PrawfsBlawg

Law School Election Night Blogs

This year at least three law schools are holding Election Night events to watch returns come in and provide election law commentary.  I'm currently with 10-12 members of the UK Election Law Society, and students are blogging here (after I approve the posts).  William & Mary law students are blogging here.  And Ohio State's Election Law @ Moritz students and faculty are providing insights here.  

These events are a great way to engage students in election law issues while also providing important commentary to the community.  I'm proud that a few years ago some students formed the UK Election Law Society on their own, and the event tonight is largely student-driven.  Please hop on over to the website throughout the evening!

So long, farewell...

 

I know it’s April, but I wanted to overstay my welcome just a bit to say thanks once again to Howard, Paul, and the entire Prawfs community for letting me guest-blog here this month. I enjoyed it.

Happy pesach, y’all!

Thanks, and Happy March!

Happy March, everyone. It’s one of only two months that are also verbs, plus we get March Madness, spring break, and maybe even spring itself. I’ll believe that last part when I see it—we had snow here in Alabama a few days ago, and there’s more in the forecast this week.

With this first post, I mostly wanted to thank Howard, Paul, and everyone else in the PrawfsBlawg family for the invitation to guest blog. But I also had a quick question for my hosts about the Prawfs slogan/tagline: “Where Intellectual Honesty Has (Almost Always) Trumped Partisanship -- Albeit In A Kind Of Boring Way Until Recently -- Since 2005.” It’s one of the better ones out there (though for pure poetry it may run a close second to “The Internet’s largest image depository of crappy and awesome taxidermy”). I’m a big Prawfs fan, so I’ve never found it boring. I’ve often wondered, though: was there some particular event or creative decision during the blog’s illustrious first decade that allowed it to escape the bonds of its “Kind Of Boring” early history? A new font, maybe? Or more cat GIFs? The end of the writers’ strike?

Anyway, I’m looking forward to spending some time in this delightful, purple-tinted corner of the internet. And I’ll try my best not to drag the blog back to whatever “Kind Of Boring” past existed before “Recently.” Thanks again! 

[Updated to reflect that May is also a verb.]

10 Lists I Read on the Internet That Made Me Feel Stupid

Maybe I'm just still pondering College Magazine's list of "22 Reasons Why Going to Law School is the Best Decision You'll Ever Make", which, unlike anything I've written, got picked up by Huff Post.  All in good fun, sure, though perhaps over-selling the case and understating the seriousness of law school as a financial proposition.  

But I must not be the only person to notice that the internet seems to have been taken over by lists.  There they are at the bottom and sides of the screen on my tablet, just begging to be clicked on as I strain to get up that one last hill on the stationary bike.  Yes, I know, it's all about ads, and getting to put a different ad up after each click on the list.  Still...

It's as if the internets think people can only think in lists.  I'm all for, say, numbered blog posts, to help make it easier for commenters to point out which aspect of my argument they found the most stupid.  But among the problems with these lists is that their authors seem to gravitate towards the number 10, or 12 (unlike our industry's latest booster), but sometimes getting past eight requires adding a few entries that probably didn't belong.

I'll join the fun, though. Here's a list of recent lists I find silly:

 1. 10 Things You Didn't Know You Could Do With Coffee

 I desire only to smell it, drink it, and dream of it.

2. 10 Explanations for Everyday Things Your Body Does

I prefer to think of myself as a being of only thought and light.

3.10 Things You Didn't Know about the Lion King

Don't care what coast animates what character. Still cry every time Mufasa dies.

4. 10 Reasons Why Sunday Will be an Historic Day in Bills History

Seriously, Buffalo has an NFL team?  Huh.

5. 7 Reasons Why Madison, Wisconsin is the Best Place to Live in America

It's so obviously the best place to live in America we didn't even try for 10 reasons.

6. 10 Quotes that Will Transform Your Life (With Explanations)

Holy Mother Goddess, pagans can go on and on and on...

