Category: Tort Law

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FAN 118.1 (First Amendment News) Seasoned SCOTUS Appellate Lawyer Files Cert. Petition in “Public Official” Defamation Case

Here is what Tony Mauro once said of him: “Few lawyers — including the nine lawyers who wear robes to work — know the Supreme Court’s docket as well as” he does. “He is generally regarded,” observed Georgetown Law Professor Steven Goldblatt,  “as one of the best [Supreme Court lawyers] in the country.”

Roy T. Englert, Jr.

Roy T. Englert, Jr.

His name: Roy T. Englert, Jr. That name is known among those seasoned few in the Supreme Court Bar. He has argued 21 cases before the Court, including United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), a Freedom of Information Act case concerning privacy exemption. He won, this while he was Assistant to the Solicitor General.

Later, when he was at Mayer, Brown & Platt, he filed an amicus brief in United States v. Eichman (1990) (First Amendment challenge to Flag Protection Act of 1989)), this on behalf of Senator Joesph Biden, Jr. and in support of the Petitioner. There is, of course, more, much more.

One of Mr. Englert’s latest cert. filings is in Armstrong v. Thompson, submitted earlier this month. The issue in the case is whether all (or nearly all) law enforcement officers are “public officials” under New York Times Co. v. Sullivan (1964). Here is how his cert. petition opens:

“This case presents a recurring First Amendment question: whether a garden-variety law enforcement officer, with little or no role in setting public policy, must establish ‘actual malice’ to recover for harm caused by tortious statements. A number of Circuits and state courts of last resort—where many issues relating to the First Amendment and defamation are decided—have held that every law enforcement officer is a ‘public official’ under New York Times Co. v. Sullivan. Accordingly, those courts, including the court below, require each and every law enforcement officer to show ‘actual malice’ before recovering for any tort carried out through speech. In this case, despite an otherwise-error-free trial resulting in a jury verdict establishing that respondent had committed an established common-law tort, the court of appeals joined those courts and reversed on federal constitutional grounds after determining that Armstrong was a public official and that he had failed to prove ‘actual malice.'”

 Later, he argues that the “Court has . . . never determined how far down the government ranks the ‘actual malice’ standard applies. It has, however, unequivocally stated that not every public employee is a ‘public official.’ Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979). And it has made clear that the category ought to be limited to ‘those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.’ Rosenblatt v. Baer, 383 U.S. 75, 86 (1966); accord Gertz, 418 U.S. at 345 (equating ‘public official’ with someone who has “accepted public office’).”

Furthermore, Mr. Englert maintains that a “number of state courts have taken heed and held that low-ranking law enforcement officers are not public officials for purposes of the First Amendment. Kiesau v. Bantz (Iowa 2004); McCusker v. Valley News (N.H. 1981); Tucker v. Kilgore (Ky. 1964). Nevertheless, until 2013, there was an ‘overwhelming and entirely one-sided’ consensus among federal courts of appeals (as well as a number of other state courts) that ‘police officers are public officials for defamation purposes’—regardless of rank or role—because ‘there is a strong societal interest in protecting expression that criticizes law enforcement officers.’ Young, 734 F.3d at 553-54 (Moore, J. dissenting). In 2013, the Sixth Circuit stated (albeit in dicta) that courts holding the ‘consensus’ view ‘have misinterpreted federal law on the issue.’ Id. at 549 (opinion of the court). . . .”

“Certain state courts,” he notes, “have developed their own idiosyncratic, fact-based inquiries into whether police officers are public officials. . . .”

“Finally, there are courts that have (correctly) determined that there is nothing talismanic about the designation of ‘law enforcement.’ These courts have applied to ‘law enforcement’ employees the same rule that they would to any other government employee.” . . . . “

In light ion the above, Mr. Englert urged the Justices to “establish a clear rule that low-level law officers are not ‘public officials.'”

Other counsel for the Petitioner are: Lanora C. Pettit and Peter B. Siegal.

The time for filing on a response is on or before September 6, 2016.

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FAN 117.1 (First Amendment News) Martin Garbus Files Defamation Suit on Behalf of Pete Rose

WHEREFORE Plaintiff Peter Rose demands a money judgment against Defendant John Dowd for the amounts described herein and an award of punitive damages, together with costs and expenses, including attorneys’ fees, of this action, and such other and further relief as the Court deems just and proper. — Martin Garbus (pro hac vice pending)

Martin Garbus, a lawyer who has done his share of First Amendment defense work, now finds himself on the other side of the constitutional divide.  According to an ESPN news story, Mr. Garbus is representing Pete Rose in a federal defamation suit against “John Dowd, who oversaw the investigation that led to Rose’s ban from baseball, for claims Dowd made last summer that Rose had underage girls delivered to him at spring training and that he committed statutory rape.”

