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Monday, October 11, 2010

Cause lawyering and cause partying

One noteable feature of last week's oral argument in Snyder v. Phelps is that the Phelps side was presented by Margie Phelps, daughter of Westboro Baptist Church founder and pastor Fred Phelps and a member of Westboro Baptist Church (of course, a Ven diagram of Church members and Phelps family members would be a single circle). Reviews of Phelps's performance have been mixed. Dahlia Lithwick noted her flat affect (indicating either medication or over-preparation) and suggested that a bad (non-speech-protective) outcome would be a product of "pissed off jurists (and bad oral advocates)." Reading the transcript, you don't get the sense that she bombed that badly, although she threw in a few too many "this little church" pitches for my taste.

The question, that I have not seen raised or answered elsewhere, is why Phelps argued this case herself. Was it a choice, another way for the "little church" to stand up for itself and make its voice heard? Did the Phelps not want anyone making their arguments for them, even if an experienced Supreme Court/First Amendment litigator could have done a better job with the law (not unlike Mike Newdow arguing his own cause Elk Grove a few years ago)? Did Phelps affirmatively reject any help from the non-believers, in her view, God hates just as much as He hates everyone else?

I find it hard to believe that Floyd Abrams1 or the ACLU or the ACLJ or David Goldberger (who has represented both the Nazis and the KKK, so why not Westboro to complete the trifecta of hate) or Alan Isaacman or anyone with experience and commitment to free-speech would not have taken this case. The problem for the First Amendment bar with Phelps's choice is that a poor argument (and poor drafting of briefs) may produce really bad precedent, precisely what Lithwick believes might be possible here.

One major criticism of so-called cause lawyering (reflected in Derrick Bell's Serving Two Masters in Yale) is that commitment to the cause may conflict with a commitment to the client, where what the client wants may run counter to what is best for the cause. That problem is exacerbated in a situation such as this one, where the parties themselves have or are a cause. And even more so when the party's commitment to the cause prompts them to reject a lawyer's help and strike out on their own. Proceeding pro se, and being able to get the Court to listen  to the voice of "this little church" directly rather than through counsel, became part of what Phelps/Westboro want to achieve, even if the legal result (or the reasoning used to reach that result) ultimately is not as favorable for the First Amendment or free-speech principles.

Nor is this limited to parties who, like Phelps or Newdow, happen to be lawyers who can represent themselves and their own cause in court.  Consider Rachel Ehrenfeld, the journalist/scholar whose multi-million-dollar British defamation liability, along with her inability to  get the judgment declared unenforceable in the U.S., lead to the federal SPEECH Act and the spate of state-level libel tourism laws. Enhrenheld simple defaulted in the British action, never appearing even to contest personal jurisdiction (which was a somewhat close issue) and allowing the massive judgment to be entered against her. She has stated publicly that she defaulted because could not afford a lawyer or afford to defend herself in a foreign country. Really? No American First Amendment lawyer would have taken this case for free or virtually free? No barrister, looking for a way to undo England's unbalanced defamation law, would have taken this case for free or virtually free (especially knowing that England is a "loser pays" system)? Wouldn't Ehrenfeld have at leats sought out such representation? Perhaps not, if her "cause" was to draw attention to the danger of English defamation law and/or to the problem of libel tourism and the (in her view) inadequate mechanisms for combating it  under U.S. law (note that I am speculating here--I have no idea if this was her motivation).

In that regard, Ehrenfeld actually succeeded in her " cause." She got the anti-libel-tourism laws (federal and state) she wanted (even if, as I am beginning to write in a new paper, the law is unnecessary and unwise). And arguably more importantly, she has people in the U.K. talking about reforming its libel law, which certainly would be a good thing. In fact, Ehrenfeld might not have achieved either result had she simply enlisted a lawyer to successfully defend her under existing English law.

1 Abrams was asked whether he would have represented Westboro. He responded: "[I thought] 'It’s all very well to protect these people, but do I have to be the one to do it?' [Laughs]  . . . Would I take the case? Probably, yes … but I’m not sure I’d tell everyone." Interesting response. So is Westboro really so many orders of magnitude worse than the KKK or the American Nazi Party? Discuss.

Posted by Howard Wasserman on October 11, 2010 at 08:02 AM in Constitutional thoughts, Current Affairs, First Amendment, Howard Wasserman, Law and Politics | Permalink


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I'm pretty sure the ACLU represents Westboro in other case (I think in Missouri), so I too find it hard to believe that no one agreed to represent them here and that rather, they chose to do it themselves. The only reason I can think of (besides self-aggrandizement) is some kind of self-promotion motivation.

Posted by: anon | Oct 11, 2010 10:59:32 AM

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