7. 10 Thoughts While Running Long Distances

Odd that "hurts" and "pain" aren't more prominent, or at least "Riggs, I'm getting too old for this ..."

8. 10 Things You Need to Stop Tweeting About

No Tweets about conferences? That's like the most exciting thing we do, dude.

9. Top 10 Songs to Listen to When You're Angry

Back in my day, we used to call this a "mix tape".

10. 10 Things You Didn't Know about Wrestlemania

Guessing Joe Slater knew most of them.

"Experiential" Scholarship?

Is there such a thing as "experiential" scholarship?  I asked this question to some of my colleagues during a recent lunch.  I asked because there has been much debate on experiential learning and what that might look like in a law class, and there has also been much debate on what relevant scholarship looks like.  I was curious if others thought there was any correlation.

After a great discussion with my colleagues, the answer (like all good law school answers) is, "it depends."  The discussion boiled down to three observations:

1.  The Target Audience - For legal scholarship to have an impact, legal scholars should keep in mind why they are writing a piece and who should read it (obviously this goes beyond, "I need to publish so I will come up with a sexy title to capture the attention of law review students").  The target audience could be practitioners, judges, policymakers, and/or academics.  If scholarship is, or even can be, correlated to making students practice-ready, then it seems like the first three audiences would be the primary targets since they are actively in practice.

2.  The Platform Problem - While academic audiences might be inclined to browse through law review articles, the others - judges, practitioners, and policymakers - are less and less likely to do so.  If my target audience extends beyond academics, a lot of issues arise.  What platform do I use to reach them?  For example, if I want my scholarship to be read by practitioners, where do I publish?  The ABA sections all have different periodicals that are published throughout the year.  But what about the other audiences - what platform does one use to reach judges?  And, of course, articles for non-law reviews would be much shorter than traditional articles.  Does that mean forego the traditional law review and go straight to these other platforms (if one can be found)?  I don't think so.  Instead, that question leads to the third observation.

3.  Expertise and Marketing - To become an expert in a certain area undoubtedly requires a lot of research and thought.  Such in-depth work is reflected in traditional law review articles.  Once a legal scholar becomes an expert, then the key is to market it to the target audience.  Write a law review article with the target audience in mind.  Once you've mastered the area, actively seek out publication opportunities that will actually reach the audience you want - write a short piece in the area for an ABA publication, turn it into an op ed, try to present at conferences where your target audience attends, become involved in drafting legislation, blog on relevant sites ... bottom line, take your expertise and, for lack of a better word, market it so that it has the practical impact desired.  Perhaps this is what a lot of legal scholars already do, but I must admit I haven't done it well.  Upon reflection, I think my failure to proactively market my scholarship to non-academics (most of my pieces target judges and policymakers) stems from the fact that, until recently, I was on the tenure track and it was unclear to me whether the effort and time it takes to reach out to such audiences would count as scholarship.  Should it?  And, more on point, would marketing scholarship to non-academic audiences help us think of ways to teach experientially or help make our students more practice-ready?

Until September

 

The month of May has come quickly to an end.  Much thanks to Dan and the PrawfsBlawg team for letting me visit this month.   Thanks also my very supportive colleagues at Texas Tech including reader extrordinaire, Professor Eric Chiappinelli, to everyone who read the pieces, who commented on-line, and who contacted me directly.  For those interested in thoughtful commentary on legal education, the place to be in addition PrawfsBlawg and TaxProf blog this summer is a third member of the family, Law Deans on Legal Education edited by  I. Richard Gershon, Dean and Professor University of Mississippi School of Law, Paul E. McGreal Dean and Professor of Law University of Dayton School of Law, and Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law

You can always reach me at [email protected].  Also, I will be blogging, as usual, every Friday at Health Law Profs and on no particular schedule at the Harvard Bill of Health.

I look forward to visiting again in September.

With best wishes,

Jennifer

Of (Courtney) Love and Malice

Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones.  Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well. 

Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of  "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages.  However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.

These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed. 

The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.

The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so. 

