Category: General Law

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Upcoming Event in Philadelphia

In May, I’ll be participating in a panel at the National Constitution Center to mark the 150th Anniversary of the adoption of the Fourteenth Amendment by Congress.  This event is open to the public and will include several notable names.  If you’re interested in attending, here is the link.

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Vanderbilt Law Review, Volume 69, Number 2

The Vanderbilt Law Review is pleased to announce the publication of our March 2016 issue:

ARTICLES

Zachary D. Clopton, Redundant Public Private-Enforcement, 69 Vand. L. Rev. 285 (2016)

Adam N. Steinmam, The Rise and Fall of Plausibility Pleading?, 69 Vand. L. Rev. 333 (2016)

Matthew T. Wansley, Regulation of Emerging Risks, 69 Vand. L. Rev. 401 (2016)

ESSAY

Mitu Gulati & Richard Posner , The Management of Staff by Federal Court of Appeals Judges, 69 Vand. L. Rev. 479 (2016)

NOTES

Laura Ezell, Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations, 69 Vand. L. Rev. 499 (2016)

Alexander Vey, No Clean Hands in a Dirty Business: Firing Squads and the Euphemism of “Evolving Standards of Decency”, 69 Vand. L. Rev. 545 (2016)

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FAN 102.1 (First Amendment News) Laurence Tribe Petitions Court in Defamation Case

The case is Scholz v. DelpThe issue raised in it is whether the First Amendment creates a categorical presumption that statements about a person’s motive in committing suicide are matters of “opinion” rather than “fact” and thus cannot be the basis of a defamation action. The state court judgment below was in favor the First Amendment claim.

Harvard Law Professor Laurence Tribe filed a cert. petition on behalf of Petitioner Donald Thomas Scholz. Professor Tribe begins his brief my stating:

“This case presents the fundamental question of whether the First Amendment creates a categorical presumption exempting from defamation actions statements about a person’s motive in committing suicide, on the basis that such statements are generally matters of ‘opinion’ rather than ‘fact.’ The Massachusetts SJC held that the First Amendment does create such a presumption and that, as a result, Petitioner Scholz – the producer, primary songwriter, and lead musician in the rock band ‘Boston’ – cannot proceed with his defamation actions against the Boston Herald, two of its reporters, and its principal source, for falsely accusing Mr. Scholz of causing the suicide of the band’s lead singer, Brad Delp.”

Professor Laurence Tribe

Professor Laurence Tribe

“The SJC deepened a significant conflict among many state and federal courts as to whether statements about the cause of a particular suicide, and about motive more generally, are categorically exempt from claims of defamation. It also departed from this Court’s core holding in Milkovich v. Lorain Journal Co. (1990), that there is no need to create a special First Amendment privilege for statements that can be labeled opinion. This Court emphasized that creating such a privilege would tilt the balance too far against the important interest in protecting personal reputation against unjustified invasion. And it explained that existing First Amendment limits on defamation actions suffice to protect freedom of expression.”

The the three arguments advanced by Professor Tribe in his cert. petition are:

  1. “This Court Should Grant Review to Resolve a Deep and Abiding Conflict among Courts as to Whether Statements about Motive Generally, and about Motive for Suicide Specifically, are Categorically Exempt From Defamation Claims”
  2. “This Court Should Grant Review Because the SJC’s Ruling Conflicts with Malkovich by Creating a First Amendment Exemption from DefamationActions Not PreviouslyRecognized by this Court,” and
  3. “This Court Should Grant Review Because of the Importance of the Question Presented.”

Professor Tribe closes his brief by stating:

“These sensational stories also can cause severe harm to those falsely accused of causing the suicide. In instances, like the one in this case, where a friend or family member is blamed for a suicide, the reputational and emotional toll exacted from the person wrongly accused can be particularly significant. “Suicide exacts a heavy toll on those left behind as well. Loved ones, friends, classmates, neighbors, teachers, faith leaders, and colleagues all feel the effect of these deaths.” This heavy toll is dramatically compounded when friends or loved ones are falsely blamed for contributing to the suicide. But the SJC’s decision below shields from suit those who propound such false stories no matter how reckless they are in doing so. And, to compound the harm further, the SJC, far from resting its judgment on Massachusetts law, wrongly blames the First Amendment for that travesty of justice.”

