Reasonably Outrageous? Tort Standards for a Polarized Body Politic

During the Capitol Hill insurrection on January 6, 2021, at least three people died from medical emergencies related to the stress of the day’s events.[1] One of those individuals, a woman, was literally trampled to death by fellow rioters, as widely circulated video footage confirms.[2] In fact, much of the day’s violence was filmed and publicly broadcast: CNN, for example, played on loop footage of a police officer as he was crushed in the West Terrace doorway, as well as footage of another officer who was dragged down a set of stairs and beaten.[3] Exactly how many were injured that day is unknown, but it is likely that dozens were seriously hurt, and many more were terrified of the same.

In the case of the Capitol Hill riot, one possible method of legal redress for the injured parties would be to bring a tort claim for intentional infliction of emotional distress (IIED) against the rioters responsible. Though courts generally deny recovery for IIED when the emotional harm alleged is unaccompanied by physical injury, all fifty states recognize IIED as a valid cause of action. In California, as in most states, an IIED claim has four elements: the plaintiff must demonstrate that the defendant (1) engaged in extreme and outrageous conduct; (2) with the intent to cause or with reckless disregard of causing emotional distress; (3) that the plaintiff suffered severe emotional distress; and (4) that the defendant’s conduct was the actual and proximate cause of the emotional distress.[4]

IIED claims often fail at the first element’s requirement of “outrageous” conduct, because such conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community” such that it would cause “an average member of the community. . .to exclaim, ‘Outrageous!’”[5] Like many tort standards, outrageous conduct is usually determined with respect to a “reasonable” person, and courts will look to the context in which the harm arose to decide whether or not something was sufficiently beyond normal social interactions to constitute “outrageous.”[6]

Despite the grave injuries suffered by individuals during the Capitol Hill riot, the context in which the riot originated may actually render IIED an inviable cause of action under extant case law. Against the backdrop of weeks—if not years—of polemic political discourse and alt-right protests, was the violence of January 6th actually outrageous? It certainly wasn’t unexpected, at least to those who had been paying attention. The event was planned in plain sight: for weeks beforehand, some of President Trump’s most fervent supporters lambasted the “stolen” election across multiple online platforms and made preparations to change it, including messages that explicitly stated their intentions to halt the Electoral College certification process, through force if necessary.

Indeed, political polarization and rampant misinformation fueled by social media present both the tort of IIED and other harms against one’s person based on reasonableness standards with an existential problem: is the law intended to enforce a vision of what we wish civil society to be, or must it reflect the realities of the age, even when that reality is increasingly extreme? Worse still, if significant portions of the public no longer share the same context—if they truly come to believe in different political and social realities based on the media ecosystems they inhabit—which “context” should courts look to when deciding if a harm merits legal recovery? Whose definition of “reasonableness” or “outrageous” should be given legal power?

The type of conduct we register as scandalous is undisputedly more radical today than it was even five years ago (once upon a time, we may recall, President Obama’s tan suit captured headlines as the national dishonor of the day). Social media is a key driver of this change. Because, biologically, people are more likely to be sucked in when viewing content that provokes strong emotions, the driving force of both attention and advertising revenue is often moral outrage.[7] Myriad reporters and academics across disciplines have observed that social media has become more extreme in tone over time, particularly after 2016.[8] After all, “the architecture of the attention economy creates a steady flow of outrageous ‘clickbait’ that people can access anywhere and at any time.”[9] For instance, based on user engagement, “Facebook’s Feed…privileges incendiary content, setting up a stimulus-response loop that promotes outrage [while] YouTube’s recommendation system…has been criticized for leading users towards more extreme content.”[10]

Moreover, traditional news outlets often reflect back and/or amplify what is posted online, in part because more public figures are using social media. The result is arguably an overall increase in inflammatory discourse. For instance, Facebook’s own internal research has shown that “64% of all extremist group joins are due to [Facebook’s] recommendation tools.”[11] Unsurprisingly, that has in turn bolstered offline extremist activity that has culminated in events such as that of the January 6th riot in Washington, D.C.[12]

