Well, ol’ Max here is doing quite a lot of tap dancing.
In fact, John Oliver did a show within the past few years about bias in medicine, which includes a section on black people and pain/stress, and so on. Interesting show, and at least tangential to the convo at hand.
Wow, that’s an awfully long post to explain in detail that you completely lack empathy.
I think you are missing my point. The question is whether the defendant should have been certain or substantially certain his email would inflict emotional distress.
Intentional infliction of emotional distress (IIED) is recognized at common law as the tort of outrageous conduct. From what I’ve read, there are four elements that must be proved:
- there is a causal relationship between the conduct and the emotional distress
- the distress inflicted is so severe that no reasonable man (or woman) could be expected to endure it
- the conduct was intentional or reckless; meaning either
- he acted with intent to inflict extreme emotional distress (intentional), or
- he should have known his conduct was substantially certain to result in extreme emotional distress (reckless)
- the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
I’m willing to grant the first two elements. I am not convinced on the third and fourth elements. The line of argument MrDibble ultimately pitted me for was concerning this prong
- the conduct was […] reckless; meaning […]
- he should have known his conduct was substantially certain to result in extreme emotional distress (reckless)
The “presentation” you are thinking about addresses the first and second points. It won’t necessarily hit on this third point. You could have every single Black person in West Virginia testify that the image is horribly traumatizing, and even that would not in and of itself show that the defendant should have been certain - before the trial - that the email would cause distress.
I don’t want to say it’s hopeless, that’s just not the right approach if you are trying to convince someone like me. Having a Black person take the stand and say it hurts them is, essentially, an appeal to authority. The authority of the victim’s trauma. It is saying, the defendant should have known his conduct was certain to cause distress because these authorities - the victim, or victims of similar incidents - say it causes distress. This argument, of course, relies heavily on a hidden premise, which I think is very poor.
- Experts know that his conduct is certain to cause extreme emotional distress
- [The defendant should have known what experts know]
- Therefore, the defendant should have known his conduct was certain to cause extreme emotional distress
Even if the people on the stand totally convince me, I didn’t know until they told me. How could I say the defendant should have known before sending the email?
Now take that same explanation, which proves that such imagery is certain to cause extreme emotional distress for any Black person… If it is present in a popular movie, or song, and you can argue that the defendant knows it through that - there’s direct evidence.
Or if you can explain using reason rather than appeals to authority - that works, too. I can’t think of such an explanation, but I won’t rule out that it might exist. The plaintiff’s lawyer could present this kind of explanation directly to the jury, in the opening statement for example. And then press it upon the defendant’s character witnesses.
At no point did I ever say or imply Ms. Walker was faking her emotional pain. I expressly wrote that I believe her, multiple times now.
As to the jury, it would consist of six jurors. The civil standard of proof does not change the requirement for a unanimous verdict. I haven’t been using the reasonable doubt standard at any point in this discussion. I argued for a raised standard of proof because the circumstances (plaintiff is a legislator), but still not beyond a reasonable doubt; yet from what I’ve seen, even the balance of probabilities isn’t met.
~Max
Did you attend the George Wallace School of Law?
I think sending someone racially based threats, even if they are slightly veiled, is a textbook example of extreme and outrageous conduct that is not acceptable in polite society.
I think this speaks volumes about you. Have you ever heard the one about how you should stop digging if you find yourself in a hole? I’m starting to think that hole is your soul.
So, you are claiming to be utterly lacking in empathy, and to never have noticed the ways in which Black people are threatened in the US. That doesn’t speak well to your character.
No, motherfucker, ordinary, empathetic people on the street know that it is highly likely (“certain” is such an obvious goalpost-move I’m embarrassed for you that you even tried it).
Of course, the empathetic part is necessary. Merely pathetic is not a substitute.
is it possible for someone to not know or at least suspect that such an image would cause distress? Sure. Is it also possible that such a person would send that image without ill intent? Perhaps. But I find it vanishingly small that such a person exists. Perhaps I’m naive.