Martin Garbus

Martin Garbus

“The complaint,” says the ESPN story, “was filed today in U.S. District Court in Pennsylvania. It cites a radio interview last summer with a station in West Chester, Pennsylvania, in which Dowd said, ‘Michael Bertolini, you know, told us that he not only ran bets but ran young girls down at spring training, ages 12 to 14. Isn’t that lovely? So that’s statutory rape every time you do that.’ . . . “

“The lawsuit also cites an interview with CBS Radio in which Dowd said, ‘He has Bertolini running young women down in Florida for his satisfaction, so you know he’s just not worthy of consideration or to be part of the game. This is not what we want to be in the game of baseball.'”

“Rose denied Dowd’s accusations. Bertolini has said he never made such claims. Former commissioner Fay Vincent, who was deputy commissioner at the time of Rose’s ban, has said that he did not remember such allegations. .  . .”

Rose v. Dowd complaint here. The three claims for relief set out in the complaint are: (1) “Defamation per se“, (2) “Defamation”, and (3) “Tortious Interference with Existing or Prospective Contractual Relationship.”

 Additional News Stories:

  1. Randy Miller, Pete Rose suing John Dowd for statutory rape accusations,” NJ.com, July 6, 2016;
  2. Debra Cassens Weiss, Pete Rose sues former Akin Gump partner for radio show comments, ABA Journal, July 7, 2016;
  3. Brian Baxter, Pete Rose (and Marty Garbus) Sue Ex-Akin Gump Partner, Law.com, July 6, 2016; and
  4. Greg Noble, Pete Rose sues John Dowd over allegations he had sex with underage girls, WCPO9, July 6, 2016.

Biographical Snapshot:  Ever the maverick, Mr. Garbus has represented everyone from:

  • the ribald comedian Lenny Bruce (Garbus was co-coounsel with Ephraim London in People v. Bruce),
  • to a woman in a libel case brought against a Daily News columnist for allegedly claiming she faked a rape).
  • He was on the brief for the Appellant in Jacobellis v. Ohio (1964) and was counsel for Viking Press in the Appellate Division of the New York Supreme Court in which the court dismissed a libel suit against a novelist (see New York Times, December 16, 1982).

See generally:

  • Nat Hentoff, “First Amendment Lawyer Punished,” Nevada Daily Mail, April 11, 1996 (“Garbus . . . followed his conscience to help someone he believed had been terribly wronged by a columnist and his newspaper. Let this be a lesson to law school students with a conscience.”)
  • John Sullivan, “Columnist Wins a Suit On Articles About Rape,” New York Times, February 7, 1997 (“The woman’s lawyer, Martin Garbus, said that the judge’s conclusions were wrong and that the ruling could provide an opportunity for a successful appeal, though his client had not decided whether to pursue the case.” — The case was dismissed and no appeal was taken.)
  • Martin Garbus & Richard Kurnit, “Defamation in Fiction: Libel Claims Based on Fiction Should be Lightly Dismissed,” Brooklyn Law Review (1985)
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FAN 106 (First Amendment News) The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Yesterday the Court handed down Heffernan v. City of PatersonIt was the 43rd First Amendment free expression opinion handed down by the Roberts Court (count includes per curiams). It was Justice Stephen Breyer’s fifth majority opinion while serving on that Court. That puts Justice Breyer tied with Justices Anthony Kennedy and Antonin Scalia, but still way behind the Chief Justice (15 majority/plurality opinions).

The Roberts Court & Government Employee Speech 

Heffernan  was the seventh case heard by the Roberts Court involving a First Amendment employee speech claim (initials = those of author of majority opinion):

  1. ™ Garcetti v. Ceballos (2006) [5-4, per AK] [government employee speech]
  2. ™ Locke v. Karass (2009) [9-0, per SB] [government employee unions]
  3. Knox v. Service Employees International Union [7-2, per SA] [government employee unions]
  4. Lane v. Franks (2014) [9-0 per SS] [government employee speech]
  5. Harris v. Quinn (2014) [5-4, per SA] [employee unions]
  6. Friedrichs v. California Teachers Association, et al  [4-4, per curiam] [employee unions]
  7. Heffernan v. City of Paterson (2016) [6-2, per SB] [government employee speech]

Note that while Chief Justice Roberts was in the majority in all of these cases, he never assigned an opinion to himself. The case was argued a month before Justice Antonin Scalia died, which means that if the Chief Justice were indeed in the majority, he probably assigned the opinion to Justice Breyer at that time. But consider in this regard what is set out below.

