'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.]

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.

Popular singer's 'right to be forgotten' outweighs free speech in Italian case over archival video and biting commentary

Because Manchester City FC might need it after today's derby match, let's consider the right to be forgotten.

As an aspect of European, and increasingly global, data protection law, "the right to be forgotten," or right to erasure, unsettles the tummies of American media advocates.  The right to erasure runs up against the presumptive rule of U.S. First Amendment law that there can be no punishment for the republication of truthful information lawfully obtained.  Read more about that here (predating implementation of the EU General Data Protection Regulation).  The Italian Court of Cassation has issued a potentially important decision at the intersection of the right to erasure and the freedom of expression.  

Hat tip @TheItalianLawJournal.  For a few months to come, or until a better translation comes to light, I'm parking a very rough Google Translate rendition of the ruling here in PDF.  The translations that follow here are mine, refining the Google Translate rendering. The original court decision can be found here.

Antonello Venditti by Angela_Anji (CC BY-NC-SA 2.0)

The case stemmed from a TMZ-style confrontation by an RAI-1 "Live Life" («La vita in diretta») crew of Italian singer Antonello Venditti (Facebook) in 2000.  I've not seen the video, but Venditti apparently resisted the interrogators with sufficient gruffness that he earned his way onto the program's 2005 "ranking of the most obnoxious and grumpy characters in the entertainment world."  The story occasioned rebroadcast of the 2000 segment, along with commentary mocking his diminished fame in the intervening years.  Antonello took offense and sued, claiming "a right to be forgotten" attached to the 2000 video. 

Of peculiar resonance with current events in the United States, the Italian court took note of a German right-to-erasure case about "an affair in which a German citizen, who held a major political and business position in Germany, had requested the erasure of information from the web relating to an episode of collusion with Russian crime dating back several years earlier, republished several years after."  The Court of Justice of the EU ruled that "the public's interest in information prevailed over the individual's interest in oblivion."  However, the Italian court observed, the ruling resulted from a fact-intensive inquiry.

The court must engage with "the search for the right balance between the interest of Internet users in information and the fundamental rights of the person," the Italian court explained.  "Therefore, the editor of a newspaper that stores in its historical archive on the internet the news, making it available to a potentially unlimited number of people, is required to prevent, through the dissemination of even remote facts, without any meaningful and current public interest, possible harm to the right to be forgotten by the people who were involved."

The freedom of expression must yield to the right to erasure, the court held, upon analysis according to five factors:

1. the contribution made by the dissemination of the image or of the news to a matter of public interest;
2. the actual and current interest in the dissemination of the image or news (for reasons of justice, police, or protection of the rights and liberties of others, or for scientific, educational, or cultural purposes), to be considered absent in case of prevalence of a popular interest [italics added; in original, divulgativo: I'm not sure how to translate that and don't think "popular" or "informed" is right], or, worse, merely economic or commercial interest of the subject that spreads the news or the image; 
3. the high degree of notoriety of the subject represented, for the economic or political reality of the country;
4. the methods used, for the particular position held in public life, and, in particular, to obtain and give information, which must be truthful (because it is drawn from reliable sources, and with a diligent research work), disseminated in ways that are not excessive for information purposes, in the interest of the public, and free from insinuations or personal considerations, so as to highlight an exclusive objective interest in the new dissemination;
5. the preventive information about the publication or transmission of the news or image at a distance of time, in order to allow the interested party the right of reply before its disclosure to the general public.

Applying its multi-factor test, the court decided that RAI's interest in the rebroadcast video segment was outweighed by Antonello's privacy and data protection rights.  The court below had erred by finding Antonello's fame dispositive.  Reminding one of the analysis of Elmer Gertz in U.S. defamation lore, the court held that Antonello's large public following "certainly" did "not invest[ him] with a primary role in national public life."  Moreover, RAI's purpose, five years on, lacked merit. The court found it "undeniable that the reiterated broadcast ... had [the] unique purpose of allowing the inclusion of the singer ... in a ranking of ... 'the most obnoxious and grumpy of the entertainment world,' invented by the same broadcaster, allowing, in this way, the satisfaction of an interest that is exclusively informative [again, divulgativo], for commercial purposes, and for the television operator's audience."  The broadcaster's derogatory comments about Antonello's fame in 2005 aggravated the offense, the court added.  

The court also rejected "satire" as a defense.  The representation of Antonello was not "paradoxical, surreal and hyperbolic critique," but referred to "true fact," "clearly directed to a mere and unjustified denigration of the artist."  The broadcaster sought to use the 2000 video to represent Antonello in 2005 as "a singer, for years, in decline."

This case is the very stuff of American media advocates' nightmares.  Newspapers decry the right to erasure as a threat to online archives—though representations in archives, as archives, are readily factually distinguishable from the Antonello case.  The more realistic threat would be to the "TMZ"/"Talk Soup" format of entertainment media, or even the clever uses of archival video that have become the staple of commentary on The Daily Show with Trevor Noah and Last Week with John Oliver.  Certainly under a rule such as the Italian court employed, broadcasters, even straight news broadcasters, would have to take more care with their use of B roll.  

