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WHAT BRAIN SCANS SHOW AND WHAT SOME LEGAL DECISIONS SAY

The skepticism over feigned emotional injury is no longer a reason to dispute claims for emotional distress. Emotional harm now has a physiological component.

ACCORDING TO LAW professor Betsy Grey, brain scan imaging produces specific findings that eliminate concerns of pure subjectivity in emotional perceptions. Specifically, functional magnetic resonance imaging (fMRI) takes a live photograph of the mind at work and measures the neural impact of various types of psychological harm. The incidence of emotional harm activates certain sectors of the brain in responding to painful stimuli—a derogatory word, a sign or poster that evidences social exclusion. This requires more oxygen to be pumped to the brain. The increase in oxygen consumption expands the blood flow of active neurons. Other types of scans, such as positron emission tomography (PET), employ radioactive isotopes to detect energy metabolism. Both scans measure and make visual the flow of blood to the brain. The reason behind all that racing blood is a neural response to outside forces that manifests itself as changes to brain function.²⁵³

One thing is for sure: The skepticism over feigned emotional injury is no longer a reason to dispute claims for emotional distress. Emotional harm now has a physiological component. Objective standards of reasonableness can be employed to evaluate a plaintiff’s claim of emotional injury. Indeed, the very same Reasonable Person Test, which is applied in cases of physical harm, can be used to standardize the extent of emotional harm. Charting the brain scans of a critical mass of people in a given community and observing how they react to certain situations—the flow of blood to designated sectors in the brain that light up in response to fear and intimidation—allows medical experts to quantify the levels of emotional pain.²⁵⁴

Once armed with objective evidence, courts no longer need to flail when faced with psychological harm, treating emotional injuries as a second-class category in the doctrines of tort law. Psychiatric disorder is not only knowable, it is tantamount to bodily harm. In Allen v. Bloomfield Hills School District, a 2008 tort action in Michigan, a train operator spotted a school bus that negligently maneuvered around a crossing gate instead of waiting for the train to pass and the gate to open. The train operator attempted to avoid crashing into the school bus, but failed to do so, causing him to witness the train ram through the bus. (Fortunately, the bus was empty of children.) As the plaintiff in the action against the school district, he was diagnosed with PTSD, and no other bodily harm. He sued for the negligent operation of the school bus. Surprisingly, the court permitted him to recover for “bodily injury” on the theory that the accident caused actual physical brain damage. PTSD constituted bodily injury to his brain, evidenced by a PET scan. The court noted that the brain scan presented “objective medical evidence that a mental or emotional trauma can indeed result in physical changes to the brain.” In reaching this conclusion, the court allowed expert testimony showing that PTSD “causes significant changes in brain chemistry, brain function, and brain structure. The brain becomes ‘re-wired’ to over-respond to circumstances that are similar to the traumatic experience.”²⁵⁵

These are all steps in the right direction. And it mirrors the way legal rules apply to emotional injury in the United Kingdom. In England, courts do not make distinctions between emotional and physical harm. Like the court in Bloomfield Hills School District, psychiatric illness is treated as bodily harm. All illnesses, after all, affect the body—in their own way. It is an extreme leap of metaphysics to believe that damage to the human mind has no repercussions on the physical body. Emotional harm is bodily harm. Under the English system of tort law, if an injury establishes a recognized psychiatric disorder—depression, PTSD, severe grief—then for liability purposes, it is tantamount to bodily harm.²⁵⁶

Even in the United States, there has been a movement to ensure that health insurance plans treat with parity their coverages for psychological and physical harm. As House Speaker Nancy Pelosi declared in 2008, “illness of the brain must be treated just like illness anywhere in the body.”²⁵⁷

All of this represents a more complex understanding of the ways in which the mind works. Emotional injuries cause structural changes to the brain. The regions of the brain most associated with emotional trauma are the medial prefrontal cortex, orbitofrontal cortex, anterior cingulated, insular cortices, the amygdala, and the hippocampus—all of which are involved in processing emotions.²⁵⁸ Emotional harm rewires the processes in these sectors of the brain, causing overload quite apart from the toll taken from physical injury. The full effect from both emotional and physical injury is to bring about dysfunction in brain circuitry.²⁵⁹

Even a single exposure to a traumatic event can create permanent cellular changes in the amygdala, the sector of the brain that is activated in response to anxiety and the recollection of painful memories—often known as the “emotion center” of the brain, the “arousal system” stimulated from trauma and stress.²⁶⁰ When this happens, brain circuitry is disrupted, and anxiety sets in. Prolonged stress, and its effect on creating inflammation in the body, starts out by impairing the functioning of the prefrontal cortex, which would otherwise smooth out the emotions emanating from the amygdala. When the prefrontal cortex is exposed to stress, fear, and intimidation, the amygdala is left without regulatory balance, which is why people oftentimes describe themselves as “feeling out of control.” Their perception of reality is altered. Clear thinking is lost. Those who have experienced PTSD from prior traumas, or those who are easily anxious, will overreact through no fault of their own. Their amygdalae are always on high alert, supersensitive and hyperactive, and fully inflamed.²⁶¹

