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.



 

Posted by Lyrissa Lidsky on November 3, 2013 at 03:37 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack

Monday, July 29, 2013

Ten (No, Make that Nineteen) Tips for New Law Professors

I recently received an email from a professor who said he'd found this list of tips helpful. I've added a couple of his tips that were not on the original list.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned  by violating it.  What the advice boils down to, I think, is that students desparately need you to be predictable. It is comforting to them when they know roughly what to expect each day.

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 19 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another.

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) twenty years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.  

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else. 

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now, but I believe in signalling I take the endeavor seriously by dressing professionally.

Posted by Lyrissa Lidsky on July 29, 2013 at 09:48 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (11) | TrackBack

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.

   

Posted by Lyrissa Lidsky on July 19, 2013 at 04:03 PM in Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Anxiety on the Tenure Track: What YOU Can Do

Drexel Law Professor Lisa McElroy has an important piece on Slate.com (here) dealing with her struggles with anxiety while on the tenure track. Anxiety while untenured is common, indeed almost unavoidable, but Lisa's essay is about the hidden toll her severe anxiety disorder imposed on her during the already stressful tenure process. She tells her story to help others in her situation have the courage to get the help they need and to start the process of breaking down the stigma attached to mental illness. Another benefit, she notes, is allowing herself to finally be known by those around her, to be who she truly is. Her essay reminds us all that our friends and acquaintances and, yes, colleagues--even those who are tremendously accomplished by all objective measures--are often carrying heavy burdens that we know nothing about. We should do what we can to alleviate their suffering and not let fear prevent us from getting help to alleviate our own. 

Posted by Lyrissa Lidsky on July 19, 2013 at 01:44 PM in Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (3) | TrackBack

Wednesday, July 10, 2013

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.

 

Posted by Lyrissa Lidsky on July 10, 2013 at 11:22 AM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

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

Wednesday, January 30, 2013

Does Not Translate?: How to Present Your Work to Real People

Recently I've agreed to give talks on social media law issues to "real" people. For example, one of the breakfast talks I've been asked to give is aimed at "judges, city and county commissioners, business leaders and UF administrators and deans." Later, I'm giving a panel presentation on the topic to prominent women alumni of UF. My dilemma is that I want to strike just the right tone and present information at just the right level for these audiences. But I'm agonizing over some basic questions. Can I assume that every educated person has at least an idea of how social media work? What segment of the information that I know about Social Media Law and free speech would be the most interesting to these audiences, and should I just skip a rock over the surface of the most interesting cases and incidents, accompanied by catchy images?  How concerned should I be about the offensive potential of talking about the real facts of disturbing cases for a general but educated audience? As a Media Law scholar and teacher, I'm perfectly comfortable talking about the "Fuck the Draft" case or presenting slides related to the heart-wrenching cyberbullying case of Amanda Todd that contain the words "Flash titties, bitch." But can I talk about this at breakfast? If I can, do I need to give a disclaimer first? And for a general audience, do I want to emphasize the disruptive potential of social media speech, or do I have an obligation to balance that segment of the presentation with the postive aspects for free speech? And do any of you agonize over such things every time you speak to a new audience?

Anyway, translation advice is appreciated. I gave our graduation address in December, and I ended up feeling as if I'd hit the right note by orienting the address around a memorable story from history that related to the challenges of law grads today. But the days and even the minutes preceding the speech involved significant agonizing, which you'd think someone whose job involves public speaking on a daily basis wouldn't experience.

 

 

Posted by Lyrissa Lidsky on January 30, 2013 at 10:07 AM in Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Teaching Law | Permalink | Comments (3) | TrackBack

Monday, October 15, 2012

A New Essay on the Roberts Court and the Press: Not a Free Press Court?

The abstract for my new essay , Not a Free Press Court?, is as follows:

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations,perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.

I wrote this small essay, which is now available on ssrn,  for a wonderful symposium at BYU Law School on the Roberts Court and the Press. The essay is forthcoming in 2012 BYU L. Rev. __ (2012).

Posted by Lyrissa Lidsky on October 15, 2012 at 11:06 AM in Article Spotlight, Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Wednesday, August 29, 2012

A Reminder to Hiring Committees: Don't Google The Candidates?

Here's some advice to hiring committee members travelling to the AALS conference: While it may be natural to search the internet for additional information about candidates for faculty positions, how you use the information you find may subject your university to legal liability. Here are two cautionary tales involving university hiring to keep in mind.

Cautionary tale number one illustrates that the refusal to hire an employee based on information gleaned from social media can sometimes give rise to a discrimination claim under Title VII.  Two years ago, the University of Kentucky faced a Title VII lawsuit brought by a rejected job applicant who claimed that the University refused to hire him based on information about his religious views found by the hiring committee during an Internet search. Gaskell v. University of Ky., 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010). Evidence in the case indicated that the chair of the department conducting the search asked the candidate about his religious beliefs, which the chairman had "personally" researched on the internet. In addition, an email from a staff member to hiring committee members during the process noted: "Clearly this man is complex and likely fascinating to talk with, but potentially evangelical."  The case settled for $125,000 after a judge denied cross-motions for summary judgment. 

Cautionary tale number two illustates that discrimination against hiring candidates on the basis of their political beliefs can subject state universities to liability for constitutional torts. This tale involves the University of Iowa's College of Law and the hiring of a legal writing instructor. In Wagner v. Jones, Teresa Wagner alleged that the College of Law refused to hire her because of her conservative political beliefs, and she sued under 42 U.S.C. § 1983. The trial court granted summary judgment to the college, but a panel of Eighth Circuit Court of Appeals reversed.

The Eighth Circuit determined that Wagner had made a sufficient claim of political discrimination to get to a jury. The court applied the following test (drawn from the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle):

A plaintiff alleging First Amendment retaliation must first make a prima facie showing that (1) she engaged in conduct protected by the First Amendment; (2) she suffered an adverse employment action; and (3) the protected activity was a substantial or motivating factor in theemployer’s decision to take the adverse employment action. If a plaintiff makes this prima facie showing, then “a presumption of retaliation arises and the burden shifts to the defendant to advance a legitimate reason for the employment action.                                 

The court found Wagner had presented evidence from which a jury could conclude that her polticial beliefs were a substantial or motivating factor not to hire her.  Specifically, a deposition in the case indicated that the candidate's conservative views may have been discussed at a faculty meeting on her candidacy; there was also evidence that she was advised to hide the fact she'd been offered a job at Ave Maria during the interview process at the College of Law, and a contemporaneous email from an associate dean expressed concern that Wagner's politics could have played a part in the faculty's decision not to hire her. In addition, the court noted (several times!) that only one of the fifty faculty members of the College was a registered Republican at the time Wagner interviewed. There's more to the decision, of course, including full discussion of why the court rejected the argument that the Dean was entitled to qualified immunity. Regardless, the decision should be a reminder to hiring committee members at state schools not to use information found on the internet or anywhere else to discriminate against potential hires in violation of their First Amendment rights.

 

Posted by Lyrissa Lidsky on August 29, 2012 at 02:17 PM in Constitutional thoughts, Employment and Labor Law, First Amendment, Getting a Job on the Law Teaching Market, Life of Law Schools, Lyrissa Lidsky, Web/Tech | Permalink | Comments (10) | TrackBack

Wednesday, August 15, 2012

Free Speech Rights in Social Media for College Students: Tatro v. U. of Minn.

I've been working on putting together a comprehensive list of social media cases with a First Amendment angle, and I recently came across the fascinating case of Tatro v. University of Minnesota, 816 N.W.2d 509 (Mn. 2012), which the Minnesota Suprem Court decided at the end of June.  In case you missed reading this case in June, as I did, here's a summary.

The University of Minnesota sanctioned Tatro, a junior in its mortuary science program, by giving her a failing grade in her anatomy lab and forcing her to undergo a psychiatric evaluation because she posted “violent fantasy” (pretty tame stuff, really) and “satiric” comments about her human cadaver on Facebook.  Posting or "blogging" about her cadaver violated the University’s “Anatomy Bequest Program” policies, the Mortuary Science Student Code of Professional Conduct, and the rules of her anatomy course. She appealed the University’s imposition of sanctions on her speech through a writ of certiorari. The Minnesota court of appeals affirmed the constitutionality of the sanctions, and the Minnesota Supreme Court granted further review and also affirmed, basing its decision on the unique nature of the professional program in which the student was enrolled. 

The Minnesota Supreme Court treated the case as one of first impression, noting that the constitutional standard governing “a university’s imposition of disciplinary sanctions for a student’s Facebook posts that violate[ ] academic program rules” is “unsettled.” Although the court of appeals had resolved the case by applying  Tinker v. Des Moines Inc. Comm. Sch.the Minnesota Supreme Court held this standard  to be inappropriate because Tatro was disciplined not for the disruptiveness of her post but for its lack of “respect, discretion, and confidentiality in connection with work on human cadavers.” The Court instead determined that the appropriate standard was whether the university had “impose[d] sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.” (The Court did not cite any particular Supreme Court precedent as the basis for this standard).  Applying this new standard, the Court concluded “that dignity and respect for the human cadaver constitutes an established professional conduct standard for mortuary science professionals.”  Having previously noted that the asserted purpose of the University’s rules was to “educate students” about their ethical duties in the funeral service profession and “maintain the viability of the Anatomy Bequest Program,” the Court found the academic program rules to be narrowly tailored even though they completely barred (!) blogging about cadaver dissection or the anatomy lab.  Tatro clearly violated these rules by giving her a “cadaver a name derived from a comedy film” and engaging in “widespread dissemination” of her comments, first through Facebook and later through the news media.  Consequently, punishing her for violating them did not abridge her First Amendment rights. 

This case raises some interesting issues, which I'd explore in more detail if I weren't staring down the barrel of multiple deadlines.  Some obvious questions raised are as follows: Is a standard proscribing "disrespect" unconstitutionally vague? How can a complete ban be narrowly tailored?  (Can't help thinking of Atul Gawande's writing in this context.)  Why doesn't ordering a psychiatric evaluation for "unprofessional" speech violate the First Amendment? (The Court didn't address whether the speech constituted a "true threat.")

As a media law professor, I noted with interest that my fellow media law professor Raleigh H. Levine, from William Mitchell College of Law, was an amicus in the case for the ACLU, along with Teresa Nelson.

Posted by Lyrissa Lidsky on August 15, 2012 at 09:23 PM in Blogging, Constitutional thoughts, First Amendment, Lyrissa Lidsky, Web/Tech, Weblogs | Permalink | Comments (4) | TrackBack

YLS Admissions Blog: Unapologetically Elitist

My friend Lisa McElroy is a Legal Research and Writing Professor at Drexel.  She alerted me to this blog missive from Yale Associate Dean of Admissions Asha Rangappa, providing advice to potential transfer students: 

“The other part of your application that is going to carry a significant amount of weight is your law school recommendations (we require two).  We use these references to place your grades in context and also to determine what kind of student you are.  A common mistake on this front is to make one of your two required recommendations from a legal writing instructor -- most students do this because they've usually had much more one-on-one interaction with their legal writing instructor than with their other professors, and so the instructor usually knows them well.  There's nothing wrong with this per se, but the Admissions Committee generally likes to have at least two letters from one of your first year core subject area professors, who can speak to your ability to keep up with the subject material, contribute to class discussion, and think through difficult concepts (a third letter from your legal writing instructor is fine).  Letters from professors who went to YLS -- who as you probably know are ubiquitous in the legal academy -- are often especially helpful, since they usually discuss why the applicant would fit into the academic and cultural experience here.  But don't go stalking a Yale alum just for this purpose -- just pick professors from classes in which you have performed very well and you'll be on the right track.”

