The Supreme Judicial Court of Massachusetts (the state’s highest court) recently issued a surprising decision that permits claims against Harvard arising out of a series of daguerreotypes taken of the plaintiff’s ancestors in the 19th century by famed professor Louis Agassiz to proceed. While the SJC affirmed the dismissal of the plaintiff’s property claims that sought outright ownership, the court reinstated claims for emotional distress. The decision held that the manner in which an educational institution responds to a grievance about something in its possession may itself be actionable in the context of the institution’s relationship to the historical facts. In stretching the bounds of the traditional causes of action for negligent or reckless infliction of emotional distress to reach a sympathetic set of facts, however, the SJC has effectively abolished limits on museum liability for collections created under problematic circumstances where the response to such claims is attacked creatively enough. The issue is not whether the result is fair to Harvard, or whether the plaintiff’s family deserves recognition and justice for what was done—they do. The problem with cases that are hard or impossible to limit is that they may lead to socially positive outcomes in one instance, but can be weaponized in the next. In an era when all manner of actors are politicizing what universities should or shouldn’t teach, this opinion creates innumerable opportunities for mischief. As a result, it raises First Amendment and Due Process concerns that Harvard might plausibly petition the Supreme Court to address.
The case concerns images of two enslaved people in South Carolina, Renty Taylor and his daughter Delia Taylor. They are horrifying to behold and to imagine the circumstances of their creation. Arranged by Agassiz, the photos depict two people ordered to disrobe and be photographed, in conditions under which they could not possibly have consented. Agassiz has rightly come under scrutiny in recent years for his racist “anthropology,” and the apparent purpose of the photos was to demonstrate the supposed inferiority of the subjects depicted in it.
Their descendant Tamara Lanier brought several claims in state court in Massachusetts. She claimed ownership of the photographs, and sought damages for negligent infliction of emotional dismiss and reckless infliction of emotional distress.
The ownership claims were dismissed at the threshold stage by the Superior Court (trial court) judge. First, they were subject to Massachusetts’s three-year statute of limitations, which would have begun no later than Ms. Lanier’s representatives approached Harvard in 2011 and Harvard’s public rejection of her claim in 2014, without need to determine whether the period should have begun earlier. Because the lawsuit was filed more than three years after 2014 and there was no question that the plaintiff was on notice of Harvard’s rejection of her claims, they were time-barred.
In addition, Massachusetts law provides no support for the idea that the subject of a photograph has a property, let alone outright ownership, interest in that photograph. While one justice of the SJC later urged that such a cause of action be recognized, the full court was not willing to go that far. It noted that even egregious circumstances like present-day crimes involving the surreptitious photographing of people without their consent does not make the victim the owner of those wrongfully-created images.
The SJC reversed the lower court’s dismissal of the emotional dismiss claims, however. The common law torts of infliction of emotional distress in Massachusetts are similar. Whether negligently (breaching a duty), or recklessly (willfully disregarding the obvious consequences of one’s actions, even if the specific outcome is not intentional), they involve the infliction of emotional dismiss on the victim that has a physical manifestation of the sort that an ordinary person would suffer under the circumstances (i.e., it cannot be as a result of a particular sensitivity of the specific plaintiff).
To determine if Harvard were negligent, the SJC first had to determine whether Harvard owed a particular duty to the plaintiff. This is a standard inquiry in any negligence claim. Under the totality of the circumstances, is the plaintiff in a group that the defendant owed a duty of care beyond the general public? This is the logic of so-called slip and fall cases, for example. If you have walkway, you expect people to use it and so you owe them a duty to keep it safe and usable.
