Showing posts with label free speech. Show all posts
Showing posts with label free speech. Show all posts

Thursday, September 2, 2021

SDNY rules against Locast, knifes beleaguered free TV

[UPDATE: At 9:47 a.m. today, Thursday, Sept. 2, I received word that Locast is suspending operations, effective immediately.]  

Locast, an online retransmitter of broadcast television, and the American public together suffered a major blow on August 31, as the federal district court in New York handed partial summary judgment to ABC, CBS, Fox, and NBC in the networks' copyright infringement lawsuit.

Locast has irritated me, but only for not expanding fast enough.  Where I live, near Providence, R.I., the service is not available.  It is available in New York to the south and Boston to the north, but access is strictly geo-fenced.  As a result, my family cannot see free broadcast TV without springing for an expensive subscription to a cable service or streaming-channel consolidator.

That's not really Locast's fault.  Broadcasters have reduced their power over the years, making free TV incrementally more difficult to access.  I live just nine miles from the broadcast towers that serve the Rhode Island state capital, but I cannot receive any signal with an interior or window-mounted antenna.

Indeed, the networks seem to want out of the broadcast game altogether.  Kickbacks from online consolidators such as Hulu Live and YouTube TV, and the networks' profits from their own services, such as Paramount+ (and Hulu Live, in part), are more lucrative than broadcasting and come with no FCC regulatory strings attached.  Local affiliates, including vital broadcast news outlets, fall through the cracks, wreaking further havoc in our information market, but that's no matter to the bottom line.  Locast threatened to breathe life back into the corpse of free TV, so the networks pursued the service with a vengeance. 

Locast is a non-profit, and its "business" model is simple.  It sets up a technology hub in a place such as Boston and converts local broadcast signals to online streams.  Home cord-cutters thus have their access to free TV restored through the internet service they already have, no antenna needed.

On the face of it, of course, this business model would constitute copyright infringement for copying and redistributing the broadcast signals.  But Congress, in a rare showing of commitment to the public interest rather than to the profit margins of our corporate overlords, built an exemption into the Copyright Act.  Governmental or nonprofit organizations are permitted to retransmit "without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service."

Locast is freely available and supported only by voluntary donations.  But streaming is interrupted at 15-minute intervals by 15-second pleas for donations.  Like the ad-free versions of pay-TV services, Locast offers absolution from these interruptions in exchange for a minimum "donation" of $5 per month.  The $5-donation model proved sufficiently successful that Locast was able to cover its operating costs and use the excess to expand to new markets.

And that, expansion, was Locast's sin, in the eyes of the district court.  Judge Louis L. Stanton opined that Congress could have written "maintaining and operating and expanding" into the statutory exemption, but did not.  So Locast's dedication of additional accounts received to expansion was fatal to its claim of copyright exemption.

I find the court's reading of the statute exceedingly cramped.  Locast plainly is spending money to do precisely what Congress intended: making free TV available to people who cannot receive it without hiring a contractor to install an antenna tower.  That the books must balance within each micro-market rather than across live markets, in the utter absence of evidence that a dime has been diverted to any other objective, absurdly splits hairs.

Locast lawyers, joined by the Electronic Frontier Foundation, say they are examining the ruling.  Locast announced yesterday that it is for now ceasing streaming interruptions requesting donations. 

There are ways that Locast can work around its current predicament, I reason. Locast has been supported by some major corporate donors who are not old-school TV insiders, such as AT&T, which contributed $500,000.  Internet service providers such as AT&T benefit from Locast, because retransmissions are streamed into homes, rather than broadcast.  With more careful balancing of the books, it should be possible, if cumbersome, to parse operations between discrete markets and to raise capital to support expansion directly.

It's a shame that such gamesmanship should be required for what is clearly a public service.  And a bigger problem might remain for American information and entertainment consumers in the ongoing, if prolonged, death throes of free TV.  We might hope that Congress would obviate the fray with bold measures that would reinvigorate the landscape of electronic expression by enhancing public-interest limitations on digital intellectual property and guaranteeing access to the internet for all Americans.

We also might hope to see pigs take flight.

The case is American Broadcasting Cos. v. Goodfriend, No. 1:19-cv-07136 (S.D.N.Y. Aug. 31, 2021). I bet Judge Stanton is one of those people who has both cable and Fubo and can't use either one unless someone helps him with the remote.

Tuesday, August 31, 2021

Chile reflexiona sobre los derechos digitales en desarrollo de nueva constitución

Foto por jpereira via The Loop (c. 2019; CC no especificada)
[English.] La creación de una nueva constitución está en marcha en Chile, y los derechos digitales podrían figurar de manera importante en un nuevo modelo de derechos civiles.

Los votantes chilenos pidieron una convención constitucional en una votación de 2020. La actual constitución de 1980 fue redactada bajo la dictadura de Pinochet. Entró en vigor con el fin del régimen de Pinochet en 1990 con la transición del país a la democracia, pero su texto original y sus muchas enmiendas nunca han sido verdaderamente un producto de la democracia. En contraste, la presente convención se desarrolla con una asombrosa representación de la diversidad chilena, incluidos los pueblos indígenas, casi sin precedentes en la historia de las democracias occidentales.

