Wednesday, April 30, 2014
Of (Courtney) Love and Malice
Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones. Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well.
Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages. However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.
These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed.
The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.
The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so.
And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.
Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (0)
Tuesday, April 29, 2014
Marriage, religion, and good (and bad) arguments
A § 1983 action was filed Monday in the Western District of North Carolina, challenging North Carolina's prohibition on marriage equality. What is interesting here is that the plaintiffs include the General Synod of the United Church of Christ and a number of clergy of different faiths; they argue that state law violates Free Exercise by prohibiting them, under penalty of criminal prosecution, from performing religious same-sex marriage ceremonies that their religious teaching approves.
Proponents of marriage equality have responded to religious objections by emphasizing the difference between secular and religious marriage--that requiring the state to recognize same-sex marriages (under the Fourteenth Amendment) does not obligate religious institutions to recognize or solemnize those marriages, to the extent it would contradict that religion's teaching. The plaintiffs here allege the opposite--that North Carolina, in prohibiting same-sex secular marriages, is prohibiting religious institutions from recognizing or solemnizing same-sex marriages where it is consistent with that religion's teaching.
While state legislatures enact a lot of blatantly unconstitutional laws, a law imposing criminal sanctions on clergy performing a sacrament seems way beyond the pale. But is that really what is going on here?Paragraphs 91a and 91b of the Complaint quote the relevant statutory provisions, which refer to any "minister, officer, or other person authorized to solemnize a marriage under the laws of this State" performing a marriage for a couple that does not present a valid marriage license (presumably a different provision prohibits issuance of a marriage license to a same-sex couple). It seems to me the appropriate reading of that language is that it only prohibits ministers and others from performing a marriage ceremony that requires a license from the state--in other words, a secular marriage that would be recognized by and binding in the state. But that does not extend to purely religious marriages--I do not need a marriage license from the state to obtain a Jewish marriage, only a ketubah. In addition, the language "minister, officer, or other person" includes clergy as well as non-clergy who perform only secular marriages (judges, notary publics). This suggests that the prohibition is on performing secular marriages, not religious ones, since secular marriages are the only things the people listed in the statute have in common. On this reading, there is no First Amendment problem, because state law does not, in fact, prohibit clergy from engaging in any purely religious ceremonies or otherwise prohibit anyone from practicing their religion.
Alternatively, perhaps the church and clergy plaintiffs are arguing that the state is unconstitutionally depriving these religious ceremonies of legal effect, meaning the state must recognize any marriage performed by clergy whose religion would recognize that marriage. But that seems such an obvious Establishment problem. And ¶ 106 states the claim as clergy being "prohibited under threat of criminal prosecution from performing any such religious ceremonies" and congregants being "prohibited from becoming married in the tradition of their respective faiths," all suggesting that it is only the religious element being challenged here.
So why raise this claim? Well, it allowed at least one commentator to seize on the case and rail about religious hypocrisy, so there is a political and rhetorical benefit. But when there are (in my, and every lower court's, opinions) so many good arguments to make as to why these laws violate the Fourteenth Amendment, why reach out for a bad one based on an unrealistic statutory reading?
Update: The point of this post was to consider the constitutional validity of one particular claim in this lawsuit. It was not to have a debate about theology and whether SSM is consistent with the will of god, a debate I am not competentto have here. There are many internet fora for such discussions; this post is not one of them. Please refrain from posting comments arguing such issues. I will continue removing them, which gets old quickly. At some point I simply will have to close comments, which I hate to do, since there are many relevant points to be made on the actual subject of the post.
Monday, April 28, 2014
People everywhere are looking for ways to protest the racist comments allegedly made by Los Angeles Clippers owner Donald Sterling. Clippers players used a silent pre-game protest, leaving their warm-up jackets on the floor at halfcourt and warming up with their shirts inside-out (hiding the "Clippers" logo). Two Golden State fans got creative with posters. And Los Angeles Dodgers outfielder Matt Kemp, who was mentioned in the telephone conversation between Sterling and his girlfriend as someone who was OK to bring to games because he is of mixed race and ethnicity, used Michael Jackson's "Black or White" as the music when he came to the plate in Sunday's game. And some companies are now withdrawing from sponsorship deals with the Clippers.
It has become commonplace to protest high-level business people by economically targeting the businesses with which they are associated, by refusing to invest, work at, or shop at these companies. These include attempted or limited boycotts--see Chick-Fil-A or, going back further, Domino's Pizza--or threatened targeting with the hope of inciting change--see the ouster of RadiumOne's CEO following his guilty plea on misdemeanor domestic violence charges or Mozilla firing the CEO who supported Prop 8). Whether such efforts are effective, they have come to be seen as a strong means of political expression if not change.
For all that I have argued for the intimate connection between sport and free expression, however, it is ironic that those expressive weapons cannot work with respect to professional sports.
The first problem is the collective nature of leagues such as the NBA. Donald Sterling benefits from everything that happens as to every team in the league, not just what happens to the Clippers. He benefitted from Warriors fans who attended the game in Oakland on Sunday, since visiting teams receive a percentage of gate. He benefitted from every basketball fan of every team who watched any playoff game on television, because teams share revenue earned from the league's massive broadcast deals--that includes not only the Clippers-Warriors game, but all three games played yesterday. It is not enough to target the Clippers, in other words; it would take a massive fan movement against the NBA as a whole.
A second problem is the emotional connection and loyalty that fans feel to their teams. Clippers fans do not want to entirely abandon the team, because they want to see "their" team succeed. And that is not fungible--I can get a chicken sandwich from a lot of places, but I cannot just shift my team loyalties overnight. Moreover, fan loyalty runs to the players who represent them on the court, not to the owner in the background. And it still is about the league as a whole, not one team. Fans of the Warriors are not going to abandon their loyalties to their players and teams, and their desire to celebrate a championship, because the owner of the opposing team is a racist. Nor are the fans of the other playoff teams not currently playing the Clippers, who similarly want their teams to win and do not care about the racist owner of a team other than their beloved franchise. Even fans without another rooting interest are in a bind; the easy move is to root against the Clippers so Sterling does not enjoy a championship and to stop watching games. But that means rooting against the players who also want that success, which somehow seems unfair.
A third problem is that the players are unable to vote with their feet by seeking employment elsewhere, at least not right now. They want to win a championship right now--it is bound up in who they are and what they do, and the opportunity does not come around very often. To walk away from that opportunity in protest hurts them more than it hurts Sterling (who still profits from being part of the NBA money-printing aparatus). It is why Clippers players reportedly only briefly considered, then rejected, forfeiting Sunday's game. Again, it would take league-wide action--every team refusing to play until the NBA takes action against Sterling. And while the NBAPA is trying to get involved in the matter, I see no way that such a collective walkout is in the offing (not to mention whether it is even legal under the NLRA)--again, players must jump at the opportunity to win a championship, because it may not come around again.
Update: I forgot the most important point in all of this, so I'll add it here: The most obvious way for Clippers fans to express their anti-Sterling viewpoints without having to stop supporting their team is to show up with signs and clothes and chants doing just that. This doesn't change the team's ownership or anything, but it is the best outlet for fan expression. But this raises an important issue: Will the Clippers and/or the NBA try to control what fans say about Sterling or how they say it? On one hand, I believe Staples Center (where the Clippers play) is privately owned, so the First Amendment is not in play and fans are at the mercy of the arena's owners. Most pro teams are look to stop speech criticial of ownership when they can. On the other hand, both would take an overwhelming PR hit for censoring anti-Sterling speech at this point, so they might actually allow fans to get away with more than they ordinarily would in a situation that had not so boiled over.
Sunday, April 27, 2014
Why I have spent so much time arguing about fan speech and stadiums as public forums--because it allows expression such as this. But I wonder two things: 1) Did ABC show this or did the NBAorder them not to? 2) Would the Warriors/the arena have taken the signs were the wave of public opinion not running so overwhelmingly against Sterling?
Saturday, April 26, 2014
The truth about justiciability
JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.
MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.
You have to admire the honesty. The Sixth Circuit, which analyzed this as a ripeness case (and held that the action was not ripe), similarly acknowledged that the ripeness prong of likelihood of harm overlap with the standing prong of real, immediate, non-speculative injury-in-fact. It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.
Perhaps the Court will take this as a chance to clarify, although I doubt it. It seems so obvious that the case is justiciable, and the justices all so obviously believe the Ohio law--which prohibits knowingly false statements made in support or opposition to a candidate for office--is unconstitutional. The Court is going to be racing to reverse and send the case back to give SBA its chance to argue the merits in federal court. I doubt the fine details of standing v. ripeness are going to be the central concern.