As Lisa writes (I'm closely paraphrasing her post on the LRW listserve) , the subtext of the advice is basically as follows:  (1) LRW is not a "core subject area;" (2) LRW profs don't really teach "subject material," or at least none that is hard to keep up with; (3) LRW profs don't lead class discussions, or none that require student contributions; (4) LRW profs don't teach difficult concepts, or ask students to think them through; (5) LRW profs are "instructors," and, as such, could not have attended YLS.  [Lisa went to Harvard Law, btw & fwiw!!]

Please also note that those of us who didn't go to YLS couldn't possibly understand the rigors of legal education there, and thus our letters are discounted.

[Addendum: It has been brought to my attention since I originally posted that it is unfair to single out Dean Rangappa as being "gratuitously insulting" simply for being bracingly honest about the elitism in legal academia, and I thought the point a fair one. Dean Rangappa's letter, in fact, is a way of levelling the playing field somewhat for students from non-privileged backgrounds seeking to transfer to YLS; it gives them access to valuable information about how the process really works.  The reason her letter has resonated among LRW profs and others is the fact that many, if not most, law schools treat their LRW profs as second-class citizens and LRW as an unimportant subject that can be picked up by osmosis.]

 

Posted by Lyrissa Lidsky on August 15, 2012 at 10:34 AM in Blogging, Life of Law Schools, Lyrissa Lidsky, Teaching Law, Weblogs | Permalink | Comments (41) | TrackBack

Tuesday, July 03, 2012

How Not to Criminalize Cyberbullying

My co-author Andrea Pinzon Garcia and I just posted our essay, How Not to Criminalize Cyberbullying, on ssrn.  In our essay, we provide a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which our essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, we contend that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, leading to pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate punishment of common childhood wrongdoing. Furthermore, statutes criminalizing cyberbullying are especially prone to overreaching in ways that offend the First Amendment, resulting in suppression of constitutionally protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective legal reforms. Our essay attempts to give legislators the First Amendment guidance they need to distinguish the types
of cyberbullying that must be addressed by education, socialization, and stigmatization from those that can be remedied with censorship and criminalization.
To see the abstract or paper, please click here or here

 

 

Posted by Lyrissa Lidsky on July 3, 2012 at 03:44 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack

Saturday, June 09, 2012

Cyberbullying News: Parts of Missouri's Cyberharassment Law Unconstitutional

In 2006, Missouri teen Megan Meier committed suicide after being "cyberbullied" on MySpace by Lori Drew, a former friend's 49-year-old mom. Megan's suicide in response to Drew's cruel online hoax galvanized national attention around the problem of cyberbullying and prompted widespread calls for legal reforms. Missouri, naturally, was one of the first states to respond.  There, state legislators modernized and updated their existing cyberharassment and cyberstalking laws in an attempt to cover conduct such as that that led to Megan's suicide.  A week and a half ago, the Missouri Supreme Court dealt a setback to Missouri's efforts to combat cyberbullying by striking down a portion of the amended harassment law , and its decision may contain lessons for those pushing new legislation to criminalize bullying.    

Notably, Missouri v. Vaughn, the Missouri Supreme Court's decision striking down portions of the law under the First Amendment, did not involve cyberharassment.  Instead, it involved a defendant who repeatedly telephoned his ex-wife, leading prosecutors to charge him under  subdivision (5) of Mo. Rev. State 565.090.1 for ""knowingly mak[ing] repeated unwanted communication to another person," and under subdivision (6) for "[w]ithout good cause engag[ing] in an[ ] act with the purpose to frighten, intimidate, or cause emotional distress to another person, [which does in fact] cause such person to be frightened, intimidated, or emtionally distressed, and such person's response to the act is one of a person of average sensibility considering the age of such person."    

The court held that section 565.090.1(5) was constitutionally overbroad, despite the State's proffer of a narrowing construction that would have made the statute applicable only when the defendant's communications were repeated, unwanted, and targeted at a "particularized person," whatever that means. The court held that "[e]ven with the State's suggested constructions, subdivision (5) still criminalizes any person who knowingly communicates more than once with another individual who does not want to receive the communications."  The court gave examples illustrating subdivision (5)'s overbreadth, noting that it would apply to peaceful picketers or teachers calling on students once asked to stop. The court also found that the statute stretched well beyond what might be justified by the protection of residential privacy or "captive audience" members. The court therefore "severed" and struck subdivision (5) from the statute.

The court, by contrast, upheld subdividision (6) by reading it narrowly to address only fighting words and finding that prohibition of speech made "without good cause" was not vague. Section 565.090.1(6) makes it a crime to "[w]ithout good cause engage[ ] in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of the person."  The court found that the legislature's exclusion of "the sorts of acts for which there could be good cause" meant that it only applied to expressive conduct that was intended to and actually did provoke "immediate substantial fright, intimidation, or emotional distress." (emphasis in original)  Though the reasoning is opaque [I'm being generous], the court seemed to believe that the "legislature's intent" underlying the good cause requirement transformed the statutory provision into one that only addressed "unprotected fighting words." Specifically, the court stated: "because the exercise of constitutionally protected acts clearly constitutes 'good cause,' the restriction of the statute to unprotected fighting words comports with the legislature's intent."

Separately, the court found that subdivision (6) was not vague. According to the court, there is a "common understanding" regarding what would "frighten, intimidate, or cause emotional distress" to a reasonable person. More dubiously, the court asserted that the "good cause" language of the statute would give a citizen adequate notice of what expression was unprotected by the statute as well as adequately constrain law enforcement discretion.  Relying on prior case law, the court stated: "'Good cause' in subdivision (6) means 'a cause that would motivate a reasonable person of like age under the circumstances under which the act occurred." Although earlier in the opinion, the court seemed to equate "good cause" with "protected by the First Amendment," here the court seemed to be using a standard legal definition of good cause, meaning done with justifiable motive. Regardless, court's determination that the "good cause" language is not vague is certainly contestable. 

Although the court upheld subdivision (6), the victory is probably a pyrrhic one for advocates of broad laws to address bullying behaviors.  The court apparently saved the constitutionality of subdivision (6) by adopting a ridiculously strained interpretation of it; under this interpretation, it only covers fighting words--those "which by their very utterance inflict injury or tend to incite an immediate breach of peace"--as defined by the Supreme Court in its 1942 decision in Chaplinsky v. New Hampshire.  It is worth noting that the Supreme Court has not upheld a conviction for the utterance of fighting words in the seventy years since it decided Chaplinsky. Moreover, as Rodney Smolla has noted, there is a "strong body of law expressly limiting the fighting words doctrine to face-to-face confrontations likely to provoke immediate violence."  In other words, the Missouri Supreme Court's interpretation of subdivision (6) makes it difficult to use as a tool for addressing cyberharassment, since it is unlikely to trigger immediate violence in the manner envisioned by Chaplinsky.

There are no doubt more conclusions to be drawn from Missouri v. Vaughn, and I hope to draw them in an article that my co-author Andrea Pinzon Garcia and I are rushing to complete. That article is currently called Coming to Terms with Cyberbullying as Crime, though the title is subject to change. Look for a link to it here or on SSRN before the end of the month.

 

Posted by Lyrissa Lidsky on June 9, 2012 at 04:29 PM in Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (1) | TrackBack

Thursday, May 10, 2012

Productivity: A Mother's Day Blog Post

In honor of Mother's Day, I thought I'd write about work-life balance, which is a bit like the Marquis de Sade writing about abstinence. This year my scales have had the elephant of work on one side and the feathers of my life on the other, and still I constantly feel as if I should do more better faster.

My husband has been on my case about this problem, and for good reason. But he finally said something last week that hit home, so to speak. I was complaining that I hadn't been "productive" during the week, and he replied, "That's because you've defined productivity to exclude anything to do with home."  His words weren't angry nor were they an attempt to be consoling.  He was just stating a fact, which is what made his words so resonant for me. It would be an overstatement to say that I define productivity by my word count, but not by much.

As a wife and mother of three sons, my family is my top priority. But I'm not sure I consistently send them that message, and it can be hard to know what making family your top priority means on a moment-t0-moment or day-to-day basis.  I definitely put a high value on time spent in direct interaction with them: I try never to work late nights or weekends, and I've gotten rid of cable television and wi-fi at home to prevent distractions from swamping family life.  That said, I don't much value the time I spend making home "a home." I almost completely discount the value of performing the mundane chores that make up this thing called a life.  I tend to begrudge every second spent folding the Sisyphean piles of laundry on my dining room table, taking the emotionally withholding cat to the vet, or doing the dishes, treating these chores as obstacles to productivity. I don't even enjoy cooking much anymore because it takes "too much time."  I do all these things, but they give me little sense of accomplishment, and I tend to view them as getting in the way of what I "should" be doing.

As I write this, it sounds pretty misguided.  The worst part is that I suspect I'm not the only academic who has defined productivity so narrowly that she has trouble setting a satisfying work-life balance as a result. The problem, ultimately, is one of accounting.  On the life side of the balance, motherhood has fleeting and fortuitous moments of joy, but one finds few signposts, while guiding children to adulthood, that one is headed in the right direction. Even when one knows certain tasks are necessary, there are few direct measures that tell one whether one is doing them well or poorly. [Is yelling ever warranted to make sure the kids' homework gets done? I sure hope so.] For many of the tasks, indeed, such concepts seem entirely beside the point.

Work, on the other hand, has a strict system of productivity accounting. (Academia's productivity accounting is much too strict, but that's a topic for a different productivity blog post.) One can measure one's productivity by words written, articles published, lectures delivered, students taught, and there are often encouraging signs along the way that one is doing one's tasks well.  It is easy, therefore, to let work, with its tangible rewards, overbalance life, with its intangible ones.

My hope for Mother's Day is that I can recalibrate.

 

Posted by Lyrissa Lidsky on May 10, 2012 at 01:44 PM in Gender, Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (7) | TrackBack

Thursday, March 08, 2012

Electoral Lies and Stolen Valor: Is the Cure Worse Than The Disease?

Does the First Amendment protect lies that cause only diffuse and intangible harms? That's the issue at the heart of U.S. v. Alvarez, which is currently before the Supreme Court and which addresses the constitutionality of punishing those who lie about receiving military honors. (Listen to the oral arguments in Alvarez here.) It is also the issue at the heart of a petition for certiorari in 281 Care Committee v. Arneson., 638 F.3d 621 (8th Cir. 2011), which addresses the constitutionality of a Minnesota law that makes it a "gross misdemeanor" to make a knowingly or reckless false statement about a ballot issue or a candidate during an election campaign. Though Alvarez and Arneson are p0tentially distinguishable, the Supreme Court decision in the former will inevitably shape the answer to whether the Minnesota election law statute, and the sixteen other state statutes like it, is ultimately deemed constitutional. I've long been interested in this topic (see my essay, Where's the Harm?), so it is particularly nice to come across Christina Wells' new article (discussed below), which breathes fresh life into the debate over whether lies receive First Amendment protection.