And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling  a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.

Delinquent by Reason of Poverty

Many thanks to Dan et al. for welcoming me into the fold.  By way of introduction, I've had a somewhat unorthodox route to legal academia, having practiced as a public defender for a decade (on both the state and federal levels), then starting on the clinical track here at the University of North Carolina at Chapel Hill in 2004, only to switch to tenure track and (gratefully) receive tenure last year.  I'm currently serving as interim director of clinical programs, adding a variety of administrative duties to my plate.  As a result, my perspectives on legal education, scholarship, and related matters may be different than some.  I hope to touch on these topics during the month, but mostly I'll be exploring the issues that I'm particularly passionate about -- juvenile justice policy and reform, indigent criminal defense, and the criminalization of poverty.  About a year ago I started my own blog focusing on these areas, which you may check out here.

For now, I'll introduce a question that I've been struggling with ever since I first started practicing in juvenile delinquency court nearly ten years ago -- why is it that most of the children in the juvenile justice system are poor?  Why are they nearly all from families that are living at or below the poverty level?  As a parent of adolescents, I know that it is surely not because kids from low-income families are the only ones who violate the law, as my own (relatively well-behaved) daughters have committed many of the same types of very minor assaults, larcenies, and disorderly conduct offenses that have led to my young clients being criminally charged, ending up with delinquency records and (sometimes) detained.  I also have come to conclude, based both on my own practice experiences as well as longitudinal studies of children exposed to juvenile court, that when kids are processed through the system, the impact is not benign -- even when the disposition is arguably beneficial.  Instead, the research shows that these children have higher rates of recidivism and are stigmatized in the process.  In addition, potential negative consequences of juvenile delinquency adjudications may be seen in such areas as housing, employment, immigration and higher education as well as enhanced penalties for future offenses.   

Although much has been written (both in legal scholarship and the popular press) about the disproportionate representation of children of color in the juvenile and criminal justice systems, very little has been said about the disproportionate representation of poor children.  While few juvenile courts formally keep track of the income-level of a youth's family, jurisdictions that do have confirmed that nearly sixty percent were either on public assistance or had annual incomes of less than $20K.  Another twenty percent had incomes of less than $30K.  In my practice, I've had the opportunity to experience this first-hand, as one of the counties in which I practice has an overwhelming majority of children who are black and brown in its juvenile courtroom, while the other has a more significant population of white juveniles.  While the numbers show that children of color are disproportionately represented in both judicial districts, they also reveal that the common denominator across the board is socioeconomic status, not race or ethnicity.

In a law review article that came out in 2012 (and in several op-eds and other commentary I've published since then), I attempted to answer the question why.  Why is it that poor children are arrested, charged and prosecuted at higher rates than children of means?  Why are fewer poor children diverted from the juvenile court system than wealthy children?  Why does the standard of proof at trial often seem to depend on the socioeconomic level of the child's family?  Why do so many poor children violate the terms and conditions of their court-imposed probation?  Why are so few middle- and upper-class kids sent to detention?  The short answer is that the traditional focus of juvenile court on the needs of destitute youth (something I call, "needs-based delinquency") is a phenomenon that continues to be perpetuated through the structure and culture of the modern juvenile court and that the most common points of entry into the delinquency system (the child welfare system, public schools, retail stores, and neighborhood police) target poor children rather than ones of means.  The long answer is contained (at least in part) in this first article, which will be elaborated upon in subsequent work, including a new piece focusing on the juvenile court intake process that I'll discuss in another post. 

I welcome your comments.   

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.]

 

Three Reflections on the MOOC Debate

Maybe it is because I teach in close proximity to edx, but I have been having more and more conversations with other academics and with non-academics about Massive Open Online Courses, or MOOCs. I actually don't yet have strong views on the subject, which may make me part of a minority, but I have noticed a couple of pathologies in the way people discuss these MOOCs and the threat/promise they have. Here are three:

(1) A failure to disentangle distributive impact from merit of MOOCs:

Let's face it, a big piece of the MOOC debate is distributional. Most of us who entered academia did so because we liked it in its current incarnation. In a world where MOOCs took over in any substantial part, many of our jobs would cease to exist and/or would change dramatically. As status quo entitlement holders we can all certainly complain about that fact, as could our students. That may be a worthwhile debate to have, but it is quite different from the debate about whether MOOCs are a good idea independent of this retroactivity problem.