In the past, it was easy to misread what was happening in the brain. When symptoms suggested that an individual was responding emotionally, the immediate conclusion was that he or she had fallen into a disoriented, altered state of cognition. Only God knew what was really going on. Setting a broken bone was a picnic by comparison. But what was really occurring was not nearly that mysterious. It was simply a breakdown in the neural networks, especially in the prefrontal cortex, which otherwise regulates fear, stress, and memory. Over time, traumatic experiences cause physiological changes in the brain. Today they are easily identified through neuroimaging.²⁶² Neuroscience can show a connection between traumatic experiences and cognitive disorders. In time they manifest as neurological conditions. Once that sets in, the neural system is unable to regulate the emotions emanating from the amygdala. It is like a remote control that cannot seem to connect with the TV—a looping slide show of channels without end. With each exposure to stress and fear, the greater the neural dysfunction. Subjective emotional injury is no longer legally suspect, with clashing experts hawking different diagnoses and claimants delivering Oscar-worthy performances. Damage to the brain can be as conclusively and objectively verified as bodily harm. Neuroscientist Joseph E. LeDoux summed up the new diagnostic climate in 2000 by stating that, “brain researchers need to be more savvy about the nature of emotions, rather than simply relying on common sense beliefs about emotions as subjective feeling states.”²⁶³

It is for this reason that the legal system should stop treating the intentional infliction of emotional distress as a token tort that rarely receives legal relief on its own. The general rule under common law, which was codified in the 1965 Restatement of Torts, was that: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”²⁶⁴ In the follow-up Restatement, the “extreme” and “outrageous” prongs received an additional element to establish the tort. To be recoverable, the action must “exceed all permissible bounds of civilized society.”²⁶⁵ With such a high burden of required evidentiary proof, in which the tortious act must fall into a largely undefinable category of outrageousness, no wonder that recovery for the intentional infliction of emotional distress arises, if at all, only in cases where it can be an add-on to another tort that has a physical, tangible damage component. The body becomes the controlling canvas for legal relief. Disfigure the body with bruises, and the legal system mobilizes into high alert. Emotional distress, absent bodily injury, is a much lonelier road to recovery, in part because such claims are so widely dismissed and disbelieved, as is the case with the recognition and treatment of many forms of mental illness.

Emotional distress claims without the mens rea component, however, as in the negligent infliction of emotional distress, are far easier to prove. It requires neither the extremity nor outrageousness elements that must be met when the tort is framed as an intentional harm. Negligent infliction focuses entirely on the harm that arose from the negligence itself—and dispenses with any burden to establish either the intent of the act or the outrageousness of the conduct. All that has to have occurred is the breach of a standard duty of care, causally connected to an action of a tortfeasor, and a showing of harm.

The Restatement of Torts defines emotional harm caused by a negligent actor as one who placed the plaintiff in “immediate danger of bodily harm,” and whose negligent conduct is likely to cause a serious emotional disturbance.²⁶⁶ Today, with the aid of neuroscience, treating emotional harm as an ordinary negligence claim is a much simpler evidentiary burden to meet. The harm is revealed not entirely through subjective testimony but through brain scans showing the link between emotional damage and bodily sickness. Law professor Deanna Pollard Sacks is among several academics who have argued in favor of using ordinary principles of negligence to establish liability in tort for unreasonably dangerous speech. Causing emotional distress in another constitutes a tort in negligence and such an action can be brought by the injured party. The government need not initiate any proceeding against the speaker for violating a criminal law statute or an ordinance barring certain behavior in public—such as a protest or march. Civil claims in tort under state law provide a clear pathway to respond to the injurious nature of assaultive, violent speech, especially in situations where there is the “likelihood and gravity of public risk, and . . . [when] the risks are sufficiently foreseeable to warrant punishment.”²⁶⁷

Neuroscience is not the only way we have come to learn more about the human brain and its processing of emotional injury. Many studies have been undertaken in the past few years that establish just how harmful emotional injury can be—especially harm that originates with speech. For instance, talk radio and podcasts, which often include an unhealthy dose of hate speech targeting vulnerable groups, have been found to increase a stress-related hormone in whomever happens to be listening to the message—and regardless of the race, ethnicity, nationality, or ideological alignment of the listener. This means that hate speech over the airways harms not just the intended targets but also anyone who has unwittingly tuned in. One study in 2002 found a correlation in the symptoms of clinical anxiety, the production of salivary cortisol in the body, and the onset of chronic inflammatory diseases, which can lead to cancer—all on account of listening to hate speech. Alex Nogales of the National Hispanic Media Coalition, which commissioned the study with the assistance of researchers at the UCLA Chicano Studies Research Center, observed the paradox that, “[t]his study demonstrates that harm is not isolated to targeted groups and that it could . . . even harm the physical health of those that are ideologically aligned with the haters.”²⁶⁸

A similar finding arose out of a 2012 study in Boston where researchers discovered that not only were victims of hate crimes three times more likely to be hospitalized but (not unlike the findings in the UCLA study) those who heard the hate speech directed at vulnerable minorities also experienced an increase in salivary cortisol with its chronic inflammation and connection to cancer. Once again, the ethnicity or race of the listeners is irrelevant for the risk to be present. Moreover, the listener need not be sympathetic to the victim. Exposure to the hate, even from a fellow bigot, is enough to bring about this physiological enigma.²⁶⁹

In response to Germany’s new online hate speech law, which went into effect in 2018, social media networks such as Facebook and Twitter—faced with severe fines for failing to remove illegal content from their sites within one day of notification—took affirmative steps to monitor their own platforms. They stepped up what were once lackadaisical deletion centers that had been charged with removing content that incited hatred. Thousands of content moderators work in such facilities across Europe. On any given day they might each have to examine 1,500 reports of online hate speech and the posting of unlawful content. It can be devastatingly nightmarish work. “Every so often someone breaks down. A mother recently left her desk in tears after watching a video of a child being sexually abused. A young man felt physically sick after seeing a video of a dog being sexually tortured. The agents watch teenagers self-mutilating and girls recounting rape.”²⁷⁰ Harm comes even to those who simply come into contact with these horrific acts of self-expression. The viewer does not have to be the intended target to feel the residual effects of the harmful speech.