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Wednesday, February 27, 2008

Duke Lacrosse II: First Amendment Implications?

Continuing my thoughts on the latest Duke lacrosse lawsuit.

One interesting feature is the role that the First Amendment might play for the defendants. Much of the conduct described in the complaint, and much of the conduct that presumably forms the basis for the players' claims against Duke and Duke officials (and to law-enforcement officials to a lesser degree), centers on all sorts of public statements that stated or suggested that some or all the players had done something wrong. Consider several categories.

1) Statements by Duke and its officials, particularly President Richard Brodhead, that implied that the players had done something wrong (including possible sexual assault and use of racist epithets) and that they were not cooperating with the investigation by hiding behind a "blue wall of silence." These statements "malign[ed] the Duke lacrosse team as a gang of hooligans that included 'two or three really bad actors.'"

2) Statements by various faculty members, most notoriously the Group of 88's editorial advertisement in April 2006 and various statements by individual professors to the media and to the public. These statements expressly stated a belief in the players guilt and the need for the players to be punished, criminally and by the university. Many of these statements were charged with overtones of race, gender, class, and privilege, the implication being that a group of privileged white males had to be punished for racist and misogynist actions. Many statements used hyperbolic, charged language, including statements likening the team party to the murder of Emmett Till--a lynching of an African-American by privileged whites. Some statements called for judgments to be imposed beyond the walls of the courtroom. Some statements referred to the lacrosse players as "white supremacists." Faculty members also called for the university immediately to condemn the team and its players. There also were some instances of in-class speech, but I will leave those for another day.

3) Several protests against the team and its members. This included a candlelight vigil outside the house in which the party occurred and another Duke-owned house in which some players lived, where the crowd chanted, among other things, "shame" and "you can't run, you can't hide" (protesters also banged on windows and doors at the latter house). There was a "pot-banging" protest outside some player residences early on a Sunday morning, with protesters wielding signs and chanting--all reflecting a belief in the guilt of at least some of the players, the collective guilt of the team as a whole for some misconduct, and a real hostility to the players. There also was a boycott planned for an upcoming (but ultimately canceled) home game, with fans holding signs reading "Don't Be a Fan of Rapists." According to the complaint, these protests were explicitly encouraged by various faculty members.

4) "WANTED" posters went up around campus, featuring photos (taken from the school web site) of 43 of the 46 white team members.

These various expressive incidents seem to form the core of four counts and Duke and its officials: 1) Intentional Infliction of Emotional Distress; 2) Breach of Duty to Protect Students from Known Dangers and Harassment; 3) Negligent Supervision of Duke Professors and Employees; and 4) Intrusion upon Seclusion. The problem with some of these claims after the jump.

Much of what is described in the complaint sounds and looks like constitutionally protected speech. Although much of it certainly is "hostile" (to quote the Complaint), the speech described does not look like it crosses the line into unprotected categories of true threats or incitement to violence. There is no temporal imminence necessary for incitement. The one well-known case involving "WANTED" posters, which upheld a jury award against the speakers, occurred in the context of an anti-abortion group, more explicit hints at violence, and the unique history of violence over that issue--none of which is present here. All the rhetorical hyperbole and exaggeration, racially and ethnically charged though it might be, also is protected. So is all the hostility, as long as it does not become a direct, targeted threat.

Most of this is speech on a matter of public concern: an alleged crime and misconduct by a high-profile group in the campus community, an ongoing police investigation into that crime, all of it touching on issues of race, gender, class, and privilege; this sounds like social or political speech. Most of the protesters stayed in public spaces and there is nothing per se unprotected about protesting in front of a residence. True, many faculty members and students seized on the case as a chance to further a particular political agenda--but that is what the freedom of speech is about. Finally, some of what was said or implied turned out to be false, perhaps recklessly so. For example, there are allegations that Brodhead continued to criticize the players despite having information suggesting that no rape had occurred, no racial slurs had been uttered, and that the players were cooperating with the early stages of the investigation.