One way I often try to engage people on this subject is to ask them to imagine that we were at Time Zero, on a blank slate, and creating the first universities for our day and age. We would then ask: what elements of MOOCdom would be optimal with its attendant effects on cost. Only by doing so can one potentially trade off any negative distributional effects to current entitlement holders against potential benefits (or costs) of the system on its own merits, and evaluate whether a CHANGE is worthwhile. That's not rocket science as an analytical separation, and yet many of the people I talk with on this issue are unable to separate out the issues.

 

(2) A failure to recognize that much of what is at stake is the unbundling of the university and the cross-subsidization in the status quo arrangement.

The modern research university, in part, cross-subsidizes research through the payment for teaching by students. While students partially internalize the value of that research (both in terms of being taught by those doing the leading edge stuff and by the prestige it brings to the institution) there is no doubt that much of the value of that research is externalized, generating a kind of public good. MOOCs may threaten  that by having fees pay for teaching much more directly without the research -- I say *might* because it is hypothetically possible, though unlikely in the current climate to be sure that MOOCs might free up more time for research by allowing professors to spend less time in the classroom by recording their lectures only once rather than constantly performing it (more on that in a moment), though in the current climate that is highly unlikely. The move to adjuncts, heavier teaching loads, more heavy TA usage, etc are much more direct moves in this direction. This kind of move  has analogues in many other professions -- for example using nurses and physicians' assistants instead of doctors where possible, and as it was there it is aimed primarily at cost savings.

The only point I want to make is that the optimal amount of cross-subsidization of research through teaching -- again putting to one side the distributional question of what happens to status quo entitlements and instead starting at day zero -- is not altogether obvious. To the extent what is threatening about MOOCs is that they may reduce that cross-subsidization and thus lead to the generation of less research, then THAT is the debate to have.

(3) What is so great about the traditional live lecture?

I don't teach by lecture. In fact, portions of my civil procedure course that I would lecture through if forced to do so are ones I usually instead put on handouts for students to read on their own, since I think it is a better use of both of our times. Still, I am prepared to accept that in many instances a lecture may have pedagogical value, especially if it is delivered in an inspiring sort of way. What I don't understand, and have yet to get a good defense of, is why the value of those lectures requires it to be live?

Now as someone who loves the theater I can appreciate the difference between seeing Henry V live versus those wonderful 1970s-80s BBC Shakespeare versions. However, whatever "performance" value live lectures have of that sort strike me as a fairly light benefit if costs could be dramatically cut. Again, it may be that many academics who are most against MOOCs engage in just this kind of live lecture, and the possibility of recording it rather than doing it every year would have significant threats to their livelihood. Fair enough. But that is different from mounting the defense against MOOCs on the pedagogical advantage of such live lecturing.

If that defense is out there, I would like to see it. If not, then it seems to me that whether a MOOC is a step down pedagogically, and whether it is such a huge step to justify the increased cost, will depend on how much non-lecture content professors currently bring in. I use the Socratic method or teach classes that are very discussion oriented, things much harder to reproduce (or so I think!) in MOOC land and that have (or so I think, I've not run a randomized trial to find out!) pedagogical value above and beyond a straight lecture. So my defense of resisting MOOCs (again at time zero) would have to be that the pedagogical value added over a recorded lecture is great enough to justify the extra expense. Could I mount such a defense successfully? I'd need to know more about the cost vs. learning trade-offs, but I think this would be the right way to think about it.