The Significance of a Scalia Vote?

Notably, Chief Justice Roberts voted to sustain the First Amendment claim in this government employee speech. This is significant given what he said in oral argument:

Well, but the ­­ the First Amendment talks about abridging freedom of speech, and I thought the case came to us on the proposition that he wasn’t engaging in speech at all. That he was not engaging in association, he was not engaging in trying to convey a message, he was just picking up a sign for his mother. And if that’s the basis on which the case comes to us, I’m not sure how he can say his freedom of speech has been abridged. . . . My point is that maybe this shouldn’t be a constitutional violation if there are adequate remedies to address what may ormay not be a First Amendment issue.

This point was echoed by Justice Antonin Scalia in oral arguments: “He wasn’t associating with anybody any more than he was speaking. He was doing neither one.”

Those are notable points, ones that can be said to go to the core of the issue in the case. Justice Clarence (joined by Justice Samuel Alito) spoke to this very point in his Heffernan dissent:

Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan’s right to speak or assemble. . . . Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, . . . he cannot allege that his employer interfered with conduct protected by the First Amendment. 

If one were to stop the jurisprudential frame there, it adds up to four votes (Roberts, Scalia, Thomas & Alito) against the First Amendment claim. But, following Justice Scalia’s death, the tally blossomed into a six votes to sustain that claim. Think of it: after oral arguments the vote may have been 5-4, with the Chief on the dissenters’ side. That means that Ginsburg would have been the senior Justice and assigned the opinion to Breyer.  Following Justice Scalia’s death the vote would have then been 5-3.

The Significance of Government Motive & the Insignificance of Individual Intention

What made Heffernan a peculiar case (“it’s like a law school hypothetical” said Justice Alito in oral arguments) is the fact that the Petitioner Jefferey Heffernan never claimed that he intended to convey any message when he delivered a campaign sign for his mother. Fate being what it was, police officer Heffernan was demoted for his perceived political activity. That is, he never sought to convey any political message and thus, he argued, it was wrong for him to be disciplined for doing so.  That point proved determinative when the case was before the Third Circuit.  There Judge Thomas Vanaskie, writing for a unanimous panel, declared:

[W]e conclude that Heffernan has failed to raise a genuine dispute of material fact on this point. Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the cursory contact necessary for him to pick up the sign for his mother. Consequently, the record is insufficient to allow a jury to return a verdict in Heffernan’s favor on his claim of retaliation based on the actual exercise of his right to freedom of association.

Against that backdrop, consider what Justice Ruth Bader Ginsburg said in oral arguments in an exchange with Thomas Goldstein (one of the counsel for the Respondent City):

Justice Ginsburg: ­­I thought –­ and unlike Justice Scalia — that the thrust of the FirstAmendment is operating on government. It saysgovernment, thou shalt not ­­ thou shalt not act on thebasis of someone’s expression, speech or belief.

Mr. Goldstein: Well, essentially all of the rights, individual rights in the Constitution, otherthan the antislavery provision, requires State action.They all talk about what the government can’t do.  But the government ­­. . . 

Justice Ginsburg: Yes, so here, thegovernment acted. No question they demoted the person. This was a detective, and they put him back on the beat.So the government acted. Why did they act? Because they thought that this person was engaging in politicalactivity.

Mr. Goldstein:. . . You described this in First Amendment terms, that if this was a speech case, which it used to be, rather than an association case, he would lose. It is well settled in this Court’s precedents that the threshold inquiry under Pickering is did the individual engage in the constitutionally protected activity?

Judging from the outcome in the case, the Ginsburg line of thinking won the day. Consider the following statement from Justice Breyer’s majority opinion:

We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitu- tionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea- son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

Motive matters. Hence (and to echo a point Justice Hans Linde made decades ago), the constitutional wrong is in the impermissible making of a law, or as in this case in the impermissible motive in government action. Or to quote from a 1981 article by Justice Linde (for whom I once clerked):

If government acts without a basis in valid law, the court need not find facts or weigh circumstances in the individual case. When a constitutional prohibition is addressed to lawmakers, as the First Amendment is, the role that it assigns to courts is the censorship of laws, not participation in government censorship of private expression.

* * Additional Commentary * * 

Campaign Finance Case Readied for en banc Hearing in DC Circuit Read More

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FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
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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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FAN 101 (First Amendment News) Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full. — Paul M. Smith (cert. petition in Electronic Arts v. Davis)

Nothing in the Court’s opinion [in Zucchini] suggested that its analysis would have been different had the news broadcast been limited to a five- or ten- second excerpt . . . . — Brian D. Henri (brief in opposition in Electronic Arts v. Davis)

Lee Levine

Lee Levine

Lee Levine and Stephen Wermiel are at again — digging in Justices’ personal papers to reveal how the law of a First Amendment case came to be, replete with surprises and insights.