Chile tiene un historial de marcar el ritmo legal para América Latina. Chile y Costa Rica fueron inusuales en la experiencia latinoamericana por no haberse convertido en una guerra civil después de la independencia. Esa estabilidad suministró un terreno fértil para el desarrollo legal. Andrés Bello elaboró el código civil del país, siguiendo el modelo francés, en 1857. El código Bello fue muy influyente en el continente y anima el derecho civil latinoamericano todavía hoy en día. Costa Rica se convirtió en un innovador en derechos humanos en el sistema interamericano en el siglo XX.

Una propuesta de línea de base en el proceso chileno exige como mínimo el acceso a internet como un derecho humano. La realización del derecho requeriría el desarrollo de la infraestructura de internet en todo el vasto país, 2,653 millas de norte a sur, abarcando desiertos y montañas. La responsabilidad del gobierno sería sustancial. No se podía dejar que el sector privado desarrollara la infraestructura de internet con los márgenes de ganancia derivados de la densidad de población, una limitación que ha atrofiado la penetración de Internet de alta velocidad en los Estados Unidos.

Pero el acceso a internet es solo un mínimo, y hay muchas otras propuestas sobre la mesa que llevarían los derechos humanos convencionales, como la libertad de expresión y la privacidad, al mundo en línea. Muchos países han reconocido aspectos de los derechos humanos convencionales en el entorno en línea. Incluso en los Estados Unidos, los tribunales han reconocido que las órdenes judiciales civiles y penales que limitan el acceso de una persona a internet pueden contravenir los derechos civiles si no se adaptan estrictamente.

La idea que el acceso a Internet para recibir información, en lugar de hablar, ha sido una propuesta precaria en los derechos humanos, de la misma manera que los regímenes modernos de derechos humanos siempre han luchado con el acceso a la información (ATI). Hace diez años, un informe del Relator Especial de la ONU sobre la libertad de expresión describió acertadamente el acceso a internet como un derecho "habilitador" ("enabler" right). En los últimos años, expliqué esta caracterización del ATI en el marco moderno de los derechos humanos.

Participantes del proceso constitucional chileno, coordinado por Patricio Urriola Aballai, director ejecutivo de la Fundación Abriendo Datos, publicaron en mayo una "Carta Magna Digital" que explora el potencial de los derechos digitales para ser reconocidos como derechos humanos.  HT @ Observacom.

Wednesday, August 11, 2021

'What is truth?': 8th Circuit wrangles over ag gag

The Eighth Circuit reached mixed outcomes yesterday in First Amendment review of the Iowa "ag gag" law, upholding a criminal prohibition on entering agricultural production facilities under false pretenses.

Sausage packing in Chicago, 1893
"Ag gag" refers to laws designed to deter undercover investigative reporting on the agricultural industry, especially by criminalization. On the one side, journalists, public health advocates, and animal rights activists point to a tradition of undercover reporting dating to the Upton Sinclair muckraking classic The Jungle (1906), which exposed labor exploitation in the meat industry.

Journalist and professor Brooke Kroeger—who filed an amicus with the Eighth Circuit in the instant case—in her book Undercover Reporting: The Truth About Deception (2012), actually traces the tradition farther back, to reporting on slavery and human trafficking in the 19th century.  For a more recent entry in the genre, check out Michael Holtz's fascinating pandemic-era report, in last month's Atlantic, from inside a Kansas slaughterhouse.

On the other side, private business and advocates for private property rights point to the simple proposition that falsehood is impermissible in commerce and should not be permitted to facilitate trespass and undermine (markedly unidirectional) employee loyalty.

Insofar as the problem boils down to the criminalization of falsity, a fuzziness surfaces in First Amendment fundamentals.  The U.S. Supreme Court has long recited competing mantras on the permissibility of state regulation of falsity.  For example, commercial speech doctrine cuts a wide berth for the regulation of false and misleading expression, allowing free speech and consumer protection law to coexist upon the premise that falsity has no social value.  At the same time, First Amendment doctrine in areas such as defamation law, animated by the Miltonian-Millian philosophy of liberty, tells us that a free marketplace of ideas must allow for the expression of falsity so that truth can be tested and revealed.

The Court tackled this dichotomy in United States v. Alvarez in 2012, striking down part of the Stolen Valor Act of 2005, which criminalized misrepresentation of military honors.  But the Court fractured on rationale.  The plurality applied First Amendment strict scrutiny, and a concurrence would have applied intermediate scrutiny.  No one challenged the negligible scrutiny that abides criminalization of falsity in perjury, for example.  The distinction that upped the ante in Alvarez was the statute's "sweeping, quite unprecedented reach," regardless of context, regardless of motive.  Whereas a perjury prohibition plainly protects the integrity of the judicial process, the Stolen Valor Act pertained "to a false statement made at any time, in any place, to any person," for any reason.

And it was on that distinction that the Eighth Circuit perceived a difference in two provisions of the Iowa ag gag law.  One provision the court, affirming the district court, struck down, concerning the criminalization of false statements on an employment application.  The Iowa legislature, like Congress in Alvarez, overreached.

The proscription of the Employment Provision does not require that false statements made as part of an employment application be material to the employment decision.... [The statute] allows for prosecution of those who make false statements that are not capable of influencing an offer of employment. Plausible scenarios abound: the applicant falsely professes to maintain a wardrobe like the interviewer’s, exaggerates her exercise routine, or inflates his past attendance at the hometown football stadium.

