It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a timeof intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions”permit recovery in tort for the intentional infliction ofemotional distress (or IIED). Hustler Magazine, Inc. v. Falwell. This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” Prosser and Keeton on Law of Torts. To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe. See Figueiredo-Torres v. Nickel, (“[R]ecovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves”); Harris v. Jones (the distress must be“‘so severe that no reasonable man could be expected to endure it’” (quoting Restatement (Second) of Torts §46)).
- Alito dissent in Snyder v. Phelps (internal citations removed)
If you are familiar with the case of Snyder v. Phelps, you know that picketers who held up signs such as “God hates fags” and “Thank God for dead soldiers” at a funeral for fallen soldiers were ultimately protected from punishment under the First Amendment. As BL1Y informed me, the details of the case are, from a legal standpoint, a bit dicey, given that the protesters were a certain distance away from the grieving families and that many of the soldiers’ family members didn’t even see the protesters' signs until the evening news.
Given events such as these, an important question emerges: can a single event such as this cause severe emotional harm? If you’re a lawyer or law student, you are probably thinking of Intentional Infliction of Emotional Distress (IIED).
The short and somewhat lame answer to this question is “yes, but only for some.” If you’ve ever dealt with a psychologist or psychiatrist in a legal setting, you know they give incredibly vague, hedged responses. It’s annoying, I know. But there is a reason for it. Quite simply, human thought and behavior is, bar none, the most difficult phenomena to measure with any real accuracy, and there are almost always exceptions.
Consider physical injuries like getting hit with a baseball on the arm. Depending on the speed, some people develop deep contusions, others a temporary reddening of the skin, and still others, virtually nothing. Some people simply bruise easily and others don’t. The same is true for psychological bruising: some have very thick emotional skin, others do not, with every variation in between. Why this is so remains unclear, given so many possible factors: physiological make-up, prior trauma, poor parenting, messages received from peers about the importance of “toughness”…a combination of many or all? The possibilities go on and on and we just don’t know for sure who is going to be at risk for an extreme response. You can add up every possible risk factor on one person, be reasonably certain that they couldn’t handle even the most benign name-calling, and you’ll always have times you're wrong. On the flip side, you can tally virtually no risk factors on someone and they’ll blow you away with a psychological breakdown. It’s just not possible to truly know.
Now you may want to call bullshit here about lack of empiricism to back up what I’m saying and, to a degree, I would have to concede. When you work in mental health, you hear dozens of stories every week about the psychological aftershocks of verbal abuse, be it a single episode or multiple trials. After putting mental puzzle pieces together for so many years, you start to see how some people are just dramatically, and sometimes permanently, altered by single events. And this is true no matter how benign or severe one might objectively view the circumstances. But it is true that we can’t put a dipstick into someone’s head to see how traumatized they are. The plaintiff with an egg shell skull will have medical records backing up the condition, but not the plaintiff with an egg shell psyche. However, that’s only true for a while longer…
We are starting to see poor blood flow in regions of the brain when people are depressed. Brain structures are altered in children who have suffered abuse. fMRIs are lighting up areas for various psychological disorders. And, technology is just getting started when it comes to mental health. There will be a day where we can see, at least at a structural level and likely past that, the exact physiological responses during moments of any type/severity of trauma. At that point we’ll be able to rely not just on self-report and expert testimony, but real, empirical data.
Depending on which area of law you practice, this could be a true Godsend or a curse, so plan accordingly. There will always be the standard, “correlation does not imply causation” argument, but some lawyers are going to be motivated to find viable scientific evidence against malingering, exaggerating or simply being weak-willed. For the people who actually suffer from single event trauma, that’s going to be a great day.