First they started with a law review article: “The Landmark that Wasn’t: A First Amendment Play in Five Acts,” Wash. L. Rev. (2013), which gave rise to several commentaries.

Then came a book: The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014). Now comes their latest work, “The Court & the Cannonball: An Inside Look,” American U. L. Rev. (forthcoming 2016).

In their latest work, Levine ( a seasoned media law lawyer & casebook author) teams up once again with Wermiel (law professor, Brennan Biographer & former WSJ reporter) to dig up the inside history of another First Amendment case — this time Zacchini v. Scripps-Howard Broadcasting Co. (1977), a 5-4 ruling.

The Facts: In 1972, Hugo Zucchini performed as a “human cannonball” at the Geauga County Fair in Burton, Ohio. In his act, Zucchini was shot out of a cannon and into a net 200 feet away. His performance lasted 15 seconds.  During one of these performances, a Scripps-Howard Broadcasting Co. freelance reporter attended the fair, replete with a movie camera. Petitioner noticed the reporter and asked him not to film the performance. Respondent honored the request that day but returned the following day and videoed the entire act. This 15-second film clip was shown on the evening news, together with favorable commentary. Petitioner brought a tort action (right of publicity) for damages and Respondent raised a First Amendment defense, among other things.

See “Zucchini: Human Cannonball” documentary trailer

Prof. Stephen Wermiel

Prof. Stephen Wermiel

The issue in the case was: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer’s state-law right of publicity?

→ The Supreme Court Lawyers:

  • John G. Lancione argued the cause and filed a brief for Petitioner.
  • Ezra K. Bryan argued the cause for Respondent.

→ Judgment: 5-4 in favor the Petitioner. Justice Byron White wrote the majority opinion and Justices Lewis Powell and John Paul Stevens each wrote separate dissents.

→ Enter Levine & Wermiel: Here are a few excerpts from their forthcoming article:

“Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court Justices’ available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.”

Hugo Zacchini; human cannon ball; in position for great blast off.

Hugo Zacchini; human cannon ball; in position for great blast off.

“For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court’s ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication. . . . .”

Conclusion: “If nothing else, the record of the Court’s deliberations in Zacchini appears to support the view that that decision does not purport to speak to the viability of a First Amendment-based defense to the kind of “right of publicity” claims asserted by contemporary plaintiffs seeking compensation for the use of their name, likeness, or even their performance, in the context of a video game, sporting event, news report or other creative work produced by someone else. To the contrary, the Court’s deliberations in Zacchini suggest that, at least in contexts where the asserted “right of publicity” is not akin to a claim for common law copyright, there is no basis to depart from traditional modes of First Amendment analysis and engage instead in the kind of ad-hoc balancing of state-created and constitutional rights . . .”

Judge Srinivasan on Free Speech Read More

Green Bag Article 02
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The Ultimate Unifying Approach to Complying with All Laws and Regulations

Professor Woodrow Hartzog and I have just published our new article, The Ultimate Unifying Approach to Complying with All Laws and Regulations19 Green Bag 2d 223 (2016)  Our article took years of research and analysis, intensive writing, countless drafts, and endless laboring over every word. But we hope we achieved a monumental breakthrough in the law.  Here’s the abstract:

There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation.

 

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Better Bar Design Means Better Revenue and Health for Bartenders

With the resurgence of cocktail culture, one may not think about a bartender’s work area, but it turns out that area is not well-designed so much so that bartenders have health problems and they can make fewer drinks. So in the age of let’s design and fix that, a bartender has come up with an “ergonomic, behind-the-bar workstation—which he calls the ‘race track’.” The new design lets the bartender stay in one place, have everything within forearm reach, and gets rid of the well (across which a bartender must lean and thus hurt his or her knees). The creator is seeking a patent, and the expected cost right now is five figures (they are hand built). The Wired piece covers some history of the bar and how ice changed the way we drink and how today the craft cocktail trend means efficiency is at a premium. As Wired notes

A good bar with a smartly built bartender station, on the other hand, is a blue-ribbon-prize-winning cash cow. Your typical cocktail den, Simó says, will rake in between $6,000 and $8,000 in sales in a night. At a nightclub, you more than triple that. A single bartender can ring in $10,000 in sales, by himself. That’s all contingent on how fast he can sling drinks, and Lafranconi says the race track is optimized for that kind of speed. “We can increase the output by about 10 to 15 drinks per hour.”

