Posted by Eugene Volokh:
Republishing Someone's Offensive Opinions, and Risk Liability If You're Seen as
Trying To "Punish" Them:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1238961416
That's the holding of an unpublished [1]California Court of Appeal
opinion in Moreno v. Hanford Sentinel, handed down Thursday:
The issue presented by this appeal is whether an author who posts
an article on myspace.com can state a cause of action for ...
intentional infliction of emotional distress against a person who
submits that article to a newspaper for republication....
Appellants ... argue that the person who submitted the article to
the newspaper did so with the intent of punishing appellants ....
[T]he trial court should have overruled the demurrer to the
intentional infliction of emotional distress cause of action. Under
the circumstances here, a jury should determine whether the alleged
conduct was outrageous....
Since the appeal is from the sustaining of a demurrer without leave
to amend, the facts are derived from the complaint. This court must
give the complaint a reasonable interpretation and assume the truth
of all material facts properly pleaded....
Following a visit to her hometown of Coalinga, appellant, Cynthia
Moreno, wrote �An ode to Coalinga� (Ode) and posted it in her
online journal on myspace.com. The Ode opens with �the older I get,
the more I realize how much I despise Coalinga� and then proceeds
to make a number of extremely negative comments about Coalinga and
its inhabitants. Six days later, Cynthia removed the Ode from her
journal. At the time, Cynthia was attending the University of
California at Berkeley. However, Cynthia�s parents, appellants
David and Maria Moreno, and Cynthia�s sister, appellant Araceli
Moreno, were living in Coalinga.
Respondent, Roger Campbell, was the principal of Coalinga High
School .... The day after Cynthia removed the Ode from her online
journal, appellants learned that Campbell had submitted the Ode to
the local newspaper, the Coalinga Record, by giving the Ode to his
friend, Pamela Pond. Pond was the editor of the Coalinga Record.
The Ode was published in the Letters to the Editor section of the
Coalinga Record. The Ode was attributed to Cynthia, using her full
name. Cynthia had not stated her last name in her online journal.
The community reacted violently to the publication of the Ode.
Appellants received death threats and a shot was fired at the
family home, forcing the family to move out of Coalinga. Due to
severe losses, David closed the 20-year-old family business....
The court concludes (correctly) that Moreno and her family can't
recover under the "disclosure of private facts" tort. I have argued
before that [2]the disclosure of private facts tort is itself
unconstitutional; but while California courts (and most other state
courts) do recognize the tort, they at least limit it to information
that is private, not something that a plaintiff has voluntarily
disclosed about himself. Here, "Having been published on myspace.com,
the Ode was not private." "That Cynthia removed the Ode from her
online journal after six days is also of no consequence. The
publication was not so obscure or transient that it was not accessed
by others.... Finally, ... [a]lthough her online journal only used the
name �Cynthia,� it is clear that her identity was readily
ascertainable from her MySpace page ...."
But, despite this, the court said that it was up to the jury to decide
whether the principal should still be held liable -- potentially for
tens or hundreds of thousands of dollars, and presumably potentially
including punitive damages as well:
�The elements of a cause of action for intentional infliction of
emotional distress are (1) outrageous conduct by the defendant, (2)
intention to cause or reckless disregard of the probability of
causing emotional distress, (3) severe emotional suffering, and (4)
actual and proximate causation of the emotional distress.�
To be outrageous, conduct must be so extreme that it exceeds all
bounds of that usually tolerated in a civilized community. However,
conduct that might not otherwise be considered extreme and
outrageous may be found to be so if a (1) defendant abuses a
relation or position that gives him power to damage the plaintiff�s
interest; (2) knows the plaintiff is susceptible to injuries
through mental distress; or (3) acts intentionally or unreasonably
with the recognition that the acts are likely to result in illness
through mental distress.
It is for the court to determine in the first instance whether the
defendant�s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery.... But, ��[w]here reasonable men
may differ, it is for the jury, subject to the control of the
court, to determine whether, in the particular case, the conduct
has been sufficiently extreme and outrageous to result in
liability.�� ....
In stating their claim for intentional infliction of emotional
distress, appellants alleged that Campbell submitted the Ode to the
Coalinga Record, knowing he did not have permission to do so.
Appellants further alleged that Campbell engaged in this act to
punish appellants for the contents of the Ode and intended to cause
them emotional distress. Appellants contend that this conduct was
extreme and outrageous, especially in light of Campbell�s position
as Araceli�s principal.
Since this appeal is from the sustaining of a demurrer without
leave to amend, this court must assume the truth of appellants�
allegations against Campbell. Based on these allegations, we
conclude that reasonable people may differ on whether Campbell�s
actions were extreme and outrageous. Accordingly, it is for a jury
to make this determination.
