Read more:
• NECN
• Boston Globe
• Boston Herald
Also:
• Ralph Gants on this blog
Chief Justice Ralph D. Gants was a graduate of Harvard undergrad and law, one-time AUSA, and recipient of an honorary law degree from UMass Law at 2016 Commencement (pictured and below).
Also:
My task is daunting; a lot happened while I was in Africa early in the year and out of the office over the summer. Our subject matter includes the new regulations under the California Consumer Privacy Act, burgeoning lawsuits under the Illinois Biometric Information Privacy Act, and the shock waves just now hitting the United States from the "Schrems II" decision in the European Court of Justice. (Brush-with-greatness note: Max Schrems has been in my car. Long story.) That's just to get the ball rolling.
Co-panelists are Matthew M.K. Stein, of Manatt, Phelps & Phillips, LLP, and Marjan Hajibandeh, of CarGurus, Inc. Here are the program details from the BBA:
BBA Webinar: Roundtable on Recent Developments in Data Privacy Class Action Litigation
Thursday, September 24, 2020, 10:00 to 11:00 a.m.
This webinar will explore the growing prevalence of data privacy class actions through recent developments in data privacy legislation, expanded private rights of action, biometric privacy claims, consumer data suits, post-breach and cybersecurity litigation, and the increasingly complex landscape of rulings by federal courts of appeals. The presenters will discuss national trends and developments within the First Circuit and in Massachusetts. The discussion will look ahead to areas to watch and trends that may shape the development of data privacy class actions in the coming months and years.
The program is free for BBA members and $100 for non-members. Registration at least two hours before the program-start is essential to receive the Zoom link.
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| Abbey and Toby |
Here's coverage of Abbey at ALDF; read more at UMass Law. From hometown Falmouth, Mass., and a graduate of sociology from Keene State College in New Hampshire, Abbey is passionate about animal protection, besides being an energetic collaborator and valuable counsel to her peers. I look forward to her vibrant advocacy as a member of the bar, and to the difference she's going to make in the lives of many of God's creatures.
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| Notice of Removal in Carroll v. Trump |
The strategy of using a sexual-assault denial and accompanying charge that the accuser is a "liar" as the basis for a defamation suit against the alleged perpetrator, i.e., Carroll v. Trump, is now, unfortunately, a familiar feature of our high-profile tort-litigation landscape. It might have been Bill Cosby who committed the pattern to popular culture's long-term memory. The Cosby case came complete with counterclaims, making the defamation dispute the dueling ground for truth and falsity.
It's unfortunate, because the tort of defamation was not designed to be a truth-finding mechanism. Historically, truth wasn't even a defense; that's a modern artifact inferred by the freedom of speech. The flaws in our defamation law are legion and one of my favorite subjects; one that matters here is that defamation is rarely capable of delivering exoneration, much less satisfying any of a plaintiff's legitimate aims.
Among reforms of defamation that have been proposed over the years are mechanisms to ferret out and publicize truth, rather than focusing on the plaintiff's alleged injury or the defendant's asserted rights. Though not always well crafted, laws that incentivize correction or settlement over protracted litigation at least aim in the right direction. Regrettably, reform of defamation has been hamstrung for decades by the Supreme Court's well intentioned but ultimately improvident constitutionalization of defamation in the 1960s and 1970s. I hope one day, we'll wade our way out of that morass.
Anyway, on the question of the DOJ's intervention, there's a curious conundrum about Carroll v. Trump. The DOJ position is that Trump was acting in the scope of the office of the President when he denied Carroll's sexual-assault allegations. We would, after all, hope that any President would deny such allegations, and we would have to admit that the truth of the allegations bears on his fitness for office. Thus, the DOJ reasons, it must represent the position of the President. The bitter pill for Trump opponents to swallow is that that's probably right.
The kicker comes in that Trump's denial is only presidential if he's telling the truth. If he did what Carroll alleged, then the operative facts of the case occurred before Trump was elected. His later denial then feels more like the mere pleading of a private defendant in an ordinary civil suit. You know, one in which we might debate what the meaning of is is. So the rationale for defense by DOJ is predicated on the very question at issue in the litigation. For DOJ to take the President's denial as true, for now, is a fair, if uncomfortable, choice. If one day the court rules in Carroll's favor, though, maybe we can send the legal bill to the former President.
Thanks to TLS student Ricardo Serrano and Torts student Paul McAlarney for helping me think about this one.
[UPDATE Oct. 27, 2020.] The court denied the government's motion to substitute party on Oct. 27, 2020. See Special Coverage at the Trump Litigation Seminar.
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| UMass Dartmouth (LGagnon CC BY-SA 3.0) |
The salary reduction shall be calculated as follows[:]
a. There shall be no reduction on the first $30,000 of regular salary and any regular contractual or other stipend for any faculty or staff member.
b. For each $5000 in excess of this threshold there shall be a salary reduction calculated as a percentage of the faculty or staff member’s marginal salary. This percentage reduction shall start at 5% (0.05) and shall increase by 1 percentage point (0.01) for each step up to a maximum of 10% (0.10).
In the law school, we were already hit with a $7,500-each cut in summer research support, which is a little under 5% for me, much more for others. With two generations of educational debt and current college bills looming over our heads in my family, this cut, just more than 12% in sum, hurts. In a meeting of faculty yesterday, I got a sense of the impact on the lower ranks and less job-secure, and I was left livid.
