I apologize for duplicate posting to those on both the obligations and tortprof lists.

A few cases in the United States have permitted a trespass action to be maintained for invasions of land by gaseous and airborne microscopic particulates, in order to allow the plaintiff to take advantage of the longer limitation period for trespass actions. In Martin v. Reynolds Metals Co., 342 P.2d 790 (Ore. 1959), the court stated that modern scientific knowledge, which has revealed the molecular and atomic structure of the physical world and the equivalence of matter and energy (as stated in Einstein’s equation, E=Mc2), has undermined the traditional distinction between tangible and intangible invasions. Relying on Martin, the court in Bradley v. American Smelting and Refining Co., 709 P.2d 782 (Wash. 1985), held that airborne particles or substances that do not dissipate, but rather accumulate on the plaintiff’s land, can constitute a trespass as well as a private nuisance. However, neither court would allow the trespass action unless there was substantial interference with the plaintiff’s possessory interests or substantial damage, respectively, thereby reinstating the usual requirement for a private nuisance action under the guise of a trespass action.

Another theory, about which Jason has written well before, might apply: the "prima facie intentional tort" for conduct done intentionally and maliciously for the sole purpose of injuring the plaintiff, as stated in Restatement Second § 870. The idea of this prima facie intentional tort seems to have underlain the English courts’ initial recognition, in 1897, of the tort of intentional or reckless infliction of severe emotional distress. While some jurisdictions, e.g., Germany in BGB § 826, explicitly recognize the existence and general applicability of this prima facie intentional tort, others (e.g., common law jurisdictions including those in the United States) instead impose liability in appropriate cases by relaxing the requirements of the most analogous discrete intentional tort. For example, numerous courts (in the US, at least) have held defendants liable in a private nuisance action for erecting “spite” fences—fences maliciously erected for the sole purpose of adversely affecting a neighbor’s view, rather than for any independent legitimate purpose of the defendant—even though a private nuisance action ordinarily requires an invasion of the plaintiff’s property by light, odor, fumes or some other intangible entity. See also Keeble v. Hickeringill, (1707) 103 ER 1127 (trespass action for firing gun on one’s own land, with no physical invasion of shots (or noise?) onto neighbor’s land, to scare wild fowl from landing on neighbor’s property).

However, a factor previously mentioned by Dominick Vetri might weigh against allowance of such an action in the projected image situations being discussed: the interest in free speech, which doomed the trespass to chattel action in Intel Corporation v. Hamidi, 71 P.3d 296 (Cal. 2003) (where the court implausibly contended that a trespass action should and would not be allowed absent significant interference not only in a damage action but also in an equitable action to enjoin continuation of such interferences, despite the acknowledged existence of a technical trespass, due to free speech concerns in the specific situation; compare someone constantly rifling through the plaintiff’s purse).

Nevertheless, my instincts lie with the complaining defendant here: protest as much as you like, but you can’t invade my property, tangibly or intangibly, to post messages to do so.