The Volokh Conspiracy - Republish Someone's Offensive Opinions, and Risk Liability If You're Seen as Being Motivated By a Desire to "Punish":

That's the holding of an unpublished California Court of Appeal opinion in Moreno v. Hanford Sentinel, handed down Thursday: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 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 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 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.

UPDATE: Some commenters read the opinion as suggesting that the Ode was published in the Coalinga Record as if Moreno had actually submitted the Ode to the record. I'm skeptical about that. The opinion does say, "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." But if it was attributed in the sense of just looking like a letter to the editor, then (1) the fault for that would likely be the newspaper's, not the principal's, but the newspaper publishers were dismissed as defendants; (2) presumably the cause of action would be for defamation or false light, since the gravamen of the case would be deception; and (3) I take it there'd be some reference to the supposed outrageousness of the deception in the court's analysis, but there was none.

In any case, if indeed the newspaper and Campbell together published something as a letter to the editor, even though it was never submitted as a letter to the editor, that would indeed be bad, and likely actionable. Among other things, it would injure Moreno's reputation, since someone who says insulting things about her home town in a letter to the editor of a newspaper is likely to be seen as much more reprehensible than someone who says insulting things about her home town in a Myspace journal — the strongly implied false assertion that Moreno submitted the Ode as a letter to the editor would thus be false and defamatory. But the proper solution to that is a cause of action under a tort that's carefully limited to false statements of fact, rather than under a tort that just leaves it to the jury to decide whether the behavior (even in the absence of any falsehood) is "outrageous."

If anyone has more details on the case, please let me know. (I tried to find more online, including on the California Court of Appeal's site, but I couldn't see the briefs or other papers in any directly accessible place.)

	[Eugene Volokh, April 6, 2009 at 2:17pm] Trackbacks Republish Someone's Offensive Opinions, and Risk Liability If You're Seen as Being Motivated By a Desire to "Punish": That's the holding of an unpublished 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 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 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 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. UPDATE: Some commenters read the opinion as suggesting that the Ode was published in the Coalinga Record as if Moreno had actually submitted the Ode to the record. I'm skeptical about that. The opinion does say, "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." But if it was attributed in the sense of just looking like a letter to the editor, then (1) the fault for that would likely be the newspaper's, not the principal's, but the newspaper publishers were dismissed as defendants; (2) presumably the cause of action would be for defamation or false light, since the gravamen of the case would be deception; and (3) I take it there'd be some reference to the supposed outrageousness of the deception in the court's analysis, but there was none. In any case, if indeed the newspaper and Campbell together published something as a letter to the editor, even though it was never submitted as a letter to the editor, that would indeed be bad, and likely actionable. Among other things, it would injure Moreno's reputation, since someone who says insulting things about her home town in a letter to the editor of a newspaper is likely to be seen as much more reprehensible than someone who says insulting things about her home town in a Myspace journal — the strongly implied false assertion that Moreno submitted the Ode as a letter to the editor would thus be false and defamatory. But the proper solution to that is a cause of action under a tort that's carefully limited to false statements of fact, rather than under a tort that just leaves it to the jury to decide whether the behavior (even in the absence of any falsehood) is "outrageous." If anyone has more details on the case, please let me know. (I tried to find more online, including on the California Court of Appeal's site, but I couldn't see the briefs or other papers in any directly accessible place.)