Your stance in this debate is likely shaped by how you begin your analysis. If you start by asking whether intentional or reckless falsehoods have any constitutional value--whether they make any positive contribution to public discourse--then you are more likely to conclude that criminalizing lies is constitutional, even if they cause no harm. If you start with the presumption that government may not regulate speech without an important or perhaps even compelling justification, then you are more likely to presume that lies causing only diffuse harms are protected by the First Amendment.

First Amendment jurisprudence does not protect falsehoods as such, but it does acknowledge that falsehoods are sometimes inevitable in public debate and that it is not always easy to distinguish truth from falsity. Therefore, the First Amendment does not allow punishment of merely negligent falsehoods, and it broadly protects speech that cannot be interpreted as stating actual facts or that is not provably false. But all of the Supreme Court cases allowing the punishment of lies involved lies that caused concrete harms--lies that defamed an individual (or corporation), or invaded his privacy, or enabled fraud. In contrast, the question before the Court in the Stolen Valor case (Alvarez) is whether the First Amendment allows an individual to be punished for an intentional or reckless falsehood, doubtless offensive to most, that harms public discourse by polluting the information stream, and thereby diluting the value of military honors and muddying the message the government tries to convey by awarding them. Similarly, the question with regard to statutes regulating knowingly or recklessly made falsehoods during election campaigns is whether the harm they cause--pollution of the stream of information available to voters about candidates and issues and p0ssible distortion of electoral outcomes--is sufficient to justify government regulation.

Even granting that lies potentially pollute public discourse, one might still question whether a governmental remedy is needed. Mr. Alvarez, who lied about receiving the Congressional Medal of Honor, was detected after he told his lie to a former Marine who uncovered the truth in "just minutes" after "a few text messages and a check of a website with information on the fewer than 100 living Congressional Medal of Honor winners." And lies during election campaigns can be "policed," albeit imperfectly, by news media, websites like Politifact, and ordinary citizens willing to engage each other online and off. Even if these alternative methods for policing falsehoods do not work as well as government action, it is still worth questioning whether government investigation of political truths might cause enough negative effects that the government cure for lies would be worse than the disease.

In her new article forthcoming in 59 UCLA L. Rev. Discourse (2012) and titled Lies, Honor, and the Government's Good Name: Seditious Libel and the Stolen Valor Act, Chris Wells uncovers new evidence of negative consequences flowing from governmental suppression of lies. She does so, perhaps paradoxically, by delving into the history of prosecutions for seditious libel and comparing them to the regulation of lies under the Stolen Valor Act. (Get her article on ssrn here ).

Professor Wells points out that the government's asserted justifications for punishing seditious libels are similar to its justifications for punishing false claims to military honors. "Historically, government officials justified seditious libel prosecutions by claiming criticism undermined the government's honor and authority and reduced the public's respect for it, ultimately threatening national security. . . .The government's justifications for the Stolen Valor Act are eerily similar. The government seeks to punish all intentional lies about receiving a military honor because they 'misappropriate the prestige and honor associated with the medal.'" The argument further links lies about the medals to impairment of military readiness, ultimately "punish[ing] lies because they arguably undermine respect for government or government personnel." (Id. at 1-2.)

Professor Wells then traces the English roots of seditious libel and the rise and fall of seditious libel prosecutions within the United States. She recounts, of course, the debate over the Sedition Act of 1798, but she also discusses the punishment of seditious speech under the Espionage Act of 1917, when thousands were arrested simply for criticizing the US war effort. She notes: "Courts, applying a combination of constructive intent and the 'bad tendency' test, convicted hundreds" of critics of the war effort, on the grounds that their criticisms would undermine that effort. Gradually, however, the Supreme Court came to appreciate that punishing speech based on "bad tendency" insufficiently constrained official discretion, and the "Court developed its modern low value speech framework largely in response to [this problem.]" (Id. at 12).

Under this framework, the low value categories of speech all involve "independent harms" apart from their putative effects on government reputation or prestige. As Professor Wells writes, "The harm requirement is integral to creating low value speech categories. It allows the Court to create narrow categories that do not punish speech because of its disfavored content, but because that speech in a particular context makes no contribution to the exchange of ideas as evidenced by external indicia of harm." Under this framework, the government may not begin with the presumption that lies are unprotected because they do not involve "speech that matters." Instead, it must begin with identification of concrete harm caused by the speech it seeks to regulate, for any other approach gives undue discretion to government officials to suppress speech they dislike. Professor Wells' argument in its full form is cogent and persuasive, and I hope I've not done it an injustice in my summary. It is my hope that our Supreme Court will take note of the lessons of the history of seditious libel Chris explains, lest they doom us to repeat it.

[Full Disclosure: Christina Wells is my co-author, together with Ron Krotoszysnki, Jr., and the late Steve Gey, of an Aspen casebook on First Amendment Law. This blog post was inspired by this Adam Liptak article on Ohio's election falsehoods statute.]

Posted by Lyrissa Lidsky on March 8, 2012 at 03:46 PM in Article Spotlight, Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (3) | TrackBack

Friday, February 24, 2012

First Amendment Access to "Horse Gathers"?

In Leigh v. Salazar, decided last week, a Ninth Circuit panel reversed and remanded for reconsideration a trial court's denial of a preliminary injunction to a photojournalist seeking unrestricted access to a "horse gather" of wild horses by the Bureau of Land Management. Roundups of wild horses by the BLM are statutorily authorized when necessary to remedy overpopulation. During one of these roundups, the BLM allowed daily public viewings, but restricted the public and a photojournalist for Horseback Magazine to "designated viewing areas" and required them to "sit down and remain quiet during parts of the gather." The journalist challenged the access restrictions. The Ninth Circuit held that the access claims were not moot because the restrictions "could apply to future horse gathers . . . and to [the journalist's] request for unrestricted access to horses in holding facilities" after the gather. Notably, the court interpreted the Supreme Court's courtroom access cases, particularly Press-Enterprise Co. v. Superior Court (Press-Enterprise II), as setting the framework for analyzing whether the press and public had a First Amendment qualified right of access to the horse gathers. This is notable because the court might justifiably have applied the far less generous access precedent of Hourchins v. KQED, which dealt with access to prisons and indicated that the First Amendment does not "mandate[ ] a right of access to government information or sources of information within the government's control." (See, e.g., Flynt v. Rumsfeld, in which the D.C. Circuit refused to apply the courtroom access precedent "outside the context of criminal proceedings").

That said, application of the Press-Enterprise II framework does not guarantee the press and public will receive unrestricted access to the horse gathers or any other government activities. As described by the Ninth Circuit, the Press-Enterprise II framework requires courts to examine whether there is a historical tradition of public access to the particular government activity at issue and whether "public access plays a positive role in the functioning" of the government activity. If these two tests are met, the government may still "overcome" the right of access "by demonstrating an overriding interest" and establishing that its restrictions "are narrowly tailored to serve those interests." Even though the Ninth Circuit's holding does not grant access, it at least evinces a willingness to examine the question closely and perhaps tip the balance in favor of transparency. [The Reporters Committee for Freedom of the Press and the National Press Photographers Association wrote amicus briefs in the case.]

Posted by Lyrissa Lidsky on February 24, 2012 at 10:41 AM in First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Wednesday, February 08, 2012

Criminalizing Cyberbullying and the Problem of CyberOverbreadth

In the past few years, reports have attributed at least fourteen teen suicides to cyberbullying. Phoebe Prince of Massachusetts, Jamey Rodemeyer of New York, Megan Meier of Missouri, and Seth Walsh of California are just some of the children who have taken their own lives after being harassed online and off.

These tragic stories are a testament to the serious psychological harm that sometimes results from cyberbullying, defined by the National Conference of State Legislatures as the "willful and repeated use of cell phones, computers, and other electronic communications devices to harass and threaten others." Even when victims survive cyberbullying, they can suffer psychological harms that last a lifetime. Moreover, an emerging consensus suggests that cyberbullying is reaching epidemic proportions, though reliable statistics on the phenomenon are hard to come by. Who, then, could contest that the social problem of cyberbullying merits a legal response?

In fact, a majority of states already have legislation addressing electronic harassment in some form, and fourteen have legislation that explicitly uses the term cyberbullying. (Source: here.) What's more, cyber-bullying legislation has been introduced in six more states: Georgia, Illinois, Kentucky, Maine, Nebraska, and New York. A key problem with much of this legislation, however, is that legislators have often conflated the legal definition of cyberbullying with the social definition. Though understandable, this tendency may ultimately produce legislation that is unconstitutional and therefore ineffective at remedying the real harms of cyberbullying.

Consider, for instance, a new law proposed just last month by New York State Senator Jeff Klein (D- Bronx) and Congressman Bill Scarborough. Like previous cyberbullying proposals, the New York bill was triggered by tragedy. The proposed legislation cites its justification as the death of 14-year-old Jamey Rodemeyer, who committed suicide after being bullied about his sexuality. Newspaper accounts also attribute the impetus for the legislation to the death of Amanda Cummings, a 15 year old New York teen who committed suicide by stepping in front of a bus after she was allegedly bullied at school and online. In light of these terrible tragedies, it is easy to see why New York legislators would want to take a symbolic stand against cyberbullying and join the ranks of states taking action against it.

The proposed legislation (S6132-2011) begins modestly enough by "modernizing" pre-existing New York law criminalizing stalking and harassment. Specifically, the new law amends various statutes to make clear that harassment and stalking can be committed by electronic as well as physical means. More ambitiously, the new law increases penalties for cyberbullying of "children under the age of 21," and broadly defines the activity that qualifies for criminalization under the act. The law links cyberbullying with stalking, stating that "a person is guilty of stalking in the third degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directing electronic communication at a child [ ], and knows or reasonably should know that such conduct: (a) causes reasonable fear of material harm to the physical health, safety or property of such child; or (b) causes material harm to the physical health, emotional health, safety or property of such child." (emphasis mine) Even a single communication to multiple recipients about (and not necessarily to) a child can constitute a "course of conduct" under the statute.

Like the sponsors of this legislation, I deplore cyber-viciousness of all varieties, but I also condemn the tendency of legislators to offer well intentioned but sloppily drafted and constitutionally suspect proposals to solve pressing social problems. In this instance, the legislation opts for a broad definition of cyberbullying based on legislators' desires to appear responsive to the cyberbullying problem. The broad statutory definition (and perhaps resorting to criminalization rather than other remedies) creates positive publicity for legislators, but broad legal definitions that encompass speech and expressive activities are almost always constitutionally overbroad under the First Amendment.

Again, consider the New York proposal. The mens rea element of the offensive requires only that a defendant "reasonably should know" that "material harm to the . . . emotional health" of his target will result, and it is not even clear what constitutes "material harm." Seemingly, therefore, the proposed statute could be used to prosecute teen girls gossiping electronically from their bedrooms about another teen's attire or appearance. Likewise, the statute could arguably criminalize a Facebook posting by a 20-year-old college student casting aspersions on his ex-girlfriend. In both instances, the target of the speech almost certainly would be "materially" hurt and offended upon learning of it, and the speakers likely should reasonably know such harm would occur. Just as clearly, however, criminal punishment of "adolescent cruelty," which was a stated justification of the legislation, is an unconstitutional infringement on freedom of expression.

