Showing posts with label #MeToo. Show all posts
Showing posts with label #MeToo. Show all posts

Saturday, November 7, 2020

Depp defamation suits in US, UK see London setback

Heard and Depp in 2015 (GabboT CC BY-SA 2.0)

Johnny Depp is fighting accusations of spousal abuse in defamation suits in England and the United States.  Apparently, I can't be disillusioned often enough about actors I like

At the excellent INFORRM blog, Kirsten Sjøvoll of Matrix Chambers (here) and University of Essex Law Lecturer Alexandros Antoniou (here) have the latest about Depp's suit in London, in which the defense of substantial truth has been asserted successfully.

Sjøvoll explained, "In this case, it was also not necessary for the Defendants to prove that each and every incident or allegation of domestic [violence] relied upon took place. It was enough for them to establish that it was substantially true that Mr Depp had been violent towards his ex-wife during the course of their marriage."

Outside the courtroom, Sjøvoll observed, "an army of Depp fans" have stated "strong views about the evidence via Twitter," including ridicule of Justice Andrew Nicol.  The case meanwhile has generated ample lurid detail in entertainment news about Depp's rocky relationship with ex-wife Amber Heard.

Post op-ed,
from Va. complaint
Sjøvoll and Antoniou wrote that truth was a risky defense strategy for defendant News Group Newspapers (NGN), publisher of The Sun.  When a defendant asserts truth under the 2013 UK Defamation Act, the defendant assumes the burden of proof by preponderance ("balance of probabilities").  Sjøvoll wrote:

A libel defendant who seeks to establish that the words complained of are substantially true takes a considerable risk that, if unsuccessful, the damages they may be liable for will be significantly increased. The costs of a trial in which the truth of the allegations are in issue are also likely to be much higher. Indeed, in the Depp case, it was notable that both parties instructed leading criminal counsel to conduct the cross examination of the key witnesses in addition to media law specialists. 

Depp has vowed to appeal, and Sjøvoll and Antoniou noted that he also is pursuing related defamation litigation in the United States.  Depp is suing Heard in Fairfax Circuit Court, Virginia, over a #MeToo op-ed she published in The Washington Post in 2018.  The op-ed did not refer to Depp by name, but Heard wrote about how she became "a public figure representing domestic abuse" at the time of her divorce from Depp.  The case is steaming through contentious discovery with a flurry of foreign subpoenas.

The case in London is Depp v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), Nov. 2, 2020.  The case in Virginia is Depp v. Heard, No. CL-2019-2911 (Va. Cir. Ct. Fairfax County filed Mar. 1, 2019).  HT @ Private Law Theory.

Monday, June 3, 2019

Teaching Trump: Four Thoughts for Faculty

Saturday morning, at the annual meeting of the Law and Society Association (LSA) in Washington, D.C., I served on a panel about "Teaching Law in the Trump Era."  My thanks to panel chair John Bliss, University of Denver Sturm College of Law, Swethaa S. Ballakrishnen, UC Irvine School of Law, and other founders and leaders of the new LSA Collaborative Research Network #19 on legal education, for organizing this program.  Here is the panel abstract:

The Trump presidency has reportedly attracted a new wave of law school applicants who are motivated by issues ranging from sexual assault, to racial justice, to the rights of immigrants, to the basic foundations of the rule of law. In this context, how do U.S. law teachers address legal and political headlines that many faculty and students find disconcerting? This session offers diverse perspectives on this question from accomplished law faculty who teach a wide range of legal curriculum.
Trump in the classroom.  Literally.  White House photo.
For my bit, I focused on President Trump-related materials I used to teach defamation in Torts II in March 2019.  In class, I assigned as reading the complaint in Zervos v. Trumpbefore the New York Appellate Division at the time—alongside Justice Thomas's opinion on cert. denial in McKee v. Cosby.  The pairing of a pleading and a scholarly judicial opinion allowed a study first of tort doctrine, and then of constitutional and policy dimensions, all the while with a running contemporary thread of "#MeToo," which ran back to our fall 2018 study of intentional torts.  Outside of class, in review sessions, I used Melania Trump's 2017-settled complaint against blogger Webster Tarpley (Variety).  These "Trump cases" afford ample opportunity to explore skills and practice collateral to the law of torts, such as litigation strategy, legal professionalism, and client counseling.