 Response due April 4, 2016

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Justice v. Hosemann 
  3. Cressman v. Thompson
  4. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

→ The Court’s next Conference is on March 25, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

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Pro Forma Senate Sessions

I have a question for people who know Senate procedures better than I do.  Is a quorum presumed when the Senate convenes?  Here’s why I’m asking.

Suppose the Senate meets in one of its pro forma sessions to block recess appointments by the President.  Typically this sort of session involves two Senators-one sits in the Chair and the other is on the floor. They usually do nothing other than (1) approve an order to meet again in three days, and then (2) adjourn.  But what if the Senator on the floor said “I ask for unanimous consent that ‘The Everything Republicans Want to Enact Omnibus Act’ be passed.” The Chair responds:  “Is there objection?  Hearing none, the bill is passed.”

Can this be done?  One reason the answer could be no is that a quorum must be established first.  My sense from watching the Senate, though, is that they do not typically begin their day by initiating a quorum call and establishing one.  But am I wrong about that?

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FAN (First Amendment News, Special Series) Newseum Institute to Host Event on Cell Phone Privacy vs National Security Controversy

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Starting today and continuing through mid-June, I will post a special series of occasional blogs related to the Apple iPhone national security controversy and the ongoing debate surrounding it, even after the FBI gained access to the phone used by the terrorist gunman in the December shooting in San Bernardino, California.

Gene Policinski

Gene Policinski

This special series is done in conjunction with the Newseum Institute and a major program the Institute will host on June 15, 2016 in Washington, D.C.

I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.

The June 15th event will be a moot court with seven Supreme Court Justices and two counsel for each side. The focus will be on the First Amendment issues raised in the case. (See below re links to the relevant legal documents).

→ Save the Date: Wednesday, June 15, 2016 @ 2:00 p.m., Newseum, Washington, D.C. (more info forthcoming).

The Apple-FBI clash was the first significant skirmish — and probably not much more than that — of the Digital Age conflicts we’re going to see in this century around First Amendment freedoms, privacy, data aggregation and use, and even the extent of religious liberty. As much as the eventual outcome, we need to get the tone right, from the start — freedom over simple fear. –Gene Policinski

Newseum Institute Moot Court Event

It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either with cooperation from relevant parties, or through the court system when cooperation fails.Melanie Newman (spokeswoman for Justice Department, 3-28-16)

As of this date, the following people have kindly agreed to participate as Justices for a seven-member Court:

The following two lawyers have kindly agreed to serve as the counsel (2 of 4) who will argue the matter:

→ Two additional Counsel to be selected.  

Nan Mooney and I will say more about both the controversy and the upcoming event in the weeks ahead in a series of special editions of FAN. Meanwhile, below is some relevant information, which will be updated regularly.

Apple vs FBI Director James Comey

President Obama’s Statement

Congressional Hearing

Documents

Screen Shot 2016-03-17 at 10.46.11 PM

Last Court Hearing: 22 March 2016, before Judge Sheri Pym

Podcast

Video

News Stories & Op-Eds

lockediphone5c

  1. Pierre Thomas & Mike Levine, “How the FBI Cracked the iPhone Encryption and Averted a Legal Showdown With Apple,” ABC News, March 29, 2016
  2. Bruce Schneier, “Your iPhone just got less secure. Blame the FBI,” Washington Post, March 29, 2016
  3. Katie Benner & Eric Lichtblau, “U.S. Says It Has Unlocked Phone Without Help From Apple,” New York Times, March 8, 2016
  4. John Markoff, Katie Benner & Brian Chen, “Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist,” New York Times, March 17, 2016
  5. Jesse Jackson, “Apple Is on the Side of Civil Rights,” Time, March 17, 2016
  6. Katie Benner & Eric Lichtblau, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” New York Times, March 15, 2016
  7. Kim Zetter, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” Wired, March 15, 2016
  8. Alina Selyukh, “Apple On FBI iPhone Request: ‘The Founders Would Be Appalled,‘” NPR, March 15, 2016
  9. Howard Mintz, “Apple takes last shot at FBI’s case in iPhone battle,” San Jose Mercury News, March 15, 2016
  10. Russell Brandom & Colin Lecher, “Apple says the Justice Department is using the law as an ‘all-powerful magic wand‘,” The Verge, March 15, 2016
  11. Adam Segal & Alex Grigsby, “3 ways to break the Apple-FBI encryption deadlock,” Washington Post, March 14, 2016
  12. Seung Lee, “Former White House Official Says NSA Could Have Cracked Apple-FBI iPhone Already,” Newsweek, March 14, 2016
  13. Tim Bajarin, “The FBI’s Fight With Apple Could Backfire,” PC, March 14, 2016
  14. Alina Selyukh, “U.S. Attorneys Respond To Apple In Court, Call Privacy Concerns ‘A Diversion’,” NPR, March 10, 2016
  15. Dan Levine, “San Bernardino victims to oppose Apple on iPhone encryption,” Reuters, Feb. 22, 2016
  16. Apple, The FBI And iPhone Encryption: A Look At What’s At Stake,” NPR, Feb. 17, 2016
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Time For More Certiorari Grants

