George Johnson of the New York Times writes that:
In a saner world, where science and the law meshed more precisely, a case like Firstenberg v. Monribot would have been dead on arrival in court.
Arthur Firstenberg, you see, is suing his neighbor, Raphaela Monribot, for bombarding him with photons from her iPhone, her WiFi connection, her dimmer switches and her fluorescent bulbs (all as side effects of her ordinary use of these devices). Mr. Firstenberg believes (or claims to believe) that said photons are damaging his health — a belief with essentially no scientific basis.
Mr. Firstenberg requests $1.43 million in damages, so perhaps we should think of this as an exercise in bosonic “ka-ching” theory. The case has gone on for five years, and might be headed to the New Mexico Supreme Court. Estimated court costs so far exceed a quarter of a million.
It would be easy — in fact, Mr. Johnson of the Times finds it extremely easy — to see this case as nothing but a minor tragedy with comic overtones. But the issues it raises are deeper than that.
First, this case is about as good as it gets if you’re looking for a reductio ad absurdum to libertarian dogma about the absolute right to control one’s own body. If we accepted that dogma, Mr. Firstenberg would have an excellent case. More than one economist has tried to refute the libertarian position by concocting hypothetical lawsuits over “penetration by photons”. Thanks to Mr. Firstenberg, we no longer have to resort to the hypothetical.
What, then, is the right standard for an act to be considered tortious and/or for it to be appropriately discouraged by public policy? If libertarian dogma (and, I suspect, any other brand of deontological dogma) leads places where nobody wants to go, then the alternative is some form of consequentialism. I’m not allowed to kick you in the shins. That’s not because you have some inalienable right to control your shins; it’s because kicks in the shin cause material harm, with, in most cases, relatively little in the way of offsetting benefits.
But once you’ve gone down the consequentialist road, you’re inevitably faced with the question of what counts as material damage, and in particular whether psychic damage is or is not material. Let’s suppose that Mr. Firstenberg believes that Ms. Monribot’s photons are making him sick, and that he suffers genuine distress as a result of this false belief. Is that distress sufficient basis for a lawsuit?
Many people — including me — have a strong gut feeling that the answer should be no. This gut feeling gains strength from the fact that it is consistent with a lot of other gut feelings. If Mrs. Grundy is offended by the very existence of her neighbor’s porn collection, should she have the basis for a lawsuit? Is her distress, in and of itself, a reason for the law to discourage porn collections? My gut says no again. If you feel genuine distress over strip mining in an Alaskan wilderness that you never plan to visit, does your distress constitute a reason for the law to discourage that strip mining? My gut still says no. That’s a good consistency check.
On the other hand, it’s not entirely easy to justify those gut feelings. Given a choice between having a neighbor with a porn collection and getting kicked in the shins, Mrs. Grundy might well prefer the latter. Why, then, should the law care more about what bothers her less? Part of the answer, I think, is that, compared to physical harm, mental distress is easier to conjure up, and we don’t want to encourage conjuring. But I’m not convinced that’s a complete answer.
Besides, there are other cases where many people’s guts (or at least my gut) go the other way. What about installing a hidden camera in a stranger’s bedroom, while taking effective precautions that said camera will never be found? One wants to say that this is somehow more of a legitimate legal concern than bombarding a person with harmless photons. But the counterargument is that Mr. Firstenberg is (or at least might be) suffering genuine distress from those harmless photons, while the unknowing victim of the voyeur suffers none at all. (A partial countercounterargument is that while no particular victim is aware of the hidden cameras, we are all aware that we might be victims, and the more cameras there are, the more we’re all distressed by that.)
An even harder case is the voyeur who installs a hidden camera without taking precautions to make sure it’s not found. In this case, the victim is very likely to end up feeling emotional distress, and many people’s guts (including mine) say that the law should care about that. But how is that distress different from that of Mr. Firstenberg, or of Mrs. Grundy, or of the anti-strip-mining activist?
All of this is to say that these issues are both hard and important, I don’t know how to settle them, and they merit discussion. (I hope some of that discussion is about to take place right here.) Certainly they’ve been discussed to death in the legal literature, and particularly in the law-and-economics literature, but I’m not aware of anyone in that tradition who thinks they’ve been settled.
Bottom line: Mr. Firstenberg’s lawsuit “obviously” has no merit. But articulating why it has no merit leads to a thicket of difficult but crucial questions in legal theory, public policy, economic analysis, and moral philosophy. By calling attention to those questions, the Firstenberg lawsuit might have some social value after all.