I've advocated in favor of evolving U.S. privacy law toward European data protection norms.  But the Italian court went too far here, lending credence to American nay-saying.  I fault the court's analysis of Antonello as, in U.S. terms, a "private figure."  The lower court got it right in finding Antonello's public status dispositive relative to this RAI commentary.  It's especially telling and troubling that as to the satire argument—the RAI program seems on the mild side of the Talk Soup genre—the court faulted RAI commenters for the truth in their observation of Antonello's waning fame.  The court set up the Italian judiciary to be a "super editor" of popular media, an arbiter of taste.  American courts appropriately struggle with newsworthiness determinations in privacy law because they do not want that job.

Janus-faced about 'Janus': Supreme Court hears major First Amendment labor case, and 'it's complicated'

The U.S. Supreme Court hears oral argument in Janus v. AFSCME (SCOTUSblog) on Monday, February 26.  The problem in a nutshell is the extent to which a public employee can be compelled to associate with a union consistently with the First Amendment freedoms of expression and association.

The Court already held, some years ago, that a public employee cannot be compelled to pay the portion of union dues that supports political activity.  But mandatory payments to support the union in collective bargaining have been upheld upon the logic that employees otherwise would be able to opt out and benefit from union collective bargaining as free-riders, and, ultimately, the union would be decertified for lack of members.  So it’s got to be all in with the union, or no union for anyone.

This is an agonizing problem for a libertarian.  One wishes to protect the right to organize but is loath to compel anyone to do so.  Honoring the latter priority undermines the former.

When I changed jobs in 2011 from the University of Arkansas system to the University of Massachusetts system, I moved from a non-union shop to a union shop.  My first years at UMass, I opted out of the political dues and paid only to be a member of the bargaining unit—“agency,” it’s called.  And I resented having to pay for that. 

Certainly Arkansas was not a bed-of-roses workplace experience.  I had my challenges there and had to spend a good chunk of my personal savings on legal fees.  Now faculty there are fighting to preserve tenure.  I can see where a union might help.

Nevertheless, moving to UMass, I resented being compelled to join the union.  My experience with unions had been that they too often protect people in the workplace who don’t pull their weight, and they prevent people in the workplace who pull more than their weight from being rewarded accordingly.

I have more experience with unions now.  And I was right.  They often protect people who don’t pull their weight, and unionization prevents people who pull more than their weight from being rewarded accordingly.

At the same time, I’ve come to understand that plenty of fault for unions working, or not working, can be laid at the feet of employers, too.  It’s complicated.

I declined to become a union member at first at UMass and sought instead to leverage my own hard work for superior reward.  That didn’t work.  At best, I got into the highest echelons of the contractual raise pool.  We’re talking about a distinction of maybe a percentage point.  I could have gotten that with much less work.  I’ve hardly been able to negotiate my own terms of employment.

To the contrary, like many an employer, the university seems to have a love-hate relationship with the union.  Even while administrators seethe with loathing for their union adversaries, management is unwilling to dance with any other and jealously guards the bargaining table against rivals.  That’s the dirty little secret of public-sector union shops: management and labor are on the same side when it comes to making sure that no one else gets to play the game.  A truly free market, with full information and a healthy balance of labor supply and demand: if such a thing existed, it would be bad news for both sides.  Meanwhile the individual worker gets left on the sidelines.

So unable to make any headway for myself, and upon later experience and observation, I decided to throw in my lot with the labor movement.  Before union membership, my agency dues were $580 for the year in 2016.  That was deducted from my check, even though I was excluded from the bargaining table and stuck with whatever contract concessions someone else decided for me.  Now as a full member of the union, based on my last paycheck, my dues are about $1,285 per year.  So about two-thirds of my union dues go to political activity that I don’t necessarily agree with.

That’s my catch-22.  Membership is the only way to get a seat at the table, and having a seat at the table is the only way to work against abusive employment practices.  The labor market being what it is, there is abuse.  And there are good people in my union who are working hard to fight it.

I’ve been a student of the First Amendment for a long time, and I don’t know what should happen in Janus, whether from a detached scholarly perspective, or for my own best interests.  It rubs me the wrong way being compelled to participate in organized labor and forego my individual economic liberty.  To have my voice heard, I have to let my pocket be picked by political causes I disagree with.

At the same time, the unions are right:  The Janus challenge is about union busting and worker exploitation, not civil liberties and not economic liberty.  In academics, union busting is sure to hasten the end of tenure and the annihilation of academic freedom.  That hardly seems a result that honors the First Amendment.

I admit: I’m Janus-faced about Janus.  But on Monday, I'll be wearing my AFT T-shirt.

 

[UPDATE, Apr. 10, 2021.  Regrettably, my faith in the union was not enough.  The bargain of surrendering my beliefs became untenable.  See, e.g., this post in 2020.]

Pai FCC net neutrality policy steers US wrong way

Today a political cartoon from my brother, Spencer Peltz, in AP Gov at Calvert Hall, where he is student body president.

Probably needless to say, I agree with the sentiment wholeheartedly.  India's Telecom Regulatory Authority is headed wisely in the opposite direction.  Read more at Global Net Neutrality Coalition.  Tiered access, a.k.a. internet censorship, is bad for social liberals and economic conservatives.  The only winner under the Pai FCC plan is corporate oligarchy, and that's not free-market capitalism.  Oh, there're other winners, too: people and commercial enterprise every else in the world, India included.  Guess whom that leaves as losers?

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass

Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.

I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.