Though it may be impolitic to say, one result of Justice Scalia’s death is that the Justices will have much less work.  Today they issued their second one-sentence “affirmed by an equally divided Court” decision, and more are sure to follow.  Thus, I would guess that this Term will have the fewest number of opinions in many years.

This creates an opportunity.  Lawyers have long complained that the Justices take far too few cases in the less glamorous areas of law.  (bankruptcy, tax, ERISA, IP, administrative law, securities regulation etc.).  One explanation for that is that the Court has to reserve its docket for important constitutional cases.  For now, though, it’s fair to say that the Court will be unable to resolve most of those. While they may split in other sorts of cases (the first tie after Justice Scalia’s death involved a bankruptcy issue), that sort of deadlock is less likely.  I would therefore suggest that they lean forward in stocking their docket with these sorts of meat-and-potatoes matters for next Term, where there is high likelihood they will be without a ninth member for a significant period of time.

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One Way to Force a Senate Hearing on Judge Garland

Apologies for the light blogging of late.  I’m on sabbatical next semester, which means that in a few weeks I expect to be posting much more frequently (you decide whether that is exciting news or not).

With respect to the nomination of Judge Garland, I don’t expect much to happen until November.  I’m surprised, though, that the focus has been on how to bring public pressure on Senate Republicans (or just some of them) to hold a confirmation hearing.  I would think that the more effective strategy would be for Senate Democrats to start filibustering things that Republicans want until a hearing is granted.  Then again, these days Senate Democrats are probably feeling good about their chances of taking the Senate after Trump gets wiped out in the Fall, so why do anything that gets in the way of that?

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The Citizenship Oath

When new American citizens are naturalized, they take the following oath:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

The first part of the oath strikes me as odd.  Someone who becomes a citizen is not, in fact, required to renounce their prior citizenship–there are lots of dual nationals who are naturalized American citizens.  The second part (about subjecting yourself to the draft or to a noncombatant role) is rather outdated.  And nothing in the oath refers to the actual duties of citizens (serving on juries, paying taxes, etc.)  Perhaps it’s time for a new oath.

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FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

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A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

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Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case  Read More

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Revisiting School Segregation in DC

One truism about the original understanding of the Fourteenth Amendment goes something like this:  The Thirty-Ninth Congress thought that racial segregation by the government was constitutional.  How do we know this?  Because that Congress voted to maintain racial segregation in the public schools of the District of Columbia.

When I was writing my biography of John Bingham, I was curious to see what that was about.  What I found is that there was no discussion of the issue at all.  Basically, what happened is that Congress simply voted appropriations for schools that were apparently segregated without any objection.  I thought this a little odd, but did nothing more.

Yesterday I was reading the briefs in Bolling v. Sharpe and I was startled to see that one of the arguments made by the NAACP was that the Acts of Congress governing public schools in the District of Columbia did not impose mandatory segregation.  Their position was that schools in the District were segregated in practice and that the relevant statutes recognized this fact, but that integrated schools did not violate those statutes. The brief went on to distinguish state school segregation statutes, which were perfectly clear, with the ambiguous ones in the District.  (Today we might say that the DC laws should be read as not mandating segregation to avoid constitutional difficulties.)

This raises a question in my mind about whether, in fact, the Thirty-Ninth Congress (or any other, for that matter) actually required segregation in public schools there.  I’m going to look into this further.