Massive Campaign of Online Insults Can Lead to Intentional Infliction of Emotional Distress Liability

From Shanley v. Hutchings, decided earlier this year by Judge David Barlow (D. Utah); later in the year, a jury awarded plaintiff $1.15M in economic damages, $1.15M in noneconomic damages, and $4.5M in punitive damages:

… Plaintiffs Tera Shanley and her publishing company Wicked Willow Press, LLC (“Wicked Willow”) sued Defendant Robyn A. Hutchings for defamation per se, defamation, injurious falsehood, false light, tortious interference, and intentional infliction of emotional distress. Now, Plaintiffs move for summary judgment. Ms. Hutchings did not respond to Plaintiffs’ Motion….

This case arises from voluminous statements Ms. Hutchings posted on various social media platforms concerning Ms. Shanley. Both Ms. Shanley and Ms. Hutchings are writers who primarily publish paranormal romance fiction novels. Ms. Shanley writes under her given name along with a penname, T.S. Joyce. Ms. Hutchings publishes under pennames Terry Bolryder and Domino Savage.

From around early July 2022 to at least August 29, 2022, Ms. Hutchings made hundreds of social media posts on various platforms accusing Ms. Shanley of various acts, including: rape, child sexual abuse, human trafficking, adultery, sexual coercion, blackmail, white supremacy, plagiarism, and abusing fans. Specifically, Ms. Hutchings explicitly accused Ms. Shanley of rape or rape of a child at least 13 times and alluded to such acts at least another 10 times. Ms. Hutchings then accused Ms. Shanley of human trafficking at least twice; adultery, “homewrecking,” or “coercion” at least six times; plagiarism at least three times; white supremacy at least once; stalking at least once; and being abusive at least twice. Ms. Hutchings claimed to have proof of her accusations on several occasions.

More generally, Ms. Hutchings simply harassed and insulted Ms. Shanley. And on several occasions, Ms. Hutchings alluded to physically harming Ms. Shanley. Indeed, Ms. Hutchings suggested that “she had been planning this for years.” Notably, in her Answer, Ms. Hutchings admits to making a number of the posts at issue in Ms. Shanley’s Motion. Ms. Shanley has submitted a declaration denying the acts of which Ms. Hutchings accused her.

At the time of the posts, Ms. Hutchings had around 1,500 followers on Instagram and 7,800 on Facebook. In addition, Ms. Shanley has presented evidence of other users interacting with Ms. Hutchings with regard to her statements.

Ms. Shanley has submitted a declaration detailing her economic damages, as well as her emotional damages. Ms. Shanley declares that she has “seen a continuous reduction in [her] book sales” following the posts, and that she was forced to triple the number of hours she worked per month in order to earn a similar living to what she had experienced prior to the onset of Ms. Hutchings’ posts. Ms. Shanley declares that her books have also seen a noticeable decrease in popularity following the onset of Ms. Hutchings’ posts. And Ms. Shanley declares that she has had serious mental health issues following Ms. Hutchings’ accusations and has sought therapy for some time. Finally, Ms. Shanley declares that she experienced significant familial struggles due to Ms. Hutchings’ posts. [In a different part of the opinion, the court notes evidence that “Ms. Shanley’s fiancé’s former mother-in-law sought to limit Ms. Shanley’s contact with her fiancé’s children as a result of Ms. Hutchings’ posts.”]

Because Hutchings failed to comply with various litigation obligations, the court had earlier imposed sanctions on her by essentially viewing the factual allegations as admitted. It then had this to say about Shanley’s legal theory:

[1.] Shanley wasn’t a public figure, despite being a published author. “No matter how many books Ms. Shanley has published, hers is not a household name. Indeed, Ms. Shanley publishes in a niche genre with a relatively consistent set of fans. The number of publications one has is not itself sufficient to make someone a public figure.”

[2.] Hutchings’ accusations weren’t speech on a matter of public concern:

Next, “[s]peech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is the subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” … Ms. Shanley has presented evidence that Ms. Hutchings made a barrage of social media posts accusing Ms. Shanley of reprehensible and illegal conduct. While discussion of the issues of rape, child sexual abuse, and human trafficking are undoubtedly matters of public concern, these posts were not directed at such matters. The content of these posts makes clear that they were personal attacks, not general comments on issues of public debate. For instance, had Ms. Hutchings voiced her opinions on child sexual abuse generally, her comments may have indeed been those of public concern. But instead, Ms. Hutchings specifically accused Ms. Shanley of rape and child sexual abuse. Such posts are not directed to matters of public concern. And the form and context of the posts do not render this private matter one of public concern—simply posting on publicly viewable social media cannot transform the content of speech into that of public import.

