Report from a Social Distance Week 5: A Birthday, a Flood, and a Fire

April snow (RJ Peltz-Steele CC BY-SA 4.0)

My plan-B return to Africa in June was just canceled.  I kind of expected that.  Here in New England, it remains unseasonably chilly, lows this week at the freezing point, and highs usually in the low 50sºF, 12ºC give or take, and a mean wind chill.  One morning even brought a light snow.  The long-range forecast shows no warming for the remainder of the month.  We’re getting deeply anxious for the transition to spring, even as the names of the days have become arbitrary.  At least in this week 5 of isolation, we had occasion to celebrate a calendared milestone, my wife’s birthday.

What I’m Celebrating…

It was a Quarantine Birthday!

For my wife, I made a birthday cake!: a classic pound cake with hazelnut buttercream frosting.  I won no points on aesthetics, but the sweet taste was spot on.  I also made our dinner of vegetable pasta with mozzarella garlic bread, heavy on the garlic.  We had my wife’s favorite wine, Gazela vinho verde (she’s a cheap date).  And from her Amazon WishList, she received some admittedly non-essential but long desired Yuxier BBQ gloves (Spider-Man-style, but not really, because a Chinese maker wouldn’t dare test trademark).  Our daughter sent our favorite flavored honeys from the Savannah Bee Company, and there were lots of lovely cards: thanks, family and friends.

What I’m Reading

The Atlantic (May 2020).  The latest issue of my favorite magazine, The Atlantic, hit my doorstep this week, and I’ve never been happier to see it.  This month has the usual plenty of enthralling content, from an assessment of the fractured right in American politics (Robert P. Saldin and Steven M. Telles), to a photo study of social distance (Amy Weiss-Meyer), to an exploration of the everlasting allure of Scooby Doo (Christopher Orr)—this year’s May movie Scoob! will skip theaters.  Most-interesting-item honors go to MacDowell Colony fellow Francesca Mari’s “The Shark and the Shrimpers” for breaking down the legal system’s obscene exploitation of the BP disaster with faked compensation claimants.  The conduct of key plaintiff’s lawyer Mikal Watts, acquitted, I found frighteningly reminiscent of Ecuador v. Chevron's fallen star, Steven Donziger.  According to Mari, Watts even commissioned a documentary about himself; cf. Donziger’s PR panache.  Somehow, despite the well reasoned fury of U.S. District Judge Lewis Kaplan, Donziger last week wrangled the validation of 30 Nobel laureates.  That’s more Bizarro than the “liberate” tweets.

🙏 Our ongoing Bible reading has proceeded from First to Second Kings, and we’ve begun a Sunday Zoom study of my favorite book, James.  If you feel in need, or wish to support others, in these strange times, you are welcome to visit our church’s new virtual prayer wall, as well as Sunday service at 0930 US EDT.

What I’m Listening To

Floodlines (2020).  This eight-part audio series by Vann R. Newkirk II represents a first foray into podcasting for The Atlantic.  It’s a fascinating deep dive into the Hurricane Katrina disaster, exploring all angles, especially race and socioeconomic implications.  Newkirk skillfully weaves a narrative that traces New Orleans history from its roots in slavery to its contemporary demography.  A lot of what’s here wasn’t new to me, because, for work, I’ve done a more-than-normal amount of reading about Katrina, and I'm personally familiar with NOLA.  (The audio pacing is slow, and you can nudge up the speed if you use an intermediary such as Google rather than streaming from the home page.)  There’s still plenty here, though, for anyone, and maybe a lot for some: Katrina was 15 years ago, so young adults might not even remember it.  For my part, I had never heard of the case of Ivor van Heerden, who lost his academic post at LSU Baton Rouge in suspicious subsequence to his criticism of the Army Corps levees.  That one nugget from Floodlines part 3 sent me down a depressing rabbit-hole-reading of van Heerden’s ultimately unsuccessful litigation.  Academics, even with tenure, almost always lose to judges’ sycophantic deference to university bureaucrats, while a 2011 AAUP report had no trouble seeing through LSU’s pretext.  FIRE wrote about the importance of the van Heerden case just this week.

What I’m Watching

Code 8 (2019).  Eh.  It killed a couple of hours.  Did you know that Stephen Amell (Arrow) and Robbie Amell (The Tomorrow People) are first cousins?

For All Mankind s1 (2019).  A pandemic gift on free Apple TV+, I’m loving this series.  It’s not what I expected, and I don’t want to give away too much.  The premise of the show is an alternate history in which the Soviets won the moon race; that much was in the trailers.  Unexpected was the clever imagining of an alternatively unfolding history of American civil rights as a consequence of that pivotal national shame.  The title of the show turns out to have much greater significance than a fleeting reference to the Lunar Plaque or an innocent homage to Neil Armstrong’s famed phrase.  Joel Kinnaman returns to earth from Altered Carbon s1 to deliver a credible old-school astronaut struggling to find his place in a changing NASA, while Sonya Walger, as America’s top female astronaut, shines among an extraordinary cast of leading women.

KN Aloysh (Apr. 19).  My friend Komlan Aloysh launched his YouTube channel of interviews with African changemakers by sitting down to Zoom with Rhode Island-residing, Liberian tech entrepreneur Jacob Roland, founder and CEO of West Africa-serving Pygmy Technologies.  Their wide-ranging conversation reached from the transnational tech sector to Liberian food and culture.  Roland well observed, in whatever area one might wish to create, the Liberian market is ripe and ready.  And he tipped viewers off to top unspoilt beaches in Liberia, though I suggest you get there before Chinese developers do.  The show made me conscious of how much I am missing West Africa just now.

What I’m Eating

Bluewater Bar + Grill. This week's self-sacrifice (sarcasm) to #Save­Our­Restaurants went to a local institution and its generous and hard-working staff.  Our bounty included R.I. calamari, battered cauliflower, chili broccoli, burgers and truffle fries, and the pièce de résistance, cinnamon beignets worthy of their Louisiana heritage.

Bread machine.  “While you're watching Ozark and baking bread ... ,” Trevor Noah began a bit this week.  He had my number.  Ozark s3 is on the to-do list, and already I had dragged the bread machine up from the basement.  My aim was to save from waste the remaining brine from a finished jar of pickles.  For reasons unknown, my pickle-juice bread didn’t rise properly.  I got over the initial disappointment.  Though it was dense and a touch chewy, my undersized loaf was delicious, and I ate it up in the course of the week.

What I’m Drinking

New Orleans Blend.  My wife doesn’t usually care for dark roasts, but even she fell for this offering from Community Coffee.  Its rich texture kicks off your day with a Bourbon Street party in your mouth.  Maybe that’s the cabin fever talking, but laissez le bon temps rouler.

Bombay Sapphire East.  This geo-themed gin in classic Bombay blue boasts of Thai lemongrass and Vietnamese peppercorns.  I’m not sure I could distinguish it from straight Sapphire in a taste test, but I’m willing to pay for a foreign feel while stuck in the States.

Veiner Nössliqueur von Pitz-Schweitzer.  A yummy sample of hazelnut liqueur I picked up in Luxembourg: I used it in the icing for the birthday cake.  And maybe I sampled some according to the one-for-the-cup-one-for-the-cook rule.  The drinking policy at my work-from-home-place is super chill.

What I’m Doing to Stay Sane

Burn this.  Our town has suspended yard-waste pickup, so I collected from the yard and burned in the fireplace the winter season’s accumulated kindling.  We had a nice, hot fire for the birthday celebration.  Though I always worry whether the trees outside are alarmed by the smell of smoke from their fallen limbs.

This is the matrix.  Ramadan Mubarak to our Muslim friends, and blessed weekend to all.

Photos in Celebrating, Eating, Drinking, and Staying Sane are mine, CC BY-SA 4.0.

COVID-19 stresses United States on domestic borders; war analog might foster state solidarity upon federal power

Rhode Island Governor Gina Raimondo was recently
threatened with a lawsuit by New York Governor Andrew
Cuomo.  U.S. Air National Guard Photo
by Master Sgt Janeen Miller (2016).

I have just published at the new blog, Law Against Pandemic. Here is the abstract:

The coronavirus pandemic is stressing not only our healthcare systems, but our political and legal systems.  The pandemic has challenged our sense of identity in humankind, pitching us back and forth between a spirit of global solidarity and a competition of human tribes for resources and survival.  That tension plays out in our political and legal responses to the pandemic, manifesting the natural human temptation to tribalism in both international and intranational dimensions.

As policymakers struggle to respond to the pandemic and to curb the outbreak of COVID-19, I have been struck by the emergence of interstate tensions in the United States.  The pressure of the pandemic, aggravated by a slow and uncertain governmental response at the federal level, has been a brusque reminder that the United States are a plural: a federation of states that famously endeavored “to form a more perfect Union,” but that, like human governance itself, remains a work in progress.

Read more at the new blog, Law Against Pandemic

 

Grand jury secrecy is not sacrosanct

Actors reenact the Moore's Ford lynchings every year or two, lest the public
forget.  (July 26, 2014, photo by artstuffmatters, CC BY-NC-ND 2.0.)

Georgia Public Broadcasting reported recently (via NPR; see also WaPo (pay wall)) that the U.S. Court of Appeals for the Eleventh Circuit will soon decide whether to unseal the grand jury records pertaining to a 73-year-old lynching case.  Meanwhile, the Rhode Island Supreme Court ponders whether to open contemporary grand jury records in the "38 Studios" economic development scandal.  Both cases remind us that grand jury secrecy is not sacrosanct and must yield to paramount public interests.

GPB reported more in August about the brutal murders of Dorothy Dorsey Malcom, her brother, George Dorsey, and his wife, Mae Murray Dorsey, at the hands of a mob of 20 to 30 assailants at Moore's Ford Bridge, outside Monroe, Georgia, in 1946.  As many people were there, the crime remains "unsolved," as GPB's Grant Blankenship explained:

The crime made national headlines. Over the course of a grand jury investigation, the FBI interviewed over 2,000 people—almost half of the county in 1946. A hundred people testified before the grand jury, but not a single indictment was handed down.

Now historians seek to unseal the grand jury records to find out more about what happened that day in 1946 and why the investigation was unyielding.  The Department of Justice and Federal Bureau of Investigation are resisting.

Incidentally but importantly, the definitive book on the Moore's Ford case is Fire in a Canebrake: The Last Mass Lynching in America, by Laura Wexler.  I went to secondary school with Wexler, so #BrushWithGreatness.

I welcome public reminders that grand jury secrecy is not sacrosanct.  Grand jury secrecy is a reasoned and historically derived common law inversion of the usual presumption of transparency in our judiciary.  As such, it's an odd nod, for our typically ruthless paradigm of all-or-nothing privacy, to the importance of protecting the reputations of persons who might be connected with investigations, but turn out not to be fairly implicated as witnesses or suspects.

However, an inverted presumption is still a presumption, which means it can be overcome, or rebutted.  Equally historically, common law has allowed challengers in the public interest to overcome grand jury secrecy, for example, after Watergate.  Transparency is a means to accountability, and when a gross miscarriage of justice has occurred, as seems indisputable in the Moore's Ford case, the public interest in learning what went wrong in the investigation, and possibly delivering some belated justice, may be ruled paramount.

R.I. Gov. Raimondo
(Kenneth C. Zirkel
CC BY-SA 3.0)

Meanwhile, Rhode Island Governor Gina Raimondo is feuding with the state Attorney General's Office over access to the records of grand jury proceedings in 2014 and 2015 over the "38 Studios" economic development scandal.

As The Providence Journal recalled, "The state’s $75-million loan guarantee to retired Red Sox pitcher Curt Schilling’s high-risk video game venture ended up costing taxpayers a bundle when the company went belly up."  Criminal investigation was, again, unyielding.  "The statewide grand jury sat for 18 months, ending in 2015 with no criminal indictments. State lawmakers, former state Economic Development Corporation board members and staff, and 38 Studios executives were among the 146 witnesses the grand jury interviewed."

The ProJo summarized the pro and con of unsealing.  On the Governor's side, the state's attorney told the Rhode Island Supreme Court, 38 Studios marks "'a seminal event in recent Rhode Island history. It has cost taxpayers tens of millions of dollars. It has brought threats to the State’s credit rating.  It spawned a massive civil litigation resulting in $61 million of settlements. It caused the Securities and Exchange Commission to file a complaint against a state agency.... It prompted a criminal probe that reportedly touched the entire membership of the 2010 General Assembly (save one former member serving a federal prison sentence).'"

Kingdoms of Amalur: Reckoning was the only game published by 38 Studios

(and partners, including EA) before the enterprise went bankrupt.

The AG's office responded: "'[N]o one was indicted, the grand jury only recently concluded, the participants are still alive, and ... the [10-year] statute of limitations has not expired.... Unlimited disclosure ... may also adversely affect future grand jury participants who will be unable to rely upon the long-established policy that maintains the secrecy of the grand jury proceedings.'"

Ongoing payments to bondholders will cost R.I. taxpayers, me included, "$446,819 this year and an anticipated $12,288,413 next year," the ProJo reported.  I'm with Raimondo.  The Superior Court was not.

The Rhode Island Supreme Court heard oral arguments yesterday, November 7, In re 38 Studios Grand Jury, No. SU-2017-0301-A, but puts precious little online.  The ACLU of Rhode Island filed as amicus on the side of the Governor.

Smart graffiti graces Warren, R.I.

Caught some local art in the Clet Abraham tradition on my late-night homeward commute Monday.

Warren, Rhode Island, on Main Street opposite Child Street.

Social-science saucebox opines on bike-bridge closures

A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path.  Suffice to say, my testimony was breathless.


Watch at NBC 10 Providence.

Everyone's talking First Amendment

So this one was the vision of what happens if things don't go the way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now call the neo liberal left was ignoring workers' needs and was not paying attention to the things that give rise to populism and only the right was paying attention to those needs.

[Rorty] said, 'at that point, something will crack. The non-suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots.

'One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.'

—The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,

quoting the speculative fiction of philosopher Richard Rorty in 1997

The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library.  Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal.  Ian Donnis, political reporter for The Public’s Radio, will moderate.

The First Amendment has been much in the news lately, in our strange times.  Two items from my listen-and-read list.  First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.



In part one of three, Marantz challenges First Amendment absolutism.  That's not a big reach, but lays out the context for his discussion.  In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine.  It's familiar territory until he hits Citizens United (about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speech author P.E. Moskowitz.  The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.

The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality.  As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical.  Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.

Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection.  At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement.  Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.

Second, the SMU Law Review published a centennial anniversary symposium issue on the Schenck and Abrams "clear and present danger" cases.  These are the articles:

• The Lessons of 1919 by Lackland H. Bloom, Jr.
• Born in Dissent: Free Speech and Gay Rights by Dale Carpenter
• Inciting, Requesting, Provoking, or Persuading Others to Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence by Larry Alexander
• Speech and Exercise by Private Individuals and Organizations by Kent Greenawalt
• The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited by Ronald J. Krotoszynski, Jr.
• Dissent in a Crowded Theater by Mari Matsuda
• “And the Truth Shall Make You Free”: Schenck, Abrams, and a Hundred Years of History by Rodney A. Smolla
• Deliberative Democracy, Truth, and Holmesian Social Darwinism by Alexander Tsesis
• Falsity and the First Amendment by G. Edward White
• Originalist Reflections on Constitutional Freedom of Speech by Christopher Wolfe

Poli sci papers embrace power plant implosion, populist revolution, and constitutional convention

Here are a few of my favorite gleanings from yesterday's day one of the 2019 annual meeting of the New England Political Science Association in Portland, Maine, April 26-27, kicking off with the Brayton Point tower implosion this morning, Saturday, April 27.

---

The Brayton Point cooling towers are no more
(CC BY-SA 3.0 Wikimaster97commons).

Imploded towers invite study of environmental law, policy, and urban aesthetics

Professor Aaron Ley, on the faculty at URI Political Science and also a town council member in Bristol, R.I., is working at the point where environmental law and policy meet public aesthetics.

After presenting on Friday, April 25, Ley left NEPSA to get back to the Massachusetts South Coast and witness the implosion Saturday morning, April 26, of the cooling towers at Brayton Point.  The towers have become a defining feature of the skyline in the region, so their absence in the vicinity of Fall River, Mass., and eastern Rhode Island will be an adjustment for locals (me included).  Though oft invoked as a symbol of adverse environmental impact, Ley explained at NEPSA, the towers functioned actually to mitigate the impact of the coal-fired power plant they grace, because they cooled water before it was released back into the Taunton River, sparing fish and their eggs from destructive warm water.

Ley is working interdisciplinarily with colleagues Bryce DuBois, lecturer at the Rhode Island School of Design, and Katherine LaCasse, in psychology at Rhode Island College, to complete survey and conventional research into public perceptions of urban spaces relative to environmental law and policy.  At NEPSA, Ley detailed the fascinating history of policing pollution in American waterways, from riverkeepers back to bounties on the 19th-century Hudson.

---

Are we living in Google and Facebook 'company towns'?
They have courts now

Professor Kevin McGravey at Merrimack College is collecting and analyzing social media cases to see whether the First Amendment public forum doctrine still has some vitality in deciding these disputes, such as the President's ability to mute or block Twitter users.  See Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018) (holding President's blocking of users on Twitter violated First Amendment requirement of viewpoint neutrality; now on appeal to Second Circuit). Cf. Packingham v. North Carolina (U.S. 2017) (holding social media restriction on registered sex offender violated First Amendment.)

The Gulf Shipbuilding Corporation, pictured here after WWI, owned the
Chickasaw, Ala., company town at issue in Marsh v. Alabama after WWII.
From Destroyer History Foundation.

McGravey thinks that the old company town case of Marsh v. Alabama (U.S. 1945) is relevant.  He concedes that the Marsh analogy to a social media platform was rejected by the court in Prager University v. Google, LLC, No. 17-CV-06064-LHK, 2018 WL 1471939 (N.D. Cal. 2018) (now on appeal to Ninth Circuit), in which the court refused to intervene in YouTube classifications and restrictions of PragerU's conservative political videos.  (See Eric Goldman's skepticism of the Marsh theory.)  But McGravey disagrees on a number of grounds, including the exclusivity of certain social media platforms as access avenues to public officials.

A company-town analogy doesn't get all the way to where we should be, McGravey admits, but the public forum doctrine might ought be reformed and extended to achieve worthwhile policy goals such as viewpoint neutrality on Facebook.  Still sounds like a stretch?  Well, consider, Mark F. Walsh in the latest ABA Journal reports on Facebook's plans to create a quasi-judicial appellate body to hear free speech claims.  Google already is adjudicating—internally and not transparently—right-to-erasure claims at the bidding of European data protection authorities.  Is that the town hall bell of the company town I hear?

---

Federalism panel spans Rehnquist Court, religious freedom,
and the 1825 Constitutional Convention that never was

A smattering of views from a panel on federalism and the administrative state: 

• Christopher McMillion, Oklahoma Baptist University, is looking at the deep underpinnings of the "Rehnquist revolution" in federalism.  It's not about conservative politics, nor about federal power per se, he explained.  Rather, it's about protecting individual liberties—and actually the same kind of force can be witnessed in 10th-Amendment state jealousy of local officials' prerogatives relative to federal immigration enforcement.  
• Beau Breslin, Skidmore College, is working on a book on the constitutional conventions the United States has never had.  Surely Article V of the U.S. Constitution contemplated conventions with some periodicity.  What if we had had one about every human lifespan?  An 1825 Constitution probably would have opened with a lengthy declaration of rights and would have created an explicit voting franchise for white landholders, Breslin theorizes.  Oh, and Madison would have been so peeved that he sat out the Second Convention.  What would have been the implications in U.S. history for the Constitution thusly revised?  What would the Constitution look like after a 2022 convention?  Breslin examines these questions in part with reference to the real evidence of evolving state constitutions.

• 

  Maine Gov. Baxter with Irish Setter Garry Owen
  (public domain)

  James Stoner, Louisiana State University, exposed the thinly veiled nuance of religious freedom questions in the United States, from Employment Division v. Smith (U.S. 1990) to present.  The courts have looked the other way from legislative prayer, for example, and for that matter from the intertwining of government and religious practice since the days of George Washington himself.  He concludes that the judiciary is ultimately not the best forum for resolution of debate over religion in American public life.
• Sean Beienburg, Arizona State University, is researching the curious political journey of 1921-1925 Maine Governor Percival Baxter (namesake of Maine's beautiful Baxter State Park).  Republican Baxter advocated against the Ku Klux Klan at a time the Klan was making inroads with Maine Republicans.  He also staked out the political territory that would become Republicans' 20th-century economic libertarianism.  I note that Baxter was also an animal rights advocate before there was such a thing, and Maine's beautiful Baxter State Park is named for him.

---

Populist revolution and American electoral politics
are both about more than red versus blue

I moderated and discussed on an afternoon panel with three fantastic papers.

• Erik Cleven, Christopher Galdieri, and Ashley Motta of Saint Anselm College are studying "down-ballot roll-off," when voters stop voting as they move down the ballot from "US Senator" to "Town Dogcatcher," or, really, "Register of Probate."  They set out to see whether there is merit in criticisms that voting college students dilute local electoral power because college students aren't interested in local races.  That turns out not to be true—not entirely true, anyway.  Looking at New Hampshire data, they found that new voters in a jurisdiction are responsible for down-ballot roll-off, and college students might just be part of that.  Other correlations arise with low education and lack of partisan tags to indicate party affiliation.  I suspect that an underlying cause is low information, a problem that dovetails with my own interest in transparency and affirmative disclosures of information to correct democratic deficit in developing political systems.



The "heartland-coastland" divide is more complicated than it seems and not
merely an expression of partisan sympathies, R.I. political scientists June
Speakman and Matthew Ulricksen show in new research.

• Two papers were strikingly complementary.  Isaac Effner, Brown University, took the normative lens off of "populism" to recount how a populist labor movement effected the 1934 West Coast waterfront strike and contributed dramatically to the evolution of organized American labor and 20th-century norms for the protection of American (and for that matter global) workers.  Don't be too quick to judge populism in scoffing at frustrated voters who support Trump, is the lesson, because populism per se can be a force for the vital expression of human rights, notwithstanding a temporary flirtation with demagoguery along the way.  Effner notes that similar populist motivations animated support in the last election for both Donald J. Trump and Bernie Sanders.
• And there comes to bear the remarkable work of Matthew Ulricksen, Community College of Rhode Island, and June Speakman, Roger Williams University and a representative in the Rhode Island legislature and former member of my Town Council in Barrington, R.I.  Ulricksen and Speakman showed some stunning maps of voting patterns in Rhode Island in the last election—I'd like to share, but they're not copyright-clear for my reuse; see the New York Times results.  Suffice to say the electoral maps reveal a deep divide in what looks like what Speakman and Ulricksen call a "heartland-coastland" divide, the former, Rhode Island's interior, Trump red, and the latter, in the salt air, Clinton blue.  Problem is, a number of data sets about who these voters are—wealth, ethnic identity, even partisan affiliation—do not actually bear out the divide.  What does?  Spoiler alert: population density.  What's more, because there is correlation with population density and not partisan loyalty, the heartland proves as receptive to Bernie Sanders's message as to Donald Trump's.  Speakman and Ulricksen identify one factor that explains voter behavior across the board: being "mad as hell."  The research leaves off there, but implications and questions abound for what will make an effective political movement in the future to capture increasingly alienated voters—and what conditions might trigger a populist revolution analogous to the 1934 general strike, or something bigger.

The annual meeting of the New England Political Science Association wraps up today, when I'll be presenting some findings on access to information and social and economic development in eastern Europe.

Upcoming at UMass Dartmouth/Law: 1L talks public radio and Hurricane Maria; UMass Law Review hosts media law symposium

Two events coming up at UMass Dartmouth and UMass Law!

---

First on Tuesday, March 26, at 4 p.m. in the Grand Reading Room of the Carney Library at UMass Dartmouth, Ricardo Serrano, a first-year UMass Law student from Puerto Rico, will participate in a program of the UMass Dartmouth English Department on the critical role of public radio amid natural disaster and in times of human need—specifically the role of the University of Puerto Rico-Mayagüez student-run radio station during Hurricane Maria.  Serrano was president of the radio station at the time of the hurricane and creator of the Radio Colegial podcast Fatiga Mental.  No advance registration is required.  From UMass Dartmouth Public Affairs:

The power of non-profit radio to sustain a community will be discussed by a panel hosted by the English Department and The Public’s Radio on Tuesday, March 26, at 4 p.m. in the Grand Reading Room. Panelists include Ricardo Serrano, a UMass Law student who ran the University of Puerto Rico radio station during Hurricane Maria in 2017; Professor Lisa Maya Knauer (Sociology/Anthropology), who studies the impact of community radio in Guatemala; Professor Richard Peltz-Steele (Law); and Sally Eisele, News Editor at The Public's Radio. Full-time Lecturer Caitlin Amaral (English), a former award-winning writer and producer for WGBH Interactive in Boston, will moderate the conversation.

---

Next, from 9 a.m. on Thursday, March 28, in the Moot Court Room of the UMass Law School, the UMass Law hosts the symposium, Navigating a New Reality: A Multi-Platform Look at Media and the Law.  With compelling speakers from legal education and law practice all day long, the program will conclude in the afternoon with a keynote address from media attorney Richard P. Flaggert, a partner at DLA Piper.  From DLA Piper:

A dual-qualified (US/UK) attorney and solicitor, Richard Flaggert focuses his global practice on entertainment, media, and communications matters, as well as counselling clients in intellectual property transactional matters, brand strategy and integrity, enforcement of trademark and copyright assets worldwide, prosecution and risk analysis, licensing, false advertising and new media matters.

Ric regularly negotiates and provides advice relating to talent, sponsorship, advertising, entertainment, publishing and other media issues for professional sports and sports/esports franchise and facility owners, sports media, consumer products, and technology clients. He also counsels clients with respect to licensing, and rights acquisition.

Ric regularly provides counsel to programming networks and other rights holders across a full spectrum of legal and strategic business matters, including domestic and international affiliate distribution agreements, licensing, digital, multiplatform and satellite distribution, new media, Internet, and emerging technologies, as well as FCC and other regulatory matters.

Richard is a member of various outside counsel teams, providing day-to-day oversight of branding, media, broadcasting and entertainment matters, and directs strategy for several global franchises, including at ESPN. 

Advance registration free, but requested, at umasslawreview.org.

RI SPCA officer speaks at UMass Law

Warzycha on RISPCA website

Joe Warzycha, humane law enforcement officer with the Rhode Island Society for the Prevention of Cruelty to Animals (RISPCA), talked to students at UMass Law on Thursday, March 21, about the legal framework underlying animal protection.  In 2018, Rhode Island (my home state) substantially beefed up its animal protection law (see changes summarized at Potter League for Animals), putting Little Rhodey in the "top tier" of Animal Legal Defense Fund ratings by state. Warzycha will soon be taking over leadership of the RISPCA, which is a private, nonprofit entity imbued with the legal authority to investigate and prosecute animal cruelty cases.  Warzycha is a U.S. Marine veteran and former police officer in East Providence, R.I.  He was invited to UMass Law by the Student Animal Legal Defense Fund, a member organization of the Animal Legal Defense Fund, and SALDF officers Kayla Venckauskas, '19, and Barnaby McLaughlin, '19.  The RISPCA is financially self sustaining and depends on tax-deductible charitable donations.

SALDF at UMass Law

Revenge porn law can survive First Amendment scrutiny by requiring 'actual malice'

Last week a Tyler, Texas, appellate court struck the state’s criminal revenge porn law as fatally overbroad, so facially unconstitutional, under the First Amendment to the federal Constitution.  The ruling garnered headlines heralding the unconstitutionality of revenge porn law, which could have big implications in privacy law and policy nationwide—even ramifications for U.S. foreign relations.

However, the court’s ruling was not so broad as headlines have suggested.  In fact, the court gave wise and constructive feedback on what a revenge porn law needs to look like to pass constitutional muster—which it can.  It seems in the end that the Texas law was just not well drafted.  Accordingly, the revenge porn laws that have proliferated in the United States, now in 38 states (collected at Cyber Civil Rights Initiative), should be scrutinized and, if necessary, corrected.  (Constitutional problems with Vermont and Arizona laws were mentioned just today by the U.K. Register, here.)

The Texas case, Ex parte Jones, No. 12-17-00346 (Tex. Ct. App. Apr. 18, 2018), involved a criminal information against Jones under Texas Penal Code section 21.16(b), which criminalizes the “unlawful disclosure of intimate visual materials.”  The statute reads:

A person commits an offense if:

  (1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;

  (2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

  (3) the disclosure of the visual material causes harm to the depicted person; and

  (4) the disclosure of the visual material reveals the identity of the depicted person in any manner[.]

The statute, section 21.16(a), furthermore defines “visual material” broadly (“any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide,” as well as electronic transmission) and “intimate parts” specifically (““the naked genitals, pubic area, anus, buttocks, or female nipple of a person”).