Not only has much of the nation’s daily diet of extreme media escalated, but more people than ever are involved in its propagation. The central promise of social media is universal accessibility, and the same ease of access that lets knitters nationwide connect irrespective of geography also puts the online “tools [of outrage] into the hands of everyone.”[13] Take, for instance, the commonplace phenomenon of “trolling” and related practice of cyberbullying. Spend just two minutes on Twitter or scroll through any public figure’s Instagram comments, and one can see innumerable comments made with the clear intent of provoking a fight or being derogatory. Trolls have also been “steadily upping their game” over time: at least 70 percent of 18-to-24-year olds who use the Internet have experienced harassment, and the nature of that harassment can range from petty bullying to death and rape threats.[14] Also, many trolls are not human at all and are instead bot accounts that usually do not correspond to real people; this can be especially troubling for courts trying to define social norms in an IIED analysis.[15]

The proliferation of outrage through social media may also be changing the nature of how we experience outrage itself. Researchers have marked two significant changes in recent years. First, “when outrage expression moves online it becomes more readily available, requires less effort, and is reinforced on a schedule that maximizes the likelihood of future outrage expression in ways that might divorce the feeling of outrage from its behavioural expression.”[16] In other words, it is easier to become outraged, and the ways we express that outrage are changing. Second, evidence suggests that “immoral” acts encountered online actually incite stronger outrage than acts encountered in person or through traditional media.[17] Taken together, these studies indicate substantial shifts in how the average person encounters and processes outrageous speech or conduct posted online. These shifts in public perception and experience, in turn, are problematic for torts like IIED that draw upon a shared collective culture of interpersonal relations.

The escalation of misinformation and its accompanying outrage, its increasingly widespread occurrence, and changing means of expression risk desiccating almost any IIED claim. Is “outrageous” seeming conduct or speech still outrageous when everyone seems to be engaging in it? To conceive of “outrageous” conduct in this way would obviously deprive persons with serious injuries of one longstanding way to sue for justice. On the other hand, if courts were to allow IIED claims stemming from every threatening tweet or hateful comment, the internet would become a Pandora’s box of potential litigation.

The authors of the Second Restatement of Torts intentionally did not define the outer limits of what “outrageous” conduct is, but it is high time courts do.[18] To date, courts have purposefully avoided creating a bright-line rule to delineate outrageous conduct so as to allow a case-by-case appraisal.[19] Of course, the related concept of “ the reasonable person” is a standard, not a rule, and its definition is intended to be vague. By design, that vagueness is what allows judges to use their expertise and sense of fairness to reach a just result in individual cases.[20]

Legal theorists have debated ad nauseam whether “the reasonable person” is meant to be the average person, an idealized member of civil society, or something else entirely. But regardless of which camp is right, when courts decide whether or not a plaintiff’s IIED claim merits recovery, the precedent set represents an active choice being made as to what kinds of behaviors are acceptable to society generally. The fact that a choice must be made becomes even more apparent when significant chunks of the public genuinely believe in a different political and social reality. With regards to the Capitol Hill insurrection, for instance, many rioters truly believe in ideas like QAnon or a rigged general election, albeit in direct opposition to a majority of the country. To the rioters, threats of violent force and a sense of urgently needed action were likely far more reasonable than to someone outside right-wing media echo chambers. A court facing an IIED claim arising out of the riot thus cannot solely look to the on- and off-line spaces where the harms of the riot originated in order to define terms like “outrageous” or “reasonable,” because those spaces differ dramatically from the environment inhabited by many of the people presumably injured on January 6th. To do otherwise could risk creating divergent strains of tort law that are essentially platform-specific, and that would leave those injured by cross-pollination between differing sets of beliefs and behaviors uncertain of if and how they can seek justice in the courts. Indeed, many who reviewed footage of the assault on Capitol Hill pointed out that vast numbers of the rioters had their electronic devices out and were focused on creating content for social media.[21] Evidently, though their crimes were in many ways born, bred, and are intended to continue living online, their insular right-wing ecosystem created physical and emotional violence that directly harmed at least some people who were wholly removed from that right-wing environment.