Update: Alert reader Sam Bray (UCLA) reminds me about footnote 8 in Medimune, Inc. v. Genetech, Inc., where the Court said that standing and ripeness "boil down to the same question."
Wednesday, April 16, 2014
Extreme views in the classroom
The Chronicle of Higher Ed reports that Frazier Glenn Cross, Jr., the white supremacist suspected in the shootings of three people earlier this week, was invited two years ago to speak in a class on "New Religions" at Missouri State University. (H/T: My colleague Tom Baker). The professor issued a statement yesterday defending the choice, saying he wanted to educate his students on white supremacist views (and their dangers) and that the students would not believe the true nature of these views just by reading a textbook or hearing the professor lecture about them. According to the article, it went about as you would expect--Cross yelled at the students, used racial slurs, and praised violence, and apparently the students yelled back at him. It sounded like a productive exchange.
I do not think there is any question that it is appropriate to present Cross' views in a classroom setting. And the alternative proposed by the ADL in the story--inviting experts who have studied the subject firsthand--are not sufficient. If the point is to get students to engage with and understand these views, then hearing them characterized and filtered through an expert (no doubt, since this is the ADL, an expert who believes these views are harmful and should be suppressed) is not a substitute for engaging with the primary materials. One can question whether white supremacy is a new religion, but I will defer to the instructor on that. The broader point is there are situations in which it is appropriate to present, in unfiltered fashion, even the worst and most offensive political, religious, etc., ideas.
There is a nice question about inviting him to speak in the classroom, as opposed to having students read his writings or hear his speeches--there were more than enough available on the internet (maybe this is what the ADL rep meant in the story by "multimedia tools," although that is such an inanely empty phrase). And this issue is more pedagogical than political. Some of this is my general objection to the use of guest speakers in the classroom. But some is the question of whether having him address the students directly was necessary to the pedagogical goal. They can experience and understand these views first-hand without having to experience him first-hand. Having him shout at the students (and having them shout back) shows that he is crazy and not to be taken seriously, but it does not really show his ideas or thoughts or require them to wrestle and deconstruct them, which is supposed to be the goal. It is the difference between a cable tv shoutfest and an academic discussion.
And I wonder if the visceral responses about "endorsing" and "providing a platform" goes away if students were reading his writing rather than seeing him in-person.
Saturday, March 15, 2014
Where are they now, St. Patrick's Day Edition
(or Winning by losing and losing by winning)
In 1995, SCOTUS unanimously held that the private organizers of Boston's St. Patrick's Day Parade (a group called the Allied Veterans' War Council) had a First Amendment right to exclude LGBTQ groups from the parade. That decision laid some important free-speech groundwork, particularly in the idea that speech need not have a particularized message to enjoy constitutional protection (citing to works such as Pollock, Schoenberg, and Carroll's Jabberwocky). Although the gay-rights position lost, many advocates appreciated the opinion for (arguably for the first time) speaking in generally positive (or at least not harshly negative) terms about homosexuality.
Fast forward two decades. That same organization, armed with a First Amendment right to exclude, still runs the parade. But it is facing increasing political and economic pressure to allow some LGBTQ groups into the parade. The group had been negotiating to allow in the LGBT Veterans for Equality, although those stalled last week, with AVWC accusing a gay rights group of creating an ersatz veterans' group as a "Trojan Horse" to sneak into the parade. Now numerous corporate sponsors of the parade--including Gillette and Boston Beer Co. (makers of Sam Adams)--have withdrawn as parade sponsors.
So the AVWC has its constitutional rights. But so do other people and entities and they are exercising them in a very different direction and in support of very different ideas than they were in 1995. And so that hard-won constitutional victory may end up somewhat empty.
Monday, March 10, 2014
Letter on cameras in SCOTUS
Yesterday (intentionally timed to the fiftieth anniversary of New York Times v. Sullivan), the Coalition for Court Transparency, a coalition of media and public interest organizations, sent a letter urging Chief Justice Roberts to open SCOTUS proceedings to video. The letter addresses all the familiar arguments for and against video, as well as offering a preliminary step of same-day audio before moving to same-day video.
Wednesday, February 26, 2014
The other side of corporate speech
There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.
But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?
This gets at what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.
Update: Gov. Jan Brewer vetoed the bill.
Friday, February 21, 2014
George Anastaplo, RIP
I am late to the table in commenting on the death of George Anastaplo last week, but one of my colleagues insisted I could not claim to love the First Amendment and not post something about it here. Anastaplo had a storied academic career as a con law and political science scholar. But Anastaplo he lived it first, litigating his own First Amendment challenge to his denial of admission to the Illinois Bar. He lost 5-4, although Justice Black wrote a dissent (for himself, Chief Justice Warren and Justices Douglas and Brennan) defending the First Amendment and the role of lawyers in times of political conflict. On Black's instruction, the dissent was read at his funeral.
Thursday, February 13, 2014
Fan speech, once again
I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech, in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.
I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).
1) At a game involving a public university (as both Texas Tech and Memphis are), the First Amendment is in play. Any efforts to punish fans for their speech is subject to First Amendment limits. This applies, I would argue, even in a privately owned arena that a government entity (such as a public university) is using for its official governmental functions.
2) The stands of a publcily owned/controlled basketball arena are a designated public forum for "cheering speech," which is a broad category consisting of just about everything will say (and shout) during a sporting event that is not inconsistent with that event. This includes taunts, insults, profanity, and even some racist and sexist comments against players, coaches, and refs, as well as all manner of social and political speech.
3) As a public forum, content-based regulations (as on a particular type of cheering) are subject to strict scrutiny, while content-neutral regulations (no signs) are subject to intermediate scrutiny. There also could be reasonable viewpoint-neutral restrictions on non-cheering speech, but the category of cheering speech is so broad, I don't know what that would reach.
4) Fans can be punished for the rare speech that crosses the line into fighting words, which has been narrowed to reach only up-close, targeted, face-to-face taunts. It is possible that Jeff Orr crossed that line, since the incident occurred in very close range--Smart had fallen out of bounds right below where Orr was sitting. And Smart says he heard Orr use a racial epithet, although Orr says he just called Smart a "piece of crap." I do not know if this was a close enough encounter to fall outside the First Amendment, regardless of what was said.
5) Labeling what Orr did "fighting words" does not justify what Smart did. Contrary to what some apparently have said on ESPN, one person using fighting words does not mean the listener has license to fight. It simply means that the speaker can be sanctioned.
6) I legitimately cannot imagine what the fan at the Memphis game said last night that would have gotten him ejected and still be consistent with the First Amendment. Everyone at a basketball game is yelling and screaming and that is accepted as part of the game. So the ejection must have been based on the content of his particular screaming--a content-based enforcement that the First Amendment does not permit.
Tuesday, December 10, 2013
College football and the Brandenburg Concerto
[Update: Reports are stating that police have identified the man in the picture and want to interview him, in part to find out how (and if) he caused the events in East Lansing.]
Students at Michigan State University celebrated their football team's Big Ten championship last weekend the way many sports fans do: Setting things on fire. Police responded to a large civil disturbance and reportedly responded to at least 57 fires throughout the city. In many cases, the favored object to burn was a couch.
So what, you ask? Well, because of the guy pictured at right, who attended the Big 10 Championship game in Indianapolis sporting that sign. According to the East Lansing Police Department Facebook page, they are looking for information on his identity. And rewards of up to $20,000 are being offered for information on the overall disturbance.
So the obvious question: Could this guy be charged with anything for holding up that sign? Could any prosecution satisfy Brandenburg v. Ohio and the requirement that the lawless action in East Lansing be imminent and likely to arise from his holding up a sign from a football stadium in Indianapolis?
Saturday, December 07, 2013
West on student censorship
Nice Slate essay by Sonja West (Georgia) on student speech, arguing that censoring students pervsersely teaches them that censorship is a good and acceptable idea, sort of the opposite of what we want future citizens and leaders to learn. She mentions that SCOTUS is considering the cert petition in the "I [heart] boobies] case from the Third Circuit, which, given the Court's history with student speech, may not be a good thing. Finally, she highlights the current life of Mary Beth Tinker, who retired from nursing recently to become a student-speech-rights advocate through the Tinker Tour with the Student Press Law Center.