The court reached a different conclusion on the provision prohibiting access to agricultural production facilities upon false pretenses.  That implication of falsity was sufficiently linked to "a legally cognizable harm—namely, trespass to private property"—that the court placed the provision beyond First Amendment review, distinguishing the ag gag law from the Stolen Valor Act.  "The better rule in light of Alvarez is that intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment."

The opinion has a bit of candy for tortheads, too, in reasoning that even trespass warranting only nominal damages is "a legally cognizable harm."  "Trespass is an ancient cause of action that is long recognized in this country. See United States v. Jones [U.S. 2012]; 3 William Blackstone, Commentaries  ... ," the court began.

[The district] court’s own citation to Black’s Law Dictionary acknowledged that nominal damages are "awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated." Damages, Black’s Law Dictionary (10th ed. 2014) (emphasis added). Nominal damages are not "purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff." Uzuegbunam v. Preczewski [U.S. 2021]. They are, rather, damages paid to a plaintiff that provide redress for an injury. Id.... Even without physical damage to property arising from a trespass, these damages may compensate a property owner for a diminution of privacy and a violation of the right to exclude—legally cognizable harms. See ALDF v. Wasden ... (9th Cir. 2018) (Bea, J., dissenting in part and concurring in part); see also Cedar Point Nursery v. Hassid [U.S. 2021] ("The right to exclude is one of the most treasured rights of property ownership.")....

The complainant in the Iowa case is the Animal Legal Defense Fund (ALDF), which has litigated and is litigating ag gag challenges throughout the country.  (I'm faculty adviser for the Student Animal Legal Defense Fund at UMass Law.)

The first time I testified in a legislative hearing, in my first year of teaching in 1998, I spoke, at the invitation of the Society of Professional Journalists, against an Arkansas ag gag bill.  The bill died in committee.  In the 1990s, an earlier generation of ag gag laws targeted speech about Big Ag as a form of civil or criminal defamation.  That approach was especially vulnerable to First Amendment challenge.

Food Lion Kings Mountain, N.C.
(Mike Kalasnik CC BY-SA 2.0)
At the same time, in the 1990s, the Food Lion case against ABC News, over undercover reporting on food mishandling, was playing out in the courts.  By decade's end, Food Lion prevailed against the ABC defendants for trespass and breach of the employee duty of loyalty, but not for defamation or fraud.  Big Ag learned to reframe ag gag to focus on conduct, rather than speech.  The next generation of ag gag laws aimed to protect private property against trespass, feigning ignorance of First Amendment implications.

Presently, the ALDF is fighting a broad Arkansas ag gag law, in the property-protective vein, enacted in 2017.  On Monday, the day before the Iowa opinion was announced, the Eighth Circuit revived and remanded the ALDF suit in Arkansas.  The district court had dismissed upon an erroneous understanding of First Amendment standing.  The Arkansas law is a model of special interest legislation enacted at the behest of Big Ag power-player Vaught Farms.

The Eighth Circuit opinions in both the Iowa case and the Arkansas case were authored by Judge Steven Colloton, an Iowan.  Judge Colloton had different co-panelists in each case, and both panels generated a dissent.  In the Iowa case, Judge Raymond Gruender, a Missourian reportedly short-listed by President Trump for the Supreme Court, would have upheld the Iowa law in both provisions.  In the Arkansas case, Judge Bobby Shepherd, an Arkansan criticized for upholding Missouri anti-abortion laws to set up a challenge to Roe v. Wade, tracked the erroneous reasoning of the district court on standing.

I find worth quoting a short concurrence in the Iowa case.  Judge L. Steven Grasz, a Nebraskan, hints at the relationship between ag gag and the bigger First Amendment picture of our contemporary misinformation crisis.

This nation was founded on the concept of objective truth ("We hold these truths to be self-evident...."). And some of our nation's oldest institutions were founded as instrumentalities of the search for truth (Veritas). The quest for truth has not, of course, ended; nor has the clash between the free flow of ideas and the desire to punish untruthful speech that is perceived as harmful. The law has long provided for legal consequences for false speech constituting fraud, perjury, and defamation. The present case, however, presents a new category of deceit which the State of Iowa seeks to penalize. Some see it as investigative journalism. Others see it as lying to further an agenda at the expense of private property rights. In either sense, its punishment presents a legal dilemma between protecting property and protecting speech. While some have always questioned whether truth can be known ("What is truth?"), our task is not to answer that question but simply to determine whether the constitution allows the government to criminally punish falsity in the specific context of the statute before us.

I join the court's opinion in full because I believe it is consistent with current law, as best we can determine it from limited and sometimes hazy precedent. Still, I do so hesitantly as to the Access Provision. The court's opinion today represents the first time any circuit court has upheld such a provision. At a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being "cancelled" for holding "incorrect" views, it concerns me to see a new category of speech which the government can punish through criminal prosecution. Ultimately, the Supreme Court will have to determine whether such laws can be sustained, or whether they infringe on the "breathing room" necessary to effectuate the promise of the First Amendment.

Going forward, a key question will be whether access-by-deceit statutes will be applied to punish speech that has instrumental value or which is tied to political or ideological messages....

In general, public interest constitutional litigation against state ag gag has fared very, very well in the courts.  So the Eighth Circuit distinction on the Iowa access provision bucks the trend, which is not to say the court was mistaken.  To my mind, most of the victories against ag gag, as in the Iowa case, have derived from legislative overreach.  As I told the Arkansas committee in 1998, it is possible to draft an "ag gag" bill that would pass constitutional muster.  But such a statute would substantially duplicate the existing tort law of trespass, fraud, and product disparagement.  And while common law tort accommodates constitutional norms by design, rigid statutes are more prone to invite expensive legal challenge in the application.

