Friday, January 25, 2013

Negligent Infliction of Emotional Distress #19: Fighting Words and the Reading Period

          On the morning of December 2, 2012, a group of ten students gathered in the lobby of Brooklyn Law School, waiting for the library to open. It was 9:05 AM and several students found the prohibition on entering the library unreasonable, arbitrary, and capricious. One student in particular was a worker at the library (hereinafter the “off-duty librarian”)—indeed he had opened up the library the previous day—but was told that he was not allowed to open it today, since it was not his shift. This set another student off.
          While several students became extremely vocal about the ridiculousness of the situation, one student became noticeably more upset than the others, and threatened to have the students responsible for opening the library at 9:00 AM—sharp—fired.   The off-duty librarian, who had repeatedly requested that everyone “calm down” and “relax,” was dealt the harsh blow of the vague-sounding threat, “I’ll deal with you later.” 
          The off-duty librarian became upset and said that he was getting his feelings hurt.  The other student responded by saying that their feelings were being hurt too.  At this point a couple other students emerged from the student lounge and further suggested relaxing and calming down—they were then told to “stay out of it.”  By this point, the other extremely vocal students had quieted down to a degree—a consensus seemed to be developing (perhaps the marketplace of ideas and counter-speech were effectively combating the threat of violence).  The security guard in particular was subjected to verbal abuse.  
          The off-duty librarian attempted to maintain peace, but the abusive speech would not abate.  He finally took out his First Amendment Law casebook and sat on the ground in front of the security guard table, outside the view of the anxious mob.  At roughly 9:10 AM, the on-duty librarian arrived, the doors were opened, and the anger subsided.

          Never before has there been such a shocking display of the “50/50 Rule[1]” as this incident.  If anything it was near perfect proof of the truth of the theory (at least amongst the early-risers of the law school): of the 10 students present in the lobby, about four were un-cool and six were cool. 

          The situation was also extremely ironic in light of First Amendment concerns – these were fighting words if any – and though some readers may be laughing at the prospect of such a situation, it was certainly plausible that a fight was about to break out.  If one other student had accepted the invitation to threaten more severely as a rejoinder, it would have come to blows.  There was no better illustration of the misery that other law students can heap on their innocent classmates. 

          Afterward, this off-duty librarian was shaken and upset, fearing the other student now, indeed worried about the threat to be “taken care of later.”  The off-duty librarian may, for once, make a colorable claim for Negligent Infliction of Emotional Distress.  Indeed he fears for his safety, and the incident left him so distressed that he could not concentrate on his work—indeed threatened to keep him out of the law school entirely—merely because he wanted the mob to “settle down.” 

          I would list damages at $25,000—or the cost of one semester—if indeed this precluded the off-duty librarian from attending exams.  But this off-duty librarian does not like to take chances in court.  Indeed the injury may be viewed as a de minimus from a certain perspective.  However, from a different perspective these are fighting words indeed, and outside the protection of the First Amendment, unless we are to attach crucial importance to the word “later.”  See, e.g., Hess v. Indiana, 414 U.S. 105 (1973).
          One hopes that an apology is forthcoming.  However, the “40%” never fail to amaze me with their utter indifference to common human decency, fueled by their sense of entitlement.  I expect this to be “war” and a conflict that is only going to end with more destruction in its wake.
          It may indeed be time for the school to purchase a puppy for the library to help students relieve stress.  Violent verbal assaults should be reserved for the uneducated masses and the people who exploit them – not students that seek to define how a “reasonable person” should react in a certain situation.
Christopher J. Knorps is a 3L at Brooklyn Law School.  He works at the library and enjoys studying Constitutional Law and Bankruptcy Law.  He does not like fighting.  He is organizing a 2nd Annual Open Mic with proceeds going towards Sanctuary for Families.  Please e-mail him at if you are interested in reading or performing.

[1] The 50/50 Rule was first stated in writing on March 14, 2012 here  It was later amended to the 40/60 rule on April 19, 2012 (the un-cool students now outnumbering the cool students) which is documented here  It will now stand as the 60/40 rule—as the numbers of this all-too-clear situation must dictate.  

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