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

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

Wherefore art thou Aryan?

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

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

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

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

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

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

What does Bustos say about Gorsuch?

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

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

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

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

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

Benedict Arnold:

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

That’s General Arnold to you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Intimate large parties and the duty to protect privacy

I had to take a blog break over the holidays in order to get a hefty book read and to write a review of it.  I’ll post on that when it comes closer to publication.  Meanwhile, my, how the world has changed!  Let me kick off the new year with a look at some related developments in privacy law.

As Marion Oswald of the University of Winchester wrote recently for the journal of Information Communication & Technology Law (open source), to paraphrase, privacy ain’t what it used to be.  Oswald opened with a quote from The Great Gatsby, so it goes without saying that that needs to be reiterated here.  She wrote,

At one of the Great Gatsby’s spectacular parties, the golf champion Jordan Baker remarked to Nick Carraway that she likes large parties: “They’re so intimate. At small parties there isn’t any privacy.”

From that paradox, Oswald builds the case that privacy must be redefined to protect individuals in the digital world.  She observes the inadequacy of the “reasonable expectation of privacy” (REP) test—the U.S. Fourth Amendment standard—given the objective test’s tendency to drive itself to extinction in a world of objectively diminishing privacy.  Kade Crockford with the ACLU of Massachusetts articulates this point brilliantly in her lectures.  Oswald is not the first to reach her conclusion, but she does so compellingly.

Two recent cases, from Pennsylvania and Massachusetts, reached different conclusions on the question of a corporate defendant’s duty to safeguard private data.  The cases show the struggle under way in U.S. courts to do just what Oswald proposed—to redefine privacy in the digital age.  The United States is increasingly at odds with Europe, and for that matter the rest of the world, on this question.  Heralded as a modern human right in Europe, data protection is a burgeoning global legal field—and corporate obligation.

Duty

First, a quick primer on duty in U.S. tort law.

Tort law in the United States usually provides for a “duty” by “default” in negligence—that is, all persons owe to all other a persons a duty to exercise reasonable care (or not to act negligently), to avert harm to all others.  But the default rule of duty is subject to some important limitations.   

One limitation is the economic loss rule, which circumscribes negligence liability.  The rule precludes a plaintiff’s action for nonphysical, economic injury alone.  There are plenty of exceptions to the rule, and some scholars even think it’s not really a rule at all.  For example, negligent misrepresentation, which is like fraud but without intent, can be supported by economic loss within the context and expectations of a business relationship.

Defamation and privacy torts can generate what looks like economic injury, but really are animated by their own, sui generis classes of damages to reputation and personality.  U.S. privacy torts push in the European direction, but generally do not protect data voluntarily disclosed to third parties, such as employers and banks—a relation of the REP problem.  That means no protection in privacy torts for financial data, even though it’s the stuff of identity theft.

The other limitation on duty by default is that U.S. law imposes no affirmative duty to protect, or to render aid.  This rule, too, is subject to many exceptions, such as a parent’s duty to protect a child, contractual and statutory duties to protect, and a duty not to abandon a rescue undertaken.

Here like in privacy law, European legal codes diverge from U.S. common law with a greater willingness to impose affirmative duty.  In the United States, the affirmative-duty limitation also can relieve a corporate entity of a duty to safeguard data when the injury to the plaintiff is caused much more immediately by an intervening bad actor, such as the hacker or identity thief.  (The problem in proximate causation is integrally related.)

So on to the cases.  Remember, "[i]t takes two to make an accident."

Pennsylvania

A January 12 Pennsylvania court decision, Dittman v. UPMC (Leagle) held that an employer had no duty to safeguard employees’ private information on a workplace computer.  (Hat tip to Richard Borden at Robinson + Cole.)  University of Pittsburgh Medical Center (UPMC) employees numbering 62,000 alleged disclosure of personal information in a data breach, resulting in the theft of identities and of tax refunds.

The court applied a five-factor test for duty: 

1. the relationship between the parties;

2. the social utility of the actor's conduct;

3. the nature of the risk imposed and foreseeability of the harm incurred;

4. the consequences of imposing a duty upon the actor; and,

5. the overall public interest in the proposed solution.