Certainly the drafters of the legislation may be correct in asserting that "[w]ith the use of cell phones and social networking sites, adolescent cruelty has been amplified and shifted from school yards and hallways to the Internet, where a nasty, profanity-laced comment, complete with an embarrassing photo, can be viewed by a potentially limited [sic] number of people, both known and unknown." They may also be correct to assert that prosecutors need new tools to deal with a "new breed of bully." Neither assertion, however, justifies ignoring the constraints of First Amendment law in drafting a legislative response. To do so potentially misdirects prosecutorial resources, misallocates taxpayer money that must be devoted to passsing and later defending an unconstitutional law, and block the path toward legal reforms that would address cyberbullying more effectively.

With regard to criminal law, a meaningful response to cyberbullying--one that furthers the objectives of deterrence and punishment of wrongful behavior--would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment's protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.

Legislators may find it difficult to address all the First Amendment ramifications of criminalizing cyberbullying, partly because the term itself potentially obscures analysis. Cyberbullying is an umbrella term that covers a wide variety of behaviors, including threats, stalking, harassment, eavesdropping, spoofing (impersonation), libel, invasion of privacy, fighting words, rumor-mongering, name-calling, and social exclusion. The First Amendment constraints on criminalizing the speech behavior involved in cyberbullying depends on which category of speech behavior is involved. Some of these behaviors, such as issuing "true threats" to harm another person or taunting them with "fighting words," lie outside the protection of the First Amendment. (See Virginia v. Black and Chaplinsky v. New Hampshire; but see R.A.V and my extended analysis here.). Some other behaviors that may cause deep emotional harm, such as name-calling, are just as clearly protected by the First Amendment in most contexts. (Compare, e.g., Cohen v. California with FCC v. Pacifica).

But context matters profoundly in determining the scope of First Amendment protection of speech. Speech in schools and workplaces can be regulated in ways that speech in public spaces cannot (See, e.g., Bethel School Dist. No. 403 v. Fraser). Even within schools, the speech of younger minors can be regulated in ways that speech of older minors cannot (Cf. Hazelwood with Joyner v. Whiting (4th Cir)) , and speech that is part of the school curriculum can be regulated in ways that political speech cannot. (Compare, e.g., Tinker with Hazelwood). Outside the school setting, speech on matters of public concern receives far more First Amendment protection than speech dealing with other matters, even when such speech causes tremendous emotional upset. (See Snyder v. Phelps). But speech targeted at children likely can be regulated in ways that speech targeted at adults cannot, given the high and possibly compelling state interest in protecting the well-being of at least younger minors. (But see Brown v. Ent. Merchants Ass'n). Finally, even though a single instance of offensive speech may be protected by the First Amendment, the same speech repeated enough times might become conduct subject to criminalization without exceeding constitutional constraints. (See Pacifica and the lower court cases cited here).

Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . While introducing narrow legislation of this sort may not be as satisfying as criminalizing "adolescent cruelty," it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.

Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.

[FYI: This blog post is the underpinning of a talk I'm giving at the Missouri Law Review's Symposium on Cyberbullying later in the week, and a greatly expanded and probably significantly changed version will ultimately appear in the Missouri Law Review, so I'd particularly appreciate comments. In the article, I expect to create a more detailed First Amendment guide for conscientious lawmakers seeking to regulate cyberbullying. I am especially excited about the symposium because it includes mental health researchers and experts as well as law professors. Participants include Barry McDonald (Pepperdine), Ari Waldman (Cal. Western), John Palfrey (Berkman Center at HLS), Melissa Holt (B.U.), Mark Small (Clemson), Philip Rodkin (U. Ill.), Susan P. Limber (Clemson), Daniel Weddle (UMKC), and Joew Laramie (consultant/former direction of Missouri A.G. Internet Crimes Against Children Taskforce).]

Posted by Lyrissa Lidsky on February 8, 2012 at 08:37 AM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (8) | TrackBack

Tuesday, January 24, 2012

Predicting FCC v. Fox: Counting the Oral Argument Tea Leaves

Political science research suggests that the more questions the Supreme Court asks a party at oral argument, the more likely that party is to lose. The tenor of the questions counts, too: hostile questions help predict hostile outcomes. (For some of the research, see Sarah Shullman here, and Timothy Johnson et. al. here). Moreover, a study by Epstein, Landes and Posner suggests, "Justices are more prone to question at oral argument parties against whom they will vote than parties for whom they will vote."

With this in mind I examined and listened to the recent oral argument (1/10/12) in FCC v. Fox Television Stations et. al (docket 10-1293). When decided, Fox will be the first Roberts Court case directly involving the mainstream media, so it is highly significant for media lawyers and anyone concerned about press (and specifically broadcast) freedom. The Fox case asks not only whether the FCC's policy against use of "fleeting expletives" violates the First Amendment, but also whether the entire indecency enforcement regime for broadcasting is unconstitutional. [My analysis of the oral arguments is below.]

Predicting the outcome of Fox is a challenge. Only eight justices will decide the case, because Justice Sotomayor is recused. In the Fox case's prior trip to the Supreme Court for resolution of whether the FCC's adoption of the fleeting expletives policy was arbitrary and capricious, Justice Thomas already clearly signalled his belief that Red Lion and Pacifica, which underpin the FCC's authority to regulate broadcast content in ways that would be unconstitutional in other media, are no longer valid; in that same case, Justice Ginsburg signalled her belief that the FCC's fleeting expletives policy exceeds the bounds of permissible regulation of indecency outlined in Pacifica, and she questioned whether cultural changes might have undermined the entire edifice of indecency regulation constructed pursuant to Pacifica. In light of this, getting the three additional votes necessary to strike down the current system of broadcast indecency regulation does not seem like such an uphill battle.

The oral argument tea leaves, however, arguably aren't as auspicious for dramatic change. Oral argument was an hour long. The Solicitor General Donald Verilli argued for the FCC for 26 minutes initially and then spoke four minutes in rebuttal. Verilli was questioned by Kagan (3+1 during rebuttal), Scalia (3+1 during rebuttal), Kennedy(2), Ginsburg(4+1 during rebuttal), Breyer(1), Alito (1), for a total of 17 questions during his initial argument and his rebuttal. [Note: I didn't count it as a separate question if a Justice asked a clarifying questions incident to his/her first question; for example, Justice Breyer asked only one question of the SG, but he pursued it for some time. Also, I counted as "questions" instances in which the Justice interjected with a statement, because the advocates felt bound to respond or react to these statements. Obviously, however, I made a few judgment calls at the margin that some might disagree with.].

This evidence might signal that Kagan, Scalia, and Ginsburg are highly skeptical of the SG's arguments, and perhaps more prone to vote against him. At least in the case of Kagan and Ginsburg, my bet is that they will vote against the FCC, though whether on narrow or broad grounds is harder to say. However, when one looks at the tone of the questions, there is a difference in the tone of Justices Kagan's and Ginsburg's questions and the tone of Justice Scalia's. Justice Kagan and Ginsburg both sound more skeptical in their questions of the SG's arguments on behalf of the FCC than does Scalia. For example, Justice Kagan kicks off the questioning of the SG with "But, General Verilli, it seems to me that this contract notion of yours can only go so far." (emphasis mine). Justice Ginsburg's first question to the SG, which is the fourth question from the bench, refers to the FCC as "the censor" and asks about the "appearance of arbitrariness" of its indecency decisions. Justice Scalia, on the other hand, seems to be asking a question to help the SG sort out whether regulation of broadcast indecency is justified by the history of regulation, by the acceptance by broadcasters of free and exclusive use of public spectrum, or by precedent and whether the FCC's context based approach to identifying indecency is unconstitutionally vague. Justice Kenndy also questions the SG, but in his question, he seems to be reaching out to "assist" the SG to articulate his best argument for a broadcast "safe haven." The SG takes the cue and seizes upon the lifeline Justice Kennedy has thrown him, and the Justice follows up with more assistance; finally, Justice Kennedy's point is even seized by Justice Scalia, who says "Sign--sign me up as supporting Justice Kennedy's notion that this [regulation of indecency on broadcast airwaves] has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court . . . these are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth." Justice Ginsburg, for her part, enters the fray (cutting off the SG) noting that the words that the FCC is regulating are "in common parlance today" and "the children are not going to be shocked by them the way they might have been a generation ago."

Carter Phillips argued the case for Fox. Phillips was questioned by Roberts (3); Kagan (2); Alito (3); Breyer (1); Scalia (2); Kennedy (1), for a total of 12 question. Then Seth Waxman argued on behalf of ABC and others regarding the FCC's sanctions on the broadcasting of nudity and was questioned by Roberts (3); Breyer (4 total with a very extensive follow-up on one of the questions); Kennedy(2); Scalia (1); Alito (1), for a total of 11 questions. It is noteworthy that Philllips and Waxman were asked a total of 23 questions, 6 more questions than the SG was asked in the same amount of time. It is also noteworthy that Chief Justice Roberts took a very active role, asking six questions of the two advocates, even though he asked no questions of the SG. Chief Justice Roberts also tipped his hand in the manner of his questioning. Roberts stated at one point: "People who want to watch broadcast where these words or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that. All we are asking for, what the government is asking for, is a few channels where you can say I'm not going to --they are not going to hear the S word, the F word. They are not going to see nudity." It seems very clear from this "question" that the Chief Justice is actually stating an argument he finds persuasive. At another point, the Chief Justice also interjects to support Justice Scalia's criticism that Mr. Waxman's argument regarding selective enforcement of its nudity prohibition is "not a very powerful argument" given the number of broadcasters sanctioned "over 85 years." In addition to all of this, Justice Breyer made it relatively clear in his questioning that he was troubled by the FCC's actions in these cases but was looking for a way NOT to overrule Pacifica. At one point, Justice Breyer even asks Mr. Waxman: "Does this case in front of us really call for the earthshaking decision that you all have argued for in the - - in the briefs? [overturning Pacifica]" (emphasis mine)

Based on this analysis, it appears as if Roberts, Alito, Scalia are in no hurry to overturn Pacifica. Kennedy and Breyer are a little harder to predict, but I wouldn't bet on them overturning Pacifica, either. With regard to Alito, this is certainly no surprise, for he voted in favor of government restrictions on speech in the "funeral protest" case of Snyder v. Phelps and the "crush video" case of U.S. v. Stevens, and thus indicated his support for regulation of offensive speech. But Chief Judge Roberts has previously voted against government interference in the marketplace of idea in cases like Citizens United v. FEC, U.S. v. Stevens, and Snyder v. Phelps. Furthermore, Justice Scalia wrote for the Court in the "violent video games" case of Brown v. Entertainment Merchants Ass'n, which might be labelled a "new media" First Amendment case decided by the Roberts Court: not only did the Court there strike down California's attempts to prohibit the sale of "violent video games" to minors, but it also flatly rejected the argument that any "medium-specific" characteristics of the games, such as their interactive or immersive nature, justified softening First Amendment prohibitions on content-based regulation. Justice Scalia even wrote that although the First Amendment exists "to protect discourse on public matters," full First Amendment protection extends to entertainment media since "we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try." How can the discrepancy between these cases and the Justices' likely approach to FCC v. Fox be reconciled? I can explain, but it will take me a lot longer than this blog post to do so.

.

Posted by Lyrissa Lidsky on January 24, 2012 at 04:22 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (3) | TrackBack

Tuesday, January 10, 2012

Not a Free Press Court

The New York Times recently published the results of a study showing that the Roberts Court "is hearing fewer First Amendment cases and is ruling in favor of free speech at a lower rate than any of the courts led by the three previous chief justices." The conclusion that the Roberts Court is not a "free speech" court is provocative because it runs contrary to a prevailing scholarly impression, based no doubt on cases like Citizens United, Snyder v. Phelps, and U.S. v. Stevens, that the Roberts Court "is exceptionally supportive of free speech."