Professor Bliss suggested that we fashion our presentations around student feedback and reactions to Trump-related materials.  To that end, I solicited input from my class (and from colleagues in academic support).  Five students generously took time from their after-exams pursuits to oblige with deeply thoughtful, sometimes moving, and thoroughly informative feedback.  I am grateful to them.  I extracted their words, anonymized, for use in my panel time.  I won't reiterate them here as to further protect their anonymity. But I'll share four conclusions about "teaching Trump," drawn from this feedback. 

(1) Plan well and stay on course.  Because this content tends to evoke strong emotions, it is important for the teacher to map out an agenda about where the class discussion should go, in consonance with what the materials offer.  Then the class must be kept on task.  This might require more involved moderation of class discussion than is the norm for some teachers.  Students will sometimes make observations driven by emotion and supposition, and that's OK.  But those observations need to be responded to with channeling into constructive analysis.  If for example a student says that the plaintiff is grubbing for money, that's a great springboard for legitimate questions, without having to challenge or verify the premise: How does tort doctrine safeguard, or not, against disingenuous claims?  What are the incentives or impediments for plaintiffs and their lawyers, born of transaction costs?  How does a lawyer counsel a client about uncertainty of recovery?

(2) Avoid assumptions and keep an open mind.  The teacher should not suppose that she or he knows what the students are thinking, whether as a group or to an individual.  Someone in the class is a Trump voter and believes he is America's only way forward.  Someone else regards Trump as a source of post-traumatic stress.  They're not always showing you these reactions, for various reasons.  And they're not necessarily who you think they are. Take care not to make assumptions about where people stand.  One student who wrote to me really forced me to turn over the immigration "wall" issue in my own mind, and I learned a great deal from her different perspective.  Isn't the great thing about being a professor that continuing education is part of our job?

(3) Model professional skills.  When a teacher leads a law school class, students are learning doctrine, but they're also "meta-learning" lawyering skills such as leadership and dispute resolution.  How a teacher manages conflict in the class and moderates discussion will be as important and memorable a lesson for some students than the subject matter being taught.  For this reason, teachers need to be deliberate in and thoughtful about pedagogical methodology.

(4) Lighten up.  Yes, our content in law school can be heavy.  We have to talk about things in the classroom that reveal the absurdity of "trigger warnings," because life doesn't come with a warning label, and law is about life.  But it is possible—if hard—to engage with heavy issues and to do so with a light heart.  Guidance can be drawn from some recent developments in comedy—think Hannah Gadsby and Ellen DeGeneres—to show that humor can be accomplished without it being at anyone's expense.  Don't get me wrong; I love a good insult comic.  Just not at the front of the classroom.  One student who wrote surprised me with the observation that a light joke I made diffused tension over the fraught subject and made students feel comfortable participating.  Now if only I could remember what I said.

These conclusions entail work for any teacher, no matter how experienced.  I am far, far from excellent in realizing these lessons.  But feedback from my students has given me goals.

Thanks also to excellent co-panelists at LSA, and to all the teachers and scholars who contributed to the roundtable discussion.  I have appropriated many of their insights and ideas for further exploration and experimentation.  Co-panelists were Scott Cummings, University of California, Los Angeles; Rashmi Goel, University of Denver Sturm College of Law; and Gwendolyn Leachman, University of Wisconsin Law School.




Attention faculty!

 Dean Peltz-Steele and I are collaborating to produce an open-source resource for faculty in law and related fields to teach law and policy through "Trump case" materials.

Stay tuned for more information about "Trump Law."



Tuesday, February 26, 2019

Let's 'open up our libel laws': I'm with Thomas

There's been a blustering rash of hand-wringing in journalism and First Amendment circles over the recent concurrence to cert. denial by Justice Thomas in McKee v. Bill Cosby (SCOTUSblog).  The case would have asked when a victim of sexual assault becomes a limited-purpose public figure after publicizing her allegation.  Based on First Amendment doctrine dating to the 1960s, famously including New York Times Co. v. Sullivan (U.S. 1964) (Oyez), a limited-purpose public figure must prove actual malice to prevail in a defamation claim.  That's very hard to do.  The First Circuit affirmed dismissal in favor of Cosby. 

