Category: Tort Law

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FAN 129 (First Amendment News) A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press

In light of Donald Trump’s continued threats of lawsuits implicating First Amendment rights, I thought it might be useful to begin to collect news stories and other information related to such matters. The editors at USA Today did something similar, albeit on a much larger scale, when they listed and analyzed some 3,500 legal actions by and against Mr. Trump (June 1, 2016). “Say something bad about Donald Trump and he will frequently threaten to go to court. ‘I’ll sue you’ was a Trump mantra long before ‘Build a wall.'”

Threats rarely realized: In a July 11, 2016, story, USA Today also reported that “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.” (Itals added)

“The Republican presidential candidate,”added the USA Today story, “has threatened political ad-makers, a rapper, documentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York TimesThe Wall Street Journal, the Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.”

Earlier threats: “In 1978, the Village Voice reported Trump threatened to sue one of its journalists. In 1990, the Wall Street Journal said the same happened to reporter Neil Barsky for reporting on Trump’s business record.”

“Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth which branded Trump a ‘clown,’ noted his casino bankruptcy and said his Trump-branded skyscraper in Tampa never materialized and was a ‘parking lot.’ At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond right next to his words. In this case, Trump’s ended with a trademark: ‘Neuharth is a total loser!’ Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.” [Source here]

Last lawsuit against a media outlet: “The last time [Mr. Trump] sued a news organization for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an ‘atrocious, ugly monstrosity.’ In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.” [Source: Reuters, October 14, 2016] (See below re September 2016 lawsuit filed by Ms. Melania Trump) 

The threat of litigation by “well-funded plaintiffs” 

Here is a recent comment from Floyd Abrams: “If a bar association article critical of Mr. Trump must be watered down for fear of litigation, what impact on those who do not have lawyers at hand to defend them can be expected?”

“The costs of defending litigations against well-funded plaintiffs can be overwhelming. And the risks of losing such litigations in an atmosphere in which the nation is so deeply divided are accentuated. These are dangerous times.”

Countersuits: Suing Trump for Defamation? 

Diana Falzone, Donald Trump’s accusers could countersue candidate for defamation, lawyers say, Fox News, Oct. 25, 2016

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In the weeks and months ahead, I plan to post more on this matter with the hope that it will prompt dialogue and debate. Meanwhile, the items listed below provide some backdrop.

___________________

Despite his advocacy for restricting freedom of speech in the United States, Trump said his is a “tremendous believer of the freedom of the press.” (Think Progress, Oct. 24, 2016)

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

October 23, 2016: Donald Trumps threatens to sue sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

“It’s a way to defend himself, and remind everybody what he has said many times, which is none of this is true,” campaign manager Kellyanne Conway said Sunday on NBC’s Meet The Press. “They’re fabrications, they’re all lies.”

Also, in a recorded interview (video here) Mr. Trump declared: “Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . I’m a big believer tremendous believer of the freedom of the press. Nobody believes it stronger than me but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people. I’m not just talking about me I’m talking anybody else then yes, i think you should have the ability to sue them.”

Pro Bono Offers to Defend Against Defamation Suits Read More

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FAN 128.1 (First Amendment News) Tribe & others form pro bono phalanx to defend against Trump’s threatened defamation lawsuits

It is about time that the use of lawsuit threats by a bully, like Trump, should be met, and met strongly. — Laurence Tribe 

Theodore Boutrous, Jr.

Theodore Boutrous, Jr.

It all began with Theodore Boutrous, Jr. According to Law Newz, “on October 13, Boutrous sent out a tweet promising to a pro bono defense to the Palm Beach Post newspaper after it published a story from one of Trump’s alleged accusers.” And then on October 22, he tweeted: “I repeat: I will represent pro bono anyone  sues for exercising their free speech rights. Many other lawyers have offered to join me.”

Shortly afterwards one of those who offered to form pro bono phalanx to defend against Trump’s threatened defamation lawsuits was  Harvard Professor Laurence Tribe.