Although that impression may prevail with regard to speech cases (but see Erwin Chemerinsky's article, Not a Free Speech Court), media law scholars certainly have a different impression with regard to press cases. Although the Supreme Court heard oral arguments today in a very important media case, FCC v. Fox Television Stations, the impression among media law scholars is that the Court in the last decade or so has not been taking "press" cases at the same rate it did in, say, the early 1990s or before. Given that the last ten years has been a period of tremendous change and upheaval for the mass media, the dearth of Supreme Court "press" cases during this time (if such dearth exists) is particularly striking, The New York Times article prompted me to see if I could provide some quick and dirty evidence for the existence of the dearth.

To do so, I examined the 2011 edition of a leading Mass Media Law casebook with which I'm intimately familiar to see how many Supreme Court cases decided in 2000 or later had been added to the book, either as principal cases or merely as note cases. My assumption was that any major press case, and likely even any tangential press case, decided by the Supreme Court in the last 10-12 years would find its way into the book in one form or another. Here's what I found, for what it is worth. Since 2000, the following four Supreme Court cases were added to the media law canon as principal cases: Bartnicki v. Vopper (2001); Doe v. Reed (2010); National Archives and Records Admin. .v Favish (2004); and Playboy Ent. Group, Inc. v. U.S. (2000). Note that only one of these cases was added after 2005, though these principal cases are likely to be joined in this year's supplement by the forthcoming FCC v. Fox Television Stations (expected 2012) and by Brown v. Entertainment Merchants Ass'n (2011); and perhaps by Reichle v. Howard (expected 2012) and the Stolen Valor Act case (expected 2012). With regard to note cases, some of which have only attenuated relevance to media actors, the following Supreme Court cases were added to the casebook since 2000: Ashcroft v. ACLU I (2002); Ashcroft v. ACLU II (2004) ; Boumediene v. Bush (2008); Citizens United v. FEC (2010); Dept. of Interior v. Klamath Water Users Protective Ass'n (2001); Eldred v. Ashcroft (2003); Garcetti v. Ceballos (2006); Hamdan v. Rumsefled (2006); Hamdi v. Rumsfeld (2004); McConnell v. FEC (2003); M.K.B. v. Warden (2004); New York Times v. Tasini (2001); Presley v. Georgia (2010); Rasul v. Bush (2004); Reno v. Condon (2000); Snyder v. Phelps (2011); U.S. v. Stevens (2010); Tory v. Cochran (2005); and U.S. v. Williams (2008). What does one make of this data? Standing alone, not much. First, the data is useless unless one trusts the subjective judgments of the casebook authors as to the significance or relevance of the selected Supreme Court cases to the media. Moreover, without a way to compare the number of "major" press cases decided in the last 10 years to the number decided before, it is hard to say for sure that the Supreme Court is deciding fewer press cases than it did in the past. Even if one could say this for sure, the decline in the number of Supreme Court cases involving the institutional press is no doubt partly attributable to the fact that the institutional press has fewer economic resources to devote to litigation in today's highly competitive media environment. Despite that, it does seem there is some basis--at least enough to spur further research--for concluding that the Supreme Court today is not addressing many press cases. For my own part, assembling the small list of potentially relevant Supreme Court press cases decided since 2005 makes me want to dig into the individual cases to discover what role the Roberts Court envisions for the institutional press. As I will detail in a future blog post, the Roberts Court gave more than a glimpse of that role in dicta in the Citizens United case, though whether the arguments it made there have broader significance for the press remains to be seen.

 

Posted by Lyrissa Lidsky on January 10, 2012 at 04:11 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (2) | TrackBack

Thursday, November 10, 2011

Kahneman Profile/Review

If you are at all interested in behavioral law and economics, you will be interested in Michael Lewis's profile of Daniel Kahneman, which includes a review of his new book, Thinking, Fast and Slow.

Posted by Lyrissa Lidsky on November 10, 2011 at 10:46 PM in Books, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Tuesday, November 08, 2011

Incendiary Speech and Social Media: An Essay

A draft of my essay, Incendiary Speech and Social Media, is now available on ssrn.  The abstract is below:

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create.

Posted by Lyrissa Lidsky on November 8, 2011 at 10:35 AM in Article Spotlight, Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (3) | TrackBack

Thursday, October 27, 2011

Occupying Public Forums

"When an individual seek[s] to take advantage of an effective, convenient means of communication, the Constitution cannot permit what are often in reality relatively trifling objections to stand in his way."  Geoffrey Stone wrote this sentence more than a quarter century ago, and yet it has resonance today. The question, of course, is what objections are "trifling"? 

In Oakland protesters are returning to the amphitheater in front of City Hall today after the police used force and violence to evict them yesterday. The City attempted to justify the forcible removal, tear gas and all, as necessary to preserve public order in what appears to be a public forum.  The Supreme Court has held (in Clark v. Community for Creative Non-Violence) that the right of citizens to use public forums for protests does not entail the right to sleep overnight in them, even if the sleeping is designed to send a message. For my own part, I believe that the Supreme Court's public forum jurisprudence as a whole gives undue deference to government interests in controlling government property.  Regardless, established precedent suggests that the City of Oakland did not violate the First Amendment rights of the protestors by demanding that their overnight occupation of its public forum cease.  [Whether it violated other rights of the protestors by the use of excessive force is another issue entirely.]

But can the City demand that the daytime occupation cease because the protest has gone on too long?  The City might argue that the prolonged daytime occupation interferes with the flow of traffic to and from City Hall, that it interferes with the rights of other citizens to use the public forum, that the property itself is being degraded by wear and tear, that providing the necessary police presence at the forum is unnecessarily burdensome, or so forth.  Without knowing the physical layout of the forum, I find it hard to evaluate the factual plausibility of some of these arguments.  But how about the constitutional plausibility? The City's arguments for restricting forum access appear to be content neutral.  Are they nonetheless, in the words of Geoffrey Stone, "trifling objections" insufficient to overcome the First Amendment rights of the protesters to speak, assemble, and petition?   The Supreme Court  has upheld content-neutral restrictions within public forums that were justified based on government interests in aesthetics, preventing traffic interruption, or curtailing excessive wear and tear on public property, but the cases upholding regulations based on those interests were factually distinguishable from the situations presented by the "OCCUPY" protests.

Furthermore, whether we find asserted interests such as those listed above to be substantial or significant depends to a large extent on how much deference we give to the judgment of the public officials asserting them.  Just because a public official asserts a threat to public order doesn't mean such a threat exists.  Justice Thurgood Marshall once noted that public officials "have strong incentives to overregulate [public forums] even in the absence of an intent to censor particular views."  Protests are inherently inconvenient, messy, and even costly for public officials to manage.  They are also essential to the health of our democracy.

Posted by Lyrissa Lidsky on October 27, 2011 at 04:06 PM in Current Affairs, First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Monday, October 10, 2011

Ten AALS Interview Tips

I'm going to give some obvious advice below.  I don't mind because (a) it is sometimes helpful to be reminded of the obvious; and (b) the advice below isn't necessarily obvious to everyone, especially to those who aren't fortunate enough to be coached about the conference by their law schools. So here are some tips for those of you interviewing at the AALS conference this week.

1. Spend some time researching the law school with whom you're interviewing before the conference. If you know the names of the Appointments Committee members, figure out what their areas of expertise are. Research about the school will enable you to show that you will "fit" there, and research about the committee will enable you to judge the types of questions committee members will ask or the range of answers they're soliciting.

2. Don't ramble unduly when answering questions.  Interview time is precious, and you want to wring maximum value out of every moment. Your interviewers probably have four or five questions they ask every candidate, and you want to make sure you answer all of them. By the same token, you should have in mind two or three things you want to convey about yourself in every interview.  Make sure you use your time wisely to convey them.

3. Don't assume every interviewer is an expert in your field. Make sure you can explain your research in a way a non-specialist can understand it.

4. Don't sprawl in the interview chair, but don't perch right on the edge, either.  You want to look engaged rather than relaxed or anxious.

5. The interview team may offer you food or drink. Do not accept. Eating or drinking during the interview will be unduly awkward. You may, however, accept a bottle of water for later.

6. Be prepared to discuss in depth anything you've published. By the same token, be prepared to discuss your teaching philosophy, your ideal course package, your desire to live in a college town or urban area (as needed), and your future plans for research.

7. Don't be afraid to show some passion. I want to hire people who love research and teaching and who will commit their lives to improving the legal profession one student at a time and the law (even if only a small niche) one article at a time.  It may sound hokey, but I prefer to hire people for whom being a law professor is a calling.  [More selfishly on my part, I prefer candidates with passion because a twenty minute interview can seem like an eternity when the candidate has a flat affect or is low energy, and besides, I can't remember those candidates later.]

8. Don't tell the interviewers that you want to go into law teaching because you're tired of law practice or you think law teaching will be a lot easier than law practice. 

9. Emphasize how your practice experience will benefit students and benefit your research. For bonus points, show that you understand how the practice of law has changed in the past few years, and that you've contemplated how law professors should respond to these changes.

10. Make sure you shake the hand of every interviewer at the outset and make eye contact.  This feat can be difficult to pull off if the interview team is large, but it is important.

Bonus Tip:  When the interview team asks if you have any questions, don't ask simply: how does your school support faculty research?  You can ask the same thing in a (slightly) more creative way.  For example, you can ask what opportunities the school gives untenured faculty members to workshop papers, and whether there are any formal mechanisms in place that encourage or assist untenured faculty members to present their papers at conferences outside the law school. If you know the school has an Associate Dean for Faculty Development/Research, you can ask about his/her role in supporting the research endeavors of untenured faculty members.  You also might try asking:  What makes your law school different than other schools? What is the biggest challenge facing your school? What (if anything) is special about your student body?  Try to use the question not just to gather information but to show something important about yourself.

 Best of luck!

Posted by Lyrissa Lidsky on October 10, 2011 at 08:16 PM in Getting a Job on the Law Teaching Market, Lyrissa Lidsky | Permalink | Comments (9) | TrackBack

Sunday, October 09, 2011

Citations: A Small Rant

If a sentence in an academic legal paper states, "Many scholars argue X," that sentence ordinarily should have a citation, and that citation should list more than one scholar! The only exception occurs when the sentence is the topic sentence for a textual discussion of the "many scholars" with appropriate citations included.

If a sentence in an academic legal paper states, "Professor X argues that the sky is blue," the sentence ordinarily should have a citation to the work of Professor X, rather than to the work of Professor Y discussing Professor X.  

That is all, for the time being.  Now I shall return to reviewing scholarship.

 

 

Posted by Lyrissa Lidsky on October 9, 2011 at 03:32 PM in Lyrissa Lidsky | Permalink | Comments (5) | TrackBack

Monday, September 26, 2011

CV Advice: Should One Include Hobbies or Family Info?

I've reviewed what seems like a million CVs since last May, but occasionally one still has the power to surprise.   I was struck by one this morning that had an especially extensive list of "hobbies." It made me curious to hear the thoughts of other profs as to whether one should or should not include such things on one's CV. 