Friday, December 06, 2013
Free speech for me but not for thee (until you're older)
I was working from home this afternoon, with Muhammad Ali's Greatest Fight (a generally cheesy docudrama about the inside-SCOTUS workings leading to the decision in Clay v. United States) on for background noise. My daughter (who will be 8 in 3 weeks) walked into the room right at the beginning of the reenactment of oral argument in Cohen v. California, as Melville Nimmer (played by Bob Balaban) stepped to the podium and the Chief (played by Frank Langella) gave his famous warning about the Court's familiarity with the facts of the case.
I quickly hit the pause button.
Friday, November 22, 2013
Making Law Sex Positive
It has been a good decade for sexual freedom. The Supreme Court issued opinions protecting the rights of gay individuals to engage in sexual relationships and striking down a ban on the federal recognition of same-sex marriages. Two gay teen characters were portrayed as having a positive sexual relationship (leading to a marriage proposal) on network television. Sexual practices formerly viewed as perverse, such as role playing and sado-masochism, seem almost provincial now that there is a copy of Fifty Shades of Grey on every great-aunt’s bookshelf.
But, in an op-ed published in the Washington Post this weekend, I argue that even among this legal and pop culture sexual revolution, much of our law remains curiously silent, squeamish, or disapproving on the topic of sexual pleasure itself. Indeed, several areas of the law rely on the counterintuitive assumption that sexual pleasure has negligible or negative value and that we sacrifice nothing of importance when we curtail it. This phenomenon extends even to legal realms that regulate behaviors central to the experience of sexual pleasure.
The assumption that sexual pleasure has negligible or negative value is simply unfounded, and unfounded assumptions create bad laws and policies. Legal regulation generally sacrifices our freedom to engage in certain activities because the activities result in harm or because regulation generates benefits. Devaluing sexual pleasure distorts this calculus. In truth, sexual pleasure is actually a very good thing, simply because it is pleasurable.
Truly progressive legal reform would recognize the inherent value of sexual pleasure. This would have significant implications for several areas of law, ranging from obscenity to rape law. The op-ed out this weekend is part of a larger project challenging the sex-negativity of law and envisioning how simply valuing sexual pleasure in itself would require us to rethink different areas of law.
Obscenity law, for example, relies on the assumption that offensive speech that is intended merely to arouse is entitled to less constitutional protection than any other type of offensive speech. The Miller test allows states to freely ban any material that depicts sexual activity “in a patently offensive way” and “appeals to the prurient interests.” The First Amendment only protects this material if it has some serious literary, artistic, political, or scientific value to redeem it. In contrast, states may not ban other types of offensive material unless they can show it is likely to cause some harm. If sexual pleasure in itself is valuable, then we can’t justify banning offensive prurient material more freely simply because its primary purpose is to arouse people. Instead, we have to think more carefully about how (and whether) states should be able to regulate any offensive materials.
Recognizing sexual pleasure would also require state courts and legislatures rethink the criminalization of sado-masochistic sexual activities (or “BDSM”). BDSM has become so prevalent in popular culture that it seems almost quaint. But even some consensual spanking can lead to an assault or battery charge in most states. In contrast, the law permits violent sports, cosmetic surgery, tattooing, and skin piercing, in large part because courts and legislatures accept their value. We can’t justify this distinction if we acknowledge that sexual pleasure has as much value as the pleasure derived from a boxing match or cheek implants.
Recognizing the value of sexual pleasure doesn’t mean we have to value it above everything else. We regulate the things that bring people pleasure all the time. We value the pleasure we experience from music, but I may not kidnap Beyoncé and force her to join me on a song-filled road trip, no matter how magical the experience would be for me. Sexual pleasure is no different—we can acknowledge it is important and still regulate it.
But valuing sexual pleasure does require us to regulate more honestly. It allows a more complete and well-reasoned discussion of what we choose to regulate, what we fail to regulate, and our justifications for those choices.
The op-ed “The Joyless Law of Sex,” is available here. “Sex-Positive Law” will appear in the 87th volume for the NYU Law Review in April.
Monday, November 11, 2013
Counter speech, hecklers, and heckler's vetoes
This story (from Slate and Inside Higher Ed) [link fixed] discusses recent events at Brown University, in which students repeatedly interrupted a speech by NYPD Commissioner Ray Kelly (architect of the city's stop-and-frisk policy), ultimately causing the speech to be canceled. The author pairs this with a 2001 incident, in which students trashed 4000 copies of the student newspaper containing an editorial advertisement questioning the wisdom of slavery reparations. Both Kelly (or it least his policies) and the ad were alleged to be racist. The University president has criticized the Kelly protesters and spoken of the need to allow all voices to be heard. The legal director of the Foundation for Individual Rights in Education ("FIRE") (an organization whose views about campus speech I largely share) expressed concern over the pervasiveness of such "heckler's vetos."
The incident illustrates something I wrote about here, about three distinct forms that counter-speech (whether actual or symbolic) may take. One involves counter-speakers in the same location as the original speaker, attempting to drown him out. While those counter-speakers are certainly hecklers, heckling is itself a form of protected free-speech activity, at least so long as the hecklers are lawfully entitled to the space in which they are heckling. While this perhaps is not the ideal path to rational discourse, both the speaker and the heckling counter-speaker attempting to drown him out are doing what the First Amendment contemplates and protects.
A cinematic illustration of this idea after the jump:
But I hesitate to call what happened with Kelly censorship or a heckler's veto, at least without knowing more about what happened there. A heckler's veto presumes government involvement in stopping the original speaker on behalf of the hecklers or in furtherance of the hecklers' preferences; it does not include heckling counter-speakers who succeed in drowning out the original voices. It is the difference between Brown officials canceling Kelly's speech (whether to keep the peace or to satisfy the hecklers) and Kelly giving up because he could not get a word in edgewise.
Again, drowning out a speaker or burning publications with whom you disagree is not the best approach to public discourse and dialgoue, especially on a university campus, where all ideas should be aired. It is to say, however, that, no, Brown University does not have a problem with free speech; its students are acting entirely consistent with one vision of free speech and the First Amendment.
Sunday, November 03, 2013
NYT v. Sullivan Anniversary Symposium at U. of Georgia
The University of Georgia Law Review is hosting an impressive and impressively well organized symposium honoring the fiftieth anniversary of the Supreme Court's decision in New York Times v. Sullivan. Justice John Paul Stevens is the keynote speaker, and David Savage of the LA Times will be giving a lunchtime talk. The panels of speakers discussing press issues old and new include Justice Steven's former clerk Sonja West, RonNell Andersen Jones, William Lee, Amy Gajda, Amy Kristin Sanders, Lili Levi, Paul Horwitz, and Rodney Smolla, and Hillel Levin will be moderating at least one of the panels.
I will be participating on the "new media" panel, discussing my paper-in-progress, "The Press and Constitutional Self-Help, Then and Now," a synopsis of which is below.
Once upon a time, the U.S. Supreme Court routinely decided press cases, but that period of time came to an end about twenty years ago. The Court’s disinclination to decide press cases kicked in just as the Internet began eroding the press’ traditional role as gatekeeper and translator of news and information and threatening the financial viability of traditional media. As we near the fiftieth anniversary of New York Times v. Sullivan, it is striking how few landmark press cases have been decided since the Internet, and now social media, have entered the scene.
The Supreme Court decided the vast majority of its landmark press cases between 1964 and 1984, in what we media lawyers might now look back on as the “Golden Age” of press cases. These cases contain some of the Court’s loftiest rhetoric about the special role the press plays in our democracy. Yet these same cases recognize only negative press freedoms; they protect only freedom from government intrusions such as prior restraints or compelled publication but refuse to interpret the First Amendment to provide the press with “special” access to governmental information or institutions not available to other citizens or special exemptions from generally applicable laws that interfere with newsgathering. The Court’s refusal to recognize affirmative press rights during this period arguably suggests that the Court was merely paying lip service to the notion that the press plays a special role in democracy, for it seems intuitive that a “special role” should come with “special rights.”
I contend, however, that the Supreme Court that decided the press cases of the Golden Age was committed to a special constitutional role for the press but envisioned the press (or, more aptly, the media) as a true Fourth Estate—an unofficial branch of government capable of checking the other three by using its own powerful resources to safeguard its ability to play its special role. The Court assumed that, in most instances, the media could use its own political and economic power to gain access to government information, protect confidential source relationships, and fight overreaching by the executive or legislative branches. In other words, the Court assumed that the media could engage in “constitutional self-help” to play their role. But this theory of constitutional self-help depends on a number of assumptions about the media that were largely true in the 1970s but may not be today. Media that are economically and politically powerful, popular with the public, and united in pursuit of common goals may indeed be able to fight off threats to their ability to play a special role in our democracy, especially when government officials depend on the media to carry government messages to the public. In light of recent developments, however, it is fair to question the ability of new media to use constitutional self-help to access government information or protect confidential sources, for reasons I will explore further in my talk (and my paper). Fundamental shifts in the balance of power between today’s Fourth Estate and the three official branches may signal a need to reexamine the assumptions underlying the press cases of the Golden Age.
