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Showing posts with label sexual identity. Show all posts
Showing posts with label sexual identity. Show all posts

Tuesday, September 24, 2019

Teachable torts: Court succinctly dismisses 'outing' case collateral to terrorism prosecution

Attendees dance during the Lesbian, Gay, Bisexual, and Transgender mixer
hosted by Joint Task Force Guantanamo Equal Opportunity Leaders for JTF
Troopers and Naval Station Guantanamo Bay Residents to honor LGBT
Pride Month in 2018. Photo by JTF GTMO PAO Trooper.
A short decision upon compelling facts in a civil case collateral to the criminal prosecution of Khalid Sheikh Mohammed, accused of being a September 11 architect, offers a worthwhile exercise in the study of tort law.

Semmerling, a lawyer on the defense team of Guantánamo-held Mohammed, accused the head of the defense team of outing Semmerling to Mohammed as gay.  The revelation of Semmerling's sexual orientation resulted in his removal from the team, because Mohammed would not work with a gay (or Jewish) lawyer.

Typical outing cases present some interesting problems in privacy law for several reasons.  First, they emphasize the distinction between the disclosure privacy tort and the defamation tort, because the revelation in an outing case is true.  First Amendment absolutism challenges the disclosure tort for its threat of liability upon a truthful statement, though there is little doubt that the disclosure tort would survive a direct Supreme Court challenge today.

Second, a plaintiff's homosexual (or other non-heterosexual) identity is rarely an absolute secret, disclosed to no one, but more often—and healthily—a personal datum that the plaintiff has disclosed with thought and care to different persons—parents, friends, public—at different times.  But "the secrecy paradigm" that dominates American privacy law disallows tort recovery unless intimate information remains intimately safeguarded.  (This is a critical point of difference between U.S. and European privacy law.)

Third, outing cases are complicated as a matter of social policy, for fear that a liability award might validate the view that homosexual orientation should be a source of shame, so either a truth properly kept secret (privacy tort), or a falsehood injuriously uttered (defamation tort).

This case is not typical—Semmerling's sexual orientation was only a secret to Mohammed—but its unusual facts, assuming the allegations as true for sake of argument on the motion to dismiss, left Semmerling with only less prospect of a tort remedy than usual.

Invoking the common law litigation privilege, the U.S. District Court, per Judge Robert W. Gettleman, rejected claims against the defense team leader herself. The absolute privilege ensures that an attorney has unfettered discretion in communicating with a client on matters pertaining to litigation.  The court also dismissed claims of negligence and intentional infliction of emotional distress (IIED) against the United States as defense counsel's employer.

Tim Jon Semmerling is a Chicago criminal-
defense attorney. In addition to his private
practice, he has worked pro bono for the
Center for Justice in Capital Cases at DePaul
University.
The negligence and IIED claims against the United States did survive dismissal under the Federal Tort Claims Act.  The FTCA on its terms disallows libel and slander claims against the United States, and the court opined that even a defamation claim disguised as IIED (or general negligence) would not survive that disallowance.  For the very fact that Semmerling complained about a truthful disclosure, his claim cannot be equated with libel or slander, and so was not a disguised defamation claim.

On tort law merits, though, Semmerling failed to state a claim, the court ruled.  He tried to predicate negligence on the defendant's one-time assurance to him that she would allow him to work on the case without disclosing his sexual orientation to Mohammed.  That was not basis enough, the court opined, to establish a duty of the United States to Semmerling for the purpose of proving negligence. The court did not wade in more deeply, but I expect that the duty requirement was especially elevated given Semmerling's lack of physical injury.

As to IIED, Semmerling sufficiently pleaded neither intent nor outrageousness.  Semmerling found out about the dislcosure only by way of hearsay and only some time after being fired.  So, the court reasoned, evidence was lacking that the disclosure was calculated to cause him emotional distress.  Also the disclosure was at worst "offensive," the court opined, and not "utterly intolerable in a civilized community," as Illinois law requires.

I wonder whether the facts would have supported a tortious interference claim; alas, that cause is expressly disallowed by the FTCA.

The case is Semmerling v. Bormann, No. 18-CV-6640 (N.D. Ill. Sept. 11, 2019).  HT@ ABA Journal.

[NOTE, Sept. 25, 2019: A generous colleague brought to my attention that the complaint in the case also pleaded defamation.  The claim failed on the litigation privilege as against lead counsel and was precluded by the FTCA as against the United States.  I ought to have marked the point that Semmerling was unable to claim disclosure in part because he guarded no intimately held secret.  The defamation claim was grounded in the allegation that lead counsel falsely suggested to the client a particular sexual interest in him.  That's an intriguing hypothetical when one considers the consequent analyses on the merits, including "capable of defamatory meaning."]

Thursday, November 29, 2018

New Kramer book tells tales of civil rights

My friend and colleague, and scholar extraordinaire, Professor Zachary Kramer has just published a new book on civil rights, Outsiders: Why Difference is the Future of Civil Rights.  Knowing Professor Kramer's ability to relate a compelling narrative, I expect this book is a great read, and I can't wait to get my hot little hands on it.  Here is the description from Oxford University Press.

Contemporary discrimination has changed in important ways from the forms it took in the 1960s, the era in which our civil rights law system originated. Previously, the primary targets of discrimination were groups: African Americans, women, and Latinos, among others. The goal of the Civil Rights Act of 1964 was to integrate marginalized groups into civic life, shatter ceilings, and break down barriers. The law sought to make us better people and America a more equal nation.

And it has. Discrimination against groups still occurs, but affected groups can marshal the rights regime to target and eliminate discriminatory policies. The challenge today, however, is to protect the individual, and our civil rights laws struggle with this. The people most likely to face discrimination today are those who do not or cannot conform to the whims of society. They are the freaks, geeks, weirdos, and oddballs among us. They do and wear strange things, have strange opinions, and need strange accommodations.

Outsiders is filled with stories that demand attention, stories of people whose search for identity has cast them to the margins. Their stories reveal that we have entered a new phase of civil rights and need to refresh our vision. Instead of dealing in protected traits, civil rights law should take its cue from religious discrimination law and provide a right to personality. Outsiders seeks to change the way we think about identity, equality, and discrimination, positing that difference, not sameness, is the feature of our age and arguing for a civil rights movement for everyone.
Professor Kramer is associate dean of faculty, professor of law, and Willard H. Pedrick Distinguished Research Scholar at the Sandra Day O'Connor College of Law at Arizona State University.

Thursday, September 15, 2016

The World Cup of Human Rights?



I prepared this map for the Inter-Disciplinary.Net conference, Sport: Sport Places, Money, and Politics, the 5th global meeting of the Sport Project: Probing the Boundaries, this week at Mansfield College, Oxford. The map shows the movement of the FIFA Men's World Cup since the United States in 1994, illustrating FIFA's deliberate campaign to globalize the tournament and the sport.

In my talk yesterday, I traced the marriage of FIFA and human rights from Football for Hope investments in World Cup 2010 South Africa, to World Cup 2014 Brazil; on to World Cup 2018 Russia and World Cup 2022 Qatar; and at last, to a World Cup 2026 that might embrace the U.N. Guiding Principles on Business and Human Rights in the manner proposed by Professor Ruggie.

Daunting challenges are presented with respect to international legal norms on housing, labor, sexual identity, racism and equality, due process and criminal punishment, and religious and expressive freedom. FIFA's extreme demands on host countries for infrastructure development, commercial protectionism, and security have made tournament hosting more easily the province of authoritarian regimes than of Western-style democracies, and that tendency works at cross-purposes with the incorporation of human rights norms in the Western legal tradition.