 * * *

None of this is to say yay to MOOCs. I think there are significant potential problems with the MOOC model, most interestingly the risk of homogenizing education. I have  an Orwellian picture of every Civil Procedure class doing the same MOOC segment at exactly the same time around the U.S. year in and year out. But I think it is important to focus on these and other arguments clearly and this is my own (modest) attempt to sort argumentative wheat from chaff.

I am sure many will disagree and look forward to hearing your thoughts.

- I. Glenn Cohen

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.

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.]

 

Hello from guest blogger Jeff Yates

I thought about trying to make this introduction  cute with a video of Lionel Richey's "Hello" or something about Hello Kitty, but future me is going to thank present me by keeping this short and not so campy. I'd like to thank Dan and the rest of the Prawfs group for inviting me to guest blog for May.

A little background -- I am an attorney and political science professor at Binghamton University where I usually teach law classes, but sometims dabble in other topics - for instance, next fall I will be teaching a graduate course on The Presidency. You can see more about me here and here.

Here are some of the topics that I *plan* to blog on (emphasis on 'plan' - you never know where this guest blogging thing will take you):

* New lawyer employment woes

* Attorney work hours and working at home in an era of technology

* Use of the title "Doctor"

Hopefully I will come up with some more blogging ideas - until then, thanks for having me.

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. 

 

A Writer's Time

 
I came to the study of law because it seemed like a good career for someone who loved reading, writing, and analyzing texts but was not creative enough to make it as a novelist nor independently wealthy enough to risk becoming a medievalist.  I also thought that studying law would allow me to make things happen in a way that studying the venerable Bede might not.  I question some of my reasoning now, but the decision has turned out to be an excellent one for me.  Yet I always admire those who tread the path not taken.  One of them is my friend Maud Newton, who was one of my very fist research assistants in her former life--the one she partly abandoned to pursue her dream of writing fiction.  Maud  (though I still think of her by a different name) is a well known literary blogger, and she and I share a fascination with the writing process.  She has a great post this week about her struggles to finish her novel, and it includes the following quotation from E.B. White:

[T]here is nothing harder to estimate than a writer’s time, nothing harder to keep track of. There are moments — moments of sustained creation — when his time is fairly valuable; and there are hours and hours when a writer’s time isn’t worth the paper he is not writing anything on.

I am not a novelist, but I do presume to call myself a writer, and I find it oddly encouraging that the great E.B. White experienced the same joys and frustrations with writing that I do.  I plan to track down One Man's Meat, the work from which this quotation was drawn, immediately.

 

Blog Law Blog - My New Blog

I have started a new blog: Blog Law Blog.

It is a blog about the law of blogs. Hence, "Blog Law Blog."

There is a long tradition of law blogs - i.e., blogs chasing the law. But Blog Law Blog is about the opposite transaction - the law pursuing the blogs. 

People are getting sued, of course. People are also going to jail. One guy in California got his home raided by a special police joint-task force after he blogged about a mobile phone found in a bar. And a judge recused himself over a blog incident.

There are many areas of substantive law involved. The law of blogging implicates copyright law, defamation law, FTC regulation, journalist shield laws, the First Amendment, and many other doctrinal fields. 

I believe that Blog Law Blog is the only blog out there specifically dedicated to the law of blogging. If you know of another, please tell me. 

I've been publishing a post every weekday since late April. It turns out there's a lot of blog law to blog about. I hope many of you will find it worthwhile.

Search of Gizmodo Journalist's "Newsroom"/Bedroom: Federal Law

There are interesting new developments in the case of the "lost" iPhone 4G prototype.  On Friday, police searched the home of the Gizmodo editor Jason Chen pursuant to a search warrant, purportedly to find evidence of a felony with regard to Chen's purchase of the iPhone prototype from someone who ostensibly found it in a bar.  According to the New York Times, the police seized four computers and two servers from Chen's home but did not arrest him.  There are many fascinating issues here for those of you who are specialists in criminal law or intellectual property.  For media lawyers, there is the attraction of this novel issue:  Should an online "journalist" receive protection under the federal Privacy Protect Act of 1980, 42 U.S.C §2000 et. seq., which is designed to prevent seizures of "work product" and "documentary materials" from newsrooms?  The answer is probably yes, though this may be of little assistance to Gizmodo editor Chen under the peculiar circumstances of this case.