"Actual malice"—ill named, as it does not have to do with anger or ill will, which is "common law malice"—is akin to the recklessness standard of tort law.  In a defamation context, "actual malice" is said to mean "knowledge of falsity or reckless disregard as to truth or falsity."  Supreme Court precedents late in the civil rights era amped up "reckless disregard" so much that for many years, actual malice seemed to be a nearly "fatal in fact" test.

Based only on casual observation, I posit that actual malice's rigor has been weakening in recent years.  Courts have begun to recognize the need to fine tune the balance between reputational and speech rights.  Meanwhile, "actual malice" has had a rough go in the world, even among our fellow human rights-loving western democracies.  Actual malice has been largely rejected as a functional standard for its insufficient protection of reputation as a human right countervailing the freedom of expression.  (My colleague Prof. Kyu Ho Youm paints a different picture.  I deeply admire Prof. Youm, a dear friend, and his work, which I have assigned students to read.  But I sharply disagree with his conclusion on this point.)

In his concurring opinion in McKee, Thomas challenged the constitutional imperative of the actual malice standard, which is so much higher than negligence and strict liability.  His argument was not so narrow, however.  Broadly, he proposed that the Court reconsider the fundamental premise that the the federal Constitution, through the First Amendment, should reshape state tort law, as the Court held it did in the civil rights-era cases.  Thomas is a champion of textualism and originalism, and it must be admitted that the Court's First Amendment doctrine from the latter-20th century is on thin ice in those schools of constitutional interpretation.

This blog, any blog, is far from an adequate venue to tackle this question.  I just want to do my part to raise consciousness of Thomas's proposition, and to dare to say, I agree.  For many years now, I have harbored a deep suspicion of Sullivan and progeny.  In my academic circles, especially in the free speech and civil liberties crowd, I have felt something like a church deacon harboring a dark secret.  No longer; I confess:

Actual malice swung the pendulum way too far in favor of defendants.  I get why, and I appreciate the good intentions.  Sullivan arose against the tragic reality of the Jim Crow South and the potential national crisis precipitated by desegregation.  But even Anthony Lewis, in his definitive book on Sullivan, Make No Law, recognized that the Court's federalization and constitutionalization of state defamation law had the ill effect of freezing the process of common law evolution.  As a result, we have been deprived of the opportunity to experiment with fair and equitable policy alternatives, such as media corrections as a remedy.

I'm not arguing to "open up our libel laws," quite as President Trump proposed.  But I'm with Justice Thomas.  Sullivan is not holy writ.

Tuesday, September 18, 2018

'Have You Seen This Man?': Student newspaper editor on libel hook for campus crime coverage

A suit for defamation and intentional infliction of emotional distress (IIED) may proceed against the former editor of the college newspaper at UMass Boston (UMB) since the Massachusetts Appeals Court reversed summary judgment for the defendant today.  The case, Butcher v. University of Massachusetts, No. 17-P-161 (Mass. Ct. App. Sept. 17, 2018), raises a buffet of compelling issues for the media law buff, to say nothing of the specter of student journalism's uneasy relationship with public university oversight.

The facts are complicated and controverted.  Plaintiff Butcher worked in IT at UMB and took pictures with his cellphone while on a university shuttle bus.  The bus driver accused him of taking pictures of women on the bus; Butcher maintains that he was taking pictures of buses and structures.  After a verbal confrontation, the bus driver and Butcher took pictures of each other.  The driver sent pictures of Butcher to UMB police.  Butcher, using a pseudonym to protect his privacy, he asserted, complained about the bus driver to UMB public safety.

The student newspaper published an item from the police blotter based on the bus driver's report.  That item recounted that "[a] suspicious white male in a black jacket took photographs and video of nearby women, as well as some buildings on campus."  Soon thereafter, the newspaper published in print and online an additional report with the pictures of Butcher and the headline, "Have You Seen This Man?"  The latter report stated that "the man in the photograph allegedly walked around the UMass Boston campus snapping pictures of female members of the university community without their permission."  The gravamen of Butcher's complaint arises from the suggestion that he is some kind of sexual predator.  The newspaper moreover erred in stating that Butcher was reported by a student rather than by a bus driver, and that Butcher took pictures "around ... campus" rather than on the bus.