Wednesday, October 16, 2013
Olympic free expression at 45
Today (Wednesday, October 16) is the 45th anniversary of the Tommie Smith/John Carlos Black Power salute on the medal stand following the 200 meters at the 1968 Olympics in Mexico City. The third person on the stand is Australian Peter Norman, the silver medalist, who supported Smith and Carlos by giving them his gloves and standing at attention while wearing a badge of the Olympic Project for Human Rights. And while Smith and Carlos are generally regarded as heroes who took a stand, 45 years ago they were vilified and expelled from the games.
Of course, gay rights have become an issue for the 2014 Winter Olymics in Sochi, Russia, given recent legislation prohibiting gay-rights "propaganda" and public displays of homosexuality or support for homosexuality. And the International Olympic Committee has repeatedly and publicly reminded athletes of IOC regulations requiring respect for the home country and its laws--in other words, athlete protests of these laws will not be tolerated.
In other words, the "Olympic Ideal" of free expression has not evolved much in 45 years.
Tuesday, October 08, 2013
There are a few of usAnd Dahlia Lithwick (sorry) Emily Bazelon tried to talk to some of us.
Wednesday, October 02, 2013
Does the First Amendment exception to the government shutdown violate the First Amendment?
Well, I was joking. But I guess we should not overestimate the ability of members of Congress to engage in absurd demagoguery, especially when it involves the Greatest Generation. So as the sign at left shows and as a couple of commentators to my earlier post pointed out, national parks are closed, except for "1st Amendment activities." So park police will not be in the awkward position of arresting WW II veterans for trespassing. And Republican congressmen may lose at least one photo opportunity.
The question, of course, is what constitutes "1st Amendment activities," who decides, and how. Is it simply visiting a memorial or monument to see it (which is what the Honor Flights from Mississippi were trying to do)? If so, why should the WW II Memorial be different than any other national park, even one that doesn't have a particular monument, but is a historical, special, or meaningful place to see (which would seem to be, by definition, any place the government saw fit to designate a national park)? This all looks ripe for some pretty blatant content/viewpoint discrimination, wherein "1st Amendment activities" are only those engaged in by people who have congressmen helping them move fences.
If I'm the attorney for the Klan, I'm in district court right now asking for a declaratory judgment that the above sign means they can hold their scheduled rally (which involves actual expression of their own) on Saturday.
Wrong amendmentJack Balkin says the government shutdown violates the Second Amendment, because people cannot bring their guns to national parks. A Pennsylvania Maryland chapter of the KKK begs to differ--the shutdown violates the First Amendment.
Monday, September 23, 2013
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Thursday, August 29, 2013
Sport and speech: The Bobblehead
Monday night was Rick Monday Flag-Saving Bobblehead Night at Dodger Stadium. In 1976, two damn hippies (no doubt the common characterization at the time) tried to burn an American flag on the field during a game between the Cubs and Dodgers; Monday, then the Cubs centerfielder (he later played for the Dodgers), snatched the flag away. Video of the incident is included in the link.
Monday discussed it in a 2006 interview:
“That means something, because this wasn’t just a flag on the field. This was a flag that people looked at with respect. We have a lot of rights and freedoms — not to sound corny — but we all have the option if we don’t like something to make it better. Or you also have the option, if you don’t like it, [to] pack up and leave. But don’t come onto the field and burn an American flag.”
While I have argued that the stands of a ballpark qualify for designated public-forum status, the field itself does not, because speech is inconsistent with expected uses (i.e., playing baseball). So Monday is half-right in that last sentence: Don't come onto the field and burn an American flag. Make sure you stay in a public forum.
Monday, August 12, 2013
Boobies and attempted coherence on student speech
I have written before about efforts by schools to regulate or ban "I [heart] boobies" bracelets, including one lawsuit in Pennsylvania that produced a broad district court opinion enjoining a middle school from suspending two students for wearing the bracelets on Breast Cancer Awareness Day. Last week, the en banc Third Circuit affirmed the preliminary injunction (I am not sure why the case went directly to the full court, with no mention of a panel hearing or decision) in a very speech-protective opinion that tried to bring some coherence to student-speech doctrine. Dahlia Lithwick has a nice analysis, suggesting it could be SCOTUS' next crack at student speech.
The Court tried to make sense of Fraser's grant to schools of broad power to "restrict vulgar, lewd, profane, or plainly offensive speech" and to work the major precedents--Morse, Fraser, and Tinker (Hazelwood is a different animal)--into a coherent whole. It did so in two respects.First, it argued that Fraser was simply a subset of the indecent-as-to-minors category of unprotected speech (recognized in Pacifica and Ginsberg v. New York). Rather than some all-encompassing power grant to school administrators, Fraser reflects a narrow category of speech that is unprotected as to minors although fully protected as to adults.
Second, it identified three possible situations to mark the lines between Fraser and Tinker's fallback balancing test: 1) Schools can categorically ban "plainly lewd" speech, regardless of whether it contains a social or political message--implicitly, because speech cannot be plainly lewd if it contains a social or political message (much as sexually explicit speech cannot be obscene if it has serious literary, artistic, political, or scientific value); 2) Schools can categorically ban speech that a reasonable observer could interpret as lewd, but only if the speech cannot also plausibly be interpreted as commenting on political or social issues--in other words, in a close case that could go either way, courts must treat it as being about political or social issues; and 3) Schools cannot categorically ban not plainly lewd speech that could plausibly be interpreted as commenting on poltical or social issues. Anything in the latter two categories can be regulated or punished only if the school can satisfy Tinker's requirement of a specific and significant risk or fear of disruption to the school. Again, this is a potentially speech-protective analysis, at least to the extent it pushes more cases out of Fraser (under which schools can punish speech without a showing of likely or actual disruption) and into Tinker's balancing test (where anything can happen).
Applying it here, the Third Circuit majority found this an "open-and-shut case." "I [heart] boobies" is not plainly lewd, even if it reasonably could be interpreted as such, and obviously contains a social or political message about breast cancer and the importance to young girls of breast cancer awareness. The court then insisted that Tinker "meant what it said": To regulate speech, schools must show a specific and significant fear of disruption. And the record of disruption or risk of disruption here was skimpy, consisting of only two incidents, both occurring after the school put the ban in place (which the majority suggested shows that the ban itself, rather than the speech, caused the disruption). In running the Tinker balance, the court was not at all deferential to teachers and administrators. But that analysis also reflects the reality that schools should not be in a panic about an admittedly sophomoric, but effective, public-health effort.
There is another aspect to this case that may make it cert. worthy, going to how lower courts identify binding SCOTUS precedent. The majority insisted that the limitation on Fraser for speech on political or social issues was not a doctrine of this court's creation, but was compelled by Justice Alito's concurring opinion (joined by Justice Kennedy) in Morse v. Frederick (the "Bong Hits for Jesus" case). Alito joined the five-justice majority in Morse, but concurred to explain his understanding of the narrowness of the opinion, particularly that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." In other words, under Alito's approach, even categories of speech that can be banned in schools (advocacy of illegal drug use in Morse or lewd speech in Fraser) cannot be banned if it comments on a political or social issue. (One side note is the irony of Justice Alito's opinion providing the basis for such a speech-protective model, given Alito's general record as being one of the less speech-protective justices. Alito's concurrence was, in all likelihood, motivated by protecting student religious and religiously motivated speech, long a concern of his).
The court insisted that Alito's concurrence is controlling precedent under Marks v. United States. Marks most commonly applies where there was no majority opinion, so lower courts identify the narrowest non-majority opinion supporting the judgment. But the Third Circuit insisted that Marks is not so limited. It also applies where there was a majority, but the "linchpin justices" (the justice(s) who joined the majority and were necessary to establish and maintain that majority) concurred and expressed a narrower understanding or interpretation of the majority opinion. Because these linchpin justices would not have joined the majority opinion if it meant something broader than their understanding, they are the "least common denominator" necessary to the judgment and the majority opinion. This is an interesting approach, for which the court relied on a 2006 article by former GuestPrawf Sonja West. It does conflate differences between majorities and pluralities and between concurring opinions and opinions concurring in the judgment. But it also avoids the anomaly that had Alito and Kennedy concurred in the judgment in Morse, that opinion unquestionably would control under Marks. The words "in the judgment" should not bear such weight.