The Privacy Protection Act makes it "unlawful" for law enforcement officials "to search for or seize" media "work product materials" or "documentary materials."  The Act applies to local, state, and federal law enforcement searches and seizures; indeed, it applies to searches by any "government officer or employee."  Although the act is designed to protect newsrooms, Chen's "work product" ordinarily should be protected from search or seizure because it is "possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  Likewise, his "documentary materials" are protected because they are "possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  As a writer for the blog Gizmodo (owned by parent company Gawker Media), Chen certainly seems to qualify as a person intending to disseminate a form of public communication "similar to" a newspaper that "affects" interstate commerce.  However, . . .

. . .and this is a big however, there are exceptions to the PPA's prohibition on searches and seizures of media work product and documentary materials, and these exceptions might come into play in Chen's case.  For example, law enforcement may seize documentary materials or work product when they have probable cause to believe that the person possessing the materials (i.e., Chen) has committed a criminal offense, unless that offense consists in receipt, possession, communication, or withholding of the documentary materials or work product.  The purpose of this exception is to prevent a reporter from shielding his own criminal acts from discovery by using the PPA.  Depending on whether payment for and receipt of the lost/possibly stolen iPhone was a crime, this exception might prevent Chen from claiming that his materials were protected from seizure by the PPA.  I am not an expert on the substantive criminal law, but one thing I know for sure is that receiving stolen information is one thing [See Bartnicki v. Vopper] but receiving stolen property is another. 

[It is also worth noting here that California also has a state analog to the PPA, and reporter's privilege issues might come into play in this case as well.  But those are blog posts for another day or for someone else.] 

On Misappropriation...

I found Lyrissa Lidsky's recent Prawfs post on the misappropriation doctrine quite thoughtful, especially the potential connection to blogger lifeblood - commenting on news collected by someone else. I wanted to share a few thoughts on the topic, primarily because I find myself in what appears to be a small minority - academics who think misappropriation is a good thing.

Now, when I say "misappropriation," I don't mean stupid stuff like the NBA trying to protect basketball scores. I also don't mean sheep in wolf's clothing applications where a plaintiff tries to claim misappropriation because it failed to protect its trade secrets (I defended plenty of those cases in practice - yuck!).

I'm talking about "hot news" and other time sensitive factual information that is costly to gather. This is information that is undeniably public and copyable - indeed, that's the whole point. If it were secret, you might be able to claim trade secrecy. If it were creative, you might be able to protect it with copyright. What to do about undeniably public and factual information is a difficult question - one that I can only begin to answer after the jump.

The typical answer these days falls into the "information wants to be free" category - if it is factual and public, then society is best served by it being spread. I'm just not so sure. I think there's an important externality that gets missed - the decreased incentive to gather information in the first place. To me, the question is not whether information wants to be free, but whether it should be.

Many have criticized newspapers, a dying medium, for failure to get into the modern cyber world. Why can't they just figure out how to publish all their news in an easily accessible digital format - for free no less - and figure out how to make money? The answer is simple - if information is available for free, no one will pay for it. And it is costly to gather news - if newspapers don't get paid for the work of uncovering news stories, they won't do it.

The result is closure of newspapers because their news gathering no longer gives them a competitive edge. This leads to a consolidation of news stories, which leads to echo chambers with thin content and even thinner analysis. I hardly need to point to examples. The latest is the April Fools Joke about the White House Blogger that fooled no less than the New York Times (the Times!). Why? No time, no money, no incentive to do fact checking. Information is out there - let's just copy it from somewhere else, and assume that someone else will gather the news. (I'm happy to say the Washington Post took the time to fact check and discovered the hoax).

