Author: Cristina Tilley

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Outrage and community

A recent episode of Keeping up with the Kardashians (stick with me for a minute) sparked an interesting conversation last month about the intentional infliction of emotional distress tort.  As all first-year students learn — to much snickering — the Restatement’s test for whether a defendant’s actions are intolerable in a civilized society is whether an average member of the community learning of the challenged behavior would exclaim “that’s outrageous!”  Perhaps because of the stilted formulation, IIED is the Rodney Dangerfield of the torts world.  This may explain why the Supreme Court has been so willing to strike jury IIED verdicts that are later alleged to impair speech rights.  Two years ago, in Snyder v. Phelps, the Court observed that the “outrageous” standard is “highly malleable” and “inherent[ly] subjective.”  For that reason, the Court suggested that jury decisions about outrageous speech may be constitutionally suspect.

But is the standard as malleable as the Court suggested?  If you listen carefully, you will often hear the precise words of the Restatement — “that’s outrageous” — voiced in spontaneous response to stigmatized behavior.  Let’s return to the Kardashians. The youngest of the crew, Kylie and Kendall, were recently featured taking cell phone video of their mother using the ladies’ room.  Feeling that the world at large should join in the hilarity, the girls then posted the video to their blog for all to see.  Mother Kris claimed to be furious and embarrassed (but not too furious or embarrassed to cut the footage from the television show that eventually aired).  Told about the episode over lunch, a law professor colleague frowned and exclaimed . . . “that’s outrageous!”  When an Australian radio DJ convinced a nurse attending to the hospitalized Kate Middleton last year that she was the Queen and broadcast the ensuing conversation, the nurse committed suicide.  The New York Times immediately dubbed the prank “outrageous.”  When an obstetrician proud of his work on a Caesarean section carved his initials into a patient’s abdomen, the hospital that had employed him called the act “outrageous.”  And so on. Read More

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Pressing a point

 

Prentice Women’s Hospital is a landmark for me.  Owned by Northwestern University, it stands directly across from the Northwestern Law complex, meaning that I passed it virtually every day as a law student and more recently as a VAP here at the school.  So I’m keenly interested in the University’s plan to tear down the concrete, clover leaf-shaped structure and replace it with a state-of-the-art research facility.  The debate over its fate also illustrated a trend towards advocacy in the mainstream media that raises some interesting legal questions.

Prentice_Women's_Hospital_Chicago

The building is one of the foremost examples of late-Modernist architecture in the city, and activists pressed the Chicago Commission on Landmarks to give the building landmark status, thus preserving it from demolition. When, in the midst of the preservation effort last year, local alderman Brendan Reilly said he was “open to suggestions” to save the building, New York Times architecture critic Michael Kimmelman stepped in.  Kimmelman did not merely detail the architectural relevance of the building or express his support for preservation.  Instead, he asked Chicago architecture’s It Girl, Jeanne Gang, whether it would be possible to build a research tower on top of the existing structure.  She responded with drawings of a 31-story skyscraper perched on top of the clover leaf.  Kimmelman wrote about Gang’s idea, running pictures of her concept in the paper.  Again, though, he didn’t stop there.  He contacted a field officer for the Chicago office of the National  Trust for Historic Preservation, and asked whether her organization would support the idea.  He contacted Northwestern to ask whether the university might sign on.  And he called the president of an international structural engineering firm to get feedback on the structural and financial feasibility of the plan.  Somewhere along the way, Kimmelman stopped looking like a reporter, or even a critic, and started looking more like one of the activists trying to save the building.

Putting aside the admirable intentions that obviously drove Kimmelman, his efforts illustrate the increasingly porous boundary between reporting and advocacy, even in the mainstream media.  Of course, partisanship and muckraking in journalism are not new.  But as journalism migrates onto our phones and screens alongside Instagram and Facebook, and as “dying” newspapers and network news broadcasts venture beyond traditional reporting techniques to chase eyeballs and engagement, it grows increasingly difficult to categorize what exactly we are consuming when we consume the news.  Why do these questions, obvious fodder for media ethicists, matter to lawyers?  For two reasons, one specific and one general.