Thus, if IIED and other reasonableness-based torts are to have meaning as cause of actions in a hyper-polarized, hyper-connected age, “outrageous” should be redefined so as not to be limited to a single online platform’s ecosystem, and jurists ought to explicitly define their vision of “reasonableness” and its sources. In other words, something shouldn’t fail to satisfy the standard for outrageousness simply because it originates on an online platform that encourages outrageous content. If we can no longer depend on a shared culture to define our social norms, the next best thing is for decisionmakers to be clear and consistent about which vision of the world they aspire to. That is not necessarily a bad thing: our federal judicial branch was built to be more insulated from the public and less resistant to change than the legislature or the Presidency. And if that means that courts must acknowledge the role they can play in preventing public numbness to political, social, and moral breakdown, then so be it—surely that is part of what a system of checks and balances requires.

Ayesha Rasheed: J.D., University of California, Berkeley, School of Law; M.Sc., University of Oxford; B.S. with Honors, Stanford University. Errors and oversights are my own.

1. See Rebecca Tan, Steve Thompson, and Antonio Olivo, Few Details So Far About Deaths of ‘Medical Emergency’ Victims in Rioting at Capitol, Wash. Post (Jan. 7, 2021). ↑

2. See Evan Hill, Arielle Ray and Dahlia Kozlowsky, Videos Show How Rioter Was Trampled in Stampede at Capitol, N.Y.Times (Jan. 15, 2021). ↑

3. See Kelsie Smith and Travis Caldwell, Disturbing Video Shows Officer Crushed Against Door By Mob Storming the Capitol, CNN (Jan. 9, 2021); see also Video Shows Rioters Beating Officer with American Flag, CNN (Jan. 10, 2021), https://www.cnn.com/videos/us/2021/01/10/capitol-riot-officer-beating-trump-go-home-message-sot-vpx.cnn [https://perma.cc/Z5VQ-B4W8]. ↑

4. Fletcher v. Western Nat’l Life Ins., 10 Cal. App. 3d 376, 394 (1970). ↑

5. Id. ↑

6. See Miller v. Nat’l Broadcasting Co., 187 Cal. App. 3d 1463, 1487 (1986). ↑

7. M.J. Crockett, Moral Outrage in the Digital Age, 1 Nature Human Behaviour 769 (2017) (describing moral outrage as an “ancient emotion” that arises when people think a moral norm has been violated, and that is widespread on social media). ↑

8. Shankar Vedantam et al., Screaming Into the Void: How Outrage is Hijacking Our Culture, and Our Minds, NPR News (Oct. 7, 2019); see also Crockett, supra note 7 at 769. ↑

9. See Crockett, supra note 7 at 769; William J. Brady, Ana P. Gantman & Jay J. Van Bavel, Attention Capture Helps Explain Why Moral and Emotional Content Go Viral, 149 J. Exp. Psychol. Gen. 746 (2020). ↑

10. See Luke Munn, Angry By Deign Toxic Communication and Technical Architectures, 7 Humanities & Soc. Sciences Communications (2020). ↑

11. See Jeff Horwitz & Deepa Seetharaman, Facebook Executives Shut Down Efforts to Make the Site Less Divisive, WSJ (May 26, 2020). ↑

12. See Craig Timberg & Drew Harwell, Pro-Trump Forums Erupt with Violent Threats Ahead of Wednesday’s Rally Against the 2020 Election, Wash. Post (Jan. 5, 2021); see also Logan Jaffe, Lydia DePillis, Isaac Arnsdorf & J. David McSwane, Capitol Rioters Planned for Weeks in Plain Sight. The Police Weren’t Ready, ProPublica (Jan. 7, 2021). ↑

13. See Crockett, supra note 7 at 770. ↑

14. See Joel Stein, How Trolls Are Ruining the Internet, Time (Aug. 29, 2016); see also Robert Chesney & Danielle Keats Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Calif. L. Rev. 1753 (2019). ↑

15. See Jeanna Matthews, Bots and Trolls Control a Shocking Amount of Online Conversation, Fast Company (June 29, 2020). ↑

16. See Crockett, supra note 7 at 770. ↑

17. See Crockett, supra note 7 at 769. ↑

18. R.2d of Torts, § 46. ↑

19. Id. at 1028. ↑

20. Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2147 (2015) (arguing that “use of reasonableness language sometimes results in a de facto delegation of lawmaking power to the appellate courts”). ↑

21. See, e.g., Tweet by Elise Thomas @elisethoma5 Jan. 6, 2020 at 9:29 PM, https://twitter.com/elisethoma5/status/1347052842419245058?s=21 [https://perma.cc/7NKE-P8WT]. ↑