Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.

Tuesday, December 22, 2020

First Amendment jedi 'Luke Skyywalker' turns 60, recounts storied battles for equality, liberty

My daughter co-directed this promotional video, published yesterday, for the multi-talented Jerrika Karlae.

I like hip-hop and rap, but not as much as I used to.  My taste in music, I admit, has been softened in middle age by nostalgia and an inexplicable draw to indie pop, AJR being my current fave (see "Bang!" on Today in August, on Ellen in October, and at the Macy's Thanksgiving Day Parade in November).  But I like to think that I still can appreciate a broad range of music, and for various reasons.  I like Karlae because she's a woman innovating in a genre that has been dominated by male artists (she's not just Young Thug's fiancée), and she represents the multiracial Atlanta arts scene on the contemporary cutting edge. (HT@themorgansteele, without whose aid I would not know Karlae.)

I was a 2 Live Crew fan in secondary school and university, and it wasn't all about the music then, either.  The group's breakthrough album As Nasty as They Wanna Be and its curious companion album, As Clean As They Wanna Be, both came out in 1989, in my last semester of high school.  There was a lot to like about 2 Live Crew.  I liked the music, which had the imprimatur of my best friend, a musician with discernment decidedly superior to mine.  But 2 Live Crew's dispositive selling point for me was a tendency to precipitate First Amendment litigation.

A student journalist in the wake of Hazelwood v. Kuhlmeier (U.S. 1988), I was learning a lot about the First Amendment, sometimes in the classroom and sometimes in the vice principal's office.  Meanwhile, in 1989, 2 Live Crew, through its Skyywalker Records, sued the sheriff of Broward County, Florida, for declaratory relief from obscenity prosecutions over As Nasty As They Wanna Be.  And in 1990, Roy Orbison's record company sued 2 Live Crew's Luther Campbell, a.k.a. "Luke Skyywalker," for copyright infringement in As Clean As They Wanna Be's "Pretty Woman," a parody of Orbison's 1964 classic.  2 Live Crew prevailed on appeal in both cases, the former in the Eleventh Circuit and the latter in the U.S. Supreme Court. Reluctantly, Campbell did back down on the use of "Skyywalker" when the DJ stage name ruffled Lucasfilm feathers in trademark.

Lately, I've eagerly read more about 2 Live Crew and Luther Campbell in the latter's 2015 memoir, The Book of Luke.  The book is full of intriguing revelations from behind the scenes about the band and the author.

Campbell's recounting of his Miami youth is thought provoking on the subjects of desegregation and diversity.  Characterizing busing's mixed legacy, Campbell describes a black neighborhood, Liberty City, devastated by the dispersal of its youth, and, at the same time, a broadened cultural competence derived from school and sports with some of the first non-black people Campbell knew.  He writes:

Being on Miami Beach, even though the school was using us and just passing us along, I still got an education in how the world works outside the ghetto.  Most of the guys from my experience, the guys who never left Liberty City, they didn't learn the same things I did. ... They didn't see how to transform themselves into something more than that. ... 

Going to Beach High also made me realize that all white people aren't bad.  The system is bad, the game is rigged, but not all people are bad.  By going there and playing with white friends, Jewish friends, Cuban friends, it just broadened my horizons.  There are good people and bad people in every walk of life.  There are racist white people and prejudiced black people, and every individual is his own person.

He drills down further into the rigged game to describe the socioeconomic conditions that undermined the civil rights movement in the long term.  In plain language, Campbell explains:

Malcolm X and Stokely Carmichael and the Black Panthers, their whole message was about economic self-sufficiency, about how blacks needed to own and patronize our own businesses, to lift up and take care of ourselves.  And I believe that.  The problem was that the government had denied us our property rights for so long that we didn't have much to work with.  The small value of what we did own, our business district, they destroyed when they put that expressway through.  Most blacks didn't own any assets or property to borrow against.  Banks discriminated, so we didn't have access to business loans or financial capital that you need to run a business.

Campbell capably carries through with this theme of systemic racism to illustrate its impact on the music industry.  Nicknamed "Luke Skyywalker" for his Jedi-like mastery of the DJ table, Campbell and 2 Live Crew, each, were already successful acts when Campbell joined the band and brought it within the sphere of Miami's unique cultural mélange.  Rather than navigating the infamously insular and monopolistic world of white-owned record labels, Campbell created Skyywalker Records to be the band's own publisher.  He recounts a climate in the media business even more hostile than one might expect to the evolution of music by black artists:

The white executives didn't get us, or just didn't want us. But it was really the black executives, the ones who'd been brought up to run the R&B imprints, who tried to kill hip-hop at the start.  To them, rap was too black, too ghetto.  It reminded them of life in the streets, the world they'd spent their whole lives running away from.  They were caught up playing that respectability politics game for those white-owned companies.  They wanted to make R&B into upscale, sophisticated music, show how far blacks had come, show how we were becoming high class.  It was the same in the black media.  Black radio stations didn't call themselves black anymore.  They were "Urban Contemporary."  They barely gave rap any airplay at all, or if they did it was only in special shows on the weekends.  Ebony didn't put a hip-hop artist on its cover until 1991, twelve years after "Rapper's Delight" sold eight million copies.  The white folks over at Rolling Stone had Run-D.M.C. on their cover in 1986, five years ahead of Ebony.

