Don't Enshrine Trigger Warnings in Tort Law

The science doesn’t support it and it would damage free expression

Jurisprudence

DON’T ENSHRINE TRIGGER WARNINGS IN TORT LAW

The science doesn’t support it and it would damage free expression

Shawnelle Martineaux

In 1980, the DSM III, the American Psychiatric Association’s official guidebook for diagnosing mental disorders, first included Post-Traumatic Stress Disorder (PTSD) as a diagnosis. With this introduction, the US had a string of spurious personal injury (in law, a kind of tort) lawsuits for “emotional distress.” In this litigious atmosphere, the phenomenon of the “trigger warning” was born. The rationale for trigger warnings was to give fair warning that a potentially “distressing” subject matter was about to be broached and thus to avoid lawsuits. In Trinidad and Tobago, where I reside, legal liability for psychological distress exists, but it is difficult to establish. Only nominal damages are awarded for this kind of harm. However, there has been a new thrust towards the use of trigger warnings in some developed countries. Given this context, I think it prudent that I argue in favor of the preservation of my country’s conservative approach. Other liberal democracies grappling with trigger warnings and associated phenomena would, I submit, do well to consider the arguments I present here.

In their thorough replication study “Helping or Hurting? The Effect of Trigger Warnings on Individuals with Trauma Histories,” Jones, et al. found that trigger warnings were functionally inert, and in many cases, counter-therapeutic, because they reinforced the idea that individuals’ traumatic experiences were central to their identities. While well-intentioned people originally reasoned that these warnings would help trauma sufferers engage with (or avoid) difficult subject-matter, there was no concrete research suggesting that they were fit for purpose. They were merely employed in good faith. Today, however, with the preponderance of evidence of their ineffectiveness, their potential harmfulness, and an ever-extending list of purported triggers aimed at protecting against nebulous trauma events, I am compelled to forward three arguments against trigger-warning liability.

First, tort law demands that awards of damages are restorative. Liability is not based on good vs. bad intentions, but on the establishment of causation without an adequate defence. This means that the injury or damage which is the subject matter of a claimant’s lawsuit must be a consequence of some action or inaction on the part of a defendant who is not able to give a factual or legal justification that renders his action or inaction lawful in the circumstances (such as, for example, shooting someone in self-defence). Given the standard “but for” causation test—that is, a test whether the claimant’s injury would have been avoided had the defendant not done as he or she did—any argument for trigger-warning liability would and should be unpersuasive. This is because the psychological evidence against the efficacy of trigger warnings gives no reason to suppose that a trigger warning would have prevented psychological injury.

Secondly, the very nature of the subject matter precludes liability. PTSD results from a subjective experience of the world. Individual triggers are as numerous as individual PTSD sufferers. Since it is practically impossible to account for all potential triggers, attaching any kind of liability for not using trigger warnings could open the floodgates for potential lawsuits. The subjectivity of triggers could make what was otherwise normal activity unlawful. Legal certainty—the principle that legal consequences of particular actions should be defined clearly—is crucial to a healthy legal system. Exposing the public to dubious forms of liability is contrary to legal certainty and hence to a just society. An obvious countermeasure here would be to attach liability only for failing to use certain specified trigger warnings, but given their demonstrated inefficacy, this would be a pointless effort.

Thirdly, I think that trigger-warning liability would irreparably damage the public sphere by hindering discourse. Most of us in the West live in liberal democracies. Freedom of speech is essential to their preservation and development. Within liberal democracies, nobody has an entitlement to remain unoffended. The law compensates for legal wrongs, but not subjective moral wrongs. As a result of this freedom, we benefit from scientific enquiry, journalism, debates, and countless other goods which help our societies and the world at large. While the exercise of freedom may sometimes cause anger, offence, and even hurt, none of these potential outcomes justifies an attachment of liability. They represent trade-offs we make in order to live in healthy societies. Stymying freedom of speech by creating a liability, especially such an arbitrary one, would likely cause us to revert to the dark ages. We need only look at North Korea, Soviet Russia, and other modern societies in which expression is or was limited by law for evidence of this.

In closing, I trust that these words will not be misinterpreted as an excuse for belligerence or unkindness. Mental health is important. PTSD sufferers should receive appropriate and adequate treatment. They should be empowered, and their mental resilience should be encouraged. They should not, however, be made to feel that trauma is the central feature of their identities, nor should they be treated as somehow “defective” and lacking in resilience because of a manageable disorder.

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Shawnelle A. Martineaux is a Trinidadian lawyer, theatre performer, and freelance writer. An atheist and secular humanist who leans libertarian, she believes that rationalism, curiosity, honesty, and freedom are essential to human flourishing. Presently, she is working on a musical stage play entitled God is a Trini which explores the human condition and addresses how quotidian complacency causes problems for both individuals and society. She is a trained mezzo-soprano, an amateur gardener, and loves to learn foreign languages. In her spare time, she can be found experimenting in the kitchen, playing a friendly game of badminton, or wrestling in the yard with her rambunctious Rottweiler, Gigi. 

You can follow her on Twitter, connect with her on LinkedIn, and read her blog, where she tries to give a Caribbean perspective on the topics of the day.