Notably, however, there is no defamation claim against the university. Two reasons for this. First, there are few, if any, direct assertions of verifiably false fact; second, in any event, none of these plaintiffs could satisfy the "of and concerning" requirement for defamation. To the extent there were knowingly false assertions of fact about the players' guilt or moral culpability, these were targeted at the team as a whole; a member of even a small group typically cannot sue over false statements about that group. Calling the team a "gang of hooligans" with two or three unnamed bad actors is not actionable defamation. Moreover, defamation is not the only tort that has built-in limitations in its application to protected speech. Torts such as I/I/E/D or privacy cannot be utilized against protected speech as an end-run around the First Amendment and the limits of the actual malice requirement of New York Times v. Sullivan. Brodhead, school officials, and Duke as an entity all enjoy First Amendment liberties to speak on these matters of public concern, free from civil liability if that expression does not fall into some narrow category of unprotected speech.

Also notably, the individual professors who spoke out against the team are not named as defendants; only Duke and university officials. The theory of civil liability is that Duke is liable for the harm caused by this expression because Brodhead, et al., failed to stop these faculty members and students from engaging in this expression. If I am right that much of the speech at issue is protected, that theory of vicarious liability cannot work. If civil liability could not be imposed on a speaker for protected expression, how can it be imposed on the speaker's employee for failing to stop the speaker from engaging in that speech? That seems constitutionally perverse.

None of this is to suggest that the case as a whole fails. Just that there is a lot of stuff in this complaint and it requires serious parsing by the parties and the court. One bit of parsing must take into account the limits on civil liability imposed by the First Amendment.

Posted by Howard Wasserman on February 27, 2008 at 08:54 AM | Permalink


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This is the next full post on the subject, coming tomorrow or Friday, probably. There are no federal claims, although there several state tort claims that are based on the school's failure to follow its own anti-harassment policy.

Posted by: Howard Wasserman | Feb 27, 2008 8:48:01 PM

There would be one very ironic way to get around any First Amendment defense: amend the complaint to allege that the defendants created a "hostile educational environment" for the plaintiffs, in violation of Title VI, Title IX, and 42 USC 1981, by branding them as guilty based on their race and gender.

After all, liberal academics like the ones being sued, and some judges, insist that there is a blanket exception to the First Amendment for sexual harassment claims and racial harassment that allows even otherwise protected speech to be "incidentally swept up" in a discrimination claim. (See UCLA Law Professor Eugene Volokh's web sites on harassment law, discussing the sweeping arguments made by judges and academics for allowing otherwise protected speech to banned if it creates a "hostile work environment" or "hostile educational environment")).

It seems obvious to me that the plaintiffs were treated worse by Duke's administration and faculty because of their race and gender, thereby concretely harming their education and harassing them on the basis of their race and gender, in violation of Title VI of the Civil Rights Act (42 USC 2000d) and Title IX (20 USC 1681-1688).

So why is there not a discrimination claim under these statutes in the complaint? I don't see one in the complaint.

Racial harassment violates federal civil rights laws, even when the victims are white. Bowen v. Missouri Dept. of Social Services, 311 F.3d 878 (8th Cir. 2002); Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998).

Sexual harassment violates the civil rights laws even when the victims are male. Thus, an insulting 3-day "diversity training" seminar that insulted males gave rise to a viable sexual harassment lawsuit in Hartman v. Pena, 914 F.Supp. 225 (N.D. Ill. 1995).

Sexual harassment in schools and colleges violates Title IX when the school or college is indifferent to it, see Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) (K-12 school); Jennings v. University of North Carolina, 482 F.3d 686 (4th Cir. 2007), or when the school's administration directly promotes or engages in it itself. Simpson v. University of Colorado, 500 F.3d 1170 (10th Cir. 2007).

Racial harassment in schools and universities also violates federal law. See, e.g., Gant v. Wallingford Board of Education, 69 F.3d 669 (2d Cir. 1995).

Treating people as if they are guilty based on their race or sex can constitute illegal racial or sexual harassment, or discrimination. See, e.g., Yusuf v. Vassar College, 35 F.3d 714 (2d Cir. 1994) (practice of invariably assuming guilt of males accused of sexual harassment stated claim under Title IX); Underwood v. Northwest Health Services, 57 F.Supp.2d 1289, 1303 (M.D. Ala. 1989) (“baseless accusations of racism” supported white employee’s harassment claim under Title VII); Weberg v. Franks, 229 F.3d 514, 524 (6th Cir. 2000) (suspension of white employee by official who admitted he did so based on blacks’ “perceptions,” independent of whether they had merit, to maintain workplace peace, violated Title VII).

Posted by: Hans Bader | Feb 27, 2008 8:20:00 PM

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