The real problem, politically for Big Ag, is that it wants more than tort law gives, or than constitutional law permits.  And for public interest advocates, the problem ultimately is one of policy, not constitutional law.  Legislators must be motivated to choose accountability over campaign donations, and the public must be motivated to care about labor conditions and animal welfare, even when opacity precludes investigation.

These cases also resonate in the vein of transparency and access in the private sector.  As I have written previously, contemporary social and economic woes increasingly arise from private-sector abuse of public trust, and our cramped notion of state action is critically diminishing democratic accountability.

The Iowa case is Animal Legal Defense Fund v. Reynolds, No. 19-1364 (8th Cir. Aug. 10, 2021).  The Arkansas case is Animal Legal Defense Fund v. Vaught, No. 20-1538 (8th Cir. Aug. 9, 2021).

Tuesday, June 29, 2021

UMass Lowell stands with First Amendment, for now, in row over student tied to neo-Nazi hate group

Weed Hall at UMass Lowell
(photo by Ktr101 CC BY-SA 3.0)
UMass Lowell seems, so far, to be taking a principled position in a controversy over a student tied to a neo-Nazi group.

According to Patch, the University of Massachusetts Lowell sent a letter to students and faculty last week saying that it could not suspend a student tied to a neo-Nazi, hate group simply because of the association.  At the same time, the university pledged to investigate specific threats, alleged crimes, or incidents of hate speech, and to enforce the Student Code of Conduct.

The student in question appeared on a live-stream posted on Telegram, and re-posted to Twitter by a watch group, with the founder of "NSC-131," an organization founded in opposition to Black Lives Matter and identified as a hate group by the Anti-Defamation League, Patch reported earlier this month.

A Change.org petition, with more than 11,000 signatures at the time of this writing, accuses UMass Lowell of being "blatantly permissive of not only racism and hate speech (which they state is protected under Freedom of Speech) but outright criminal activity and Neo-Nazism" in protecting the student.  The petition accuses the student, by name, of having violated already the Student Code of Conduct and, through alleged participation in the January 6 Capitol riot, the state vandalism lawPatch reported the appearance of NSC-131 at the Capitol riot, but no personal involvement by the student.

I appreciate the university's principled free speech stance—so far.  I hope the university does not cave to pressure and remains cognizant of the First Amendment's vital anti-majoritarian and "safety valve" functions.  It is crucial, especially in combating hate, that we refrain from prosecuting thoughtcrime, or its mere expression, else we are no better than the haters.

The problem with instruments such as the Student Code of Conduct is that they're easily applied unconstitutionally, regardless of whether they're facially constitutional.  The code in question, for example, calls on students to show "respect and protection for persons and property," and respect is defined as "acting to enhance the safety, well-being and freedom to allow all persons to pursue their legitimate aims," including all persons, i.e., "non-community members," 

The code stops short of defining a specific offense for lack of respect.  Rather, "interpersonal misconduct" includes

creat[ion of] an intimidating, hostile, or offensive working or academic environment. A single, unusually severe incident may constitute intimidation, threats, or bullying.  Any pattern of unwelcome conduct directed specifically at another person that threatens or endangers the physical or mental safety or property of that person (or a member of that person’s family or household) or creates a reasonable fear or intimidation of such a threat or action.

The code adds, "The University has special concern for incidents in which persons are subject to such conduct because of membership or perceived membership in a racial, ethnic, religious, gender, or sexual orientation group."

That definition comports with First Amendment restriction on anti-harassment law, as long as the definition is observed in its particulars.  The terms refer appropriately and essentially to a "specific[] ... []other person" and to a "reasonable" response.  Administrators do not always parse so finely.  The Change.org petition encourages all readers to "file a report with student conduct," offering a link, regardless, it seems, of whether the filer has had any contact at all with the student of concern.

I have personal experience with administrators' loose understanding of academic freedom.  The "Principles of Employee Conduct" for the UMass System call on UMass employees "to conduct themselves in ways that accord respect to themselves and others."  That might sound merely aspirational.  But I was once adjudged guilty of violating the policy for accusing staff of misfeasance.  There was no contention that I was wrong on the facts.  But I was threatened with firing, despite my tenure.  No punishment was imposed after I pledged to sue in my defense—not a bluff.

In 2017-18, I served as a faculty delegate on an ad hoc campus committee formed at the behest of the campus chancellor to create an "anti-bullying" policy.  We faculty delegates agreed that workplace bullying was already impermissible under existing policies and state law.  The university seemed interested in having specifically an "anti-bullying" policy principally just to say that it does.  So we drafted a proposal that was substantively duplicative of existing norms, mindful of the First Amendment and academic freedom, and added a detailed procedure that would protect faculty in the event of ill founded and opportunistic accusation by administrators.

That, apparently, was not the right answer, because our proposal was buried in the bureaucratic bog.  Now I've been asked to serve on a committee again, in the next academic year, to do the work over, for a new chancellor.  Maybe we'll get it "right" this time.

Thursday, May 20, 2021

Court thins line between hate speech, free speech, while deepening European continental divide

Mural in Sofia, Bulgaria
(2019 photo by RJ Peltz-Steele CC BY-NC-SA 4.0)
A politician's racist hate speech and Holocaust denial were too readily protected by the freedom of speech in Bulgaria, the European Court of Human Rights opined in a February decision that challenges free expression and deepens tension between western and eastern Europe.

