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.
The Court noted in Snyder that what a particular community member or juror finds outrageous may depend on that person’s “tastes or views.” Maybe so. But the standard is what an average member of the community would find outrageous, and those results appear to hold somewhat steady over time. For instance, the fact patterns mentioned above fit neatly into the categories described by William Prosser when he was writing about the tort in the 1940s and 1950s : interference with corpses and death rituals, invasions of privacy, shocking or humiliating pranks, and offenses against women’s sexual autonomy. And these same categories seem to have been recognized even under Roman iniurial law. So broadly speaking, the “outrageousness” standard may be more durable and objective than the Court seemed to think.
What is genuinely problematic, particularly when norms about certain behaviors within these categories are in rapid flux, is identifying the community from which an average, and outraged, member must be found. The composition of the relevant community has long been an undertheorized issue in IIED (and, for that matter, in defamation, where fault is also linked to community reaction). But this dormant issue is bound to become increasingly salient as electronic speech seeps across geographic community boundaries. Is outrageousness to be decided with reference to local custom? Or with reference to the customs of an online community? And, if so, which one? Even the attempt to locate an electronic community can be fraught; witness the divide between digital natives (Kylie and Kendall) and digital immigrants (my law professor friend). The issue has already come to the fore in cases involving online obscenity, where challenged regulations are more likely to be upheld if they apply to material deemed prurient according to “contemporary community standards.” Many courts and commentators have noted the potential for dissonance between prurience standards of a local geographic community and a national online community. The same fault line exists in the IIED and defamation context, and it’s not clear whether a geographic or electronic definition of community is appropriate in cases of online dignitary torts. What is increasingly clear is that pot shots at a surprisingly functional “outrageous” standard may be obscuring the more pressing question of how to define community as more of our daily lives take place on line.
I’ve enjoyed being on line with Concurring Opinions this month; thanks again to Danielle and everyone else for having me.