing political force in Republican politics. In the fictional interview, Falwell, all the while consuming Campari, vividly describes himself losing his virginity with his mother in an outhouse previously occupied by a goat.

Flynt then cuts to the hypocrisy theme of which he is so fond. When Falwell is asked whether he ever drank Campari after that, he is portrayed as stating, “I always get sloshed before I go to the pulpit. You don’t think I could lay down all that bullshit sober, do you?” Flynt apparently liked the Falwellian farce so much that he had his magazine run the ad parody for a second time in the March 1984 issue.

The late Norman Roy Grutman, an attorney who had successfully defended Penthouse against a Falwell-filed lawsuit, changed sides. On Falwell’s behalf, he sued Hustler in the Western District of Virginia, raising causes of action for invasion of privacy, libel, and IIED. The district court dismissed the privacy claim, and the jury rejected libel because no reasonable reader could take the ad parody seriously as a statement of fact. But Falwell prevailed on the IIED claim to the tune of $200,000 in combined compensatory and punitive damages.

The end run had worked; the parasitic theory thrown up on the wall had stuck. Flynt, working with Beverly Hills–based attorney Alan Isaacman, fought back. He lost in the Fourth Circuit, and his petition for rehearing en banc was denied. But the Supreme Court agreed to take the case and used it to transform IIED by adding a First Amendment layer of protection in cases filed by public figures and public officials over speech such as the ad parody in Falwell.

In a unanimous opinion, Chief Justice William Rehnquist addressed the problems posed by a standard that separates protected from unprotected speech based on whether the language used was “outrageous.” He noted that those problems are particularly troublesome when that speech affects public debate about public figures. “‘Outrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression,” Rehnquist reasoned. Then he added a sentence that seemed to undermine the entire rationale for IIED claims in speech-based cases, describing the Court’s “longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.” If IIED was going to be an exception to the longstanding rule not allowing recovery for intangible emotional injuries caused by expression, then Rehnquist was going to make darn sure that the exception was exceedingly narrow in cases involving public figures.

Borrowing from libel law and the Court’s decision 24 years earlier in New York Times Co. v. Sullivan, the Court held that public figures and public officials cannot recover for IIED based on speech unless, in addition to proving the four basic common-law elements, they also could surmount a constitutional hurdle—namely, actual malice. That means that a plaintiff must prove not only that a statement of fact was false but also that when the statement was published, the defendant either knew it was false or acted with reckless disregard for its veracity. Because the ad parody was not factual in nature—it even stated, for the parodically challenged, that it was not to be taken seriously—there was no way Jerry Falwell could prove actual malice. Like a flag-thrown NFL replay challenge, Grutman’s end run around libel law and actual malice for a trial court touchdown was reversed upon further review.

Without the high court’s ruling in Falwell, television programs from South Park to Saturday Night Live to The Daily Show—programs for which celebrities and politicians provide grist for the comedy mill—would not survive in their current iterations. Flynt himself is fond of making that very observation. More than once, I have heard him make it firsthand.

The big-picture, public-policy takeaway line from Falwell is one that Edward Norton, playing Alan Isaacman in The People vs. Larry Flynt, says while speaking to Woody Harrelson, playing his client: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.”

Significantly, that sentence says nothing about the status of the plaintiff, whether he or she is a private or public figure; it refers only to matters of public interest and concern. That distinction would prove pivotal more than two decades later when an eight-justice majority—only Justice Samuel Alito, Jr. dissented—turned back a massive IIED jury verdict in Snyder v. Phelps.

Private Figures in Snyder v. Phelps

The jury in Snyder had ruled for a private-figure father who was offended by anti-gay signs hoisted 1,000 feet away from his son’s funeral by members of the Westboro Baptist Church. Rather than address whether plaintiff Albert Snyder was a private or a public figure, Chief Justice John Roberts wrote for the majority that “[w]hether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case.” Many observers had thought the case might hinge more on the status of the plaintiff rather than the status of the speech. But only Justice Alito in dissent stressed that Albert Snyder was not a public figure.