In litigation by Citizens Against Hatred and allied NGOs, plaintiffs sued in Sofia for harassment and incitement to discrimination.  Their target was Volen Siderov, a far right-wing politician, founder of the "Attack" party, who beat the drum of Bulgarian nationalism in two books and a speech to Parliament.  Siderov perpetuated denigrating stereotypes including that Jews manufactured the Holocaust as a scheme for financial extortion and that Roma people are "prone to crime and depravity."  His hate speech also targeted Turks, Catholics, and LGBTQ persons. 

Siderov's speech did not target individuals, nor call for any specific act of discrimination or violence.  The Sofia court ultimately dismissed the claims, unable to find that any one person had suffered injury or loss as a result of Siderov's vitriol.  The Sofia City Court and the Bulgarian Supreme Court of Cassation affirmed, holding, with reference to European jurisprudence, that Siderov's speech was protected by the freedom of expression.

In Strasbourg, the European Court of Human Rights held that the claimants had been denied a fair hearing in Bulgarian courts, a violation of their rights of dignity and freedom from discrimination under articles 8 and 14 of the European Convention on Human Rights.  Maybe Siderov's speech was protected expression under article 10 of the European Convention.  But the Bulgarian courts had been too quickly dismissive of the plaintiffs' claims.

"Expression on matters of public interest is in principle entitled to strong protection under Article 10 of the Convention, whereas expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection," the court explained.  "[I]t may be justified to impose even serious criminal-law sanctions on journalists or politicians in cases of hate speech or incitement to violence."

Volen Siderov
(Flickr by Nedko Ivanov CC BY 2.0)

The Bulgarian courts had not drawn an appropriate balance.  "Although the courts acknowledged the vehemence of the statements, they downplayed their capacity to stigmatise Jews as a group and arouse hatred and prejudice against them, and apparently saw them as no more than part of a legitimate debate on matters of public concern."

The decision strikes a note of discord in both westerly and easterly directions.  As a matter of free speech absolutism, American courts have been consistently resistant to regulation of hate speech.  Academics have twisted themselves into knots to reconcile the civil-rights-era First Amendment with a 1952 Supreme Court decision that momentarily sanctioned criminal libel based on race, color, creed, or religion.  Meanwhile, the First Amendment continues to be a perplexing problem for would-be regulators who link disinformation with populist nationalism of Siderov's ilk.

At the same time, the European Court decision is bound to aggravate a burgeoning resistance in Bulgaria, and throughout the east, to perceived western European cultural imperialism.  Bulgarian courts in 2018 ruled unconstitutional, and the Bulgarian Parliament was prepared to vote down, the Council of Europe convention on preventing and combating violence against women, "the Istanbul Convention" (Euractiv).  The politicization of an issue so seemingly uncontroversial is a story revealing of a deeper continental divide, and the court's strike against Siderov plays right into perceived grievances.

The case is Behar & Gutman v. Bulgaria, No. 29335/13 (Eur. Ct. Hum. Rts. Feb. 16, 2021) (LawEuro).

Wednesday, January 13, 2021

'Seminal' South African defamation case instructs on limited remedial reach of American speech torts

A politician prevailed in defamation against a critic who accused him of nepotism in a South African Supreme Court of Appeal case that a media law expert called "seminal."

Julius Malema in 2011, then a member of the ANC Youth League

Economic Freedom Fighters, a self-described "radical and militant economic emancipation movement" (EFF, definitely not to be confused with the Electronic Frontier Foundation), criticized former South African Finance Minister Trevor Manuel of "patently nepotistic and corrupt process" in recommending to public appointment "a dodgy character called Edward Kieswetter, who is not only a relative of Trevor Manuel, but a close business associate and companion."  EFF published its statement on Twitter to 750,000 followers, and EFF leader Julius Malema retweeted the statement to his 2 million followers.

The Gauteng high court ruled the statement defamatory, and the Supreme Court of Appeal (SCA) affirmed in December 2020, though remanded for reconsideration of the award, 500,000 rand, about US$33,000, because of procedural error.

South African lawyer and scholar Dario Milo, also an English solicitor and expert with the Columbia University Global Freedom of Expression project, described the case as the most seminal in South African defamation law in two decades, writing about the case for his blog, Musings on the Media, the Daily Maverick, and The International Forum for Responsible Media (INFORRM) blog.  Important, Milo wrote, was that the court allowed recovery for a genuinely aggrieved plaintiff, even if a public figure, upon a dearth of evidence to support the defendant's defamatory allegation.

Trevor Manuel, when Finance Minister in 2008
Photo by Valter Campanato/ABr CC BY 3.0 BR
According to Milo, the law should not protect the likes of former South African President Jacob Zuma, who weaponized defamation in 15 suits against news media and political commentators, nor of Johnny Depp, whose suit against his ex-wife was recently bounced by English courts.  (Depp's suit resulted in an awkward factual determination that he had beat up his wife, a legal result Milo characterized as an "own goal."  I like that.)  But the genuinely aggrieved, public officials and figures such as Manuel included, deserve their day in court, he maintained.  And the SCA ruling ensures that "dignity" will not be sacrificed even on the altar of political speech.

