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