Professor Laurence Tribe

Professor Laurence Tribe

Last evening Professor Tribe appeared on The Last Word with Lawrence O’Donnell (MSNBC). Tribe was on the program to talk about recent threats by Donald Trump to sue his sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

Here are some transcribed excerpts from Professor Tribe’s comments in response to that threat:

Offer of pro bono assistance

“Ted Boutrous and Ben Wittes, and many other leading lawyers, have [offered to represent pro bono those alleging sexual misconduct against Donald Trump]. And I did it because it is about time that the use of lawsuit threats by a bully, like Trump, should be met – and met strongly – because a lot of people, a lot of women, might be deterred by his threats even though he often doesn’t carry them out. They might be afraid to come forward; it’s not only them, it’s all kinds of groups. A group that I am also ready to defend pro bono, although it may sound a little bit strange, is the American Bar Association, which was frightened into suppressing its own report by a free-speech watchdog group, which concluded that Trump used the threats of libel suits to bully people into submission. And they ended up censoring themselves because they were afraid of being sued.” [See Adam Liptak, Fearing Trump, Bar Association Stifles Report Calling Him a ‘Libel Bully’, New York Times, Oct. 24, 2016; see also Susan E. Seager, Donald J. Trump Is A Libel Bully But Also A Libel Loser, Media Law Resource Center, Oct. 21, 2016]

“It’s really about time that people who know what they are talking about in the law tell this guy what an idiot he is and how unfair it is for him to use his power. . . . He says that he can just sue the hell out of anybody. [But] he’s gonna learn better than that when he tries. . . . “

“[T]he women who are afraid to come forward should know that lawyers like me are going to be willing to defend them and the journalists who reported their stories without charge. . . .”

Possible defamation suits against Trump

“All of the people [Trump] threatens to sue, without any real ground and in the face of the First Amendment, have strong grounds to sue him for deliberately and falsely labeling them as liars and as people who simply want – I think he called it — their ten minutes of fame . . . .”

Course of action if Trump wins

“Justice Brennan in a case called Garrison, pointed out that the way the Nazis, early in their rise to power, silenced their enemies and their opposition was to threating to use defamation lawsuits against them. But I do want to want to add, quite apart from these lawsuits, if Trump loses (as I hope he will) we won’t have to take the next step. But if he should happen to win (heaven forbid!) . . . then lawyers around the country, who are joining me in this effort, are going to do all we can, pro bono, to prevent him from abusing executive power by violating the First Amendment and much else in the Constitution. Because if he wins, he’s likely to take a Congress with him; he’s not likely to have the usual checks-and-balances. So, the legal profession has a challenge that I hope it can meet. I think that people who are lawyers . . . , in the best sense of the word, need to step up and call this tyrant for what he is.”

Coming: Tomorrow’s FAN post is titled: “A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press”

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FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

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Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

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According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply Read More

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FAN 126.1 (First Amendment News) Court denies cert in “public official” defamation case

The question presented in Armstrong v. Thompson was “whether all (or nearly all) law enforcement offic- ers are “public officials” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).” Today the Court denied cert. in that case.

In his petition to the Court, Roy T. Englert, Jr. argued:

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, 376 U.S. 254 (1964). 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 re-spondent 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.” App. 14a-21a.

This Court should grant review. The rule applied below conflicts with decisions in other lower courts; “distort[s] the plain meaning of the ‘public official’ category beyond all recognition,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974); and deprives hundreds of thousands of individuals of the ability to obtain redress for needless, vendetta-driven attacks on their reputations and interference with their livelihoods.

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FAN 125.1 (First Amendment News) 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns

“[A] lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened ‘prompt initiation of appropriate legal action.’”

“Trump himself tweeted early Sunday: ‘I know our complex tax laws better than anyone who has ever run for president and am the only one who can fix them.’ Again, he did not deny or dispute the Times‘ findings.”

The headline in the New York Times read: “Trump Tax Records Obtained by The Times Reveal He Could Have Avoided Paying Taxes for Nearly Two Decades.” Here is how that story began: Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show. . . . The documents were the first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return. . . .”

Here is how The Times says those documents were obtained: “The three documents arrived by mail at The Times with a postmark indicating they had been sent from New York City. The return address claimed the envelope had been sent from Trump Tower.”