This was the critical question: does Harvard owe a duty of care to the descendants of the subjects of the racist images that Agassiz created? The trial court said no, but the SJC said yes. To reach that conclusion, the SJC concluded that Harvard’s response to Ms. Lanier’s present-day inquiry has to be informed by the history of the object in the context of her family. Thus, the SJC held, Harvard had an obligation in all its interactions to be mindful of how that context might affect Ms. Lanier. In addition, Harvard’s own role in creating the photograph heighted its duty to its subjects’ descendants. As the SJC said, “In light of Harvard's complicity in the horrific actions surrounding the creation of the daguerreotypes, once Lanier communicated her understanding that the daguerreotypes depicted her ancestors and provided supporting documentation, we discern in both existing social values and customs and appropriate social policy a duty on Harvard's part to take reasonable care in responding to her.”
The opinion is cursory in its analysis of the actual emotional distress aspect of the tort, merely stating that a “fact finder could determine both that this distress was the actual and foreseeable consequence of Harvard's conduct toward the plaintiff and that her distress was a reasonable reaction to that conduct.” Indeed, it is almost infantizing in its treatment of Ms. Lanier.
The SJC also concluded that Harvard might be liable for reckless infliction of emotional dismiss. That standard, considerably higher than negligence, requires a plaintiff to allege (and later prove) that the defendant “knew or should have known that emotional distress was the likely result of his conduct” and that the defendant’s conduct is “extreme and outrageous”
There was no dispute in the opinion, and certainly no reason to conclude, that Harvard’s and Agassiz’s original actions would easily have met this standard. Those claims would have belonged to Renty and Delia Taylor, however, and the statute of limitations expired a century and a half ago under any theory. The question is about whether Harvard’s recent actions meet this standard. The SJC concluded that they do, because of Harvard’s original relationship to the creation of the images.
The SJC faulted Harvard, therefore, for using the photograph without Ms. Lanier’s permission, and for questioning publicly whether she was, in fault, the correct descendant. The SJC accused Harvard of “ignoring” her, but this is belied in the opinion itself, which concedes that Ms. Lanier received a personal response from then-President of Harvard, Drew Gilpin Faust.
So what does this all mean? Consider the breadth of objects in American (or Massachusetts) museums. Consider now the extent to which people might take offense to them. The Museum of Fine Arts Boston is currently displaying a Philip Guston exhibition that was postponed out of sensitivity to the reaction. What is to stop a plaintiff from bring a Lanier emotional distress claim against the MFA? Lest one think this objection is to protect a particular point of view, what about a Holocaust museum? This decision could be extended to hold that the depiction of a Holocaust victim—any one of which is inarguably as distressing as imaginable—without the consultation and consent of their descendants is actionable. What if the descendants disagree? To whom does the university or museum owe that duty?
Harvard received a claim of ownership that under standard law was objectively frivolous, yet the President of the university herself still engaged on the subject directly with the plaintiff. Indeed, the opinion itself affirms that Harvard was correct that the ownership demand was without merit. There is simply no limiting principle in this opinion at the pleading stage that the inherently subjective emotional reaction to a university’s response is potentially actionable—meaning the institution has an incentive not to respond at all. It is difficult to conceive of how anyone could respond to such a demand without making themselves liable. To be blunt, this decision is a First Amendment catastrophe. Universities and museums are supposed to discuss difficult subjects, and the current discourse involves considerable energy trying to muzzle them for political points. This opinion gives those censorious voices a powerful tool that the proponents of this result may soon regret.
It might also conflict with some areas of federal statutory law. There are, for example, considerable human remains in the possession of American universities that are overdue for proper handling. A plaintiff could easily try to state a claim for emotional distress over the handling of human remains that would leapfrog the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, a federal law. NAGPRA’s existence, and the fact that it does not cover this case, was even discussed at oral argument, underscoring that this result is trying mightily to create a remedy where none existed.
If hard cases make bad law, this one is a classic example. Massachusetts world-class universities and museums are on notice that any inquiry, no matter how well supported in law, exposes them to emotional distress damages based on the response.
Absent an appeal to the Supreme Court of the United States, which would require the invocation of a constitutional issue that Harvard had raised previously (among which is the First Amendment, which the SJC opinion rejects dismissively), the case will return to the Superior Court for further litigation.