Lastly, the court rejected the school's slippery slope arguments that, if "I [heart] boobies" must be allowed, then so must "Save the ta-tas" (another breast-cancer awareness slogan aimed at teens), "feelmyballs.org (a testicular-cancer awareness slogan), and a host of other, increasingly profane possible slogans the school offered. The court would not engage, insisting they should cross that bridge when they come to it. Interestingly, officials in at least one school district took the opposite position--"boobies" is proscribable while "ta-tas" is OK. I am not sure how one possibly distinguishes ta-tas from boobies, in that both are less slang than sophomoric.
Which is simply to say that we are not done with cases like this, unfortunately. But maybe this court's analysis, if it holds up, gives us a more coherent, and speech-supportive, way to approach them.
Friday, August 09, 2013
State of public discourseFrom TV blogger Ken Levine.
Thursday, August 08, 2013
What's "Obvious" About Corporate Free Exercise?
Rick Garnett suggested recently in this space that it is “obvious” (Rick’s word) that legal entities have Free Exercise rights, and Will Baude has written a bit more cautiously that churches “or the real parties in interest behind them” probably can assert their own first amendment claims. Now, I’m just an unfrozen caveman tax lawyer, but I did once flip through a copy of “First Amendment Institutions” (and write two articles about nonprofit organizations in politics). And I think the “obvious” examples are just intuition pumps. Will argues churches very likely have their own sets of rights, while Rick says that anti-kosher laws would violate the rights of firms selling kosher products.
[UPDATE: Rick points out (see the comments) that his post doesn't quite claim that entities have FE rights qua entities, though his phrasing of that distinction may be too subtle for duller readers (ahem). So substitute for "Rick," with some modest amendment, "Adler," or "Bainbridge" or others, such as this piece by Scott Gaylord of Elon.]
I would say it’s obvious that regulation of churches or religious practices can interfere with individual rights to free exercise. If my religious beliefs include shared worship with a community of likeminded believers, certainly direct restrictions on church (or other religious community) activity can interfere with my exercise of those beliefs. But why does the organization itself need to be able to assert its own claims? Corporations (including nonprofit corporations, such as most churches) can only sue by virtue of state laws giving them that power. Are Will & Rick claiming it is “obvious” that states are constitutionally obligated to give legal personhood to abstract entities?
This may seem a fine distinction, but asserting that law is concerned with the rights of entities, not just the people in them, elides an important element of individual choice. Believers who choose to invest their money in a highly regulated industry can reasonably be presumed to go in with their eyes open to the possibility that regulation will impose a variety of burdens. If they don’t like that, they should take their money elsewhere. That’s a very different thing than a total prohibition on some key religious practice, as in Rick’s kosher example. The degree of imposition is just much smaller in my example, because the government leaves open many alternative avenues for religious expression. Is it zero burden? Of course not, but this is a balancing test, isn’t it?
Of course, SCOTUS also makes this same overly-easy substitution in Citizens United. Why is the right of political expression a right of the entity, not its members? Can’t the members express their political views individually (at least absent some special meaning to speaking together as a legally-recognized group)? Maybe forming a collective facilitates speech. But then the issue is to what extent it is permissible for government to reduce its prior commitments to facilitating expression. That field is treacherous, to be sure. But by simply assuming that the entity embodies its members’ rights, we dodge what ought to be at the center of the debate.
Free speech counterfactual
Mike Dorf and Thomas Healy have an interesting exchange on the following counterfactual: What if Holmes had not changed his mind about the freedom of speech and dissented in Abrams? Would we still have developed our liberal, speech-protective model of the First Amendment? Would others--Justice Brandeis, Learned Hand, Zechariah Chafee, Justices Black or Douglas (not to mention Justice Brennan, who is not discussed despite New York Times)--have laid the intellectual foundation and got a majority of the Court to go along? Healy has is doubts, while Dorf is intrigued with the idea that Brandeis' model--from Whitney--would have carried the day over Holmes' marketplace.
The discussion is triggered by Healy's forthcoming book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America.
Update: A reader points me to a 1999 Constitutional Commentary symposium, organized by Jim Chen, on Constitutional Butterflies (i.e., the butterfly effect applied to constitutional law). It includes a contribution by my colleague (and former GuestPrawf) Tom Baker on Holmes' fortuitous train ride with Learned Hand (described in Gerald Gunther's bio of Hand), the effect it had on Holmes' vision of free speech, and the effect that Holmes' vision had on later First Amendment development. Interestingly, Healy argues in his post that Hand questioned and ultimately renounced his original position on free speech (part of the reason Healy believes that, absent Holmes' switch, Hand would not have been the one to carry the speech-protective mantle).
Friday, July 26, 2013
More fan speech
Here. A fan attended a Brewers game at Miller Park wearing a shirt of Ryan Braun's uniform, with "Fraud" in place of the name. An usher made her turn the shirt inside-out, which she did. Although when she went to the media, the Brewers immediately apologized, invited her to another game, and threw the usher under the bus. And that was the right move--that shirt was unquestionably protected expression that should be encouraged at a forum such as a ballpark--what better place to speak out about cheating in baseball. Two other things.First, Miller Park is 71% owned by the government (the Southeast Wisconsin Professional Baseball Park District), so it is a prime candidate for my arguments that through joint participation, the team becomes, at least for ballpark purposes, a state actor subject to the First Amendment and its limitations.
Second, note the vacuousness of the Brewers' statement, which toes the common line on ballpark speech
We welcome the opportunity for fans to express their opinions. The only circumstances that would warrant us intervening is if someone were to display a message or item that would be considered offensive to other fans.
But every message potentially could be considered offensive to other fans. A friend of Ryan Braun or a member of his family easily would be offended by that shirt. Of course, that is not what the Brewers mean--that mean what they--as the governing authority--would consider offensive to other fans. But we don't allow the governing authority (when subject to the First Amendment) to decide what speech is OK and what is offensive.
Friday, July 19, 2013
Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling
As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force. The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research. The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:
There is no First Amendment testimonial privilege, absolute or
qualified, that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal conduct that
the reporter personally witnessed or participated in, absent a showing of bad
faith, harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.
Read the whole case here.
The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime." The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases.
The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act."
Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information. Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.
I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.
This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.
Wednesday, July 10, 2013
Procedure in constitutional challenges, ctd.
Last week, I wrote about courts (arguably) misapplying Twiqbal in constitutional injunction action, using plausibility to avoid addressing questions of law head-on on a 12(b)(6) motion. The en banc Fourth Circuit gives us another example, in Greater Baltimore Center for Pregnancy v. Mayor of Baltimore, one of two cases (the other decision, involving a similar regulation from Montgomery County, MD, is here) challenging local regulations requiring church-affiliated crisis pregnancy centers to post signs in their lobbies stating that they do not provide abortion or comprehensive birth control referrals, services, or counseling.
The district court in Baltimore Center granted a permanent injunction on summary judgment without giving the City an opportunity to take certain discovery. Without reaching the First Amendment merits, the majority (written by Judge King, who wrote an outraged dissent from the original panel decision) held that summary judgment was improper and the city should have been given an opportunity for discovery on a number of issues, primarily the status of the centers as commercial enterprises (which determines whether this is compelled commercial speech, which in turn affects the standard of First Amendment scruriny). Judge Niemeyer (who wrote the panel opinion affirming the district court and invalidating the regulations) dissented, insisting that all of this involved questions of law for which discovery is unnecessary and inappropriate. Whether speech is commercial or involves commercial and non-commercial speech inextricably intertwined is a question of law and, in this case, obvious, such that discovery should not enter the picture. As with 12(b)(6), this all illustrates of how procedures developed to handle fact-intensive cases apply to more law-intensive ones. And how should courts treat facts such as the legislative record for procedural purposes?