Susanne Craig, The Time I Found Donald Trump’s Tax Records in My Mailbox, New York Times, Oct. 2, 2016 (“I walked to my mailbox and spotted a manila envelope, postmarked New York, NY, with a return address of The Trump Organization. My heart skipped a beat.”)

Trump Reply: According to Eli Stokols writing in Politico: “A statement from Trump’s campaign neither confirmed nor denied that he filed a $916 million loss in his 1995 tax returns, but charged that the documents were ‘illegally obtained’ in what it said was “a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.'”

As reported Dylan Stableford in Yahoo: “‘Mr. Trump is a highly skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required,’ the Trump campaign said in a statement. ‘That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.'”

Federal & State Laws

26 U.S. Code § 7213 (a) (1): “It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution. . . .”

“(3) Other persons. It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

Marc Kasowitz

Marc Kasowitz

Trump’s Lawyer: According to The Times, Marc Kasowitz, a lawyer for Mr. Trump, has threatened “appropriate legal action.” Here is how Mr. Kasowitz is described on his firm’s biographical page:

  • “Described by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator'”
  • “[He] is widely regarded as one of the preeminent trial lawyers in the country.”
  • “He has been honored as a ‘Litigation Trailblazer’ by the National Law Journal.” 
  • “Opponents cited by The American Lawyer have acknowledged Marc as a ‘powerhouse’ and ‘the toughest of the tough guys,’ and a foreign publication has referred to him as ‘one of the most prominent and feared lawyers in the United States.'”

Related items

10 First Amendment Experts Respond

In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation. Their comments are set out below. Following this post, I sent an e-mail to Mr. Kasowitz inviting his response.

Floyd Abrams:  The relevant body of First Amendment law that would be applied is not that of prior restraint –the Times has already published so there’s nothing to restrain any more — but cases relating to efforts to punish the publication of truthful information about matters of public interest. Those are cases that have held unconstitutional, on First Amendment grounds, statutes such as the following: barring publication of charges before a judicial panel passing on the alleged  misbehavior of judges; barring publication of the names of juveniles before juvenile courts (I argued those two cases in the Supreme Court); and barring publication of the names of rape victims. None of those cases laid down absolute rules. Neither did the most recent case in this line–the Bartnicki v. Vopper case. Taken together, however, all the cases make it extremely unlikely that the Times could constitutionally be held liable for publishing such a newsworthy story, a month before a presidential election, about a candidate for President.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle. 

Jane BambauerDonald Trump’s arguments are foreclosed by Bartnicki v. Vopper, where the Supreme Court said that the dissemination of information about a matter of public concern could not be penalized even if it was obvious that the information was originally obtained illegally. (Bartnicki involved the broadcast of a private phone conversation that was captured by third party using an illegal wiretap.) For hard cases, reasonable minds may differ about whether speech pertains to matters of public concern (e.g. Hulk Hogan’s sex tape), but the public interest in Trump’s tax records is not a hard case.

This episode also illustrates the tension between free speech and privacy, and shows why courts will tip the scales toward speech even if a generally applicable privacy law has been broken somewhere along the chain. Privacy scholars and advocates have done a very good job showing why privacy is important even if we have nothing to hide. But Donald Trump exposes the costs of privacy: sometimes those who take refuge in claims of privacy do in fact have something to hide. The Bartnicki rule lets us cheat the consequences of our own privacy rules. Privacy law may prohibit certain types of intrusions people’s private affairs, but when the intrusion has happened and produces something valuable, the public will get to reap the benefits of that transgression.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle.

Burt NeuborneThere is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for President. That’s why we have a First Amendment. Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer. Why should anyone pay taxes if the President refuses to pay his fair share? Trump’s so used to bullying people into silence that he thinks he can do it to The New York Times. Fat chance. Remember the Pentagon Papers. 

Martin RedishIf the Pentagon Papers established anything, it’s that no prior restraint can be imposed on the Times in this situation to prevent them from publishing the tax records. If no criminal action was involved in obtaining the records, it is clear that no subsequent punishment can be imposed, either.