[3.] Because of this, Shanley could collect presumed and punitive damages based on just a showing of negligence, which is all that Utah law requires in such situations; the First Amendment doesn’t preclude that, given that the speech is on a matter of private concern (see Dun & Bradstreet v. Greenmoss Builders (1985)). And, the court concluded,

The evidence in this case overwhelmingly supports a finding that Ms. Hutchings acted at least negligently. Ms. Shanley has presented evidence of hundreds of posts on social media accusing her of various crimes and disreputable acts. As noted earlier, Ms. Hutchings explicitly or implicitly accused Ms. Shanley of rape, child molestation, and human trafficking a number of times. These are not allegations a reasonable person makes without first confirming the truth of the statement….

[4.] For the same reason, the burden of proving truth is on Hutchings (if the speech were on a matter of public concern, Shanley would have to prove it false, see Philadelphia Newspapers v. Hepps (1986)). And in any event, Shanley had adequately testified that the statements were false.

[5.] Given the nature of the accusations, a jury could award Shanley presumed damages; but it added that Shanley had in any event offered specific evidence of damages:

First, Ms. Shanley presents evidence that suggests that her average monthly income was reduced following the onset of Ms. Hutchings’ posts, alongside an affidavit of the average number of hours she states that she worked per month during each period. Ms. Shanley supplements this with evidence of her books falling on Amazon’s rankings. Indeed, in several of the social media threads presented, some fans assert that they will no longer purchase Ms. Shanley’s books given the accusations. Finally, Ms. Shanley presents evidence of the costs of mental health counseling she has incurred as a result of Ms. Hutchings’ posts. …

[6.] Some of Hutchings’ statements weren’t actionable as libel, because they were “general online harassment” in the form of opinion that is not “verifiable as to truth or falsity” or because they lacked “a defamatory meaning.” Nonetheless, these statements could be considered for Shanley’s intentional infliction of emotional distress claim (some quotation marks omitted):

The elements of intentional infliction of emotional distress under Utah law are: (1) intentional outrageous or intolerable conduct on the part of the defendant that offends generally accepted standards of decency and morality; (2) the defendant acted with the purpose of causing emotional distress, or acted where any reasonable person would have known that emotional distress would result; (3) the plaintiff actually suffered severe emotional distress; and (4) the defendant’s conduct proximately caused the emotional distress. In addition, the Utah Supreme Court has held that “where an emotional distress claim is based on the same facts as a claim for defamation, … [a] plaintiff must show negligence as to the falsity of the publication … to establish a claim of intentional infliction of emotional distress.”

First, conduct is outrageous if it “evokes outrage or revulsion; it must be more than unreasonable, unkind, or unfair.” And “conduct is not outrageous simply because it is tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal.” Likewise, liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” The Restatement (Second) of Torts provides helpful examples of what is, and what is not, sufficiently outrageous conduct. While a single instance of insults or threats may not suffice, the Utah Supreme Court has recognized that “a continuous and ongoing pattern of the same may constitute extreme, intolerable, and outrageous conduct and thus result in liability.” For instance, in Cabaness v. Thomas, the Utah Supreme Court held that a lengthy pattern of insults, profanity, and targeted safety violations in a work environment could be considered outrageous and intolerable.

Here, Ms. Hutchings made hundreds of posts on social media in a two-month span targeting Ms. Shanley. Not only did Ms. Hutchings accuse Ms. Shanley of various crimes, but Ms. Hutchings also insulted, threatened, and apparently sought to goad Ms. Shanley into a confrontation. The volume of the posts, taken together with their content, convinces the court that Ms. Shanley has satisfied her burden in showing that there is no genuine dispute of material fact that Ms. Hutchings’ conduct was extreme and outrageous. No reasonable jury could view this pattern of conduct and conclude otherwise.

While Ms. Hutchings did not respond to Ms. Shanley’s Motion, in her own previous Motion for Summary Judgment, Ms. Hutchings’ only argument to rebut Ms. Shanley’s intentional infliction of emotional distress claim was that her “conduct is not outrageous or intolerable because she was telling the truth about the dangerous and intolerable behavior of someone else.” But the court has already concluded that no reasonable jury could find that the bulk of Ms. Hutchings’ allegations were true. And either way, a number of Ms. Hutchings’ posts were not factual assertions—they were threats and insults.

Second, … a number of Ms. Hutchings’ posts were plainly intended to goad Ms. Shanley by causing her emotional distress. These posts suggest that Ms. Hutchings’ purpose in making many or all her posts was at least in part to cause Ms. Shanley emotional distress.

Finally, the court also concludes that Ms. Shanley has presented sufficient evidence to carry her burden on the third and fourth elements. “The emotional distress a plaintiff experiences must be so severe that no reasonable [person] could be expected to endure it, which includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” Ms. Shanley declares that she began to worry about her personal safety at home and in public; that she contemplated suicide following the onset of the posts, and that she began visiting a therapist following the onset of the posts. And it is clear from Ms. Shanley’s declaration that her severe emotional distress was a direct and foreseeable result of Ms. Hutchings’ posts.

Note that such emotional distress liability for speech that wasn’t actionable defamation was possible only because the speech had been determined not to be on a matter of public concern (see Snyder v. Phelps (2011)).

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