Political valences are nakedly obvious in this decision. Both dissents accuse the majority of using procedure to undermine the plaintiffs' rights and accuse the city of abusing discovery as a way to deny plaintiffs justice. This is, of course, a switch from the ordinary viewpoint (especially for judges such as these dissenters), where it is plaintiffs abusing discovery and judges protecting defendants from that abuse. Of course, the (likely) competing substantive views of reproductive freedom continually bubble to the service; this is prevalent in Judge Wilkinson's solo dissent, which accuses the majority of twisting in all directions to aid the choice movement and warns that compelled speech can be used against both sides in this debate. This is true, although again, attitudes about the topic seem to affect First Amendment analysis on all sides.The last noteworthy point is the disagreement about the effect of a preliminary injunction. In response to the abusive-discovery-denying-liberty point, the majority offered that the district court could have granted a preliminary injunction, thereby protecting the center against having to post the signs until discovery could work itself out. At the same time, the judges crossed swords over how much effect to give a preliminary injunction. The dissents both cited to the Montgomery County case (which involved a preliminary injunction) as establishing that the centers engaged in non-commercial speech to which strict scrutiny applied. But the majority insisted that a preliminary injunction is just that--preliminary--meaning it is subject to abuse-of-discretion review and does not firmly establishing constitutional principles. This is questionable; because the grant and denial of a preliminary injunction is immediately appealable as of right, much constitutional litigation (including appellate and SCOTUS review) occurs at the preliminary injunction stage.
I had thought these cases might be ripe for SCOTUS review (there are four First Amendment cases on tap for next year, one only indirectly--more than this past term, but less than in past terms). But the cases are so bound up in procedure, I wonder if either is the right vehicle, at least right now.
A Missed Opportunity: Cert. Grant in Air Wisconsin v. Hoeper
In June the Roberts Court granted certiorari in its first libel case, Air Wisconsin Airlines
Corp. v. Hoeper, __P.3d__, 2012 WL 907764 (Colo. 2012), cert. granted __U.S__
(June 17, 2013). For a media lawyer, this development should be exciting. Unfortunately the Supreme Court granted certiorari limited to a narrow question of relatively little relevance to the media. Here's the story.
In Hoeper an employee of Air Wisconsin Airlines informed the Transportation Safety Administration that an Air Wisconsin pilot was a possible threat and might be unstable. Earlier in the day, the pilot had failed a flight simulation test and had lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin previously had stated it would fire the pilot if he failed the test. After the pilot’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day. The pilot sued for defamation.
Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting the airline’s claim of immunity, the jury found its statements to TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.
The Supreme Court of Colorado affirmed. Although the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The Colorado Supreme Court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.
Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.
Obviously the scope of air carrier immunity under the ATSA is an important question, and a narrow interpretation of that immunity might deter air carriers from reporting employees who pose threats to air safety to the TSA. From a media lawyer's perspective, the case raises another important question, and one with which lower courts have struggled: Must courts engage in independent appellate review of jury determinations of falsity in defamation cases involving matters of public concern? The Supreme Court long ago held that courts must engage in independent appellate review of the jury's actual malice determinations, and actual malice must be established with "convincing clarity." See Bose; Sullivan. "Actual malice," of course, is a term of art meaning knowledge or reckless disregard of falsity. Because the actual malice determination is so closely linked with the falsity issue, some but obviously not all lower courts have assumed that they must independently review jury determinations for "clear and convincing evidence" of falsity. Indeed, the Reporter's Committee for Freedom of the Press filed an amicus brief in support of Air Wisconsin's petition for certiorari, urging the Court to take the case to resolve the uncertainty among lower courts regarding whether independent appellate review of falsity determinations is required.
Alas, the Supreme Court granted cert limited to the question whether a court may deny an air carrier statutory immunity under ATSA for reporting an employee as a threat, without first determining that the air carrier's report was materially false. As documented here, the Roberts Court has shown little interest in addressing the concerns of the Fourth Estate, and its limited grant in Hoeper arguably continues that trend.
Friday, July 05, 2013
Sports and patriotism
From ESPN's Howard Bryant. I'm not sure this is as new a phenomenon as he suggests or that sports used to be apolitical, but I agree that it has become more pervasive and, to some, obnoxious. I particularly like the closing paragraph, where he points out the inconsistency (if not outright hypocrisy) of leagues and the media immersing games in compulsory politics, then criticizing players who speak out for their own causes and ideals, demanding that they "shut up and play."
Wednesday, July 03, 2013
According to this CBS story, Dan Balz's book on the 2012 election reports that Mitt Romney was seriously considering selecting New Jersey Governor Chris Christie as the Republican vice-presidential nominee, but was dissuaded by an SEC regulation governing campaign contributions:
I found this striking and was curious whether the reg was constitutional, but I can't actually figure out what rule the CBS story is referring to. I did find this long discussion of the SEC pay-to-play reg, but I can't actually figure out what the story is referring to. Readers -- any idea? Is there a rule that stops banks from contributing to home-state candidates? You were very resourceful about Guthrie.
In the end, it was money, not chemistry, that kept Christie off the GOP ticket. A "pay to play" regulation from the Securities and Exchange Commission prevented the country's largest banks from donating to candidates and elected officials from states in which big banks were located. If Christie, the governor of New Jersey, were added to the ticket, Romney's campaign would have been barred from accepting any campaign contributions from Wall Street - a critical source of cash for the GOP candidate, formerly a private equity manager.
Thursday, June 20, 2013
Judicial rhetoric in AID
SCOTUS today decided Agency for Int'l Development v. Alliance for Open Society In'tl, holding 6-2 (per the Chief; Scalia dissenting, joined by Thomas; Kagan recused) that requiring a recipient of federal HIV/AIDS funds to adopt a policy opposing prostitution violates the First Amendment. I don't have a lot to say about the opinion, other than it is interesting to see Rust v. Sullivan once again discussed as a funding case and not a government-speech case (which it had sort of morphed into). Instead, I just want to draw attention to the language and rhetoric flying around both the majority and dissenting opinions.
Justice Jackson and the 70-year-old Barnette get some love from the Chief. After saying that the program "requires [recipients] to pledge allegiance to the Government's policy," Roberts insists that "we cannot improve upon what Justice Jackson wrote for the Court 70 years ago," going into Jackson's "fixed star in our constitutional constellation" quotation.
The Chief also throws in his usual turns of phrase--"an offer that cannot be refused", funding activities "on its own time and dime", as well as the "pledge allegiance" line above. These are becoming quite common in Roberts opinions, especially his First Amendment cases. I still cannot decide if they are distracting or make for good judicial writing.Of course, Roberts cannot hold a candle to Justice Scalia in this respect, especially when Scalia is in dissent and is not trying to guide lower courts or hold a coalition together and can go with guns blazing. Thus, the majority "pussyfoots" around the issue of coercion (or lack thereof) in the funding program and it makes a "head-fake" at unconstitutional conditions. The idea behind the limitation--government enlisting the aid of those who support its ideas--is a "matter of the most common common sense." And the "elephant in the room" is that Government does not really force anyone to do anything by denying funding. (On that last one, I appreciate that Scalia did not mix his metaphors by either making the elephant pink or having it weigh 800 pounds).
Scalia is especially hot in creating hypotheticals. He uses Hamas as an example of an organization that is quite good at distributing public welfare, but reasonably could be excluded from a food-distribution program (even if Hamas were a U.S. organization). Or he insists that a "federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it." Or note the examples he uses to show that government funding of a particular viewpoint obviously discriminates against those who disagree--"Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates." That last one was striking--the opposite of sexual abstinence is free love and not those who recognize sex as a part of any monogamous relationship? And does anyone even use the term "free love" anymore?
Also, recall that last week in Myriad Genetics, Justice Scalia refused to join the portions of the opinion discussing details of genetics and molecular biology, some of which seemed fairly anodyne. There has been some discussion about Scalia's apparent uncertainty about the science. Well, his AID dissent shows he has no such hesitation (humility?) about economics ("Money is fungible. The economic reality is . . . they can expend greater resrouces on [other] policies. . . . [T]his is a real and obvious risk.") or communicable diseases ("prostitution, by which HIV is transmitted").
Finally, a more substantive point. I quote Scalia's closing flourish because it does say something about his views of government programs and unconstitutional conditions:
Americans need not support the Constitution; they may be Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art. VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work. And so should we.
In other words, all who work on the government's behalf or support are just like government officials and can be subject to the same limitations as those who are, by virtue of their elected or appointed position, actually wielding government power. Is that right? And should it be? And, if taken literally, what does it mean for other sreas of the law? For example, should a recipient of federal funds now be treated as a state actor for 14th Amendment/§ 1983/Bivens purposes?
Wednesday, June 19, 2013
Making easy cases complicated
The Tenth Circuit last week decided Cressman v. Thompson, reversing the 12(b)(6) dismissal of a complaint challenging, on First Amendment grounds, the "Sacred Rain Arrow" image on Oklahoma's license plates. The decision, while correct, seems a lot more complcated than it needed to be on several lines, but also illustrates some interesting points.