On my own CV, I've taken a conservative approach and haven't included hobbies or family information on the theory that some stuffy traditionalist out there might take offense or be dismissive. [I would probably only wear a dark suit to interviews for the same reason.] As a recruiter, however, I often enjoy getting some insight into a person through the hobbies they choose to include, and I find that the hobbies occasionally  provide a conversation starter, though I prefer to start with more substantive questions at the faculty recruitment conference in D.C.

Regardless, I think one should probably omit hobbies if they are too mundane (e.g., travelling or reading--who in academia doesn't like to read or travel??) or too exotic (e.g., UFO hunting or making pipe cleaner animals). That doesn't mean, however, that I'd exclude a candidate for including them.  Okay, maybe the pipe cleaner animals might make me think twice . . .

 

 

 

 

Posted by Lyrissa Lidsky on September 26, 2011 at 03:13 PM in Getting a Job on the Law Teaching Market, Lyrissa Lidsky | Permalink | Comments (8) | TrackBack

Saturday, August 06, 2011

Academic Writing: Don't Despair (More Than You Must)

If writing has ever brought you to the brink of despair, you owe it to yourself to read this article on Shame in Academic Writing. ["Brink," who am I kidding?]

Posted by Lyrissa Lidsky on August 6, 2011 at 12:52 PM in Lyrissa Lidsky | Permalink | Comments (3) | TrackBack

Thursday, August 04, 2011

Ten (okay, Nineteen) Tips for New Law Professors

I recently received an email from a professor who said he'd found this list of tips helpful. I've added a couple of his tips that were not on the original list.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

 3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

 4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned  by violating it.  What the advice boils down to, I think, is that students desparately need you to be predictable. It is comforting to them when they know roughly what to expect each day. 

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 19 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another.

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) twenty years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.   

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else.  

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now, but I believe in signalling I take the endeavor seriously by dressing professionally.

 

 

Posted by Lyrissa Lidsky on August 4, 2011 at 12:26 AM in Life of Law Schools, Lyrissa Lidsky, Teaching Law | Permalink | Comments (13) | TrackBack

Wednesday, July 27, 2011

Amicus Support Requested: Hosanna-Tabor

Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.  They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief.  Here's their description of the case and the issues, which I am happy to pass along:

Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired.  Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.

Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister.  If she is not a minister, she will probably win.  After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses.  She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.  

The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination.  The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it

The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.

We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply.  Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.  

 As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.

If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:

Leslie C. Griffin & Caroline Mala Corbin
lgriffin@uh.edu; ccorbin@law.miami.edu

Posted by Lyrissa Lidsky on July 27, 2011 at 02:37 PM in Constitutional thoughts, Employment and Labor Law, First Amendment, Gender, Lyrissa Lidsky, Religion | Permalink | Comments (1) | TrackBack

Wednesday, July 20, 2011

Must Be Nice

Despite being tempted to strangle the next person who tells me how nice it must be that I have the summer off, I know that I will nod and smile and not even try to explain what it is my employer expects me to be doing during the summer or how publishing and administrative obligations hang over me like the Sword of Damocles even when my childcare is unpredictable and my family obligations multiply like rabbits.  Not only is it unbecoming to complain about one of the few downsides of a pretty perfect job; no one will believe me anyway.  

Posted by Lyrissa Lidsky on July 20, 2011 at 04:10 PM in Lyrissa Lidsky | Permalink | Comments (8) | TrackBack

Tuesday, July 05, 2011

The Costs of Tenure Denial

Tenure denials are devastating to the person who is denied, his or her family and friends, and other supporters. Tenure denials are terrible for academic institutions, too, because they create rifts among colleagues that carry forward for years, and they often generate undue paranoia among those on the tenure track but not yet tenured; they also upset students and alumni who knew the professor denied tenure, particularly if the person denied was a great teacher.  And this account doesn't even factor in the litigation that tenure denials sometimes generate.

Some of the personal costs of tenure denial are recounted in this interesting and poignant article by Daniel and Erika Drezner, who look back on Daniel's tenure denial five years after the fact.  One of the insights from Daniel's piece that struck me was this one:  "People who earn tenure tend to have strong allies who lobby fiercely on their behalf. I didn't have any of those."  Daniel's insight struck me as correct, though I'm almost glad I didn't realize it when coming up for tenure.

Posted by Lyrissa Lidsky on July 5, 2011 at 11:30 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (13) | TrackBack

Monday, June 06, 2011

Enhancing "Ability to Transfer" in Law Schools

The New York Times has an article about perceptual learning that arguably has implications for law school teaching. The article cites experiments that suggest that  when subjects/students are exposed to "visual, fast-paced" materials that "focus[] on classifying problems rather than solving them," they quickly learn to identify patterns and discern relevant facts. As one of the scientists quoted in the article notes, "[t]he brain is very good at sorting out patterns if you give it the chance and the right feedback” (emphasis mine).  This research arguably has implications for how traditional law school teaching methods might be reformed or supplemented to enhance students' "ability to transfer" abstract legal principles to new factual situations, and I'd love to see a study of this kind conducted at the law school level .  At a minimum, such a study might confirm for students that one of the most effective methods of studying for law schools exams (or the bar) is by working as many problems of the relevant type as possible beforehand. I vaguely remember reading a study (in the Journal of Legal Education?) some years ago that reported that a group of students who worked a professor's old exams at regular intervals throughout the semester got better grades at the end of the semester than a group of students who had been subject to extra tutorials with the professor each week. I'd like to see a similar study based on the perceptual learning techniques mentioned above. Any takers?

Posted by Lyrissa Lidsky on June 6, 2011 at 07:49 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (3) | TrackBack

Friday, June 03, 2011

An Arrow for Your Quiver: Contextomy

One engages in "contextomy" when one selectively takes words from their original context to distort their intended meaning.  In other words, contextomy involves quoting out of context.  This fun and useful coinage has been attributed to historian Milton Mayer.

 

Posted by Lyrissa Lidsky on June 3, 2011 at 01:40 PM in Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Monday, May 30, 2011

Titles: (Mr.) Professor X, Ms. Y

I and many other women professors I've talked to have had students refer to us as "Ms." or "Miss Y" literally in the same sentence that they refer to a male colleagues as "Professor X." It may seem trivial but it is annoying, and it creates a real quandary.  If you say something to the student, you run the risk of seeming unduly sensitive or prickly about prerogative. If you don't say anything, you run the risk of allowing the student to be eaten alive when he says something similar to a female judge.  So what's the right way to handle it?  When I first started teaching, I didn't say anything. Later, I decided to point out to the student that, while I'm sure he meant no offense, he should never make the mistake again lest he encounter a professor or  judge less tolerant than I. As I've become more senior (oh, painful phrase!), I have this experience less and less, but I am assured by female colleagues that it continues apace, which makes me wonder if a more systematic response might be warranted. I must say that as a 3L law student I bridled when a male law professor corrected me when I referred to my friends as "girls," but I had cause  to appreciate his wisdom when, just a few months later, I worked for a federal judge who treated his male clerks quite differently than his female clerks. I've never referred to any woman over age 18 as a girl again.

On a related note, a colleague brought to my attention that his students disproportionately referred to male parties on his exam  by last names and female parties by first names. What, if anything, is to be done?

Posted by Lyrissa Lidsky on May 30, 2011 at 06:29 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (20) | TrackBack

Wednesday, May 11, 2011

How abstract can an abstract be?

I'd like to submit an abstract for a conference on Constitutional Law that is scheduled for next November.  The abstract is due in a week or so. The problem is, I'm between projects (sort of: I'm finishing three "other" projects), and I have no idea what I'd like to write next, though I suspect very strongly that it will involve First Amendment law.  Now I can "invent" a project in a week as well as the next person, but is it honest to submit a proposal or abstract when you know that the paper you actually present next November may bear zero resemblance to the proposal or abstract? 

On a related note, I've always envied those people who have a fixed research agenda comprising ten years' worth of projects, all revolving around one central idea or theme.  I'm the kind of person who is (a) easily bored and (b) discovers a research agenda only after ten years of seemingly disparate publications.  In fact, I shouldn't even call my "agenda" an agenda.  It is more like a central preoccupation (with how assumptions about audiences shape speech torts or First Amendment doctrine) that I keep returning to whether I mean to or not.   By the way, this is an admission I can only make because I'm tenured and have a publication track record.  Assuredly it would be an unwise admission for an untenured person to make. Rather than being a sign of intellectual curiosity, it might unfairly be construed as dilettantism. 

Posted by Lyrissa Lidsky on May 11, 2011 at 11:31 PM in Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Interesting Defamation Claim

Premier Exhibitions can proceed with a libel claim against a human rights foundation that claimed that the dead bodies it used in its "Bodies" exhibition were those of executed Chinese prisoners obtained on the black market.  A federal district court in Florida (Judge Merryday) refused to dismiss the claim for lack of jurisdiction, since the website of the director of the human rights foundation was accessible in Florida.  There are other interesting facets, including a tortious interference claim.  For more, see here.

Posted by Lyrissa Lidsky on May 11, 2011 at 10:01 AM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Friday, April 29, 2011

My New Exam Rule

I should have come to this resolution earlier, but I have finally figured out (after only 17 years) something noteworthy about exams: Exams should be either time pressured or space pressured, but not both. If they are both, students tend to feel that they didn't get to show you everything they know, even if we professors realize that these factors don't really make much difference in a student's overall performance, since every student takes the exact same exam. [If you are one of my students reading this post, and you took an exam that I wrote that was both time and space pressured, I realize that my new resolve won't be much consolation to you.] 

Posted by Lyrissa Lidsky on April 29, 2011 at 08:48 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (15) | TrackBack

Wednesday, April 20, 2011

Hiring Season Begins Anew

My colleague Elizabeth Lear and I are chairing the Appointments Committee at the University of Florida Levin College of Law for the 2011-2012 academic year. We have a variety of curricular needs, so be on the lookout for the official announcement in the next few weeks.  

Posted by Lyrissa Lidsky on April 20, 2011 at 03:14 PM in Getting a Job on the Law Teaching Market, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Friday, April 08, 2011

Texas Tech's Forthcoming Symposium Edition: Criminal Law & the First Amendment

Texas Tech Law School and the Texas Tech Law Review held a wonderful symposium today on Criminal Law and the First Amendment. The Review will be publishing articles from the symposium in its forthcoming edition.  Participants in the symposium included Erwin Chemerinsky, Michael Kent Curtis, Scott Powe, William Van Alstyne, Ellen Podgor, Nadine Strossen, Frank Ravitch, Bill Marshall, Arnold Loewy, Jesse Choper, Eric Segall, Kevin Saunders, Russell Weaver, Gene Nichol, Burt Neuborne, and Lyrissa Lidsky.  I was very impressed with the law school's students, faculty, and facilities, and Professor Loewy deserves great praise for organizing such a remarkably stimulating symposium.  Keep an eye out for the published articles!

Posted by Lyrissa Lidsky on April 8, 2011 at 11:44 PM in Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Hit Lists: Cyber Incitement, Cyber Threats

    As a resident of Gainesville, Florida, incitement has been on my mind lately.  Is the Internet a game-changer for the law of incitement and/or "true threats"? When Gainesville pastor Terry Jones recently burned a Quran and put the video on the Internet, it was specifically foreseeable that violence would result, even though inciting violence was not his purpose. And First Amendment law makes it almost impossible to hold Jones legally responsible for the violent response of his audience. First Amendment law typically assumes (regardless of evidence to the contrary) that audiences will behave rationally and not leap to violence when confronted with offensive speech.  Instead, offended audience members will engage in counterspeech to drive "noxious doctrine" from the marketplace of ideas.  The Jones incident, however, raises the question whether the ideals that underlie current First Amendment doctrine are foundering on the shoals of the new reality the Internet creates. 