Consider the implications of this: The speech here may have been
merely anti-Coalinga, but under the First Amendment precisely the same
logic should apply when someone publicizes another's postings that are
(say) racist, anti-American, sexist, pro-drug-use, anti-gay,
pro-crime, or or anti-religious in order to fault them for their
views. If you find that someone from your community is expressing
views that you believe repulsive, and you try to condemn the person by
posting the statements to your blog -- or circulating them on an
e-mail list or publishing them in a newspaper -- you could, given the
logic of the case, face a ruinous lawsuit.
Of course, tens of thousands of dollars in legal fees later, you might
get off the hook if a jury concludes that your reporting on another's
words wasn't "extreme and outrageous." But how can you predict that?
Why should we think that this vague and subjective judgment won't turn
on the nature of the views you're reporting?
If the touchstone is whether you were acting "to punish" the speaker
"for the contents of" his offensive speech, how will a jury
distinguish a desire to punish from a desire to inform the public
about the evil views that someone they know is spreading? And even if
your goal is to punish, through social ostracism, why isn't that a
permissible goal, especially when the person has said insulting and in
your view deeply wrongheaded views? Either it's no longer fine to try
to ostracize someone for being (say) a bigot -- or if that's still
fine, then how can the law draw a constitutionally permissible line
between that and trying to ostracize someone for insulting her home
town?
In fact, the U.S. Supreme Court has already made clear -- in a
unanimous decision -- that speech aimed at ostracizing someone is
constitutionally protected, even when the person was a private
individual exercising his own constitutional rights, and even in an
environment where such ostracism may well lead to violence. The case
was [3]NAACP v. Claiborne Hardware, and the Court held that speech
publicizing the names of black customers who shopped at white stores
(contrary to a boycott that the local NAACP and others were
organizing) couldn't form the basis of a tort lawsuit for interference
with business relations:
Petitioners admittedly sought to persuade others to join the
boycott through social pressure and the "threat" of social
ostracism. Speech does not lose its protected character, however,
simply because it may embarrass others or coerce them into action.
The same logic would apply to an intentional infliction of emotional
distress lawsuit by the embarrassed person as it would to the lawsuit
involved in Claiborne (an intentional interference with business
relations lawsuit brought by a business that the embarrassed people
stopped frequenting as a result of the threat of ostracism).
Naturally, the violence against Moreno was repulsive. But there was no
indication in the opinion (which stated the facts as alleged in the
complaint) that the principal was a conspirator in the violence. Nor
was there even any indication that the principal knew that there was a
very high likelihood that people would take the Ode so seriously as to
fire shots over it -- not that such knowledge should be enough either,
in my view, as cases such as Claiborne illlustrate. At most one could
argue that the principal should have known that some violence would
result, if the violence is the touchstone of the claim. But exactly
the same could be said when one outs a community member as a racist,
or a terrorist sympathizer, or whatever else.
Finally, it's conceivable that reprinting the MySpace posting would
infringe the author's copyright. But copyright claims are for federal
courts to decide under the specific remedial scheme of the Copyright
Act, with the various Copyright Act defenses, chiefly fair use. Here
it is indeed quite likely that the principal's use was a fair use,
because the Ode was noncommercial, because it had been published,
because the reprinting wouldn't interfere with the commercial value of
the Ode, and because in context the reprinting was probably
transformative in purpose -- the point was not to use the words as
one's own, but rather to condemn the author by quoting his words.
In this respect, the principal's reuse was much like the practice of
some blogs in reprinting threatening letters from lawyers when the
blogger thinks the lawyer's demand is unfounded, a practice that seems
to me to be [4]likely fair use. But republishing the Ode was even more
likely to be fair use than republishing a lawyer's nastygram would be:
the Ode was published before the republication and the lawyer's letter
wouldn't have been (the original work's being unpublished cuts in some
measure against fair use).
Moreover, the court's reasoning on the emotional distress tort would
have of course equally applied if the principal had quoted only the
key excerpts (which would have been even more clearly fair use), and
paraphrased the rest (which would not have been even presumptively
copyright infringement, if it copied only the idea and not the
expression). So the court's decision can't be defended on copyright
law grounds.
* * *
So this is an unsound and dangerous opinion. Fortunately, it's
unpublished and therefore doesn't set a binding precedent in
California. But it is available in Westlaw and Lexis, and can
certainly be influential. I hope California courts quickly change
course, and see the First Amendment problems with allowing the
emotional distress tort to be used this way.
References
1. http://www.courtinfo.ca.gov/opinions/documents/F054138.PDF
2. http://www.law.ucla.edu/volokh/privacy.htm
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=458&invol=886
4. http://volokh.com/posts/1201543498.shtml
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