I don’t think of the described email as certain or substantially certain to cause trauma. I don’t think of it as outrageously, intolerably indecent. I don’t think of it as a true threat. I consider myself a reasonable person. Now, you are free to dismiss my opinion or think of me as an unreasonable person, and we can leave it at that. But if you wish to continue the debate, you will have to do better than “the reasonable person standard writ large”.
When the question is asked, is an act (such as sending an email) certain to inflict emotional trauma? I see two approaches.
- We assume the act will inflict emotional trauma, unless there are good reasons to think it won’t
- We assume the act will not inflict emotional trauma, unless there are good reasons to think it will
Of these, I take the latter approach. I assume the email is not certain or substantially certain to inflict trauma unless I have good reasons to think otherwise. I’m pushing the burden on you with this, and that’s how it should work when a politician sues a citizen for inflicting emotional trauma. We don’t want Soviet-esque situations where a person who says “Trump is a Nazi” has the burden of proving the uncertainty of inflicting emotional trauma.
Now, I have admitted that an image of a Klansman doing a Nazi salute is shocking, especially to a Black American. However I do not think it is reasonable to expect a Black person to suffer from a panic attack upon seeing the image. Surely some Blacks are susceptible, but as far as I know this is a very small minority and it is unreasonable to assume the entire race of Black Americans can be triggered by the image of a Klansman doing a Nazi salute.
It is also possible that a person can be traumatized by a perceived threat to their life or personal safety. I think this is, potentially, what happened to Delegate Walker. But the author’s liability would then turn on whether the email was certain or substantially certain to be perceived as a threat of violence against Delegate Walker. To this I say, if it was me sending the email, I would not have expected her to take it as a threat of violence. Though at first glance an image of a Klansman may appear threatening, the context of that image - it’s captions and the email it was sent in - make for an overall message of “don’t be like the KKK.” In other words the KKK is used in a negative sense, not as a threatened enforcer to some demand. If the email had read, “This guy will make sure you change your vote”, that is going to be taken as a threat.
~Max