UPMC prevailed in common pleas and superior courts, the latter 2-1, arguing that it owed no duty to protect the plaintiff’s interests.  On the affirmative duty question, the court pointed to attenuated causation and professed willingness to defer to the state legislature.  As summarized by Brian J.Willett for the Reed Smith Technology Law Dispatch: 

The Superior Court observed that the social utility of electronic information storage is high, and while harm from data breaches is foreseeable, an intervening third party stealing data is a superseding cause.

Additionally, the Court explained that a judicially created duty of care would be unnecessary to motivate employers to protect employee information, as “there are still statutes and safeguards in place to prevent employers from disclosing confidential information” in addition to business considerations.

Finally, the Court agreed with the trial court’s conclusion that creating a duty in this context would not serve the public interest; rather, it would interrupt the deliberative legislative process and expend judicial resources needlessly.

The court then bolstered its conclusion by pointing to the economic loss rule as well. 

Massachusetts

Just before the holiday break in December, a Massachusetts Appeals Court also decided a case in which the plaintiff alleged an employer’s negligence in safeguarding private data—though the plaintiff was a client of the employer rather than an employee.

The facts recited by the court in Adams v. Congress Auto Insurance Agency, Inc. (Justia), have the makings of a docudrama.  According to the court, Thomas was fleeing police at high speed when he crashed his car into Adams's.  Thomas was driving the car of his girlfriend, Burgos, so Adams claimed against Burgos’s auto insurance.  Meanwhile Burgos was both customer and customer service manager of defendant insurance agency Congress.  She reported her car stolen and filed her own insurance claim. 

Adams could identify Thomas.  So Burgos used her computer access at work to identify Adams and passed his identity to Thomas.  Thomas then phoned Adams, impersonated a state police officer, and threatened Adams: “‘Shut the F up and get your car fixed or you will have issues,’” the court purported to quote.  Though I bet Thomas didn’t say just “F.”

Adams sued Congress on multiple theories, including negligent failure to safeguard private data.  At the trial level, according to the appeals court, “the motion judge . . . rul[ed] that expert testimony was required to establish whether the agency owed a duty to Adams to safeguard his personal information, what that duty entailed, and whether the agency breached that duty.”

It’s odd that the motions judge sought expert testimony, because, as the appeals court aptly observed, duty is unique among the four elements of negligence—duty, breach, proximate cause, and injury—for being purely a question of law, guided by public policy.  Courts do not ordinarily hear expert testimony on what the law is.  The theory goes that figuring that out is the judge’s main job.  (Too bad, or being a law professor would be more lucrative.  I was gently tossed from the witness stand once when a lawyer made a valiant but futile attempt to squeeze me past the rule.)

Unlike the Pennsylvania Superior Court, the Massachusetts Appellate Court found its way to a legal duty.  The court held “that the agency had a legal duty to Adams, a member of a large but clearly defined class of third parties, to prevent its employee’s foreseeable misuse of the information that Adams provided to process his automobile insurance claim.”  Where the Pennsylvania court had pointed to statute to justify judicial restraint, the Massachusetts court pointed to state data breach law to show that the legislature had green-lighted legal duty (albeit "a single green light, minute and far away").

“Just as those with physical keys to the homes of others have a duty of reasonable care to preserve their security,” the Massachusetts court reasoned, “companies whose employees have access to the confidential data of others have a duty to take reasonable measures to protect against the misuse of that data.”  Indeed, the court cited a keys case as applicable precedent.  The court made no fuss over the rule of affirmative duty or the rule of economic loss.  In a discussion of causation, the court seemed content to resort to foreseeability on the facts.

Summary judgment for defendant Congress was vacated, and the case was remanded for trial.

Conclusion

Advocates who wish to block European-style data protection in the United States use the availability of state tort law remedies as one tool in the toolbox to argue that U.S. law already sufficiently safeguards personal data from both sides of the Atlantic.  That’s not true.  Not yet.

Data protection in the United States is confounded by the rules of affirmative duty and economic loss.  And that’s not bad; those rules exist for sound public policy reasons.  They also are excepted for sound reasons.

I’ve written before (e.g., here and here) that popular thinking and expectations with respect to individual privacy are converging in the United States and Europe, even if a legal bridge lags behind.  Common law negligence can be a vital building block of that bridge.  But it’s a work in progress.

“‘Don’t believe everything you hear, Nick.’”