If we’re now talking about the extreme/outrageous component… I also think racially based threats are beyond the pale. But I don’t think the email in question is a threat. Again, not sure if you read the other topic where I argued this point.
~Max
If by highly likely you mean more likely than not, I don’t even agree with that.
For example, the Supreme Court of Appeals of West Virginia has written,
Accordingly, we hold that in order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, four elements must be established. It must be shown: (1) that the defendant’s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.
~Max
I was undecided at the beginning of this thread, but the various posts have convinced me that Max is an unempathetic shithead, who is in serious denial about his racist proclivities.
And somewhat ironically, it was his posts in this thread that convinced me.
Not an unusual outcome for Pit threads.
Partial Hijack - While I’m in the moderate pro-Pit faction, I do agree that certain personality types prefer to self destruct / double down on their behaviors so they can be seen (if only to themselves) as ‘winning’. I do think several people in the thread have repeatedly pointed this out - that by trying for a ‘technical’ win, you just make your original, less technical points look all the worse, and refusing to acknowledge it except for the most back-handed comments, just digs you in deeper.
So a pit thread, overall, is good for the rest of the board, but it does tend to make the pittee go -further- into the unacceptable behavior. Sadly, it’s up to said person to actually go back and look at what they said, from as dispassionate POV as possible, and hopefully think about what people are saying, rather than trying to ‘win’.
So here’s my advice @Max_S - take a break, say 48 hours, from this thread, and the topic in question. Go off, do something else. Then come back and read the original posts and what you’ve said here - and try, TRY not to win, try to look at like someone new to the board reading it would. And think about it. Maybe it’ll help, maybe it won’t, but it probably won’t hurt anyone in anyway on any of the sides.
Peace, out.
…and your absolutely telling lack of experience listening to African Americans, both in real life and media, clearly shows in this statement.
I mean, how can you live in a state that’s 15% Black and not speak to Black people? Only by making a concerted effort, I’m sure.
I’m talking about you moving the goalposts from the language used by me up to now, which spoke of high probability, not certainty. I’ve in fact corrected you before on that.
I don’t give a crap what WV law says on this - once again, I’ve been talking about what the case should be, not what it is almost certainly going to be under Whiteness.
I agree. I started out thinking he was a garden-variety pedant, just another internet sea lion, but this whole discussion has reoriented my perception. He’s a genuine asshole.
He’s fighting ignorance, but not in the way he thinks he is.
I don’t think one can truly read what’s in a person’s head. But when someone is so committed to the bit that they continue indulging in trollish behavior after being told that it seems entirely trollish and not helpful, then in terms of culpability this is indistinguishable from deliberate, premeditated trolling.
I will say I share your suspicion. This character seems like someone said “let’s take a tendentious shitbird like Bricker, and add the glib idiocy of Shodan (including the annoying signoff), and see if it can generate a thousand-page Pit thread.”
I think there’s a smallish but very real chance that this is what the Max_S character is, or some similar contrivance.
Sadly, the policies and moderation of the board are not equipped to handle this sort of fuckbrain. On the contrary, it has served to nurture and embolden such characters to the point that they can poison discourse for literally decades at a time. All the while, bringing nothing of value except perhaps the fig leaf of saying “see, we represent both sides here, even if one side is shitty and annoying.”
Like the late Justice Warren, he could be both.
I dunno. The US is very segregated. I’ve worked with several Black colleagues, but some when i lived in NYC, and others when i worked for an employer with a fairly strong affirmative action program. And the ones in NYC were more open about talking about the experience of being Black in America.
I live in NYC , a city which has a population of about 32% white, non-Hispanic people. Most days, I don’t encounter any of them, and I’m not making any particular effort to avoid them. If I lived in a different neighborhood and worked in a different job, I would have a different experience. So it’s not at all inconceivable to me that someone might not encounter a group that makes up 15% of the population all that often.