Throw in the health issues–“Tending bar in 10-hour shifts, night after night, can lead to injuries like tennis elbow, tendonitis, and plantar fasciitis”–and the future bar will let you be closer to the bartender, get your drink faster, and keep him or her in good enough health to be there the next time you visit. Pretty cool.

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Richard Nixon’s Law Review Note

240px-Elvis-nixonThough I was exposed to this in law school, many of you may not know that Richard Nixon wrote a Note while he was a law student at Duke for Law and Contemporary Problems. The paper is entitled “Changing Rules of Liability in Automobile Accident Litigation,” and provides a solid analysis of the tort doctrines of the day.  An interesting curiosity.

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FAN 83.1 (First Amendment News) Momentum Builds in Right of Publicity Case — Volokh & Rothman File Amicus Brief Urging Review

Professor Jennifer Rothman

Professor Jennifer Rothman

The momentum is building in Electronic Arts, Inc. v. Davis, the Right of Publicity case in which Paul M. Smith recently filed a cert. petition. In what may be shaping out to be the most important First Amendment case of this Term, Smith has just received some impressive support by way of an amicus brief to be filed later today by UCLA Law Professor Eugene Volokh and Loyola, Los Angeles, Law Professor Jennifer Rothman. Twenty-nine noted scholars signed onto their brief (see listing below).

If ever there was cert-worthy case — a case in which the cert. stars seem to be aligning — the EAI case is the one. The circuit and state courts are all over the conceptual map with assorted and conflicting tests being used in the SecondThirdFifthSixthEightNinthTenth, and Eleventh Circuits and in the FloridaKentucky, and Missouri Supreme Courts. Confusion abounds, and this as asserted First Amendment rights twist in the varying doctrinal winds.

Enter Volokh and Rothman, two scholars quite familiar with this intersection of tort law and the First Amendment.  Here is how they open their brief: “The right of publicity affects a vast range of fully constitutionally protected speech. Right of publicity lawsuits are routinely brought over books, films, songs, paintings and prints (in traditional media or on T-shirts or cards), and video games that mention someone’s name, likeness, or other ‘attributes’ ‘of identity.’ The First Amendment must often protect such references to people, whether in news, entertainment, or art. Courts throughout the country have therefore recognized First Amendment defenses in many right of publicity cases involving expressive works.” (notes omitted)

“Unfortunately,” they add, “there are now five different First Amendment tests that lower courts use in right of publicity cases (setting aside cases involving com- mercial advertising, which is less constitutionally protected than other speech). Unsurprisingly, these different tests often lead to inconsistent results, which leave creators and publishers uncertain about what they may say.” (note omitted)

Professor Eugene Volokh (credit: UCLA Magazine)

Professor Eugene Volokh (credit: UCLA Magazine)

Because of the confusion in the lower courts, Volokh and Rothman argue that this “state of uncertainty is especially dangerous not for major enterprises such as Electronic Arts, but for smaller authors and publishers that lack the money to litigate such cases (even when their First Amendment defense is very strong). Many such small speakers are likely to be chilled into following the most restrictive standards, and the most restrictive interpretations of those (often vague) standards. If this situation is left uncorrected by this Court, a wide range of expression in movies, plays, novels, songs, video games, documentaries and more will be deterred.”

The rulings in Davis v. Electronic Arts, Inc. (9th Cir. 2015) and Keller v. Electronic Arts, Inc. (9th Cir. 2013), they stress, “also treat the First Amendment defense to the right of publicity as weaker than the First Amendment defense to trade- mark law. This too merits this Court’s review.”

Below is the list of scholars who signed onto the amicus brief:

  1. Jack Balkin
  2. Barton Beebe
  3. Erwin Chemerinsky
  4. Stacey L. Dogan
  5. Jay Dougherty
  6. Gregory Dolin
  7. Eric M. Freedman
  8. William K. Ford
  9. Brian L. Frye
  10. William T. Gallagher
  11. Rick Garnett
  12. Jon M. Garon
  13. Jim Gibson
  14. Eric Goldman
  15. Stacey M. Lantagne
  16. Mark A. Lemley
  17. Raizel Liebler
  18. Barry P. McDonald
  19. Tyler Ochoa
  20. Aaron Perzanowski
  21. Lisa P. Ramsey
  22. Kal Raustiala
  23. Martin H. Redish
  24. Betsy Rosenblatt
  25. Steven H. Shiffrin
  26. Christopher Jon Sprigman
  27. Geoffrey R. Stone
  28. Rebecca Tushnet
  29. David Welkowitz