The Lanier family, whose enslaved ancestors were stripped and forcibly photographed in 1850, may allege reckless infliction of emotional distress against Harvard, the Massachusetts Supreme Judicial Court ruled in June.
I wrote about this case and its heated oral argument in November, with links to sources elucidating the context. The court's decision to allow an emotional distress claim is momentous, even while the court dismissed claims in property law and tortious conversion.
Chief Justice Kimberly S. Budd wrote separately in concurrence "to emphasize that the alleged conduct of the defendants (collectively, Harvard) here clearly transgressed moral standards broadly adopted by archival institutions."
Justice Elspeth B. Cypher wrote an intriguing additional concurrence in which she proposed that the plaintiffs should be afforded a novel common law cause of action, besides infliction of emotional distress, upon the unprecedented facts of the instant case.
Lanier's story in a 2020 short by Connecticut Public
This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.
The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion. The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."
Harvard's position depends on a narrow view of the case as a simple question of property ownership. As the saying goes, "possession is nine tenths of the law." Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.
The Lanier family articulates a broader theory of the case. Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold.
The Lanier side divided its argument between two attorneys. Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective. First, he said:
The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history. It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case. And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.
Second, Crump paraphrased Frederick Douglass, that
the genealogical trees of black people do not flourish as a result of slavery. In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage. But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.
Third, Crump said:
This case presents a case study of Massachusetts's complicated history with slavery. On one hand it has profited mightily from the cotton trade. Its most powerful institution, Harvard University, has ties with slavery that date back centuries. In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires. In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart. On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse. John Adams said slavery is the great and foul stain upon the North American Union.
Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates. Based on the colloquy, the smart money in the case is on Lanier. Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure. The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.
The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues. In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized. It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.
The probing revealed that counsel for Lanier would render the case large or small, depending on their needs. Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman." The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.
Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have. Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education. The ends don't justify the means, he said.
In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe." Crump ducked the question. "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.
Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case. Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today. Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.
"This court has the ability to finally free Renty and Delia from bondage," Crump concluded. "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."
The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021). Briefs are posted on the docket. The oral argument will be posted at the Suffolk Law archive. The Harvard Crimson published a thorough piece on the case in March. A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.
[UPDATE, Nov. 3:]
The oral argument is now posted in the Suffolk archive. Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).
I add that Crump's argument, while quotable, was not as substantively important as Koskoff's. I rewatched the oral argument today. It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.
In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021. Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.
I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right. I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity. Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.
Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.