So, I don't like where the news world is going. I like free and instant news as much as the next person. But I wouldn't mind a little bit of for-cost news gathering rather than press-release repetition now and again. Real news gathering is still out there. I've been quoted in a couple stories in the San Jose Mercury News recently - 20 minutes of interviews for a one line quote. From the questions he asked me alone, it's clear that the reporter took his time to research and understand the story before printing it. I think that's a luxury we will see less of in coming years. It's no surprise that AP is starting to crack down on copyright and hot news arguments - it is one of the few real news gathering organizations out there - with reporters everywhere - and it wants to stay that way. It simply won't be able to afford to do so if only one provider pays for content while everyone else just copies the news or snips the facts someone else paid to gather.

So, where does this leave bloggers? I don't think blogging will come to an end. Blogging can be plenty vapid. How many blogs do we need to report the news that Michael Jackson died? Are they telling us something we don't already know? Not that this is the type of news gathering I'm talking about, but the real value of a blog is the commentary - and that can be done with a link back to the original news source, not a replacement of it. Anyone who reads a blog as a replacement for their daily news is either grossly under-informed or reading a blog that perhaps should be subject to a hot news delay. (Indeed, even some bloggers want their own content delayed).

Even though I believe in the misappropriation doctrine, line drawing is difficult. At some point, news must be shared. Theflyonthewall.com case discussed by Prof. Lidsky tries to draw that line. I don't know if it gets it right. Finding the line is where the hard work lies.

Good to be Back and Bilski Redux (Again) [Maybe]

Thanks again to Prawfs for having me back this month. This is my fourth stint as a guest blogger - time flies!

I won't have much to say until next week, as I'm house hunting with the family in Pennsylvania this week. I'll blog a bit about that and other thoughts lateraling that may be of interest.

I also plan to blog about a couple articles I've been working on, and with any luck, the Supreme Court will rule on Bilski v. Kappos this month. My timing has been uncanny with respect to that case, as I was a guest blogger when the Federal Circuit ruled, when the Court granted cert, and when the oral argument was held. If the opinion issues this month, I'll be batting 1.000.  Stay tuned!

Whither law firm prestige?

With the economic and law market downturn we are hearing a lot about shifts in the legal market paradigm - the end of the billable hour, changes in associate recruitment and training, etc.. I recently came to find out about a web entity that made me thing about potential changes in the way clients choose and manage their law firms. Traditionally, firm prestige has been very important in attracting clients, however as with many business situations it has historically been driven by word of mouth and other fairly informal measures of the quality of past work. In the information age we inhabit, many traditional paths to acclaim and reputation have been either supplanted or at least augmented by more direct and systemic measurements of perceived quality. 

For instance, consider Tripadvisor and similar hotel rating programs. They provide a good bit richer information than the traditional star rating, word of mouth, or travel book recommendations. Prior guests post numerical ratings on a number of dimensions, provide specific comments on their experience, and can even upload photos of their room and the rest of the hotel. In similar vein, professors now are subjected to online ratings for their classes. How long will it be before clients come to primarily use similar services to inform their choice among law firms? Granted, I am pretty sure that the NLJ 250 probably won't be displaced by small local firms completely. Further, there are the M-H peer review rankings to consider. 

Still, I am curious as to whether firms will be able to fend off these type of evaluation systems that have, at least to some degree, come to drive markets in other areas. Further, might clients also take note of sealed bid proposal systems that have become popular in e-commerce (similar to traditional construction firm practices) in deciding which law firm will represent them? Now, back to that web entity I had alluded to previously - Elance.com. This site allows clients seeking expertise (including legal expertise) to evaluate potential contractors with rich evaluation data and it incorporates a bid system for hiring. Is this the future of law firm hiring? Whither traditional notions and pathways of law firm prestige? I'm guessing that it's unlikely that such a system would largely supplant traditional firm prestige, but I would not be surprised if certain aspects of such a system became increasingly utilized in the law market. Below is a short video explaining how Elance works - rest assured, I have no stake in their success; it just started me thinking on these matters.

Jeff