PANEL: Torts and Identity
Saturday, October 24, 8:30-10:00
Chair: John Nockleby, Loyola Law School, Los Angeles
Indefensible Speech: Anti-Semitism in Sapiro v. Ford, 1927
Victoria Saker Woeste, American Bar Foundation
This paper will explore the meaning of speech, libel, and anti-semitism in the trial of Henry Ford in 1927. Aaron Sapiro, a lawyer and organizer of agricultural cooperatives during the 1920s, filed suit for defamation and damages in federal court after Ford's newspaper, the Dearborn Independent, published a year-long series of articles alleging that Sapiro's activities on behalf of farmers and cooperatives were proof of the existence of a "Jewish front" whose goal was to take control over American agriculture and turn it over to unnamed international speculators, Communists, and bolshevists. Curiously, though Ford's lawyers pledged they would use truth as a defense, at trial they avoided the issue completely, dancing around the anti-Semitic claims that the plaintiff charged were at the heart of the case. This paper will explore the strange strategy of the defense in the case and consider why, in the context of 1920s isolationism, Ford found it politically advantageous to make such allegations in his newspaper but not to defend them in court. The presentation will explore the legal strategies the defense employed at trial to impugn the plaintiff's integrity as a Jewish person without making that attack explicit and why, despite a succession of bizarre events outside the courtroom that were designed to influence what was happening inside, the defense was unable to maintain control over the case. Finally, the paper will conclude by exploring the implications of the case for the place of anti-Semitism in public discourse relating to public policy and extragovernmental policy makers during the age of associationalism.
From Spirit to Psyche: The Emergence of Invasion of Privacy as a Medical Harm
Jonathon Kahn, Department of History, Bard College
This paper is part of a larger work exploring the development of the concept of "appropriation of identity" in American tort law during the twentieth century. Since the turn of this century, the American legal system has recognized a person's "identity" itself as something that could be stolen, or "appropriated"; (not racial identity, or gender identity, but simply identity). Grounded in the common law right to privacy, the tort of appropriation of identity involves the use, without consent, of another person's name or likeness for commercial gain. That the law recognizes so amorphous a concept as "identity" is in itself remarkable. Even more remarkable is the degree to which scholars and practitioners have overlooked its place in the history of American law. My work takes the law at its own word: "identity." I examine what individual litigants, courts, legislatures, and commentators have meant when they explicitly argued for or actually recognized rights in something they called identity. This paper begins by examining the emergence of the tort of appropriation of identity during the first third of this century as a dignitary tort grounded in genteel bourgeois ideals of civility and honor. It then focuses in particular on the 1930s, a time when the tort of invasion of privacy had finally gained widespread acceptance. At this historical moment, we see the emergence of a new tort, "intentional infliction of mental distress," most famously articulated by William Prosser in a 1939 law review article. This new tort soon become conflated with certain aspects of invasion of privacy. Whereas the original tort of invasion of privacy assessed the harm of such acts as appropriation of identity by reference to local community norms of civility (often defined implicitly by local elites), the new psychologized version of the tort called upon a newly emerging community of professional medical experts to use supposedly transcendant norms of science to identify any specific mental harm to a particular individual. Under the old privacy regime, a jury could find an objectively perceived breach of civility as sufficient to establish a cause of action. Under Prosser's new tort of intentional infliction of mental distress, the plaintiff would additionally have to establish individual subjective psychological harm according to expert criteria. This move from objective, community-based, normative perceptions of injury to subjective, individual, expertly evaluated harms marks a significant shift both in the emergence of new forms of authoritative discourse and in the characterization of privacy as a purely individual concern that often implicated medical issues. In this, we see also the seeds for later constitutional assessments of privacy in the realm of reproductive autonomy as a matter for expert medical determination rather than as a product of local community norms.
Comment: Arthur F. McEvoy, University of Wisconsin Law School
Norman L. Rosenberg, Department of History, Macalester College
of the canon contains two inter-related methodological process: ideological deconstruction and historical reconstruction. The first step is designed to expose the ideological forces that have shaped the creation of an approved body of texts and demonstrate the historical forces that favored some texts over others. The second step involves unearthing those texts that did not achieve canonical status. When the canonical and non-canonical are examined together, it is possible to restore a voice to alternative constitutional visions. In place of the dominant Whig and declension narratives that shaped so much writing about American constitutional history, a post-modern constitutional history would focus on the past as a contested terrain in which competing visions vied for dominance.