1) The court spends some initial time on standing, not because there is any real doubt about an injury, but over whether the six state officials were the proper defendants, which the court squeezed into the traceability prong. In other words, the court treated as part of traceability (i.e., causation) whether each named officer defendant is responsible for enforcing the allegedly unconstitutional law that the plaintiff is challenging.
But this strikes me as another example of standing swallowing the entire analysis in anticipatory constitutional litigation. In damages actions, the suability/liability of the defendant under the applicable law is a merits issue; there is no reason for it to become an Article III issue in an Ex Parte Young equitable action such as this. The court does acknowledge the overlap between standing and Ex Parte Young/sovereign immunity, as the propriety of the named defendant is the "common denominator" of both inquiries. To me, however, that just shows that what should be a single merits inquiry--who is liable to the plaintiff--is being misconstrued in jurisdictional terms under multiple doctrines.2) There is a lot of discussion of Twiqbal plausibility over what should actually be legal issues and conclusion--whether the picture is symbolic speech (because it would be understood as stating a particularized message) and whether having to display the image (or pay extra money for a specialty plate) constitutes compelled speech under Wooley v. Maynard. None of these are facts subject to plausibility analysis. The court should not be concerned with the plausibility of the plaintiff's legal arguments, only the correctness of those legal arguments. All the plaintiff should have to plead is that he is being made to display the symbol or pay money to avoid displaying it (which really is unconstested); the rest is legal analysis.
3) This case does expose a few problems with various aspects of speech doctrine. One is how clear or articulable a drawing or symbol must be to constitute symbolic speech; there is a split as to the effect that Hurley (which held that speech need not contain a single clearly articulable message) has on Spence (which suggest that symbols must in order to be protected). Another is whether recent government speech cases undermine or overrule compelled speech cases such as Wooley. A third, which the court was more emphatic, is whether Wooley applies to all compelled messages or only ideological ones (the district court read Wooley to apply only to ideological messages, such as "Live Free or Die"). The court mostly avoided resolving these legal issues by falling back on the plausibility of the plaintiff's allegations.
This case really does not appear to be a close First Amendment cases--it is as close to being on all fours with Wooley as one can get and I frankly am surprised a state would still believe it could compel someone to display any message on a license plate. For whatever reason, both the district court and the court of appeals (even in reaching the right conclusion) made this case more difficult than it needed to be.
Tuesday, June 18, 2013
Libel Law, Linking, and "Scam"
Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.
Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible” and that his “ventures rarely—if ever—work.” In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.
Unsurprisingly, the appellate court found that the Gizmodo article concerned an “issue of public interest,” as defined by the anti-SLAPP statute, because Redmond actively sought publicity for his company. The court described “the Gizmodo article [as] a warning to a segment of the public—consumers and investors in the tech company—that [Redmond's] claims about his latest technology were not credible.” This part of the decision is entirely non-controversial, and the court's interpretation of "public interest" is consistent with the goal of anti-SLAPP laws to prevent libel suits from being used to chill speech on matters of significant public interest.
More controversial is the court's determination that Gizmodo's use of the term “scam” was not defamatory (and thus Redmond could not show a probability of prevailing). The court noted that “’scam’ means different things to different people and is used to describe a wide range of conduct;” while the court's assertion is correct, surely at least one of the "different things" that "scam" can mean is defamatory. [For a similar statement, see McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) ]. While the term "scam" is usually hyberbole or name-calling, in some contexts the term acts as an accusation of criminal fraud, especially when accompanied by assertions of deliberate deception for personal gain. However, the court found that "scam" was not defamatory as used in the Gizmodo article, relying heavily on the fact that the authors gave links to “evidence” about the fates of Redmond's prior companies and his method of marketing his new one. The court concluded that the statement that Redmond's company was a “scam” was “incapable of being proven true or false.”
It is clear that the court's categorization of the statements about Redmond as “opinion rather than fact” relied on online context--both the conventions of the blog and its linguistic style. The court asserted that the article contained only statements of opinion because it was “completely transparent,” revealing all the “sources upon which the authors rel[ied] for their conclusions” and containing “active links to many of the original sources.” Technology-enabled transparency, according to the court, “put [readers] in a position to draw their own conclusions about [the CEO] and his ventures.” The court also stressed the blog's “casual first-person style." The authors of the article, according to the court, made “little pretense of objectivity,” thereby putting “reasonable reader[s]” on notice that they were reading “subjective opinions.”
As attractive as this reasoning is, especially to free speech advocates and technophiles, one should read the Redmond decision with caution because it almost certainly overgeneralizes about the types of "opinion" that are constitutionally protected. The Supreme Court's 1990 decision in Milkovich v. Lorain Journal clearly and forcefully indicates that a statement is not constitutionally protected simply because a reader would understand it to reflect the author's subjective point of view. Instead, the Milkovich Court held that a purported "opinion" can harm reputation just as much as explicit factual assertions, at least when it implies the existence of defamatory objective facts. Hence, the Court declared that the statement "In my opinion Jones is a liar" can be just as damaging to the reputation of Jones as the statement "Jones is a liar," because readers may assume unstated defamatory facts underlie the supposedly "subjective" opinion. Moreover, even if the author states the underlying facts on which the conclusion is based, the statement can still be defamatory if the underlying facts are incorrect or incomplete, or if the author draws erroneous conclusions from them. The Court therefore rejected the proposition that defamatory statements should be protected as long as it is clear they reflect the authors' point of view, or as long as they accurately state the facts on which they are based. [This analysis is freely borrowed from this article at pp. 924-25, full citations are included there.]
Posted by Lyrissa Lidsky on June 18, 2013 at 03:24 PM in Blogging, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (2) | TrackBack
Saturday, June 15, 2013
How Could Surveillance Violate the First Amendment?
Howard asks an interesting question about surveillance and the First Amendment. In her concurrence last term in United States v. Jones, Justice Sotomayor said: "Awareness that the Government may be watching chills associational and expressive freedoms." But she didn't provide a citation for this proposition, and the one citation in the rest of the paragraph is to Judge Flaum's concurrence in the Seventh Circuit decision in Cuevas-Perez, which doesn't discuss freedom of expression. So what might Justice Sotomayor be talking about, and is there any merit to it?
The closest analogy I could come up with are the claims for a reporters' privilege in Branzburg v. Hayes. There, the press argues that the First Amendment gives it a privilege against testifying in court in certain cases. There too, the idea seems to be that secrecy and free expression are intertwined, and that people won't talk to the press if they know that the government might later force them to testify about it. But the court rejected the claims in Branzburg and has shown no sign of reviving them in the more modern era. And if anything, the reporters' privilege cases seem to have stronger intuitive force than an anti-NSA "chilling effect" claim; so if the reporters cases fail, the NSA claims fail a fortiori.
The other analogy I could come up with are the Seventh Circuit "Red Squad" cases, which deal with a series of First Amendment challenges to the FBI's investigations and surveillance of various left wing groups (including the ACLU, which is leading one of the new NSA lawsuits). (E.g. here and here.) While the opinions mostly deal with some interesting questions about equitable remedies, the underlying, successful claims were First Amendment claims.
But the core of the Red Squad claims was retaliation and selective prosecution-- that groups had been picked for burdensome or chilling investigations because of their political views, and perhaps in order to suppress those political views. By contrast, from what we know of the NSA programs, they do not have this problem. Whatever their flaws under the statutes and the Fourth Amendment, the collection of data from domestic targets like the ACLU doesn't appear to be targetted (so far as we know); it appears to be indiscriminate. While being indiscriminate might create problems for the program under other law, it actually insulates it from a Red Squad retaliation claim.
Laird v. Tatum, a 1972 Supreme Court case dismissing a surveillance lawsuit for lack of standing confronted a similar chilling effect claim; while the Court did not rule on the merits, it appeared to make a similar assumption-- that the First Amendment might regulate selective targetting on the basis of political viewpoint, but not the chilling effect of indiscriminate information gathering. The Court noted that it had never found a prohibited "chilling effect" to "arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual."
So I am skeptical that the First Amendment is a useful way to challenge for challenging the NSA surveillance programs, at least in the absence of retaliation or selective prosecution. But the ACLU has a lot of clever lawyers, so it may well be that they will come up with something that I have not.
Surveillance and the First Amendment
A different question on the PRISM lawsuits: Does surveillance, without more, violate the First Amendment? And if so, how? The argument is that having government watching who and when I'm calling chills my speech and my willingness to engage in important speech. Are there cases holding that government action that chills speech, but does not impose or threaten any formal legal consequence, states a First Amendment violation? For a low-tech comparison, if a municipal government announced that police would video record all public gatherings (which presumably would impose a comparable chill), would that state a First Amendment violation?