From an American perspective, the case offers some thought-provoking points of divergence from First Amendment doctrine.  The South African common law of defamation, rooted in English common law, is not so different from the American.  But the American speech-protective doctrine of New York Times v. Sullivan (U.S. 1964), justly born of the civil rights era, but, I assert, run amuck since, marked an enduring point of divergence between America and the world.

An important if nuanced divergence arises in the problem of EFF's culpability.  As to the underlying truth of the alleged defamation, EFF was sunk; the defense could not refute Manuel's denial that he is "related" to Kieswetter.  Looking, then, to culpability, the South African court found EFF in utter dereliction of duty.  It had no facts to support the allegation of nepotism and made no effort to ascertain any.

In the United States, the Sullivan rule of "actual malice" would require a plaintiff to prove that the defendant published falsity knowingly or in reckless disregard of the truth.  At first blush, that approach might seem compatible with the South African ruling.  But in practice, instructed by a Supreme Court that places a heavy thumb on the scale to favor a defendant's political speech, the rule de facto for American journalists has been that ignorance is bliss.  However much journalism ethics might counsel a duty of investigation, courts have been unwilling to find actual malice without smoking-gun evidence that the defendant had contrary facts within reach and deliberately ignored them.

In recent years, there has been a modest uptick in litigation over alleged actual malice, and I suspect, indeed hope, that that might be a function of a correction.  Recognizing the folly of a de facto bar on defamation suits by persons in politics has undesirable collateral effects, inter alia, deterring political involvement and feeding divisive discourse.  I wonder that American judges, consciously or not, might be increasingly inclined to treat the actual malice standard more as the "recklessness" rule it purports to be.

2019 EFF campaign poster
Photo by DI Scott CC BY-SA 4.0

Another curious takeaway from the South African case is the remedy.  Though the SCA muddied the outcome with its remand on procedural grounds, the court had no substantive objection to high court orders that would raise First Amendment issues.  For in addition to the R500,000 monetary award, the high court ordered that EFF take down its statement and not repeat it subsequently, and that EFF apologize to Manuel.

American thinking about defamation has limited remedies to the reputational-loss proxy of pecuniary award.  First, to "interdict" subsequent speech, to use the South African legal term, goes too far in U.S. remedies, violating the rule against prior restraint—probably.*  There has been some case law lately suggesting that that rule might yield in exceptional circumstances, such as when a destitute or determined defendant cannot pay recompense but has the will and means, especially through readily accessible electronic media, to persist in the defamation.

(*Or probably not. I am kindly reminded that injunction is available now as a defamation remedy in two-thirds of U.S. states.  Professor Eugene Volokh's 2019 publication presently is the truly seminal work in the area; read more, especially the thorough appendices.  Injunctions are variable in kind, for example, preliminary versus post-trial, and the circumstances play into the constitutional analysis.  Regardless, a confluence of legal trends and a changing world seems likely to result in constitutional approval of the injunction remedy in appropriate circumstances. —CORRECTION added Jan. 13.)

Second, a compulsion of apology would unnecessarily abrogate a defendant's right not to speak.  And how genuine an apology might one expect, anyway?  Yet Milo ranked it as important that apology is on the table in South Africa.  For as he observed, a public apology, even if empty of sentiment, is often the symbolic gesture that a defamation plaintiff truly desires, even to the exclusion of financial compensation.

This empirical observation, well established in American legal culture, too, highlights a limitation of the First Amendment system.  Even friend-of-N.Y. Times v. Sullivan Anthony Lewis, in his seminal case biography, recognized criticism of the doctrine in that the Court's rigid constitutionalization of state defamation law foreclosed state experimentation with remedies that might prove more socially desirable and judicially efficient.

I'm not ready to abandon the First Amendment.  But we should accept the invitation of comparative law to be critical of American norms and willing to talk about change.  EFF awaits our RSVP.

The case is Economic Freedom Fighters v. Manuel (711/2019) [2020] ZASCA 172 (17 December 2020) (SAFLII).

Tuesday, December 22, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 16, 2020

Mass. anti-panhandling law violates First Amendment

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

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

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

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

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

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

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

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

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

Friday, November 6, 2020

Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)
A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

I wrote about this case in April.  Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway.  Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer.  Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.

On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance.  The Court vacated the Fifth Circuit decision and remanded.  The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.

Both Doe's negligence theory and Mckesson's First Amendment defense are close questions.  Mckesson never countenanced a violent attack on police.  Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor.  Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.

Cases of such "negligent incitement" have long been problematic in First Amendment doctrine.  The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous.  Results have varied, and no clear rule has emerged.  Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.

I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts).  Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale.  It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer.  Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.

The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog).  The opinion was per curiam.  Justice Thomas dissented without opinion, and Justice Barrett took no part.

Friday, October 23, 2020

Canadian privacy advocate deploys anti-SLAPP law in suit by electronic exam proctoring company

John Oliver's Big Coal SLAPP nemesis, Bob Murray, retires

Pixabay by Aksa2011
An IT specialist at a Canadian university is defending a lawsuit against a U.S. tech company over its allegations of copyright infringement and his allegations of infringement of student privacy.

Proctorio is an Arizona-based company offering online testing to academic institutions.  It's similar to ExamSoft, which is used by my law school, the Massachusetts Bar, and other academic and licensing organizations.

Needless to say, businesses in the mold of Proctorio and ExamSoft have taken off since the pandemic.  But these businesses are not without their problems, and their widespread use has brought unwanted scrutiny to their terms of service.