Identification followed from the newspaper publication of the photographs.  Campus detectives interviewed Butcher and took his university-issued phone over his objection.  Inspection of the phone revealed only the bus and structure photos Butcher had said he took.

Butcher complained of extreme social and professional alienation as a result of the newspaper publications.  He alleged exclusion from important projects at work, "fear and loathing" in stares on campus, and harassment by bus drivers compelling him to walk rather than take the shuttle.

The superior court dismissed claims against UMass on grounds of sovereign immunity and awarded summary judgment on the merits to former student newspaper editor Cady Vishniac.  See her compelling UMass Boston alumna testimonial at the Boston Institute for Nonprofit Journalism.  The Appeals Court reversed as to Vishniac.  Here comes the buffet:

The substantial truth doctrine protected the newspaper on the small stuff.  The appeals court agreed with the lower court that defamation did not arise in the newspaper's plain errors--whether a student or a bus driver reported to police, and where the pictures were taken--because the gist or sting of the erroneous reporting was substantially the same as had the report contained the truth.  I think "around campus" sounds worse than on a bus, but OK, tomato, tomato.

The fair report privilege did not protect the newspaper's recitation of a witness statement to police.  Consistently with state high court precedent, the Appeals Court held that the fair report privilege--which gives journalists latitude to restate even defamatory falsehoods reported in official records, lest the public not be able to ascertain the use of erroneous information to support official action--is not triggered until there is an official police action, such as an arrest.  Because Butcher was not arrested--indeed, because there was no evidence to support an arrest--the fair report privilege never kicked in.  On the one hand, this is a logical construction of the privilege, as without an arrest, the risk of circulating defamatory falsehood outweighs the risk secreting falsehood as a basis of official action. On the other hand, this is a big heads up to editors--from high schools to pros--who mindlessly reprint the police blotter: the allegations of witnesses are as good as direct quotes and need to be fact checked as such.  The common law maxim rings true: the tale bearer is as responsible as the tale maker.

Actual damages include general damages, and reputational injury renders general damages.  Hear me now, believe me later, I say when I teach Gertz v. Robert Welch, Inc.: a limitation to actual damages does not mean only special damages!  Massachusetts law allows defamation to stand only on, and afford recovery only for, actual damages.  The defense here seems to have argued that that rule would preclude Butcher's recovery for want of demonstrable economic loss.  The court observed that Butcher moved on to another job that pays better, though had to forgo his pension plan, so economic loss is not a gimme.  No matter.  Butcher's alleged marginalization at work and social alienation on campus amply support his claim of reputational injury, and that's an actual damage with mental anguish as consequence, notwithstanding proof of economic loss.  General damages for reputation can be substantial in the eyes of jurors, especially jurors who have a distaste for mass media defendants.

Outrageous!  Like other states, Massachusetts allows IIED to proceed only upon conduct that would cause an ordinary person to proclaim, "Outrageous!"--i.e., as the Second Restatement put it, "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."  Does "Have You Seen This Man?" fit the bill?  Well, maybe: when viewing the facts in the light most favorable to the party not moving for summary judgment, "as we must" according to the rules of civil procedure, the Appeals Court recalled.  I agree.  A colleague once told me that there are two allegations that destroy a person's reputation virtually beyond repair, even if proved untrue: child molester and racist.  In the #MeToo era, there might be a third.  However much those allegations might masquerade as "opinion" or mere suspicion, they have the force of factual declaration and are socially, if not also economically, fatal.

A subtext in the case is the problem of student journalism's editorial independence at a public university.  For purposes of the litigation to date, Vishniac was represented along with UMB by university counsel.  Will that representation continue now that the university has been dismissed?  Were the university's and Vishniac's interests always interchangeable anyway?  Is UMass Boston prepared to indemnify Vishniac?  Certainly I empathize with Vishniac.  One does not become a college newspaper editor and figure on having to take out libel insurance--whether for me at 20 years old or for Vishniac as a non-traditional student juggling family and educational opportunity.  But media at public universities have long asserted editorial independence by arguing, logically, that a heavy hand in university editorial control, prior review, or censorship would invite litigation against the university--so hands off!  If the university is on the hook either way, it's much more likely to heed demons' whispers when student journalists come 'round trying to follow the money.  And it's not like UMass Boston and money problems haven't met.

