Faced with the growing power of novel technology and social media industries, policy makers and legal academics have recently begun to re-imagine the role of the state in overseeing monopolistic corporations that uniquely impact the public welfare. K. Sabeel Rahman, for example, has advocated that firms with control over “infrastructural” goods—such as large financial firms and internet service providers—should be reconceived as public utilities, and regulated as key players in a “moral political economy.” William Novak has similarly encouraged scholars and policymakers to recover forgotten, pre-neoliberal “political-economic worlds” in order to generate alternative policy proposals for addressing economic inequity. Ganesh Sitaraman, Morgan Ricks, Shelly Welton, and Lev Menand have even launched a new casebook integrating the law of networks, platforms, and utilities as a new field of study.
As we grapple with the law’s power to address such corporations, one interesting yet largely forgotten set of cases can help us find our bearing: what are known as the “death telegram” cases. These suits, which emerged for a brief but consequential period at the turn of the twentieth century, involved claims for emotional distress against telegraph corporations for failing to deliver telegrams involving the death or illness of a family member. Astonishingly, nearly half the state courts that encountered these claims allowed them, in spite of the long-established common law rule that absent physical injury, mental anguish alone could not be recognized in law.
Central to the decision to allow this exception to the rule of no recovery for emotional distress was the nature of the telegraph corporation as a “public service corporation” – a monopolistic business entity that controlled access to a vital public resource. Rural Southern and Midwestern state judges held that the relationship between telegraph companies and patrons was not an arms-length, impersonal market transaction, but one based on affective, emotional duties, more akin to the relationship between members of the household than private economic actors.
This may sound bizarre to modern ears. How could patrons feel an emotional connection to the telegraph monopoly, the Western Union, that was simultaneously excoriated in the popular press as “the Octopus of the Wires”? I argue in a forthcoming article that the telegraph cases were not esoteric outliers. In fact, the vision of the public service corporation that these courts developed contributed meaningfully to the category of “public utility” that emerged during this period. Furthermore, I argue, understanding how people thought about the telegraph corporation in the past can open up new ways of thinking about powerful, monopolistic corporations today.
The basic definition of a public utility that emerged in 20th century administrative law is a monopolistic entity, typically a corporation, that provides an essential public service. But at the turn of the century state courts were still fleshing out this idea. The emerging legal category of the public service corporation was vital to government attempts to regulate the economy during the Gilded Age and Progressive Era. As Carly Knight has discussed, the early 19th century, pre-industrialization vision of the corporation was as a “creature of the public.” Incorporation was “the grant of the whole people of certain powers to a few individuals, to enable them to effect some specific benefit, or promote the general good.” As such, the public welfare took preeminence over private profit. The first American treatise on corporations explained that “[t]he object in creating a corporation” was “to gain the union, contribution and assistance of several persons for the successful promotion of some design of general utility,” and only secondarily to promote “the advantage of those who are members of it.”
This traditional view, however, was gradually replaced by the concept of the corporation a purely private, profit-driven market actor. A major driver of this change was Supreme Court decisions recognizing robust constitutional rights of corporations, which were used to overturn state regulation (the precursor of today’s politicized, pro-business judiciary). With the laissez-faire market facilitating ever-wider wealth disparities and industry combinations, state regulation of business became a central goal of the Progressive reform movement. The category of the “public service corporation” provided a legal loophole for carving out an exception to the laissez-faire constitutional doctrine, by allowing the state to regulate businesses and industries “affected with a public interest.”
The telegraph cases are an important window into the development of the public utility category in this moment. They reveal that the emerging category of the public service corporation had an emotional as well as economic welfare component. In other words, the state could regulate corporations not just to prevent economic harms, like price-gouging, but also to protect the public’s emotional well-being. Rural judges who endorsed the death telegram doctrine held that telegraph companies, as public service corporations, had an affective relationship with the public, in which they owed their patrons a duty not to cause emotional harm in the context of family illness or death.
How did courts justify deviating so starkly from the common law rule of no recovery for mental anguish? One small but long-established exception to the rule involved family relations: specifically, breach of promise to marry and seduction. Courts invoked these relationships explicitly, routinely comparing the contract between the telegraph company and its patrons to the contract of marriage. They emphasized the nature of the telegraph corporation as both a public anda private “servant”: the public service performed by the telegraph corporation was to serve their patrons as the private servant of their families in times of crisis. In so reasoning, these rural courts situated telegraph corporations within the affective household sphere, governed by hierarchical relations of duty, not the cutthroat market governed by arms-length contract. Notably, rural courts upheld this duty of the telegraph corporation regardless of the patron’s identity: white or black, rich or poor, male or female. The duty of the telegraph was to serve all alike in times of family crisis.
Were these rural judges simply taking advantage of a loophole in the law, situating the telegraph corporation in the family in order to invoke the “family law exceptionalism” of breach of promise to marry and seduction? I think not. Using the tools of legal history, I show that the courts’ assertion that telegraph corporations were part of the household, with special affective duties, was grounded in the reality of how rural Americans experienced the telegraph at the time.
In remote South and Midwestern towns, telegraph corporations were embodied in the person of the telegraph agent. Sometimes the telegraph agent was also the railroad agent; they were the most informed citizen in town, in control of special technology on which public depended. In this era of rapid industrialization and mobility, the “island communities” of pre-industrial America were decimated as denizens migrated to urban areas and emerging commercial hubs for factory and industrial jobs. The telegraph was the only means by which rural Americans could communicate rapidly with far-flung family members in times of crisis.
Telegraph operators in rural areas were also often women. Stories and articles about women telegraphers abound, as middle-class women professionals were still a novelty in this period. These women made the telegraph office “pleasant” and “cosy”; they brought their young children to the office with them, and employed their older children as telegraph messengers. In very rural areas some telegraph offices were even located in women’s houses. Aided by gendered expectations that women were the ones who provided care and comfort during illness and death, women telegraphers took seriously their responsibility to deliver messages involving illness and death, sometimes delivering such messages themselves and sitting with families while they processed the news.
Importantly, this was not just public perception of telegraph operators, but a vision promoted by the telegraph corporation and its agents. In written expectations of agents’ behavior and in the burgeoning literary genre of “telegraph romances” popular during this period, both male and female telegraph operators were presented as intimately connected to their patron’s families. Stories and poems abound of telegraph operators rushing to deliver death messages in time for the recipient to reach the bedside of a dying mother or sister. In the death telegram cases, both plaintiffs and judges invoked this vision of the telegraph operator as having an explicit duty to care for families in time of illness and death.
The idea that a megacorporation could owe emotional duties to its customers may seem startling. Yet what would it mean to take this conception of the corporation seriously? How would our modern political economy change if corporate responsibilities to the public included not just economic, but emotional duties? What sort of possible legal mechanisms for public and state oversight of these powerful corporations would this open up?
As a thought exercise, consider the well-documented impact of Instagram’s photo-sharing platform on the mental health of teenagers, particularly young women. Recognizing a common law duty of Instagram’s parent company Meta to protect its users from harmful content raises the possibility of civil damages lawsuits or even federal regulation. While certainly not directly analogous, the death telegram cases reveal a lost conception of the public service corporation – and potentially an illustration of what a moral political economy might look like – that might be worth reviving today.