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Glass Houses

Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June.  A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use.  The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used.  It’s not clear, however, that the Glass experience will duplicate the Kodak pattern.  Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.

Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference.  There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye.  Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers.  “My world,” he wrote, “came screeching to a halt.”  In an article appearing a week later, however, Bilton appeared to have calmed down.  He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public.  Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s.  So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence.  Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.

But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today.  Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century.  The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers.  Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy.  That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors.  State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox.  In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.

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Divisible Defamation

When Congress passed the SPEECH Act two years ago, its primary goal was to protect speakers from hefty defamation verdicts rendered by libel havens, countries whose laws are less speech-protective than those in the United States.  The statute essentially prohibits U.S. courts from enforcing foreign defamation judgments unless the applicable law provides speech protections comparable to those in the U.S., or the same judgment would have resulted under U.S. law.  One recent case suggests that the SPEECH Act may inadvertently be splitting the defamation atom in two, allowing plaintiffs to rehabilitate their reputations while simultaneously shielding defendants from monetary loss.  This phenomenon may sound familiar to Conflicts aficionados, as it seems to replicate the creation of so-called divisible divorce in the 1940s.

A case now on appeal in the Fifth Circuit, involving New Orleans corruption, Canadian libel law, and the same-sex proprietors of a Nova Scotia fishing resort, illustrates what may become the norm when electronic speech spans national borders.

In a 2010 story about alleged political corruption in Jefferson Parish, Louisiana, the New Orleans Times-Picayune reported that a parish official co-owned a vacation resort in Nova Scotia.  The paper later retracted the statement and stopped hosting a blog that had also discussed the connection between the disgraced official and the Nova Scotia couple that ran the resort.  The blogger found a new host and continued to post allegations that the couple was laundering proceeds of the New Orleans corruption, along with embarrassing photoshopped images of the two and several homophobic slurs against them.  The couple sued the blogger in Canada for defamation (and several other torts).  The blogger did not appear, the allegations in the complaint were taken as true, and the court awarded the men $425,000.  The men sought to enforce the judgment in Mississippi state court, the case was removed to the local federal district court, and the court refused to enforce the judgment, citing the SPEECH Act.  The federal court concluded that its Canadian counterpart did not specifically find that the blogger’s statements were false, as required under U.S. law.  Therefore, the Canadian court provided less speech protection than a U.S. court would have, and the judgment could not be enforced.

The result may have been an unintentionally ideal compromise.  Together the U.S. and Canadian courts essentially credited the moral victory to the ostensibly defamed lodge owners and the financial victory to the blogger.  While this might not be a palatable outcome for most torts, there is some research suggesting that defamation plaintiffs, in particular, are as concerned with public acknowledgment that they have been falsely impugned as they are with collecting money.  In fact, the Nova Scotia plaintiffs were reported to have said “this was never about the money,” echoing Frederick Pollock’s famous observation that “the law went wrong from the start in making the damage and not the insult the cause of the action.”  Further, while speech has grown increasingly global, libel law remains stubbornly divided between defendant-protective doctrines in the U.S. and more plaintiff-friendly doctrines elsewhere.  So it may be time for a mechanism that strikes something of a balance.

In fact, it is not uncommon that recognition and enforcement principles are deployed to accommodate cultural or generational divides reflected in conflicting laws.  In the 1940s, the Supreme Court held in a series of cases that states had to recognize quickie divorces awarded by sister states that had welcomed fleeing spouses, even when the absent spouse was clinging to the marriage.  Several years later, however, the Court held that while sister states had to honor adjudications of marital status, they did not have to honor out-of-state judgments purporting to dictate the financial status of the absent spouse.  Thus was born the “divisible divorce,” with one state handling the status adjudication and another handling the financial adjudication.  Perhaps the SPEECH Act has established divisible defamation for the age of global speech.