   Another recent case raises more directly than the Jones incident the question whether First Amendment principles and doctrines governing incitement and true threats need to be adapted  in light of the unique dangers of Internet speech. In December 2010, blogger and occasional radio talk show host Hal Turner was convicted of threatening to assault or murder three federal judges based on a blog post stating that they "deserved to die" for affirming dismissal of a challenge to a handgun ban. "The postings included photographs, phone numbers, work address, and room numbers of these judges, along with a photo of the building in which they work and a map of its location." [FBI Press Release]  Turner's attorney evidently plans to appeal.

 Although the Turner case was tried as a "true threats" case, the speech involved fits at least as squarely into the legal definition of "incitement."  The line between true threats and incitement is not always clear.  In Virginia v. Black, 538 U.S. 343 (2003), a plurality of the US Supreme Court defined "true threats” to "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat." True threats are not protected by the First Amendment because they engender fear and intimidation and disrupt the lives of victims.  Incitement, by contrast, involves advocacy "directed to inciting or producing imminent lawless action" that is "likely to incite or produce such action." Incitements are unprotected because they create a likelihood of violent actions, not because of the fear they engender.

    Put (overly) simply, the distinction between a threat and an incitement is as follows. A threat involves a speaker saying to a victim: "I will do you harm."  Whereas, an incitement involves a speaker saying to third parties: "You ought to harm someone (or some thing)." This distinction gets blurred, however, in a case like Turner's.  Turner's statement was arguably designed to create fear and intimidation in the three federal judges against whom it was directed and to cause them to change how they ruled in future cases.  However, it was not clear that Turner contemplated personally doing violence to the judges.  Instead, his speech was aimed at persuading a third party to do violence to the judges "on his behalf," so to speak. His speech deserves censure (moral certainly, legal arguably) because it magnifies the risk of violence by unidentified third parties, and the risk is undoubtedly greater because the speech took place on the Internet.

     But would it meet the constitutional test for unprotected incitement?  Brandenburg v. Ohio arguably would prevent convicting a defendant like Turner for incitement, unless the contours of current doctrine are dramatically altered to fit the Internet context. Brandenburg provides strong protection for advocacy of violence by  radical dissidents like Turner, and it is a proud pillar of American First Amendment jurisprudence precisely because it sets an extremely high bar to imposing liability in incitement cases. The speech in Brandenburg, though, is completely despicable. There, the Supreme Court defended the right of a hooded Ku Klu Klan speaker to exhort his audience to "[s]end the Jews back to Israel," and to "[b]ury the niggers." This speech took place at an "organizers' meeting" of the Klan, at which some of the attendees were clearly armed. The Supreme Court nonetheless found the speech to be protected by the First Amendment.

    In striking down Ohio's prosecution of the Klansmen for advocating criminal activity, the Court stated that the First Amendment does not allow "a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  In order for a speaker to be prosecuted for incitement, therefore, the State must show (1) intent to incite another; (2) to imminent violence; and (3) in a context that makes it highly likely such violence will occur.  Brandenburg's test appreciates the fact that the State is likely to over-predict violence from speech, and it seek to ensure that suppression is not based on fear or dislike of radical ideas or speakers.

    The main obstacle to convicting Internet speakers under Brandenburg is the imminence requirement.  Brandenburg's imminence requirement was designed around the speech situation it presented: a firebrand speaker trying to rally a crowd in a physical setting.  Brandenburg contemplates liability for speakers in those rare instances where a "mob mentality" is especially likely to take hold and lead to violent action.  The paradigm case for Brandenburg, then, is a speaker exhorting an angry torch-wielding mob on the courthouse steps to burn it down immediately. It is only in such cases, where there is no time for "evil counsels" to be countered by good ones, that advocacy of violence crosses the line into incitement.

    Brandenburg's sanguine attitude toward the prospect of violence rests on an assumption about the audiences of radical speech.  Brandenburg assumes that most citizens (even Ku Klux Klan members) simply are not susceptible to impassioned calls to violent action by radical speakers.  In fact, Brandenburg represents the fruition of a libertarian theory of free speech planted by Justices Oliver Wendell Holmes and Louis D. Brandeis in a series of mostly dissenting opinions brought against social radicals following World War I. As I've discussed elsewhere, that theory makes several assumptions about the likely "audiences" of potentially inciting speech. The most fundamental assumption is that these audiences are typically composed of rational beings who will not leap to violence simply because radical speakers urge them to do so. Not only is the audience assumed to be rational and skeptical, but they are also assumed to be willing and motivated to engage in public discourse to refute dangerous falsehoods or "noxious doctrine."  

Cyber incitement represents a challenge to the rational audience assumption underlying incitement doctrine (and much of First Amendment law).  Audiences in cyberspace arguably differ from audiences in "real space" in ways that justify changing our assumptions.  How is cyber incitement different than incitement in "real space"? One of the main problems identified by scholars is audience size.  Initially, it might seem that size ought not to matter, but here's what the size complaint really means. If you magnify the potential audience, you magnify the chance that the speech will reach an audience member who is NOT rational and NOT willing to listen to counterspeech that defuses the violent advocacy of its dangers.  This prospect is heightened by the technology of search; cyber audiences searching out violent advocacy on the Internet may be searching for confirmation of their own violent plans or projects and may be especially impervious to counterspeech even if it were immediately available, which it is not.  [It is also worth mentioning that Internet speech crosses geographical borders into communities where counterspeech is not the norm.]

A related argument is that cyber audiences may be more susceptible to indoctrination and exhortations to violence than the audience envisioned by Brandenburg.  [Let's remember, however, that Brandenburg involved a Klan rally!]  Certainly the Internet enables subcommunities of hate to flourish, and interactions within these subcommunities may serve to "normalize" violence.  These communities are supported by the anonymity the Internet enables, and the speed of Internet communications allows speakers to reach individual audience members at the point when they are most vulnerable to calls for violent action. 

Finally, audience members in "real space" are "connnected" to one another and thus can exert a restraining influence on the individual who is spurred to violent actions by the words of a fiery speaker. Brandenburg contemplated the dark side of crowd behavior and specified that incitement can occur when a mob mentality is likely to take hold; the flipside of "mob mentality," however, is that audiences--even audiences of Klansmen--rarely react with immediate violence to impassioned rhetoric, which sends a signal to those individuals who would undertake violence if left to their own devices.   The moderating influence of crowd response cannot take place in cyberspace, which is yet one more reason that cyber incitement may indeed justify a different legal response than incitement in real space.

That said, I am generally skeptical of legal doctrines that assume the worst of audiences, especially in light of the tendency of governments to overstate the link between speech and violence.  If the imminence requirement is to be replaced in cyber incitment cases, it should be replaced by a requirement that still tips strongly against suppression of threatening hyperbole directed toward public institutions or public officials. 

 

Posted by Lyrissa Lidsky on April 8, 2011 at 08:45 AM in Blogging, Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky, Weblogs | Permalink | Comments (1) | TrackBack

Thursday, March 24, 2011

Tech Tech Symposium on Criminal Law & the First Amendment

Texas Tech Law School and the Texas Tech Law Review are holding a symposium on April 8 that focuses on Criminal Law and the First Amendment.  I'll be speaking on Cyber Incitement on a panel entitled The First Amendment, the Internet, and Criminal Law.  I'm very honored that Professor Arnold Loewy asked me to attend this distinguished symposium, not least because I get to return home to West Texas for a weekend and perhaps consume some great Mexican food or a nice chicken fried steak.  Lubbock is just a few hours from the dusty and desolate West Texas oil field town of Iraan, Texas, where I grew up.   [Iraan has literary cred. It is mentioned in a sentence in the last few pages of Cormac McCarthy's All the Pretty Horses.  Larry McMurtry doesn't mention Iraan, but he captures the feel of it in the towns he describes in books like The Last Picture Show and Duane's Depressed.]

 

Posted by Lyrissa Lidsky on March 24, 2011 at 01:02 PM in Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Monday, March 21, 2011

Academic Satire Recommendations

It is possible that you are at that point in the semester, or in your career, when you are in need of academic satire in literary form.  Although many would recommend Lucky Jim by Kingsley Amis, it has scenes of gratuitous cruelty in the beginning chapters that I can never get past. [I feel the same way about certain episodes of Seinfeld involving George or most episodes of Curb Your Enthusiasm.] It does contain a brilliant description of a hangover, though. Some would recommend Jane Smiley's Moo, which has a brilliant opening chapter but doesn't follow through.  Instead, I prefer David Lodge's Changing Places, which has a brilliant scene about a "rising star" English professor whose tenure prospects are scuttled when he admits during a drinking game at a faculty party that he's never read Hamlet.  I also love Richard Russo's hilarious Straight Man, which captures the inanity of (certain) faculty meetings perfectly.   

Posted by Lyrissa Lidsky on March 21, 2011 at 07:42 PM in Books, Lyrissa Lidsky | Permalink | Comments (11) | TrackBack

Internet Freedom

Here is a review of Evgeny Morozov's The Net Delusion and Tim Wu's The Master Switch  from the New York Review of Books that makes me want to run out and buy the latter immediately.

Posted by Lyrissa Lidsky on March 21, 2011 at 07:26 PM in Books, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Wednesday, March 16, 2011

Public Forum 2.0

If you are interested in social media and/or the First Amendment, you might be interested in the article I just posted on ssrn.  The abstract is below, and the link is here.

Abstract: Social media have the potential to revolutionize discourse between American citizens and their governments. At present, however, the U.S. Supreme Court's public forum jurisprudence frustrates rather than fosters that potential. This article navigates the notoriously complex body of public forum doctrine to provide guidance for those who must develop or administer government-sponsored social media or adjudicate First Amendment questions concerning them. Next, the article marks out a new path for public forum doctrine that will allow it to realize the potential of Web 2.0 technologies to enhance democratic discourse between the governors and the governed. Along the way, this article diagnoses critical doctrinal and conceptual flaws that block this path. Relying on insights gleaned from communications theory, the article critiques the linear model underlying public forum jurisprudence and offers an alternative. This alternative model will enable courts to adapt First Amendment doctrines to social media forums in ways that further public discourse. Applying the model, the article contends that courts should presume government actors have created public forums whenever they establish interactive social media sites. Nevertheless, to encourage forum creation, governments must retain some power to filter their social media sites to remove profane, defamatory, or abusive speech targeted at private individuals. Although some will contend that ceding editorial control is no more necessary in social media than in physical forums, the characteristic "disorders" of online discourse, and particularly the prevalence of anonymous speech, justify taking this path.

Posted by Lyrissa Lidsky on March 16, 2011 at 04:20 PM in Article Spotlight, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack

Monday, March 07, 2011

Fill in the Blank Scholarly Productivity

In gauging scholarly productivity, a book is worth ___ law review articles.

Discuss. 