Friday, June 14, 2013
Barnette at 70
Today is the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette, one of the most significant early free speech cases, particularly rhetorically. When I attend the game at Marlins Park this Sunday and I refuse to stand when they play "God Bless America" during the Seventh Inning Stretch, I have Barnette to thank. Interestingly, this anniversary follows on the heels of a list serv conversation about how teachers and school administrators routinely ignore (or forget about or don't know about) Barnette and force students to participate in flag rituals.
After the jump is a post from John Q. Barrett's (St. John's) The Jackson List (a list serv of regular posts and information about Justice Jackson--Barrett is writing a biography of Jackson). It includes some interesting links, including a discussion with two of the girls involved in the case.Today, June 14, 2013, marks the 70th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson's opinion for Court, in West Virginia State Board of Education v. Barnette.
The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.
The case was brought on behalf of students who were Jehovah's Witnesses. In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag. For that refusal, they were expelled from school. Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.
In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute requirement violated the children's First Amendment rights, which exist to strengthen "individual freedom of mind in preference to officially disciplined uniformity..."
A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone. In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court's decision to uphold Pennsylvania’s flag salute requirement. (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“Fifth Column” hysteria that was sweeping the country. Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah's Witnesses in the Pennsylvania case.)
By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.
Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court's opinion in Barnette. Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson's summary paragraphs:
The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Jackson’s very finest judicial opinions.
* * *
· West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
· A 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
· A Jackson List post from earlier this year, “Arguing Barnette”—click here; and
· A 2010 Jackson List post, “The Newest Barnette Sister”—click here.
As always, thank you for your interest and please share this with others.
And in the United States, happy Flag Day! It was just a coincidence that the Supreme Court decided Barnette on Flag Day in 1943, but in history that coincidence is powerful and instructive.
Monday, June 10, 2013
Cert. denied in gruesome images case
SCOTUS today denied cert. in Scott v. Saint John's Church in the Wilderness, involving an injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age" in an area near a church just before, during, and just after worship times. Jessie Hill wrote about the case last month.
In my recent article on the jurisdictional issues in New York Times v. Sullivan, I argued that SCOTUS has a less-than-stellar recent record of keeping an eye state courts adjudicating First Amendment defenses in state-law claims. Although a case such as Scott still would have been reviewable only on certiorari (and not subject to mandatory review) even prior to 1988, the Court in past years was more willing to hear cases such as this one. Particularly where the lower court decision seems to fly in the face of two recent decisions (Snyder and Brown). State courts also seem increasingly willing to issue anti-speech injunctions, with SCOTUS not inclined to monitor them closely.
This denial also shows the Court backing away in the First Amendment area. In its first few years, the Roberts Court seemed inclined to take a lot of cases in this area, particularly free speech, deciding 10 or 15 cases some terms. This past term has one free speech case (and we are still awaiting a decision); next term so far has one Establishment Clause case. I wonder why the change.
Friday, May 24, 2013
"Sport as Speech" and Non-sport as Speech
I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.
Two further thoughts on the paper.
1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is another reason to bother defining what qualifies as sport.
2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?
Thursday, May 23, 2013
Gruesomeness and the First Amendment
As one who is interested in both women's reproductive rights and the First Amendment, I find issues at their intersection of those protections to be inherently fascinating. One such set of issues surrounds abortion protests, and a particularly thorny question under that broad rubric involves the permissibility of restrictions on the display of gruesome or graphic images of dismembered fetuses. Usually, such arguably content-basedrestrictions, which appear to raise First Amendment concerns, are justified as protecting children from the disturbing imagery.
Now, it appears the formidable Eugene Volokh has filed a cert petition in a case involving just such a restriction, in the form of a state-court injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age." The permissibility of restrictions like this has been the subject of a circuit split, and the Supreme Court is set to discuss the petition at its May 30 conference.
A few random thoughts follow the jump:
First, there are many problems with this sort of restriction that make me uncomfortable, not the least of which are the vagueness of the term "gruesome" and the problem of limiting what can be displayed in public because of concerns about the possibility that young (perhaps only very young) children might be disturbed by it.
At the same time, though, I do think there is a category of speech (really, imagery) that is so visually--one might even say viscerally--disturbing that there may well be a compelling interest in protecting children from it. Moreover, I say "compelling," because I'm assuming this is a content-based restriction requiring strict scrutiny, but I'm not completely sure that's true. This might be viewed as a content-neutral restriction on the manner of speech, justified by concerns about the physical impact ("secondary effects"?) of that speech on others -- not because of the message conveyed but because of the way it is conveyed. Of course, the problem is that it is exceedingly difficult to distinguish the medium from the message here.
Yet, at the same time, these sorts of arguments run smack up against Brown v. Entertainment Merchants Ass'n, where the Supreme Court made it clear, once again, that the only horror we can't expose our children to is sex. Only sexual content is so forbidden, so disturbing, and so inappropriate for children that it can be off-limits to them when it is constitutionally protected to adults. To be clear, I don't think sexually explicit content is usually appropriate for minors, and I also don't favor lots of new limits on speech in the name of protecting minors. But I really don't get the rationale, other than tradition, for drawing this sort of line between sex and violence or other content that is likely equally upsetting to children.
Finally, and a little more tangentially, I think the extent to which debates about abortion are often driven by a sort of "graphic-ness," in the sense of a highly visual orientation, both in the imagery but also in the language of Supreme Court cases, is peculiar and fascinating, as I have briefly explored elsewhere.
Police Body Cams
This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in the trial challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.
Wednesday, May 22, 2013
IRS and the political valence of constitutional litigation
I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.
In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).
• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?
• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.
• Lots of those darn conclusory and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.
• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?
The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.
Monday, May 13, 2013
Mike Wallace interviews Justice Douglas on free expression (1958)If, like me, you need excuses throughout the day to take short breaks from grading, this video -- an interview by Mike Wallace of Justice Douglas (about expression, speech, censorship, and "our freedoms" more generally) from May of 1958 -- is an intriguing watch. It was basically about his The Right of the People.
Sunday, May 12, 2013
Marty Redish and A Jurisdictional Perspective on New York Times
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.
My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.
Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
Monday, April 29, 2013
First Amendment on campus
Here are a couple of stories about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.
The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.
Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.
My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.
For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."
Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.
Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.
Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.
Wednesday, April 24, 2013
Animal cruelty law rejected
Following SCOTUS' 2010 decision in United States v. Stevens invalidating a federal statute prohibiting "animal crush videos," Congress responded with the Animal Crush Video Prohibition Act of 2010, which I wrote about here and here. The key to the new version was that Congress defined animal crush videos as prohibiting certain depictions of animal cruelty that are obscene, attempting to shoehorn this speech into an existing category of unproteced speech.
Last week, Judge Lake in the Southern District of Texas held that the new statute is still unconstitutional, dismissing the first prosecution under it. Judge Lake rejected the two government arguments in support of the statute: 1) that it regulates already-unprotected obscenity (the videos are not obscene because, while patently offensive, they do not depict sexual conduct, as required under Miller) and 2) that it is justified to dry up the market in animal cruelty (the court emphasized the narrowness of this rationale outside child pornography and videos depicting conduct that is inherently and always unlawful). The law therefore was a content-based regulation subject to strict scrutiny, which it did not survive.
Curious to see if the government appeals or just waits to try again with a different prosecution in a different court.
Thursday, April 18, 2013
Why fan speech matters
If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site for genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.
Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.
Tuesday, March 12, 2013
State courts and the First Amendment
One of the great debates in Federal Courts/Civil Rights Litigation is over parity and whether state courts can or will vigorously protect and enforce federal constitutional rights. Most obviously, Younger abstention--and the criticism of Younger--reflects the divide on this belief.
But consider a case such as People v. Oduwole, in which an Illinois intermediate appellate court (in the rural western part of the state, no less) unanimously reversed a conviction for attempting to make a terrorist threat, where the threat consisted of little more than words scribbled on a piece of paper (he claims they were rap lyrics) and buried in the back of his car. While not explicitly a First Amendment case, the court emphasizes that, in the absence of any substantial step towards threatening someone, Oduwole's "writings, as abhorrent as they might be, amount to mere thoughts." It's not clear that a federal judge, even one steeped in life tenure, guaranteed salary, and the professional orientation of the federal judiciary, could have said it better.
On the other hand, perhaps in federal court the trial judge would have made that statement, rather than having a jury convict in less than four hours and forcing the defendant to appeal a conviction before gaining his release.