Finally, let's not be too quick to the ramparts in defense of journalism here, nor to rally the troops to #MeToo battle.  Notwithstanding the issue of whether the the newspaper reports implicated sexual-predator-like conduct, falsely, it seems to me that the newspaper has a bigger problem if even the bus driver witness only accused Butcher of "snapping pictures of female members of the university community without their permission."  Despite all efforts at making that seem creepy--the newspaper characterizing Butcher as "suspicious" and the bus driver claiming that Butcher hid his face when confronted--it happens that taking pictures of people in public places is legal in America.  It's true.  I checked.  No permission required.  Men or women, no matter.  Some might even call it art.  Europe a different story, long story, but different.  There are narrow exceptions, but they don't seem to be in play here.  I would like to learn that the police's first reaction to the bus driver's complaint was, "Sorry, you said 'suspicious'; could you say a little more about that?"

With remand to superior court, this ain't over.  Happy Constitution Day!

[UPDATE, January 28, 2020:  On December 31, 2019, the SJC ruled, per Justice Lenk: "The decisive question in this case is whether a newspaper can be liable for republishing public police
logs and requests for assistance received from a police department. We conclude that, based on the particular facts of these publications, the fair report privilege shielded Vishniac from liability." Read more at
Butcher v. University of Massachusetts, No. SJC-12698.]

Friday, January 19, 2018

#MeToo much?


On Boston Public Radio yesterday, the usually staunchly civil rights-sensitive Jim Braude, a former union attorney, and media personality I admire greatly, said he's not so worried about due process where #MeToo condemnations are concerned.  Women have suffered oppressive exploitation for so long, historically, he reasoned, that if an accused suffers an inequity here or there today, it's a sacrifice he (or she) should be willing to make in the greater arc of justice.

I've been really upset about Braude's comment.  I haven't been able to let it go.   I've been off the blog a while, while fighting toward two Jan. 31 deadlines on different projects.  But I'm jumping on here to say my piece.

In fairness, I've taken Braude out of context.  He and co-host Margery Eagan were recalling an earlier discussion about the Aziz Ansari story.  Here's the initial essay at Babe.net that stirred the pot. It's concerning; I don't mean to take away from that.  But from Damon Linker at The New Republic, here's a good opinion in The Week that explains the longer view.  I'm sure Braude doesn't favor criminal prosecution, or even civil liability, without due process.  But there are painful and meaningful consequences that fall short of those penalties, and consequences may be warranted.  More than social and professional alienation is surely called for in countless cases, cited to Time by Linker.  From a legal standpoint, these cases sorely complicate the usual innocent-until-proven-guilty imperative because of our culture's tragic record of tolerating discrimination, exploitation, and silence, and now rapid evolution of norms.  Braude fairly raises the difficult question, if not formal due process, then what?

It especially raised my eyebrows to see Margaret Atwood on the "concerned" list in Linker's column.  Here's Atwood's piece in The Globe and Mail. Atwood told the story of a fired professor at the University of British Columbia.  Her recitation included this:

[A]fter an inquiry by a judge that went on for months, with multiple witnesses and interviews, the judge said there had been no sexual assault, according to a statement released by Mr. Galloway through his lawyer. The employee got fired anyway.

It happens that at this very moment, I have charges of gender discriminatory conduct pending against me--have had, since April 2017.  I've been admonished not to talk about it, and I will not say much.  What is salient, what #MeToo and Atwood's and Linker's columns compel me to report, is that I've been told that there is no evidence to support the allegations, but I have been recommended for punishment anyway.  That was months ago, and I still await my sentencing.

In my career, I have been falsely accused of racism, falsely accused of gender discrimination, and falsely accused of other serious charges.   I have suffered real loss and real hurt as a result.  So have my family and friends.

My question for Jim Braude and anyone who would forego due process for an accused: Will you step down from your career, give up your livelihood and support for your family, upon a false allegation, because that's just a sacrifice you're willing to make for the greater arc of justice?  If I lose my job and cannot keep my daughter in college, pursuing a career in which women have been and still are marginalized, is that a worthwhile sacrifice for the greater good for gender equality?  Am I being selfish?