The back story: A colleague and I were discussing this topic, and my answer was two and the colleague's was five.  Upon discussion, we agreed that it mattered whether the book was assembled from previously published articles or whether it was "from scratch," and I revised my answer of "two" up a bit.  On further reflection, I realized that my initial answer diverged so much from my colleague's because my (outdated, misguided?) conception of a law review article is still based on the ideal of what (I thought) they were supposed to be when I started teaching long ago: namely, a mini-book of 50-100 pages that answers every question one can conceive about one's chosen topic. In fact, I found myself criticizing an article recently because it only defined "the problem" and didn't provide "the solution," though it promised to provide one in a future article.  Though it was a very good piece, it seemed to me like only half an article rather than a whole. Was I wrong? [It seems so.]

After more reflection on "productivity" (which is surely a scholarly term of art) , I had more questions. Is it nonsensical to try to gauge productivity by measuring the numbers of pages written or amount of time spent writing?  Shouldn't we gauge productivity by actually reading the works in question to try to decide how much they "count"? Are we uncomfortable with "quality" measures because they are too subjective, especially where the scholarship lies outside our own area of competence?  Is "productivity" somehow a matrix of quantity and perceived quality? Should one good article count more than three mediocre ones (assuming we could agree what "good" is)? Are citation counts a better measure of what we mean by productivity than number of articles published? Have most faculties reached consensus on these issues?

Posted by Lyrissa Lidsky on March 7, 2011 at 05:41 PM in Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (9) | TrackBack

Wednesday, March 02, 2011

Snyder v. Phelps Decision Alert

Today the U.S. Supreme Court held 8-1 in Snyder v. Phelps that the state could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased soldier Matthew Snyder, at least where "Westboro addressed matters of public import on public property in a peaceful manner, in full compliance with the guidance of local officials."

At first glance: The decision contains an important discussion of how to distinguish speech of public concern from speech of purely private concern.  The decision defines public concern broadly to encompass the Westboro Baptists Church's commentary on the "political and moral conduct of the United States and its citizens. . . ."  Procedurally, the Court clarifies that courts must "make an independent examination of the whole record" to evaluate whether the speech is of public concern. (7-8). Alito's dissent stresses several times that the plaintiff in the case was a private figure "brutalize[d]" by speech on a matter of private concern.

Posted by Lyrissa Lidsky on March 2, 2011 at 01:26 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (9) | TrackBack

Monday, February 21, 2011

Perfectionism is the Enemy of Productivity

Here is some excellent advice from The Chronicle of Higer Education on writing and productivity.  The short version is this: perfectionism is the enemy.  Why did I have to learn this lesson the hard way? And why do I have to keep relearning it?

Posted by Lyrissa Lidsky on February 21, 2011 at 06:36 PM in Lyrissa Lidsky | Permalink | Comments (2) | TrackBack

Professionalism and Student Complaints About One's Colleagues

I know that it is almost never professional nor wise to listen to student complaints about my colleagues. Yet students often want to tell me, indeed seem compelled to tell me, how bad a teacher Professor X is or what a terrible thing Professor Y said in class.  The conversation always has a flattering subtext, to wit, "you're not like Professor X nor Professor Y."  The question, then, is how to divert the conversation to a different topic without making the student feel uncomfortable.  Though I love a good bit of gossip as well as (and maybe better than) the next person, it is simply not a good idea to indulge in this kind of conversation.  I sometimes try to counteract the criticism by pointing out how much my colleague knows about his/her subject matter or how much my colleague really does care about students. Other times, I will say "I can't speak about my colleague" or I will literally stick my fingers in my ears and say "la, la, la" loudly to indicate, in a light-hearted manner, that I cannot be party to that kind of conversation.  Are there any better tricks to deal with this problem?  Over time, I inevitably end up hearing things about my colleagues, and, although I am highly skeptical of individual stories taken out of context, I have formed opinions about the teaching abilities of my colleagues based on hearing the same kinds of criticisms from students over and over again over a sustained period of time. Unfair, or inevitable?

Posted by Lyrissa Lidsky on February 21, 2011 at 10:15 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (16) | TrackBack

Tiger Mother Book Club

I was delighted to be one of the participants in Conglomerate blog's book club on Battle Hymn of the Tiger Mother.  My contribution is here.

Posted by Lyrissa Lidsky on February 21, 2011 at 10:13 AM in Books, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Sunday, February 13, 2011

An Intervention: What Not to Write

I am conducting an intervention in which both the intervenor and the intervenee are one.  I am notoriously slow at learning from my past mistakes, but I am going to try to make up for it by posting a list of writing projects to which neither you nor I should ever say yes in the future. 

1. Do not agree to write anything that requires you to learn a different style manual. Yes, I know you will ask yourself, "how hard could it be to learn APA or MLA style?"  The answer is: harder than you think. You will waste a lot of time learning something that will not come in handy later, and in the same period of time, you could have written a law review article.  So just write the law review article. 

2. Do not agree to write a paper (or give a talk) unless it fits in with your pre-existing research agenda. Your likely response to this rule will be one of two arguments.  First, you will say, "but it won't take much time and it will be a good experience."  The response is that it will take longer than you think because everything takes longer to write than you think it will when you agree to it.  And while it is taking so long, it will cease to be a "good experience" because it will be preventing you from fulfilling your research agenda. Your second response will be, "but I'm really interested in the topic."  So what? You are "really interested" in forty different topics, including the ones that fit into your pre-existing research agenda.  So write on one of those topics instead, especially if your research agenda involves a timely topic.  [As I write this, I' m trying to steel my resolve NOT to write about hot news misappropriation when I should be writing about social media speech issues.]

3. Do not agree to a co-authorship unless there are clear rules of engagement and you know the co-author well and have similar writing styles and work habits. 

a. Rules of engagement: I have been involved in co-authorships in which it was clear from the outset that I had the last word (when writing with students, for example) and in which it was clear from the outset that I didn't (when writing with a senior co-author while I was untenured). Both worked, though I bridled at the latter.  I've also been involved in successful co-authorships where the general outline was reached collaboratively, but each of us had autonomy in writing our parts.  That worked well, too, especially where I did not have strong opinions about the other parts.  What does not work well are co-authorships in which one person is all take and no give; she expects all of her feedback to be heeded but will not heed any of the feedback she receives.  That is the kind of co-authorship that will take years off your life. Co-authorships also do not work well if your philosophical approach to the subject is completely different than your co-author's, which is why you have to know your co-author well enough in advance to know what her approach is.  If you are already in a co-authorship that violates one of these rules, consider whether it makes sense to continue or cut your losses.

b. Work habits & writing styles: The most unpleasant co-authorships involve mismatched writing styles or work habits.  I am a slow writer, often painfully slow, but I do respect deadlines and try my hardest to meet them, mostly successfully.  I try to deliver drafts in the most polished form I can manage.  I do not enjoy working with someone who tosses off a draft in a week that actually looks like a draft (rather than a polished final product).  I also do not want to work with a prolix co-author. I believe you should never use two sentences when one will do, and one of my highest aims is to explain complex ideas in a way that any educated person can understand them.  In addition, there are a number of writing habits I deplore.  I cannot respect writers who employ "utilize" instead of "use", I despise the use of "impact" as a verb, and I don't like gratuitous jargon.  If these things are negotiable, the co-authorship is not for me.  The larger lesson, though, is that you have to know your own writing habits and preferences well enough to know what you can tolerate in a co-author and what you can't.

4. Do not agree to write a casebook unless you are prepared to make it a part of your writing life for the foreseeable future. Casebooks require yearly updates, which take up at least a week every summer.  You'll also have to rewrite the whole thing every five years or so. A casebook is not a fling; it is a serious commitment, and not one to be undertaken lightly. [This rule may nix that Advanced Torts casebook I've been thinking about.]

5. Do not agree to write anything just because it will be easy and won't take up much time.  It won't and it will. 

I have learned from painful experience that the opportunity costs of some writing projects are too high to justify them.  Now if I can just put these lessons into practice . . .

 

 

 

Posted by Lyrissa Lidsky on February 13, 2011 at 11:08 AM in Lyrissa Lidsky | Permalink | Comments (9) | TrackBack

Saturday, February 05, 2011

A Libel Proof Defendant? Courtney Love's Twitter Defamation

The Twitter defamation suit against celebrity Courtney Love , ostensibly the first of its kind, is set for trial next Wednesday (February 9, 2011) in California.  The suit arose after Love got into a tangle with the Boudoir Queen, a fashion designer also known as  Dawn Simorangkir.  Simorangkir accepted some of Love's clothing to "transform" into designer dresses, but Love was unsatisfied with the end product and refused to pay. To add insult to injury, Love posted allegedly defamatory statements about the Boudoir Queen on Twitter, MySpace, and Etsy.com.

Love tweeted, inartfully, that “ police are morethan ecstatic to pick [Simorangkir] up she has a history of dealing cocaine, lost all custody of her child, assault and burglary.” [The errors are Love's.] (Complaint ¶ 24(b)). Love also wrote, “so goodbye asswipe nasty lying hosebag thief,” as well as “… my clothes my WARDROBE! oi vey don’t fuck with my wradrobe or you willend up in a circle of sorched earth hunted til your dead.” Love made similar statements on feedback forums on MySpace and Etsy.com. At the time Love's tweet went online, she had an estimated 40,000 Twitter followers.

In response to Love’s “feedback,” the Boudoir Queen sued for libel. Love’s attorneys responded to the complaint by claiming that Love was merely warning others about “Simorangkir’s pattern of criminal and bad faith conduct” (Defendant Love's Special Motion to Strike). Love’s attorneys argued that Love acted in the “public interest” by using social media to warn others of her experiences. The California court, however, denied Love's motion to strike and found that the dispute involved not an issue of public interest but rather “a discrete private dispute between Love and Simorangkir.” The court also rejected the argument that the defamatory statements concerned matters of public interest simply because Love is a celebrity, since “under that theory, no celebrity could ever be found liable for defamation."

Besides being the first Twitter-based defamation suit to reach trial, Love’s suit poses some intriguing legal issues. As a result of our society’s commitment to free speech, a speaker cannot be held liable for expressing her opinion. Opinion, however, is a legal term of art, and refers to statements that are unverifiable or cannot be interpreted as stating actual facts about the plaintiff. Hyperbole, for example, is not actionable as defamation. In a 140-character tweet, however, the speaker has little chance to clarify her meaning and provide relevant context that might establish her tweet as hyperbole.  In Love’s case, she is well known for her “over the top” behavior in general, perhaps indicating her followers on Twitter might expect the kind of hyperbole that is clearly present in her tweets. Of course there is no such thing legally as a libel-proof defendant (nor should there be), but this case does make one question whether any reasonable person could possibly give credence to anything she said, factual sounding or not.  Love provided a series of tweets that may have alerted some audience members to the context of her dispute with the Boudoir Queen, but it is an open question whether the tweets should be read together to establish the “context” supporting her statement that the Boudoir Queen was a “lying hosebag thief.” Certainly Love’s accusations of criminality seem to indicate that she has undisclosed (and potentially false) factual information, which certainly makes it harder (or likely impossible) for her to shield her statements under the mantle of opinion. Moreover, there is an argument that a defamatory statement in a single tweet (not the issue here, admittedly) should be treated like defamation in a headline that is refuted by an accompanying article not likely to be seen by most reasonable readers of the headline.  Regardless of what happens if the Love case actually goes to trial on Wednesday, the saga is instructive about the perils of assuming that one can vent one’s frustrations about another in social media without legal repercussions.

Posted by Lyrissa Lidsky on February 5, 2011 at 06:27 PM in First Amendment, Lyrissa Lidsky, Torts, Web/Tech | Permalink | Comments (6) | TrackBack