Luther Campbell, 2017
(photo by David Cabrera CC BY-SA 4.0)
Contrary to rap's stereotype, new music was not about new lows in "nasty" for Campbell.  The dichotomous debut of As Nasty and As Clean in 1989 was in fact a label equivalent of how Campbell always had run his DJ business.  At least according to his own retelling in the book, Campbell worked hard to put on all-ages shows with security employed to keep out alcohol, drugs, and violence, and then to put on adult-restricted shows later at night.  The band proactively labeled its music for indecent lyrics, and Campbell personally communicated to distributors and retailers the admonition that under-age consumers should be permitted to buy only clean content.

Predictably, the dirty content received more media attention and generated more commercial success than the clean; certainly eighteen-year-old me was more interested in the former.  Yet in the harsh reaction of public officials to indecency, and in media ignorance of the band's efforts at social responsibility, Campbell saw more than mere market forces at work.  In 1988, Alabama record store owner Tommy Hammond was arrested on obscenity charges for selling the 2 Live Crew album Move Somethin' from behind the counter to an undercover police officer.  Campbell dates "[t]he legal war against hip-hop" to that arrest and explains further:

The cops, apparently, had been getting complaints from Christian fundamentalist groups about the sale of offensive and vulgar material, and the Alexander City sheriff Ben Royal was, I suppose, a real God-fearing, Bible-thumping, easily offended type of guy.

At first I wasn't even mad.  I was genuinely confused.  Dolemite and Skillet & Leroy and all these comedy records we were sampling, those had been around for years.  They were filthy as hell, real nasty, and nobody had ever tried to censor them.  Andrew Dice Clay was doing his stand-up act and putting out his albums at the same time we were, and his routines were just as raunchy as what we were doing.  Nobody was getting arrested for selling his albums.  What was going on?  My father and my uncle Ricky taught me a lot about racism and how it works, but I was about to learn a lot more. ...

Dice is white, you see, so he could say whatever he wanted.  Parents might protest him, and they did, but he was a white man making a lot of money for a white-owned corporation; nobody was going to take away his right to free speech.  All those old chitlin circuit albums we sampled, they were dirty, but white people never listened to them.  They didn't cross the color line, so nobody really cared. ... Nobody cared if we were corrupting young black minds with our evil jungle music. ... But Tommy Hammond's record store was the record store serving the white side of town.  2 Live Crew had done the one thing you're never supposed to do.  We were black men coming across the color line talking about sex.  We were black men in the company of whites, and we'd forgotten to lower our heads and shuffle away.

Campbell in the book goes on to trace his 2 Live Crew and Luke Records career through gang violence bleeding into the concert arena, stand-offs with law enforcement and protestors, and famous and less famous lawsuits.  He reflects ultimately on contented family life and the privilege of giving back to Liberty City.  I won't spoil all the fun; the ride is worth the cover price.

For my part, it's gratifying to better know the real Luke Skyywalker, both the Jedi knight who inspired me when I was a kid, and the Luther Campbell he became.  His tastes have changed, too: as he puts it in the book, a little less groupies and Hennessy, a little more football practice, fretting over SATs, and "raising hell about housing and education."  Every individual might be his own person, but there sure seem to be some universal truths to getting older.

Luther Campbell turns 60 today, December 22, 2020.  The book is Luther Campbell, The Book of Luke: My Fight for Truth, Justice, and Liberty City (Amistad 2015).

Monday, December 21, 2020

Law students ponder litigant Trump

(Cross-posted at Trump Litigation Seminar and The Savory Tort.) In the fall semester, I had the privilege of exploring Trump litigation in depth with a team of law students in my Trump Litigation Seminar.  These students are to be commended for plowing through more than 27,000 pages of court records, which are compiled and publicly available at our course blogsite, a project of The Savory Tort.  In addition to our case reviews and discussions, students completed skills exercises in discovery, pleading, public relations, negotiation, and statutory interpretation, and rounded out the semester with research and writing.  From the final papers, with author permission, here are selected abstracts.

Screenshot of PAC ad, via WNYC

Jessi Dusenberry, Anti-SLAPP Law and Donald J. Trump for President, Inc. v. Northland Television, LLC.  President Donald Trump filed a lawsuit against a small news organization in Wisconsin for defamation.  The news organization, WJFW-TV, ran an advertisement that showed President Trump calling COVID-19 a “hoax,” as a graph tracking the rate of infections showed an upward track on the screen.  Many news stations ran the same ad, but the Trump campaign chose to sue only WJFW-TV, which is owned by a small company that has only two other local TV stations.  The political organization that produced the ad later joined the case as a defendant.  The lawsuit was initially filed in Circuit Court, but later was removed to federal court.  The lawsuit against WJFW-TV follows President Trump’s legal strategy of filing frivolous lawsuits to force the defendant to spend money in legal fees to get the case dismissed.

Unlike many other states, Wisconsin doesn’t have an anti-SLAPP law to prevent the use of the courts to intimidate people who are exercising their First Amendment rights.  This paper provides general background on strategic lawsuits against public participation (SLAPPs) and the need for anti-SLAPP legislation, as well as the jurisdictional differences in drafting anti-SLAPP legislation.  The paper goes into further detail on California’s anti-SLAPP legislation, beginning with the types of speech covered by the statute.  The paper also analyzes significant judicial interpretations of the anti-SLAPP legislation in California.  Finally, the paper explores the applicability of California’s anti-SLAPP protections to media defendants.

From Pixabay by Gerd Altmann

Richard Grace, The Truth, the Whole Truth, and Everything but the Truth: Tort Reform and Social Media.  The tort of defamation has been changed irreconcilably by the advent of social media, which have provided famous or notorious plaintiffs additional means to combat and remedy alleged damage to their reputations, regardless of the merits, leaving plaintiffs of more ordinary means no alternative but to rely on a system that is heavily defendant-favored and cost-prohibitive.  In the “Twitter Age,” a period of revolutionary growth in connectivity and ability to spread information globally via social media, the ultimate affirmative defense to defamation, truth, seems almost to have become subjective, with division and polarization increasing at an alarming rate.  Reasoned conclusions have been replaced by echo chambers.  Whether it is “alternative facts,” or the notion that being “morally right” is more important than being “precisely, factually, and semantically correct,” the rapid growth in ability to editorialize and disseminate "truth" has wider implications for the “search for the truth” of modern litigation.

This paper first aims to discuss several theories of reform to the tort of defamation.  The paper explores the actions of a serial defamation litigant, Donald Trump, specifically in the matters of Trump v. O’Brien and Miss Universe L.P. v. Monnin, the latter involving an entity owned by Trump, which were selected to demonstrate the ability of a defamation plaintiff to leverage the public sphere as an extra-judicial remedy.  These cases were chosen to represent pre- and post-Twitter outcomes.  O’Brien was decided prior to Twitter becoming a social media mainstay, whereas Miss Universe was more recent.  Finally, the paper considers the external issues this gap in tort remedy for reputational damage has caused, particularly with regard to § 230 of the Communications Decency Act, which has provided social media companies, service providers for purposes of the act, with statutory immunity from tort actions for defamation.  Ultimately, the jurisprudence of defamation law has enabled a two-tiered system of remedies: for those who must bear the cost and burden of litigation, and for those who can litigate the matter outside of the courtroom, in the court of public opinion.

Pa. electoral map from 2012 (CC BY-SA 3.0)

Alyssa McCartney, The President Who Cries Voter Fraud: A Recurring Theme of Baseless Allegations.  In 2019, Pennsylvania enacted its first update to the Election Code in nearly eighty years. On a bipartisan vote, the General Assembly passed a measure to allow “no reason” mail-in ballots. Act 77 allows any registered voter to request a ballot by mail, fill it out in the time framed outlined, and send it back to be processed. In the wake of a global pandemic that left Americans unable to leave their homes, this necessary update would cause quite the controversy in months to come. Explaining a new process comes with challenges, but tack on a President purposely fanning the flames of doubt, mail-in ballots have been tough to sell. The primary election used the updated process for the first time on June 2, 2020. Receiving nothing but praises and positive feedback, the measures enacted seemed to keep tensions at ease. That is, until the sitting President’s re-election campaign filed suit against Pennsylvania Secretary of State Kathy Boockvar and the Commonwealth’s sixty-seven counties. As President Donald J. Trump continued to allege baseless voter fraud accusations, the American people grew more restless in a year that’s already full of uncertainty. As a key swing state in presidential elections, Pennsylvania took center stage in Trump’s war on the election “rigged by Democrats.”

This article aims to address Trump’s relentless allegations of voter fraud—something that is not new for him. By analyzing Pennsylvania and offering an insight into Centre County election protocols, this article will squash the baseless accusations to show the election results are fair, free, and not riddled with fraud. Although President Trump refuses to concede in hopes of the United States Supreme Court intervening, he lacks any standing and cannot offer substantial evidence to support his claims. In short, these frivolous lawsuits are an attempt to undermine our democratic process by a man who has no shame spinning the narrative to suit his needs.

From Flickr by Gage Skidmore (CC BY-SA 2.0)

Natalie Newsom, Make America Great Again.  In 2015, Donald Trump announced that he was running for President of the United States in a controversial statement outside his towering building in New York City. What ensued in the months following was a campaign that shattered presidential norms with Trump having a scattered history of sexual misconduct allegations, zero experience in elected office, and a tendency to make offensive and derogatory comments. These comments caused Rafael Oliveras López de Victoria to file a lawsuit on September 24, 2015, to ban Donald Trump from becoming President. Oliveras López argued, albeit unsuccessfully, that there is a particular caliber of moral solvency expected of U.S. Presidents, and that the court should intervene in situations in which a presidential candidate fails to meet that criterion.

The most interest facet of the Oliveras López lawsuit is what it reveals about American politics and morality. As it stands now, making offensive comments aimed at protected classes in the United States will not stop you from becoming President, the most highly regarded public-servant position in our nation. That fact seems to run afoul of another phenomenon that exists in the United States today, in which people may be fired from their government jobs for social media posts featuring alcohol or expletives. This leaves the question of why a double-standard exists. This paper aims to address the problem of that gap between the law and morality and discusses what the case filed by Mr. Oliveras López teaches us about restoring faith in American decency.

E. Jean Carroll in 2006 by Julieannesmo (CC BY-SA 3.0)
Pedro Raposo, Trump, Sexual Assault, and Defamation.  Defamation has proven a useful tool to survivors who have been keeping their accusations to themselves for fear of coming forward, and have since managed the strength to come forward against their abusers. Notably, many individuals who have been abused in the past may have concealed their stories for too long, and the statute of limitations for sexual assault have run. With a defamation suit, survivors are able to reopen the issue of their sexual assaults by addressing the accused's statements.  President Donald Trump has not been able to escape this recent wave of sexual misconduct allegations ushered in by the #metoo movement. To date, there have been nineteen women who have accused Trump of sexual misconduct. The three cases focused on here were brought by former “Apprentice” contestant Summer Zervos, adult film star Stephanie Clifford, and author E. Jean Carroll.  Two of these cases have reached variable results, with the court ruling the allegation in the Zervos case to be actionable against Trump, while the defamation claim in Clifford’s case was defeated by Trump’s legal team. 

Snapshot of Trump deposition in CZ-National

Spencer K. Schneider, Paying for Privacy.  As public opinion of the courts diminishes, it is important to consider the role that public access to the courts, or lack thereof, plays in this public opinion. In the United States, courts have a long history of public access to both proceedings and documents, much of which is grounded in the First Amendment. However, this access is not absolute, and the wealthy and powerful often seek to keep court documents under seal and out of the public’s view. One of these wealthy and power individuals is Donald Trump, a frequent litigator to say the least. This paper analyzes court decisions in Trump Old Post Office LLC v. CZ-National and Low v. Trump University, respectively, to make public and seal the video depositions of Donald Trump taken during each case’s discovery, and the effect that allowing wealthy parties to seal court documents can have on the public perception of the courts.

José Andrés on Flickr by Adam Fagen (CC BY-NC-SA 2.0)

Ricardo J. Serrano Rodriguez, Trump Old Post Office LLC v. Topo Atrio LLC and the Court of Public Opinion.  This paper attempts an exploratory study of the plausibility of public opinion influence in the case of Topo Atrio through media outlets such as newspapers, television, radio, and social media platforms. The ways that public opinion is formed have changed throughout our history. Since the times of the public square, public opinion influences the way that individuals conduct themselves in society. This influence changes the dynamics of social interaction in a deep manner and polarizes the judgment of the public. The internet and social media have expanded the reach of the public sphere to a point of near immediate dissemination of information. Now, newspapers are not only physical, as the name suggest, but digital also, which multiplies the publisher’s reach. Donald Trump is a public figure who also has made a brand out of his name and relied on this brand in his quest for political approval. In the case of Topo Atrio, ... José Andrés and Donald Trump, through their corporations, entered into an agreement in which Andrés would run a restaurant in Trump’s Old Post Office Hotel. The controversial comments about immigration made by Donald Trump when he announced his candidacy created a bustle of publicity that followed him to the end of his presidential term. But could it really influence the court of law?

Pixabay by Christian Dorn

Matthew R. Stevens, The Art of the SLAPP.  This paper dives into two cases, Makaeff v. Trump University and Clifford v. Trump, and dissects the anti-SLAPP issues and motions made in the cases. More specifically, the paper views the anti-SLAPP issues in these cases through the broader scope of anti-SLAPP legislation’s underlying policy goals. While extremely important and inextricably connected to the legal results of each case, the application of substantive law is not the primary focus of this paper. There is a plethora of variables that distinguish the two cases, but the key point of divergence on which this paper focuses is Trump being a defamation plaintiff in one case, and a defamation defendant in the other. It is also important to narrow the scope of SLAPP suits themselves. SLAPP suits can apply to far more than just free speech, but this paper focuses the scope of SLAPP suits through the lens of defamation claims. The paper’s ultimate goal is to use these two cases as examples to see whether anti-SLAPP legislation is operating as intended within the context of the greater policy goals of the legislation.

O'Brien's book (Amazon)
Judson Watt, Press Protections in Civil Discovery: Trump v. O'Brien.  Donald Trump is a well-known public figure who is famous for his litigious nature. In 2006, he filed a defamation lawsuit against a well-known reporter and author in the New Jersey courts. This lawsuit survived a motion to dismiss and was allowed to move into the pre-trial discovery phase. Donald Trump was allowed to pepper the defendant with requests for document production and interrogatories concerning his confidential sources. This paper addresses the decision of the trial court to allow pretrial discovery to proceed even though Trump failed to meet his burden to establish actual malice by the defendant, as required by the Supreme Court since New York Times v. Sullivan. This paper shows that the trial court disregarded statutes and case law by allowing the case to continue into the discovery phase.

This paper gives a basic overview of the hurdles faced by public figures in filing a defamation case. It examines and explains journalistic privileges in reporting on public figures and how these privileges were applied by the trial court. It examines various statutes and case law binding in New Jersey and New York at the time of the suit. This paper shows that this case was wrongly decided from the beginning and that it never should have moved into pretrial discovery. The trial court failed properly to apply the precedents of New Jersey or New York, and, as a result of this failing, a reporter was subjected to an endless stream of interrogatories, discovery, and legal harassment by a wealthy public figure. Indeed, this story is the embodiment of the motivations for press shield laws, and the importance of these laws in a democratic society.

Wednesday, December 16, 2020

Mass. anti-panhandling law violates First Amendment

Flickr by Alex Proimos CC BY-NC 2.0
The Massachusetts Supreme Judicial Court yesterday struck down a state anti-panhandling statute as a facially unconstitutional violation of the freedom of speech.

Disparate treatment of solicitation was the statute's fatal flaw.  The law exempted newspaper sales and police-permitted nonprofit solicitations in public streets.  The disparity proved the statute to be a content-based speech restriction that could not withstand First Amendment strict scrutiny in a public forum.

The case arose from prosecution of two low-income men in Fall River, Massachusetts, who, with "homeless" signs, solicited donations from passing motorists.  They were jailed for summons and probation violations, respectively, following criminal complaints initiated by police.

The district attorney conceded the unconstitutionality of the statute at least as applied, but Fall River and its chief of police defended the law.  The statute pertains broadly to signaling or stopping a vehicle "for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise," a probably permissible scope.  But the law raises a content-based free speech problem when, subsequently, it purports to exempt newspaper sales and nonprofit solicitations.

Applying strict scrutiny, the Court ruled the law both overinclusive and underinclusive.  The law would punish speech that poses no threat to public safety while also exempting speech that threatens public safety no differently from panhandling.  Underinclusiveness, the Court observed, is additionally problematic in strict scrutiny because it undermines the compelling state interest asserted in defense of the statute.

The Court refused efforts to save the statute by partial invalidation or severance, finding the law's "constitutional infirmities ... pervasive."  The district attorney would have had the Court invalidate the statute only insofar as it prohibits solicitation of donations, rather than commercial transactions.  But that's too fine a line, the Court ruled.  The difficulty of distinguishing car-side commercial exchanges from noncommercial interactions would chill permissible speech intolerably.

Severing the exemptions also was a non-starter.  The law would then prohibit signaling or stopping cars for nearly any reason, including political expression that lies at the core of First Amendment protection.  Such a broad prohibition was not the legislature's intent, the Court reasoned.  Comparing the instant case with First Amendment precedents in this respect, the Court found the anti-panhandling law more akin to the expansive yard-sign prohibition struck down in City of Ladue v. Gilleo (U.S. 1994) than to the robocall exception narrowly invalidated by the Supreme Court in July.

By my estimation, it is possible for the Commonwealth legislature to chart a constitutional course for a car-side anti-panhandling law in Massachusetts.  But it will be a navigation between Scylla and Charybdis.  A law that will satisfy the Court should anchor itself in public safety and not distinguish among the motives of actors who may approach cars in live traffic lanes.

The case is Massachusetts Coalition for the Homeless v. City of Fall River, No. SJC-12914 (Dec. 15, 2020).  Justice Barbara A. Lenk authored the opinion of a unanimous Court.

Monday, December 14, 2020

Emergency orders survive constitutional scrutiny; Mass. Court cites Korean War, smallpox cases

The Massachusetts Supreme Judicial Court (SJC) ruled Thursday that pandemic emergency orders of the Commonwealth Governor were valid under the Massachusetts Civil Defense Act and public health law, rejecting challenges based in state and federal civil rights, including due process and the freedom of assembly.

Defunct Youngstown Sheet & Tube Co., 2006 (stu_spivack CC BY-SA 2.0)
The Court borrowed doctrine from U.S. constitutional law on separation of powers, Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952), a case about President Truman's seizure and operation of steel mills during the Korean War.  The SJC used Youngstown and the concurring opinion of Justice Robert H. Jackson to reason that Governor Charlie Baker acted at the zenith of executive power, because he acted within broad statutory authority.

Official portrait of Justice Jackson,
by John C. Johnsen, Collection of the
Supreme Court of the United States, via Oyez
In Youngstown, Justice Jackson set out a three-part rubric to test the strength of executive power, whether bolstered by congressional authorization, occurring amid legislative silence, or arising in defiance of legislative imprimatur.  Though not without controversy attaching to the communitarian result in the context of government seizure of private enterprise, Justice Jackson's famous test has been committed to memory by law students studying for the bar exam for generations.  Justice Jackson was Attorney General to President Franklin D. Roosevelt, so loyal to the New Deal.  Roosevelt appointed Jackson to the Court in 1941.  While a Supreme Court Justice, Jackson also served as chief U.S. prosecutor in Nuremberg after World War II.

Ruling the pandemic within the scope of "other natural causes" of emergency under the Civil Defense Act (CDA), the Court indicated also that it was not shirking its oversight role:

[W]e emphasize that not all matters that have an impact on the public health will qualify as "other natural causes" under the CDA, even though they may be naturally caused. The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level. Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the CDA, are contemplated for coverage under the CDA. Therefore, although we hold that the COVID-19 pandemic falls within the CDA, we do not hold that all public health emergencies necessarily will fall within the CDA, nor do we hold that when the public health data regarding COVID-19 demonstrates stable improvement, the threshold will not be crossed where it no longer constitutes an emergency under the CDA.

Mass. Gov. Baker (Charlie Baker CC BY-NC-SA 2.0)
Relative to civil rights, the Court recognized the Governor's argument under Jacobson v. Massachusetts (U.S. 1905).  A federal Supreme Court case that arose in Cambridge, Massachusetts, at the turn of the century before last, Jacobson has been cited widely lately, amid the coronavirus pandemic, because in Jacobson, the Court upheld an ordinance requiring vaccination for smallpox as a valid exercise of state police power.

Critics fairly argue that Jacobson is read too broadly as a constitutional authorization of mandatory vaccination.  Among points of distinction, the upheld ordinance merely subjected an objector to a five-dollar fine—about $150 today, much less than the individual-healthcare-mandate penalty before Congress zeroed it out.  More importantly, Jacobson predates the complex system of multi-tiered constitutional scrutiny that the U.S. Supreme Court devised under the due process clauses of the Fifth and Fourteenth Amendments in the 20th century. 

Justice Cypher
The SJC quoted Jacobson's logic in some detail "as an initial matter," but declined to give the Governor carte blanche, instead applying 20th-century due-process scrutiny.  The Court rejected procedural due process arguments because the emergency orders occasioned no individual adjudication, and rejected substantive due process because the generally applicable orders satisfied rational-basis review.  The selection of "essential" businesses was non-arbitrary and did not treat disparately any protected class, such as religious institutions.

Similarly with regard to the freedom of assembly, the Court regarded the emergency orders as valid time, place, and manner restrictions, appropriately narrowly tailored to a significant government interest in intermediate scrutiny, leaving open ample alternative channels of communication.

The case is Desrosiers v. Governor, No. SJC-12983 (Mass. Dec. 10, 2020).  Justice Elspeth B. Cypher authored the opinion for a unanimous Court.

Thursday, December 3, 2020

Tort liability brakes U.S. policy shift on Sudan, marks crossroads of past, future where Africa meets Arabia

Street corner in the Arabian Market district of Khartoum
(RJ Peltz-Steele CC BY-NC-SA 4.0)

With economic sanctions exacting an intensified toll amid the pandemic and humanitarian crises fraying the peace at political borders, 40 million people in the East African Republic of Sudan may hope that long awaited normalization of relations with the United States will bolster stability and produce prosperity.  Meanwhile, in Washington, American tort claims have thrown a wrench into the diplomatic works.

Smaller Sudan after 2011 (LouisianaFan CC BY-SA 3.0)

Unending War

Before its 2011 division into north and south, Sudan was the largest country in Africa.  Its location is strategically important.  Sudan borders Libya and Egypt to the north, the lifeline of the Nile flowing into the latter.  The country's Red Sea coast positions Port Sudan opposite Jeddah and Mecca.  Chad and the Central African Republic (CAR) sit to the west, and Eritrea and Ethiopia to the east—where more than 40,000 Ethiopian refugees have fled conflict and now strain Sudan's thin resources.  Tumultuous northern regions of the Democratic Republic of the Congo (DRC) and Uganda, the latter yielding the Nile, lie in reach of South Sudan's capital, Juba, along with a disputed stretch of border with Kenya.

At last abandoning imperial ambition in 1953, the British left Sudan to the tempest of regime rise-and-fall that tragically characterized post-colonial power vacuum in Africa.  The country declared itself independent in 1956, but for a quarter century, no one form of government would stick.  An Islamic state brought about some political consistency in 1983, but plenty of ills, too: reigniting civil war between north and south, and paving the path of three decades' dictatorship and an abysmal human rights record under President Omar al-Bashir, from 1989 to 2019.

Part of embassy bombing memorial in Dar es Salaam
(RJ Peltz-Steele CC BY-NC-SA 4.0)
Relations with the United States went from bad to worse after Sudan backed Iraq in the 1990-91 Gulf War.  Osama bin Laden took up residence in Khartoum for five years at that time.  He built a favorable reputation for philanthropy by building legitimate businesses and financing infrastructure projects, such as the main highway, named for him, linking Khartoum to Port Sudan.  In 1993, the United States listed Sudan as a state sponsor of terrorism.  Under U.S. pressure, Sudan expelled bin Laden in 1996.  But Sudan was not spared blame when al-Qaeda bombed the U.S. embassies in Tanzania and Kenya in 1998, killing 224 people, including 12 U.S. citizens, and injuring thousands.  U.S. retaliation included a cruise-missile strike against a Khartoum chemical plant—unfortunately and very likely a target accused erroneously of complicity in chemical weapons manufacture.

Ironically, the bin Laden-orchestrated terror attacks of September 11, 2001, set Sudan and the United States on a winding road of fits and starts toward reconciliation.  U.S. President George W. Bush recognized the need for American allies on the East African doorstep to the Middle East.  U.S. policy leveraged austere sanctions to incentivize Sudanese cooperation in counter-terrorism, and the Bashir regime was supportive.

Sudan needed help, too.  The civil war between the Islamic government in Khartoum and the Sudan People's Liberation Army (SPLA), started in 1983, had never ended.  The exhausting conflict, which ultimately cost more than 2 million civilian lives, was dragging into one of the longest civil wars in modern history—besides that it was really a sequel to the never-quite-resolved first Sudanese civil war of 1955 to 1972, another tragically typical consequence, in part, of arbitrary colonial political borders.  Multi-national diplomatic interventions helped at last to draw the war to a close in 2005.  The peace agreement led to the secession of South Sudan in 2011, a development that seemed promising at the time, but since has seen the two states teetering ceaselessly on the brink of combustion.

A spellbinding sampling of the human toll of the civil war can be found in Dave Eggers's What Is the What: The Autobiography of Valentino Achak Deng (2006).  Spanning events from 1983 to 2005, the book is an artfully novelized memoir of a real child refugee among Sudan's "lost boys."

In 2017, the Obama Administration further loosened sanctions on Sudan.  A coup in 2019 sent Bashir from office the same way he came in, and in 2020, Sudan reconstituted itself as a secular state.  Al-Bashir, 76, is now in prison for corruption.  Marking a significant policy reversal, the government has signaled that it might be willing to turn Bashir over to the International Criminal Court for prosecution in connection with the genocide in Darfur during the second civil war.  In October, the Trump administration moved to clear the way for U.S. businesses to reenter Sudan, bargaining the country's de-listing as a state sponsor of terrorism in exchange for Sudanese recognition of Israel.  The administration was accused of too-little-too-late effort to bolster its foreign policy portfolio in the run-up to the 2020 election, but, at this point, the end means more than the motive.

Persistent Perseverance

In short order, Sudan has transformed from war-torn religious state, ruled by a dictator accused of crimes against humanity, to secular constitutional democracy, pivotal in Middle East peace and primed for western commercial investment.  In other words, Sudan might be in the midst of a remarkably rapid transition from paradigmatic problematic state to African success story.

View of Khartoum and the Nile from Corinthia observation level
(RJ Peltz-Steele CC BY-NC-SA 4.0)
Long acquainted with the hardships of war and sanctions, the Sudanese have persevered, developing a resilient infrastructure and an enviable standard of living, especially relative to neighbors such as the CAR, the DRC, and Eritrea.  Sudanese teens wield smartphones in the dustiest of wayside villages.  Sudan has oil and refining capacity, though the division of natural resources between north and south remains a key cause of simmering contention.  The Khartoum skyline is dotted with structures infamously financed by deliberate defiance of sanctions.  Representative is the Corinthia Hotel: opened in 2008, the oval-shaped building is called "Gaddafi's egg," because Libya paid for its €80m construction.

Wayside fuel and rest area, Shendi-Atbara Road, Al Buqayr
(RJ Peltz-Steele CC BY-NC-SA 4.0)

At present, Sudan has one arm tied behind its back.  Trucks sit idle in fuel queues.  Western credit cards don't work; cash is king.  For better and worse, local products, mostly MENA-manufactured, substitute for the usual globalized glut of soda and snack options in the convenience stores, excepting the universe's inexplicably irreducible constant, Coca-Cola.

If sanctions go away, an energizing flow of auto parts, industrial equipment, transnational banking services, and development of telecommunication and physical infrastructure will irrigate Sudan's thirsty landscape.  The new constitutional government will be boosted to a threshold on prosperity unprecedented in the nation's history.  Already in June, the UK announced a £150m commitment to ease democratic transition and coronavirus impact by combating inflation and poverty.  Sudan unbound stands poised to achieve African development in a region that's long been starved of a win.

But There's a Hitch

Tort liability in U.S. courts is presently a sticking point in negotiations over normalization of U.S.-Sudanese relations and the entry of American enterprise in Sudan.  In 1996, Congress amended the Foreign Sovereign Immunities Act (FSIA) to allow civil lawsuits against foreign state actors for support of terrorism.  Survivors and families of victims of the 1998 embassy bombings sued Sudan in 2001.  The lawsuits floundered in the 20-aughts amid confusion over what plaintiffs, defendants, and causes of action Congress intended to authorize.  In 2008, Congress clarified the law on those questions and revived the earlier suits.

Subsequently, plaintiffs, numbering more than 700, won an award in federal court of $10.2bn, including $4.3bn in punitive damages.  The D.C. Circuit struck the punitive damages, doubting that Congress intended to authorize punitive recovery retroactively.  In May 2020, in Opati v. Republic of Sudan, the U.S. Supreme Court disagreed, vacating the striking of punitive damages and remanding for the lower courts to reconsider.  Litigation questions remain on remand.  The defense might yet challenge the constitutionality of the retroactive authorization of punitive damages, and it's not clear whether Congress intended foreign plaintiffs to be eligible for punitive awards.  Still, the massive compensatory award stands ripe for harvest.

Sen. Schumer in October (Senate Democrats CC BY 2.0)
All that litigation might, however, amount to naught if Congress acts again.  As a condition of the current agreement over sanctions and Israel, Sudan wants free of the Opati judgment.  In October, the State Department indicated willingness to negotiate immunity for Sudan against liability for past acts.  But that immunity would require another change of law, and Congress is not yet on board.

According to a report in Tuesday's New York Times, Sudan has offered a settlement of $335m, undoubtedly a more realistic number than multiple billions.  But Sudan has threatened to exit the agreement in whole if Congress doesn't authorize immunity by year's end.  Deadlocked legislators are trying to broker a compromise through a military spending bill in these first weeks of December.  To the displeasure of some in Congress, the working proposal would compensate U.S. citizens naturalized subsequently to the 1998 attacks less than those who were citizens at the time—working a de facto racial disparity.

Even if the 1998 claims can be resolved, a bigger hurdle looms in the prospect of blanket immunity-to-date for Sudan.  While Sudan did defend the embassy-bombing lawsuits on grounds of FSIA interpretation, it has not responded to the legal claims of, The Hill estimates, about 3,000 family members of September 11 victims who blame Sudan for bin Laden's five-year safe harbor there.  According to the New York Times story, those plaintiffs have the support of Senate leader Chuck Schumer (D-NY) to see that their claims are not extinguished.  It seems unlikely that a closely divided Congress would have any appetite to favor foreign tranquility over September 11 victims, no matter how much U.S. businesses are chomping at the bit to trade in Sudan.

Local heroes (with a smartphone) atop Jebel Barkal
(RJ Peltz-Steele CC BY-NC-SA 4.0)
Last Week in Sudan

Here in the United States, if we hear about Sudan, it's likely to be in the context of civil war atrocities, the human rights abuses of the Bashir regime, or Middle East tensions.  Yet last week in Sudan, I saw little evidence of those worldly matters.  On the roads of Khartoum, in the markets, and in the countryside, I found only a gracious and warm people, a rich Nubian cultural tradition, and a stunning archaeological record of our shared human heritage.

Your interpid blogger at the Nuri Pyramids
(Steven Mueller CC BY-NC-SA 4.0)

Both of those views, the ugly and the beautiful, the grim and the genial, are Sudan.  We disregard the former at our hazard.  But to disregard the latter, we risk much more.

Sudan is the beating heart of the African continent.  Sudan will not forever be deterred by colonial legacy and the politics of aging superpowers.  However we manage to balance redress for past wrongs with a way forward, America will have to decide how to be a part of Sudan's future.  The only alternative will be to join the crumbling desert relics of Sudan's past. 

UPDATE, Dec. 13, 2020: See Conor Finnegan, Trump admin offered $700M to 9/11 victims to save Sudan deal, ABC News, Dec. 11, 2020.  UPDATE, Dec. 20, 2020: Sudan's Listing as Sponsor of Terrorism Ended by US, BBC, Dec. 14, 2020.