And although the speech at issue was decidedly offensive—it was not only anti-gay but anti-military and anti-family as well—the majority found that it nonetheless touched on issues of public concern, such as gays in the military and sexual abuse by members of the clergy. Writing in the Summer 2011 issue of this journal, attorney Charles D. Tobin correctly characterizes Snyder as “the new high-water mark for protection of political expression.” Charles D. Tobin, Freedom of Speech, “Inglorious Bastards and Patriotic Americans,” Litigation, Vol. 37, No. 4 (Summer 2011), at 9.

The majority in Snyder took pains to emphasize that its narrow holding was confined to the facts before it, but the majority’s words cast doubt on the very viability of the IIED tort—at least in cases involving speech about matters of public concern:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a [n]ation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

The constitutional transformation of IIED has not, however, affected cases in which the speech addresses matters of purely private concern. Perhaps the tort’s remaining usefulness will involve cases brought by private-figure plaintiffs injured by words that have no political or social value.

Digital Speech

Online and digital media likely will provide the new and potentially transformative battlegrounds for the IIED tort, particularly when private individuals sue one another based on speech of non-public concern. For example, can a claim of IIED provide a remedy for minors who are mercilessly cyberbullied by other minors, perhaps by nonconsensual instances of so-called sexting?

Sexting is a provocative portmanteau that melds “sex” and “texting.” From a cultural standpoint, it represents a combustible combination of carnality and technology, one in which individuals use cell phones, smart phones, web cameras, and other modes of socially interactive technology to take and transmit sexually suggestive or explicit images of themselves or others. Here’s where IIED comes in: Consider what happens when a young couple—perhaps minors—breaks up and a spurned and angered boyfriend deliberately blasts out sexted images of his ex-girlfriend for all of his friends and her enemies to ogle. No one should be surprised when those recipients then pass them on to still others with the prospect of shame, embarrassment, and public ridicule growing exponentially larger for the ex-girlfriend with each retransmission.

This scenario, in fact, parallels that of an Ohio girl named Jessica Logan. In July 2008, Logan committed suicide at age 18 after allegedly being harassed by other students who traded Logan’s nude picture among themselves. Logan had taken the photo of herself and consensually texted it to her then-boyfriend. When they broke up, however, he allegedly sent it out to several girls, and it soon went viral. In May 2009, Logan’s parents filed a lawsuit in the Court of Common Pleas in Hamilton County, Ohio, on behalf of their late daughter (Logan v. Salyers, No. A0904647 (May 8, 2009)). Among other legal theories, Logan’s parents sued the ex-boyfriend and several girls for IIED that was allegedly carried out via texting and posts on Facebook and MySpace. All the student-defendants eventually settled with Logan’s parents (Logan v. Sycamore Cnty. Sch. Bd. of Educ., 780 F. Supp. 2d 594, 595 (S.D. Ohio 2011)).

Cases involving cyberbullying by adults targeting minors—think here of the MySpace-posted speech of adult Lori Drew targeting minor Megan Meier—seem more likely to prevail in court due to the age and power imbalances of the parties. Bullying—a vague term, just like outrageousness—always has existed on playgrounds; whether it rises to a tort in cyberspace will be left to courts to decide. Some courts have used the term “cyberbullying” in such cases but have resolved them on other grounds. E.g., D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Cal. Ct. App. 2010). Courts also are addressing the responsibilities of schools to prevent bullying as legislative bodies create anti-bullying laws. E.g., T.K. v. N.Y. City Dep’t of Educ., 779 F. Supp. 2d 289 (E.D.N.Y. 2011).

IIED is still a relatively new tort. The Supreme Court has transformed it—limited it—in light of constitutional concerns about free expression. And surely there is no paucity of practical jokers and verbal bullies in the United States today who will continue to push and challenge its boundaries.

Read a judge's response to this article.


Clay Calvert

The author is professor of mass communications and director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville.