International arbitration, U.S. common law collide in skilled student note

I have been remiss not to mention earlier an incisive work on arbitration law by Chad Yates, '19. "Manifest Disregard in International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, or Ugly" is available online from 13:2 UMass Law Review.  Here is the abstract.

Manifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in the United States. This Note will argue that manifest disregard should still apply to arbitration awards. However, arbitration contract clauses would be improved with the addition of language for appeals based upon manifest disregard to an arbitration appeals tribunal. The customary goal of arbitration is to provide a confidential, cost effective and expedited resolution of contract disputes. Therefore, an arbitration contract clause requiring that an appeals tribunal decide all manifest disregard questions would further these traditional arbitration goals.

Mr. Yates excelled in my 1L Torts class two years ago and also in Comparative Law (co-taught by the better regarded Dean Peltz-Steele).  I admit that my delay in reading this article is owed to my own shortcoming, as I suffer from commercial legis MEGO disorder.  I nevertheless recognize this article as well worth the, uh, investment, especially if commercial arbitration is your jam. Moreover, I am hopeful that Chad will get around to publishing some of the excellent research he's done on India in comparative law.  You can get a flavor of that work from his January entry on the UMass Law Review blog, "Comparative Law for India: The U.S. Digital Media Sales Company’s Destination for Business Process Outsourcing."  See also more on the blog.

A shout out of gratitude to Perry S. Granof, of Granof International Group, contributor of the chapter, "Introduction to Alternative Dispute Resolution in International Business Transactions," to the book, Resolving Insurance Claim Disputes Before Trial (ABA TIPS 2018).  The consummate colleague and an exceptional lawyer, Perry generously lectured my Comparative Law class via Zoom, on the subject of international arbitration, and fueled Chad's interest in the area.

Singapore Supreme Court rejects civil process torts

In August, the Singapore Supreme Court refused to adopt the tort of abuse of process and refused to extend the tort of malicious prosecution to the civil context.  The case is Lee Tat Development Pte Ltd v. Management Corp. Strata Title Plan No 301, [2018] SGCA 50 (Aug. 17, 2018) (summary).

Associate Justice Phang (Singapore Supreme Court)

The court opinion, which ranges over more than 100 pages, is a remarkable work of jurisprudence and should not go unnoticed by comparativist students of common law.  The opinion was authored by Associate Justice Andrew Phang Boon Leong.  Justice Phang is a Harvard LL.M./S.J.D. who worked his way up the academic ranks in law, business, and management in Singapore before his appointment to the bench about a dozen years ago.  He has a treatise in contracts among his bona fides.  I owe my awareness of this decision to James Lee, equity scholar and reader in English law at The Dickson Poon School of Law, King's College London.

My purpose here is not to get into the merits or challenges of the torts of abuse of process and malicious civil prosecution.  Suffice to say that if that is your interest, this opinion is mandatory reading.  From the 20,000-foot perspective, I'll say that for many years I did not teach these torts in 1L beyond the bare bones mentioned in my CAP casebook by Prof. Marshall Shapo.  Increasingly I'm feeling like I need to give these torts more bandwidth.  I'm not sure whether it's a function of coarsening society, a natural evolution of common law, or me just paying better attention, but I feel like these "meta-torts"—that is, torts about tort litigation; my term, not to be confused with meta-humans, nor with Birks, et al.'s quasi-tort equitable wrongs—are getting more play today than they used to.  Accordingly, this year I drafted multistate rules to guide students, and at some point, I will add the rules to my American torts primer.

Singapore Supreme Court (Terence Ong, CC BY-SA-2.0)

Instead I want to share three favorite bits of Justice Phang's opinion.  The first thing to notice here for the comparativist is that Singapore is a common law jurisdiction.  I confess, it's not the first nation I think of when reeling off a list of common law countries.  For an academic, it might ought be.  (I have been there, and it is a lovely, unique place.)  Singapore inherited English common law by way of the British East India Co., a distinction in which, of course, it is not unique.  At the same time, Singapore's unusual role as a tiny economic powerhouse, dependent on and defined by its commercial relationships with the world, make its common law a unique and worthy study in internationalism.  Thoughtful and contextualized, Justice Phang's opinion exemplifies this point.  For survey research, the court thanked academic amicus Prof. Gary Chan, a colleague of Phang's from the law school at Singapore Management University.

Of 'quenchless feuds'.  Justice Phang (¶ 1) elegantly characterized the land dispute that underlies Lee Tat:

As the Judge observed [in the High Court], this is yet another legal tussle in a series of bitterly fought litigation between the parties which stretches across more than four decades and which hitherto has resulted, inter alia, in five decisions of this court, excluding the present decision.  In the last of those decisions, this court characterised the protracted quarrel between the parties as a "marathon saga of litigation" [citation omitted].  At this juncture, some seven years and yet another set of proceedings later, it seems appropriate to say, in the words of Herman Melville, that it is a "quenchless feud" (Herman Melville, Moby-Dick; or, The Whale (Norton, 1892) at p 169).

That this dispute arose in what appears to be a Singaporean iteration of the Hatfields and the McCoys does bolster the court's conclusion on meta-torts.  If transaction costs are part of the problem in your legal system—we know they're a huge problem in the American system—you might want to think twice about piggyback litigation.  At some point the law of diminishing returns eclipses justice in the dogged search for truth.

Of 'timorous souls' and 'bold spirits'.  In considering the wisdom of extending Singaporean common law, Justice Phang (¶ 11) broke out a Lord Denning gem:

In considering possible recognition of the torts of malicious civil prosecution and abuse of process in Singapore, we bear in mind the oft-quoted observations by Denning LJ (as he then was) in the English Court of Appeal decision of Candler v Crane, Christmas & Co [1951] 2 KB 164, where the learned judge drew (at 178) a distinction between "timorous souls who were fearful of allowing a new cause of action" and "bold spirits who were ready to allow it if justice required".  These observations have, in fact, been quoted more than once by this court itself [citations omitted].  However, there is a limit to judicial law making.

This is a beautiful treatment of the seeming conflict between common law as a law-making device, renowned for its very capacity to grow and adapt to new circumstances, and the fundamental identity of the western judiciary as a creature of only corrective justice in the Aristotelian mold.  Otherwise put, the enterprise of common law often seems at odds with the purportedly non-normative job of the judge.  To set the problem in its popular American baseball metaphor, when is a judge, whose job it is only to call balls and strikes, duty-bound to change the size of the strike zone?  This problem in relation to the nature of the common law enterprises has been a puzzler in the United States at least since Holmes's Common Law and has at times generated nuances of distinction between otherwise like-minded judges in such a way as to vex legal scholars.

William the Conqueror

Of the Norman Conquest.  In examining the policy rationale for malicious (criminal) prosecution to test its applicability in the civil context, Justice Phang (¶ 87) traced the division between criminal and civil law to 1066:

The character of a criminal prosecution, carried out with a view to punishing a public wrong, is fundamentally different from that of a civil prosecution which is carried out with a view to vindicating a private right.  The difference between these two types of proceedings was explained in the following passage from an earlier decision of this court, Public Prosecutor v. UI [2008] 4 SLR(R) 500 at [52]:

... With the reign of William the Conqueror, the [English] criminal justice system, as it then stood, changed drastically.  A distinction was created between liability for private wrongs and liability for public wrongs.  Sir William Blackstone explained clearly the distinction between public wrongs and private wrongs in Commentaries on the Law of England vol 4 (A Strahan, 15th Ed, 1809) as follows (at p5):

[P]rivate wrongs, or civil injuries, are in infringement or [a] privation of the civil rights which belong to individuals, con[s]idered merely as individuals: public wrongs, or crimes and [misdemeanours] are a breach and violation of the public rights and duties, due to the whole community, con[s]idered as a community, in [its social] aggregate capacity.

As a result of the above change in the English criminal justice system, the individual victim was replaced by the State.  The offence was considered to be committed against the State and the liability of the offender was, accordingly, owed first and foremost to the State.  This is the criminal justice system which Singapore has inherited and maintains to this day.... [emphasis added by Justice Phang].

Justice Phang (¶¶ 88-90) derived from this history three salient distinctions between criminal and civil process.  First, criminal charges more than civil claims can impugn a defendant's reputation in the community.  Second, the consequences of criminal conviction are more invasive of the defendant's rights than the consequences of civil liability.  Third, criminal prosecution is an enterprise of public authorities, while civil prosecution is a private pursuit.  In all three respects, then, the need for a remedy to malicious prosecution is greater in the criminal context than in the civil context.

A useful review of abuse of process, malicious (criminal) prosecution, and "malicious use of civil process" in American law can be found in Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation ch. 40 (updated June 2018) (available on Thomson Reuters Westlaw), which begins (§ 40.1) by differentiating the three concepts.  Meanwhile Justice Phang's opinion in Lee Tat takes an elegant snapshot of the common law world.

John Does on sex-offender registry lose all civil rights claims against state, despite possible errors in listings

Persons listed on a part of the Massachusetts sex-offender registry for perpetrators who "moved out of state" have no constitutional privacy claims, state or federal, against commonwealth officials, despite a possibility of egregious error in listings, the Massachusetts Appeals Court ruled yesterday.  The case is John Doe, Sex Offender Registry Board No. 474362 v. Sex Offender Registry Board, No. 17-P-985 (Mass. App. Ct. Sept. 19, 2018).

Plaintiffs sued officials of the Massachusetts Sex Offender Registry Board (SORB) on theories of procedural and substantive due process under the federal and state constitutions after their names, pictures, and criminal histories were posted on the SORB website as "moved out of state."  The claimants alleged errors in the reporting, both in accuracy of the information and in the propriety of the posting.  The court recited the facts of one egregious case that suggested merit in the allegations of error:

[John] Doe No. 106929 came to Massachusetts in 2005 to attend school. He had previously been convicted in California for engaging in sexual relations with a sixteen year old when he was nineteen years old; California's age of consent was eighteen. After learning that Massachusetts had preliminarily classified him as a level three offender, Doe No. 106929 immediately left Massachusetts, and SORB ceased publishing his photograph and criminal history. Ten years later, in June of 2015, Doe No. 106929 learned through an Internet conversation that SORB had resumed publishing his name and photograph—this time on its "moved out of state" page. The sex offense listed on the page was "rape of a child." Doe No. 106929 received no notice from SORB regarding SORB's new practice, or that his name was being republished on SORB's Web site. Moreover, after Doe No. 106929 left Massachusetts, a court in California had entered an order expunging the record of his sex offense. Doe No. 106929 lost two jobs in California in 2015 once this information was made known at his workplaces.

The SORB abandoned its practice of publishing "moved out of state" records in 2015, but the superior court rejected the state's mootness defense.

Nevertheless, the Appeals Court rejected all plaintiff claims.  Affirming on federal procedural due process, the court held that the defendants were entitled to qualified immunity, because federal case law has not established any clear wrong in privacy violation.  Indeed, federal constitutional law points widely to the contrary.  Affirming on federal substantive due process, the court held that the claimants were unable to meet the demanding "shocks the conscience" standard that can turn what otherwise might be a state tort into a violation of the Fourteenth Amendment.  And reversing on claims under the Massachusetts Declaration of Rights, the court held that the defendants were entitled to sovereign immunity.  The Massachusetts legislature has voluntarily abrogated sovereign immunity for claims of "threats, intimidation or coercion" under the Massachusetts Civil Rights Act, but plaintiffs did not make such claims.

The court's reasoning on constitutional law is sound, but the facts point to the continuing failure of U.S. law to keep pace with Americans' privacy expectations in the digital age, especially relative to the pace of privacy law developments elsewhere in the interconnected world.  John Doe No. 106929's case is especially troubling in light of his California expungement.  Expungement already is an embattled concept—cf. "ban the box" movement—in the age of the internet that never forgets and the refusal of American policymakers to engage with the right to erasure.  For persons who committed crimes but served their time, that can mean stinging and enduring punishment well beyond what society and the justice system already determined was due.  The consequences are even more grave when the punishment is civil in nature, not even necessarily predicated on a criminal conviction.

The state should have no more license to defame or invade privacy than any person.  The common law maxim prized by the renowned Justice Oliver Wendell Holmes, Jr., himself a Bay Stater, asserts that for every wrong, the law provides a remedy (ubi jus ibi remedium).  Yet where digital privacy is concerned, profitable commerce in information seems to be holding at bay common law evolution, legislative innovation, and good sense.

Neil Gorsuch, Benedict Arnold, and the Star Chamber: A media law note

Looking over Judge Gorsuch’s opinions, I was reminded of his role in a media law case of recent note.  Judge Gorsuch in 2011 wrote the Tenth Circuit’s opinion affirming judgment for defendant in Bustos v. A&E Television Networks, 646 F.3d 762, which occasioned a discussion of falsity in defamation law.  Extrapolation is hazardous, but Bustos might evidence some hallmarks of what will become Justice Gorsuch’s jurisprudential style.

Wherefore art thou Aryan?

Bustos arose from the History Channel’s compelling documentary series, Gangland, in particular the premier special episode in 2007, “Aryan Brotherhood,” which examined the prison gang of the same name.  A super-max inmate in Colorado, Jerry Lee Bustos happened to have been captured by video surveillance in a prison fight.  That video found its way into Gangland, suggesting to viewers that Bustos was a member of the Aryan Brotherhood.  The representation yielded death threats against Bustos in prison, he complained, because the gang itself perceived Bustos, a Hispanic man, as having misrepresented himself.  Bustos sued History parent A&E for defamation.

The essence of the falsity allegation in Bustos was that he was a member of the Aryan Brotherhood.  That allegation carried some additional baggage with it, too.  Considering Bustos’s ethnicity, his membership in a white supremacist organization would carry what the court called a “special sting.”  Moreover, Gangland described murder as a rite of passage prerequisite to gang membership; so in effect, Bustos reasoned, he was cast as a murderer.

Defamation requires falsity.  Historically, the defendant bore the burden of proving truth as an affirmative defense.  But the “constitutionalization” of defamation in the First Amendment jurisprudence of the U.S. Supreme Court in the latter half of the 20th century forced the defendant’s burden in some cases to shift instead to the plaintiff, as a burden to prove falsity.  The ultimate reach of constitutionally compelled burden-shifting is still disputed today.  But many states by common law or statute have anyway moved the burden to the plaintiff.  The notion of requisite falsity is well ingrained in defamation law now, so a defendant’s motion for judgment on grounds of no false assertion is a routine move.

Dissecting the requirements of Colorado defamation law, the court, per Judge Gorsuch, observed the requirement that a defamatory statement be materially false.  Inconsequential error does not render a false statement “false” in defamation law.  The materiality requirement “works as a screen against trivial claims.”  The relevant touchstone is the effect on the reputation of the plaintiff.  The court must “assess the materiality of a misstatement by comparing the damage it has done to the plaintiff's public reputation to the damage the truth would have caused.”

That analysis did not put Bustos’s claim in a favorable light.  He had an association with the Aryan Brotherhood, if not a membership.  In the past, “Bustos [had] agreed to receive balloons filled with heroin from a prison visitor; insert them into his body; and then pass them along to three prison gangs, including the Aryan Brotherhood.”  When the plan was busted by prison authorities, “Bustos sent a handwritten apology to an Aryan Brotherhood leader,” calling him “bro” with “respect,” promising the balloons would yet be delivered, and sending regards to other members.  The court concluded that in the estimation of the Gangland viewer, as to Bustos’s reputation, membership in the gang was not materially different from conspiracy or aiding and abetting.

Though card-carrying membership was an important distinction to the Aryan Brotherhood, and consequently to Bustos, the court refused to recognize defamation within so select a community, citing Colorado law.  And as to the allegation that the public might infer that Bustos committed a murder, well—“we all know now that Mr. Bustos has at least one brutal gang-related attempted homicide in his past.”  The court found again immaterial to public perception of Bustos the difference between his past attempted murder and an implied murder as rite of gang membership.

What does Bustos say about Gorsuch?

It’s dangerous to extrapolate much about a judge from written court opinions—much less just one—which might say more about the law and facts of a case, or the style of a judicial clerk, or the temperament of a judicial panel than about the reputed author-judge.  But that never stops broadcast news, and this is just a blog.  So cautious not to take ourselves too seriously, let’s jump in.

There is delicious evidence in the opinion of Gorsuch’s affection for originalism.  The court offered a short history of the truth defense in common law defamation—and that wasn’t really needed to decide the case under contemporary Colorado law.  After expounding Colorado’s current definition of defamation, the court dug in to the falsity requirement.  The court taught that historically, truth was said to aggravate defamation, rather than to exonerate the defamer.

Even truthful defamation demanded punishment because of its tendency, in the Star Chamber’s estimation, to “incite[] ... quarrels and breach of the peace, and [to] be the cause of shedding of blood, and of great inconvenience.” De Libellis Famosis Case, 77 Eng. Rep. 250, 251 (Star Chamber 1606). Still, this only tells at most half the story. For its part, English tort law took a very different turn, denying compensation to a party truthfully defamed. It did so on the theory that if the statement is true, the plaintiff hadn’t suffered any injury—or at least not any injury he didn’t well deserve. 3 William Blackstone, Commentaries. So, in a twist worthy of an award from the Circumlocution Office, the truth could spare a defendant of liability in civil court only to condemn him to prison in a criminal court across the way.

This is like softcore porn for legal historians.  The Star Chamber in 1606: same year Guy Fawkes was executed, and King James awarded the Charter of Virginia.  Blackstone’s Commentaries on the Law of England, published 1765-69: font of Anglo-American common law, and a cipher key for Benedict Arnold.  And then a bureaucracy joke to round out the paragraph?  Does it really get better than this?  You know, for lawyers?

And then it does get better.  The court devoted significant space to a theory of falsehood called “the incremental harm rule.”  The opinion gives “e.g.” props to a law review article on defamation by lawyer Kevin L. Kite, 73 N.Y.U. L. Rev. 529 (1998); I like to see that nod to an academic assist.  The incremental approach analyzes falsehood relative to different statements about the plaintiff within the same publication.  The court wrote that Colorado has not adopted the incremental approach, and that’s what’s interesting.  Again, here, ink is spent on a monolog that is not really needed to decide the case.  The court goes to some length, relative to this short opinion, to explain the shortcomings of the incremental approach.  The rejection of the incremental approach is further illustrated by a hypothetical starring—wait for it—

Benedict Arnold:

[E]ven more troubling is the [incrementalist] doctrine’s breadth. If an article calls Benedict Arnold a thief and a traitor, the “incremental harm” done by the first statement might be nothing compared to the unassailable truth of the second (entirely unrelated) statement, and this would leave Mr. Arnold to recover nothing for the patently false and defamatory accusation that he’s a thief. . . .  Taken to its logical conclusion, moreover, incremental harm analysis suggests that individuals with really bad reputations in one area may be “libel proof” in all areas, free game for the publication of even the most outrageous and damaging lies. Call Benedict Arnold whatever you like; his public reputation is already so soured by his treason that no incremental harm could be done to it. . . .

That’s General Arnold to you.

The court shores up its opinion with ample and appropriate case law.  The first case cited in the opinion after the Colorado definition of defamation is the media defense staple, New York Times v. Sullivan (U.S. 1964).  Once upon a time, the media defense bar lived with the omnipresent fear that the Rehnquist Court would dismantle Sullivan’s powerful, defense-friendly First Amendment doctrine, so it’s interesting to see how Gorsuch invokes the case:

This [truth] defense has, in comparatively recent years, taken on a constitutional patina, becoming not just a feature of the common law but a First Amendment imperative.

1964 to 2011 is “comparatively recent years” for Gorsuch, who himself was born in 1967.  The fellow has a sense of history.  I’m not sure what it says to describe the Sullivan/Gertz constitutionalization of state tort law as a “patina.”  Maybe because a patina can be polished off?  As someone who thinks that the Sullivan/Gertz doctrine went too far and ironically stunted the evolution of fundamental rights—another post for another day—I’m enticed by the possibility.

Judge Gorsuch’s handling of the Bustos appeal is workmanlike.  Reference to British history and the use of a personality from the American Revolution to illustrate a hypothetical—especially when it’s all in dicta—certainly smack of originalism.  But an interpretivist bent is no surprise in a judge tapped in express memory of Justice Scalia. 

Bustos comes off as an erudite opinion, and maybe that sits ill with people, such as Elizabeth Warren, who worry that the Court majority will be disconnected from the trials and tribulations of life for ordinary Americans.  Fair enough, someone whose education resume lists Georgetown Prep, Columbia, Harvard, and Oxford is not your go-to for the experience of the American commoner.  But even Justice Sotomayor went to Yale, so let’s not pretend we’re shopping the whole U.S. News list to populate the federal bench.  As long as we’re playing reindeer games, let’s demand erudition.  I learned something from Bustos.  It’s an opinion I would assign in law school.  That’s a good thing.

The cited “Star Chamber” has unfortunately become a pejorative term, because that English court’s broad powers in equity were too often in its history perverted to the predilections of the powerful.  The story proves Lord Acton’s (and James T. Kirk’s) maxim that power tends to corrupt.  But England had in place none of the checks and balances that the American Framers later developed.  It should be remembered that the Star Chamber was created initially with admirable intentions: an independent judicial body to hold powerful political actors—even monarchs and autocrats—accountable, lest they be corrupted. 

Maybe a sense of history is just what we will need.

Please Stand Behind the White Line: Harassment and free speech on the byway

A decision yesterday from the Massachusetts Appeals Court, V.J. v. N.J., 2017 Mass. App. LEXIS 6 (Mass. App. Ct. Jan. 30, 2017) (Mass.gov (temporary); Lexis with registration) pitted civil harassment against free speech in the case of a transit-service bus driver who felt threatened by a passenger’s unwanted advances and irate reaction to being rebuffed.  The court, per Justice William Meade, affirmed extension of a civil protection order.  Justice James Milkey dissented.  Meade is a former ADA and AAG.  Milkey is a former environmental lawyer who litigated on behalf of the Commonwealth to compel the U.S. Environmental Protection Agency to regulate greenhouse gases.

The facts engender sympathy for the position of the plaintiff, a bus driver for the Massachusetts Bay Transportation Authority (MBTA).  The defendant passenger came on to her a number of times, and she rebuffed his advances.  She ultimately complained to her supervisor upon an incident when the defendant “approached her from behind and grabbed her across her chest in a ‘bear hug,’” while the plaintiff was in full MBTA uniform.  When plaintiff thereafter spurned a tendered apology and eschewed further communication, defendant became verbally abusive, hurling derogatory epithets, “‘fat bitch’” and “‘ghetto bitch.’”  He was removed by police. 

Plaintiff thereafter for a time denied defendant access to the bus.  In a subsequent encounter, defendant did board the bus and was again removed by police after he “went on a rant about the impropriety of his being denied access,” told plaintiff “he would be there every day to inconvenience her,” and refused to leave the bus unless plaintiff called police.

Civil harassment has a curious history in U.S. law and an unsettled relationship with the freedom of speech.  Statutes of various kinds are commonplace in the states.  They accord with popular wisdom about what’s acceptable and what’s not in ordinary social interaction.  

Considering that the United States is a common law jurisdiction, though, harassment stands out as an example of the common law’s sometimes failure to change with the times.  Statutory harassment as an intentional tort might incorporate separate instances of common law assault, battery, intentional infliction of emotional distress (IIED), or invasion of privacy, but does not have to.  In some models, harassment can occur without the imminence of contact that assault requires and without the physical contact that battery requires.  Harassment might be accomplished through invasion of privacy—disclosure, intrusion, even misappropriation—but might not be. 

Instead, harassment statutes usually articulate a unique theory of intentional tort, invariably characterized by repetition.  The common law’s notorious insensitivity to gender inequality, both historic and extant, probably has a lot to do with its failure to evolve a response to harassment as a social problem, considering that women are disproportionately victimized.

Especially when harassment is not also assault or battery, it usually is accomplished by expression, written or verbal, so the freedom of speech is implicated.  The facial constitutionality of criminal and civil prohibitions on harassment is usually taken for granted.  But why that should be so is not so plain.

Harassment didn’t make the U.S. Supreme Court’s historic list of “non-speech” or unprotected speech categories in First Amendment law, alongside the likes of obscenity, “fighting words,” threats, and incitements to violence.  A free speech absolutist might well argue that harassment prohibitions, however fashionable, are, or should be, unconstitutional.  The opposite position is to be permissive of new-category recognition and carve out a harassment exception, invoking the muse of “I know it when I see it.”  

A typical and nuanced approach tries to jam harassment into existing non-speech categories, especially fighting words or “true threat” doctrine.  The fighting-words fit requires a touch of re-engineering, as the category usually requires the same imminence that assault does.  True threat has some more flexibility to it, owing to its relatively modest accretion of definitive case law to date.  But the notion of “threat” still seems to say something about urgency that the no-less-offensive, persistent grating of harassment might not quite equal.

By statute, a Massachusetts civil protection order requires harassment to be expressed in three instances.  Indeed, repetition is usually the linchpin that eases a court’s conscience in letting harassment slide under the First Amendment radar.  Massachusetts courts look for three malicious acts, “‘characterized by cruelty, hostility or revenge,’” and producing in sum, “‘fear, intimidation, abuse or damage to property.’”  This approach is thought to thread the “true threat” needle to the First Amendment’s satisfaction.

Manifesting the court’s sensitivity to the wakefulness of the free speech watchdog, repetition became precisely the sticking point between majority and dissent in V.J. v. N.J.  Justice Milkey disputed the viability of the third encounter between plaintiff and defendant as sufficient to support the three encounters required to extend the protection order.  Recall that the defendant said he would not leave the bus unless plaintiff summoned police.  Acknowledging a close question, the majority reasoned its way from intransigence to physical threat:

Although he did not directly threaten the plaintiff with physical violence, he nonetheless threatened that he would continue confronting her in this same manner, i.e., ranting about being denied access, and that she would need continuous police intervention to remove him from the bus. It was his stated goal that on a daily basis he would inconvenience her as she had him. This suffices to demonstrate the defendant’s malicious intent, characterized by cruelty, hostility, or revenge, to intimidate the plaintiff and to place her in fear of physical harm.

Justice Milkey disagreed.  A police summons might have threatened a physical encounter with police, he reasoned, but not with plaintiff.  The pledge to return daily was a threat of annoyance, not violence.  Quoting the U.S. Supreme Court in Virginia v. Black (2003), Milkey defined a “true threat” as “a serious expression of an intent to commit an act of unlawful violence to a particular individual.”  Milkey found no physicality in the defendant’s expression vis-à-vis the plaintiff.  Moreover, Milkey indulged the defendant’s theory that his expression constituted protest of his exclusion from the bus by a public official, in essence, a form of political expression, not “motivated by ‘cruelty, hostility, or revenge.’”

At first blush, the dissent seems hyper-technical and cringeworthily insensitive to what this bus driver had to endure—doubtless amid the myriad daily struggles of the job.  But one must appreciate that Milkey was motivated by a defense of free speech.  He did not condone the defendant’s conduct, and he expressly disavowed opinion on the propriety of the defendant’s exclusion from the bus.  Myself, I am inclined to succumb to the overwhelming social appeal of the plaintiff’s position in this case.  But I think it fair to say that dissenting required a measure of intellectual courage.