For example, the Electronic Frontier Foundation raised a red flag over ExamSoft in anticipation of its adoption to administer the California bar exam.  Examsoft's terms of service afford the company overbroad reach into the computers of users and, worse, collection of biometric data from studying their faces on screen.  My students have raised legitimate concerns about ExamSoft, and I will not be administering a "closed-book" final exam because I share those concerns.

UBC (GoToVan CC BY 2.0)

Related privacy worries motivated University of British Columbia learning technology specialist Ian Linkletter, MLIS, to tweet out the URLs of unlisted Proctorio instructional videos located at YouTube, meaning to make his case that the company is excessively intrusive of student privacy.  In response, the company sued Linkletter in British Columbia for copyright infringement and breach of confidence.

Now Linkletter has filed for dismissal under British Columbia's anti-SLAPP law.  Linkletter told the Vancouver Sun that fighting the lawsuit for just "more than a month has cost him and his wife tens out thousands of dollars."  Read more in Linkletter's public statement of October 16.

B.C.'s anti-SLAPP law was enacted unanimously by lawmakers in March 2019.  Oddly enough, B.C. lawmakers passed one of Canada's first anti-SLAPP laws in 2001, but quickly repealed it over doubts about its efficacy.  I wrote recently about the dark side of anti-SLAPP laws.  Never have I denied that they are sometimes deployed consistently with their laudable aims; rather, my concerns derive from their ready abuse when deployed against meritorious defamation and privacy causes.   

The case is Proctorio, Inc. v. Linkletter, Vancouver Reg. No. S-208730 (filed B.C. Sup. Ct. Sept. 20, 2020) (civil claim).

Bye, bye, Bob

[UPDATE, Oct. 27, 2020. To be clear, I wrote that sub-headline before this happened: "Coal giant Robert Murray passes away just days after announcing retirement" (Stephanie Grindley, WBOY, Oct. 25, 2020).]

In other, if distantly related, anti-SLAPP news, Bob Murray is resigning and retiring as board chairman of American Consolidated Natural Resource Holdings Inc., successor of Big Coal's Murray Energy.  It was a tangle with Murray that turned HBO comedian John Oliver into an anti-SLAPP champion.  And, I admit again, HBO's use of anti-SLAPP law was textbook and laudable after Murray brought a groundless suit against the network.

While I disagree with Oliver over anti-SLAPP, he's one of my favorite comedians and social activists, and definitely was the mic-drop-best live act I've ever seen.  Here are his key Murray Energy treatments from Last Week Tonight.

The first, June 18, 2017, drew Murray's lawsuit.

The second, November 10, 2019, followed up with a paean to anti-SLAPP, wrapping up with a musical tribute to Murray.

Wednesday, October 14, 2020

Trump supporter vs. MSNBC's Joy Reid heats up for round 2, following reversal on free speech issues

It looks like the two-year-old defamation case by Trump supporter Roslyn La Liberte against MSNBC personality Joy Reid is about to heat up.

Racial Slurs and Other Not-So-Pleasantries

Eponymous host of MSNBC's ReidOut and "one of the few Black women to anchor a major American evening news program," Joy Reid has stirred up her share of schismatic controversy (e.g., "series of homophobic blog posts" (Glenn Greenwald), "casual Islamophobia" (Erik Wemple (pay wall))).  In June and July, on Twitter and Instagram, Reid called out MAGA-hat-bearing Roslyn La Liberte at a Simi Valley, California, City Council meeting (La Liberte at 4:17:45 to 4:19:57) for, as alleged in La Liberte's complaint, "yelling racial slurs at a minor," including that he would "'be the first deported ... dirty Mexican!,'" and "making ... racist statements and ... being racist."

A well circulated image of La Liberte and the 14-year-old boy at the council meeting, showing La Liberte mocking being choked but not actually talking to the boy, lent credence to Reid's characterization and its viral duplication.  Trolling responses came fast and furious in the Twittersphere and via email to La Liberte, the latter along the lines, "'You are a dirty white woman b***h,'" and "'I’m glad everyone in the entire world knows what a racist piece of s**t you are f**k you a*****e'" (asterisks in complaint).

However, La Liberte denied yelling racial slurs, and her story is backed up by the youth himself.  He described their exchange as "civil."  At least once during the meeting, a racial slur was directed at the boy, his mother said, but it wasn't uttered by La Liberte.  Cited in the complaint, Fox 11 L.A. untangled the story (June 29, 2018).

 

'Racist,' as a Matter of Fact

La Liberte sued Reid in the Eastern District of New York on a single count of defamation.  Alleging defamation per se, La Liberte in the complaint asserted, "Accusations of racist conduct are libelous on their face without resort to additional facts, and, as proven by this case, subject the accused to ridicule, hate, and embarrassment."

That point alone, on the merits, is interesting.  When I made a similar claim many years ago, colleagues and observers told me that an accusation of racism is opinion only, devoid of fact and incapable of defamatory meaning, even if one were asked to resign one's job as a result of the accusation.  Other colleagues, whose counsel I favor, disagreed and asserted that accusing an academic of racism is akin to accusing a youth coach of a child sex offense, in that the claim will persist indefinitely if one does not powerfully contest it.  Distinction between an individual's "racism," and "institutional" or "systemic" racism might complicate the legal analysis, but popular culture has pondered that distinction only recently.