The court’s First Amendment analysis was sound.  The court applied de novo review to test the constitutionality of a criminal statute.  The court rejected a narrow construction that would confine the law to mere obscenity, as stringently defined by federal precedent.  Because the statute is then a content-based restriction of expressive content, the court charged the government with the burden of rebutting presumptive unconstitutionality.  The State conceded at oral argument that the law must survive strict scrutiny, i.e., advance a compelling state interest and be narrowly tailored to do so.  Intimate privacy passes muster on the first prong, but the statute facially fails narrow tailoring.  The court acknowledged that overbreadth doctrine is “strong medicine”; nevertheless, the statute could not measure up.

The court illustrated the statute’s fatal flaw with a hypothetical, unattributed so presumably original, that seems drawn from a law school or bar exam:

“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

“A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.”

“In this scenario,” the court observed, “Adam can be charged under Section 21.16(b), but so can Charlie and Donna.”

Therein lies the problem: not necessarily as applied to Adam, but as applied to Charlie and Donna, who are ignorant of the circumstances under which the photo came to be.  Certainly Charlie, who received the photo from Adam “without comment,” might as well believe that Adam ripped the photo of a stranger from a pornographic website.  However indecent the photo, both Charlie and Donna have a First Amendment right to communicate the photo “downstream.”  Yet without Barbara’s consent, Charlie and Donna run afoul of the revenge porn law.  Given the ease with which persons can share visual images in the age of electronic and online communication, the court found “alarming breadth” in this potential criminalization of expression.  In First Amendment overbreadth doctrine, a facially overbroad criminal law must be ruled unconstitutional even if it might be constitutional as applied to the defendant before the court.

The court distilled the law’s flaws in two dimensions related to culpability.  Typically of a criminal prohibition, the statute requires intent.  But intent pertains only to the republication of the image.  The statute does not require that the actor have “knowledge or reason to know the circumstances surrounding the material’s creation, under which the depicted person’s reasonable expectation of privacy arose.”  Second, the statute does not require “intent to harm the depicted person,” or even knowledge “of the depicted person’s identity.”  Borrowing the language of civil law (meaning common law tort), one would say that the statute requires volitional intent, but not intent to commit a wrong or to cause an injury.

The requisite intent to survive constitutional challenge may be likened to “actual malice,” which is used in both civil and criminal defamation law to describe “knowledge of falsity or reckless disregard of truth or falsity.”  In the context of revenge porn, a constitutional law might require “actual knowledge of the depicted person’s reasonable and continuing expectation of privacy in the image, or reckless disregard of same.”  If Charlie knew the identity of Barbara, so might infer the circumstances under which the photo had been taken, then the State might at least allege recklessness.  Donna, who did know Barbara’s identity, might be charged.  But she should be entitled to defend upon a qualified privilege, borrowed again from common law defamation, to share information in the interest of a recipient or third party when the defendant should disclose according to general standards of decency.  A corrected statute would hold Adam accountable without a constitutional problem.

Also just last week, the Rhode Island legislature (my home state) passed a revenge porn bill (2018-H 7452A) that has the support of the Governor Gina Raimondo (AP).  Raimondo vetoed a revenge porn bill in 2016, objecting on free speech grounds (Providence Journal).  Her position now is bolstered by the Texas decision in Jones.  Beefing up the intent requirement is precisely one of the R.I. legislative fixes that brought the latest bill to fruition.  The Rhode Island bill requires that the defendant intentionally disseminated, published, or sold “[w]ith knowledge or with reckless disregard for the likelihood that the depicted person will suffer harm, or with the intent to harass, intimidate, threaten or coerce the depicted person.”

I still have qualms about extending the “reasonable expectation of privacy” (REP) standard—which is drawn from Fourth Amendment jurisprudence as a bulwark against improper state action—being extended into the realm of private criminal or civil liability.  REP is potentially much broader than the intimate-depiction definitions of revenge porn laws.  And criminalization and civil liability are not the same.  Even though criminal defamation is constitutional when qualified by actual malice, contemporary human rights norms discourage the criminalization of expression at all.

At the same time, I have argued in favor of evolving U.S. law to recognize downstream control of private information, in consonance with both American values in the information age and emerging global legal norms.  Revenge porn laws—as against Adam, to the exclusion of Charlie and Donna—are a modest step in that direction, which European observers will welcome of us.  We will have to remain vigilant to continue to protect freedom of expression in tandem with expanding privacy rights, especially in a time in which the latter at the expense of the former is the fashion.  Conscientious actors such as the Jones panel (Worthen, C.J., and Hoyle and Neeley, JJ.) and Governor Raimondo are doing well, so far.