Where there may exist some doctrinal ambiguity (flowing, I believe, from the widespread and misguided assumption that prior restraints are somehow more invidious to First Amendment interests than subsequent punishment) is if the party providing the records to the Times obtained them illegally and subsequent punishment is sought. Purely as a normative matter, I have no doubt that under no circumstances should the act of publication of the records, in and of itself, be punishable. 

However, if The Times was actively involved in a criminal conspiracy to unlawfully acquire the records in the first place, I see no First Amendment bar to criminally punishing them for those acts. The First Amendment does not shield non-communicative criminal acts. For example, one is not constitutionally immune to prosecution for battery, merely because the battery was in an effort to coerce the victim to reveal information that is subsequently punished.

Steven R. Shapiro: The voters can decide what weight to attach to any information contained in Trump’s tax returns – or the returns of any other political candidate – but there can be no serious question about the right of the Times to publish that information. The Supreme Court has clearly and repeatedly held that the First Amendment protects the right of the press to publish information on matters of public concern, and that is true even if the information was unlawfully obtained by someone who then gave it to the press.

Steven Shiffrin: Except in very rare circumstances, newspapers are legally free to publish information provided by confidential sources. A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view. The protection of such a newspaper publication is part of the central meaning and purpose of the First Amendment. The suggestion of Mr. Trump’s counsel that this publication of the New York Times is not protected by the First Amendment is both idle and ignorant.

Geoffrey StoneThis is open-and-shut. As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm. There is the question of invasion of privacy, but that tort applies only to information that is not “newsworthy.” That is hardly the case here. The First Amendment unquestionably protects the publication of Trump’s tax returns.

Nadine Strossen: The New York Times clearly has the right to publish Trump’s tax returns, and its readers have the right to read those returns, even absent Trump’s authorization.  The only authorization that is required is provided by the First Amendment, as well as multiple Supreme Court precedents.  The Court has consistently held that the First Amendment shields the publication of true information of public concern, including information that could be considered private, so long as the publisher did not act unlawfully in obtaining the information. The Court has upheld this right even when the parties who obtained the information and provided it to the publisher did act unlawfully. For example, the Court upheld the Times’ right to publish the Pentagon Papers regardless of whether Daniel Ellsberg acted unlawfully by providing these classified documents to the Times.  The Court also has upheld this principle when the information was illegally obtained from a private, non-governmental source.  As the Court explained: “[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance….One of the costs associated with participation in public affairs is an attendant loss of privacy. . . . [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

The Court has repeatedly held that the First Amendment trumps various state and federal laws that impose criminal or civil liability for publishing truthful information about matters of public concern.  Although the Court has declined to rule categorically that the First Amendment defense will always prevail, it has stressed that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.”  (emphasis supplied) This is a very demanding standard, which the Court has never found to be satisfied, even in factual situations involving more pressing privacy concerns, and less compelling public information concerns, than those involved in the current situation.

Laurence Tribe: The idea of suing The New York Times to prevent or penalize publishing Mr. Trump’s tax returns is ludicrous. Regardless of who leaked that information to The Times, the First Amendment flatly forecloses any such use of judicial power to deprive the public of truthful information, especially given its relevance to a national election. [Twitter handle: @tribelaw]

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The authors of the New York Times story were:

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Is the iPhone Defectively Designed?

This is a question raised by a fascinating NYT article on Sunday.  Here’s the argument: Apple has a patent on a technology that would prevent the iPhone from sending or receiving texts in a moving car.  This technology is not, though, part of the iPhone.  Since texting while driving is a significant cause of accidents, Apple could be liable on a design defect theory for any car accident where texting on an iPhone while driving causes the harm.

The missing information here is whether Apple’s patent actually works and at what cost.  I’m dubious that such a patent can tell the difference between a driver texting vs. a passenger texting, or someone texting in a car vs. someone doing that in a train or on a bus.

Suppose, though, that a patent could lock out only texting while driving.  Then I would think that, unless the technology was pretty expensive, the failure to include it as a standard feature would be a serious problem for Apple even if many customers would be angered by such a lockout.

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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