Anti-SLAPP as the Sword of Goliath

A second compelling issue in the La Liberte case is the operation of anti-SLAPP law.  Anti-SLAPP laws, which vary in their particulars across the states, typically allow a defendant to attain fast dismissal of a lawsuit that is a "strategic lawsuit against public participation," that is, a lawsuit through which the plaintiff means to use tort law to suppress the defendant's exercise of civil rights, such as the freedoms of speech, assembly, and petition.  

That sounds good, but problems with anti-SLAPP law are legion.  One big problem is that American defamation law already tilts wildly in favor of defendants, a First Amendment prophylaxis gone corybantic, such that plaintiffs cannot usually get anywhere near the requisite burden of proof without the benefit of discovery.  Anti-SLAPP procedure allows the defendant to terminate the case before discovery can even happen.  

Joy Reid (Luke Harold CC0 1.0)
Designed in principle to protect, for paradigmatic example, a grassroots environmental campaign against the might of an unscrupulous real estate developer, anti-SLAPP in reality is more often deployed by the Goliaths of the latter ilk against Davidic pursuers.  Anti-SLAPP (ab)users include President Trump, Bill Cosby, and Big Media.  No wonder anti-SLAPP is the darling of the media defense bar.  The sad thing is that it's convinced the nonprofit media advocacy crowd to play along.

The proliferation of anti-SLAPP laws at the state level has generated a circuit split over what to do with them when a defamation case lands in federal court on diversity jurisdiction.  The analysis boils down to whether anti-SLAPP law is procedural, in which case it may not override federal rules, or substantive, in which case the federal court must apply the law of the state that governs the case.  The last couple of years have seen the emergence of a circuit split on the question, though the most recent precedents (2d, 5th, 11th, D.C. Circuits, contra 1st, 9th Circuits) point to the procedural conclusion, with which I agree.  

As a result, defamation cases that would have been smothered at birth in state court are given a chance to gasp for air in federal court.  Meanwhile, media advocates, including John Oliver—with whom I am loath to disagree, but he just doesn't get it—have been pushing hard for federal anti-SLAPP legislation.  A bill is pending in Congress, and with left-wing media advocates and right-wing mega-corporations on the same side, David's death blow might be but weeks away.

La Liberte arose amid this anti-SLAPP circuit split and was, in fact, the occasion on which the Second Circuit joined the recent majority trend.  The court reasoned that the California anti-SLAPP procedure, the defamation having occurred in California, is incompatible with Federal Rules of Civil Procedure 12 and 56, governing motions to dismiss and for summary judgment.

Limited-Purpose Public Figures and the Involuntarily Infamous

La Liberte at the
City Council meeting
Also while the case rested with the Second Circuit, the court reversed the trial court on one more issue, the erroneous classification of La Liberte as a limited-purpose public figure.  That classification would compel La Liberte to prove the often fatal-in-fact fault standard "actual malice," that Reid knew her statements were false or was reckless with regard to their truth or falsity.  

La Liberte had not pleaded actual malice.  And, according to the court, her activism in speaking at city council meetings did not convert her from a private figure to a public figure.  La Liberte was never singled out in news coverage, the court observed, until after the alleged defamation catapulted her to public attention.  A defendant who is responsible for making a plaintiff infamous cannot thereafter escape liability by characterizing the plaintiff as a public figure.  

Incidentally, it's typically ironic that the media defendant here, Reid, purported to defend her free speech with the anti-SLAPP law while seeking to use the First Amendment-protected petitioning of the city council of the plaintiff, La Liberte, to defeat her effort to protect her reputation.

Enter 'the Lawyer for the Damned'

After remand to the Eastern District of New York, La Liberte terminated her representation by Wade, Grunberg & Wilson.  WG&W is a self-described "boutique firm" in Atlanta that boasts of a plaintiff's defamation practice, not a common thing, but maybe a growth area in our polarized post-truth society.  "The law of defamation is nuanced, peppered with landmines under the First Amendment, Anti-SLAPP Statutes, absolute immunities, and qualified privileges," WG&W writes on its website. "We know where those landmines are and, more importantly, how to navigate successfully around them."  WG&W notified the court of its withdrawal on September 28, 2020.

Wood, 2011 (Gage
Skidmore CC BY-SA 3.0)
The reason I suspect the case might now heat up, or at least jump on the express train to settlement town, is that on October 5, 2020, L. Lin Wood entered his appearance for the plaintiff.  Wood already had signed on some of the court papers, but he seems now to be stepping front and center.  Wood's breakthrough claim to fame was representing Richard Jewell, the man wrongly accused of the 1996 Centennial Olympic Park bombing against The Atlanta Journal-Constitution (there's a 2019 movie directed by Clint Eastwood).  His subsequent client list includes JonBenét Ramsey's parents, Gary Condit, Herman Cain, Elon Musk, and the Catholic high school student in the 2019 Lincoln Memorial confrontation, Nick Sandmann, as against The Washington Post.  Wood boasts that CBS news personality Dan Rather tagged him, "the lawyer for the damned."

The case is La Liberte v. Reid, No. 1:18-cv-05398 (E.D.N.Y. Sept. 30, 2019), reversed and remanded by No. 19-3574 (2d Cir. July 15, 2020).  I've not mentioned an ISP immunity issue in the case, on which the Second Circuit affirmed in favor of the plaintiff; read more by Eric Goldman (July 30, 2020).