The progressive structure was the union's idea, not the university's. The university only asked for 5% across the board. On Friday, union president Grant O'Rielly gleefully boasted to members that that wasn't good enough, so the union proposed a progressive plan to ensure that higher paid faculty would pay even more money and suffer a higher rate. Victory! The university was so impressed that it accepted and gave the union a pat on the head. Maybe a cookie, too. Though there was no mention of a cookie.
The saddest thing here is the aforementioned collusion between union and university to make this all happen. They entered into a pact by which no jobs would be lost on either side. But on the admin/management side, there might ought be some jobs shed, and I scarcely see there would be impact on our educational mission. You can't spit on main campus (not that you should spit in public, especially now) without hitting a handsomely compensated assistant vice chancellor of something-something. I'm sure students will take solace in knowing that those jobs are all safe, while their newly virtual and long beleaguered legal skills instructors will now make less money than when they were hired.
The union entertained no other alternatives, either, besides admin cuts. A reserve fund sits at UMass HQ in Boston, untapped. As a colleague said yesterday, "it's for a rainy day, and it's raining." The union didn't proffer a faculty furlough for December/January or May, which we could accomplish without cutting into the class schedule, and then faculty would be eligible for unemployment compensation. Staff furloughs work that way. The union didn't negotiate for a better separation-incentive program, or reduced workloads, or summer research support, or even a guarantee that the university can't come back to the well again next year. The union just rolled over in self-effacing obedience to their management masters.
The greatest insult comes to those of us not in the union. Thanks to Massachusetts's purported system of exclusive representation, we are compelled to accept the pay cut upon a union negotiation and vote in which we have no say. And the university, to date and despite my demand, refuses to negotiate with us separately. If that sounds, well, unconstitutional, yes, I think it is, especially since Janus. That case said we couldn't be compelled to pay for union speech with which we disagree. It hardly makes sense, then, that we are compelled to speak with union speech with which we disagree. I am presently seeking counsel, and there's more than just me, so get in touch, #RightToWork advocates. Exclusive representation is being challenged meanwhile in other states.
Massachusetts's bargain-basement approach to public education—a real shock to us when we moved here in 2011—was already criminal, especially for a blue state boasting a Kennedy legacy. Now the state's proud blue labor tradition is belied by the reality that unions are co-conspirators in the crime. Together the university and union make a mockery of UMass Law's "social justice" mission.
[UPDATE, Sept. 12, 2020:]
In a case involving the University of Maine, the First Circuit upheld exclusive representation in state law. The complainant is Jon Reisman, an economics professor at the University of Maine at Machias, and the case is now pending cert. review in the U.S. Supreme Court. (Hat tip to a D.C. colleague.)
The First Circuit's reasoning is succinct and somewhat baffling. The court held simply that state law requires the union to bargain for everyone, members and non-members, as a bargaining unit, but not as individuals; thus, Reisman is not "personally represented" and may be subject to whatever terms are struck for the bargaining unit.
Aside from the illogical and constitutionally unknown distinction between speaking for a "unit" and speaking for people, I fear Reisman's case was premature. At UMass Dartmouth, we see the damage wrought by exclusive representation, and the First Amendment problem is laid bare. The First Circuit pointed to Reisman's ability, under Maine law, to communicate grievances directly to the university, without going through the bargaining unit (though a union representative is then brought in to resolve the matter). At UMass Dartmouth, the university has expressly refused to hear grievances outside the union (specifically, mine). Reisman also did not well articulate any concrete injury, rather, only the intangible harm of compelled association. At UMass Dartmouth, union non-members are about to suffer a big pay cut.
Moreover, UMass Dartmouth non-members have been kept completely in the dark about the pay cut and excluded from informational meetings, debate, and voting on the measure. So it can hardly be said that the union at UMass Dartmouth is acting on behalf of a bargaining unit of the whole, members and non-members alike. The First Circuit's reliance on how things are supposed to work in the idyllic vision set out in statute in Maine bears no relation to the plain First Amendment affront playing out in practice in Massachusetts.
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A reminder that this is my blog, not edited or controlled by UMass Law/Dartmouth. At the same time, I write in furtherance of public service, which is part of my job, and in which capacity I am protected by custom, contract, law, and the First Amendment.
The students' lawsuit, high profile in the political sphere, was resolved in the Sixth Circuit yesterday on mundane grounds that offer a reminder to torts students of a simple immunity rule.
Remember the fuss in January 2019 over that video of Catholic high school students on a field trip said to be taunting a Native American elder demonstrating at the Lincoln Memorial?
Remember when people used to stand really close together like that?
There were two dramatically different sides to the story about what was really happening there, and they were as far apart as young people joining in celebration of Native American heritage, on the one side, and "MAGA" has inspired privileged youth to racism, on the other side. For a breakdown that gets closer to the truth, see, e.g., Vox, Jan. 24, 2019; Reason, Jan. 21, 2020.
The students sued the legislators for defamation, asserting that the darker interpretation of events was false. On Thursday last week, the Sixth Circuit affirmed dismissal of the lawsuit—which is not to opine one way or the other on the students' claim of falsity.
As the court observed, the Speech and Debate Clause has no application on Twitter. But a much simpler analysis pertained. Whilst tweeting, Haaland and Warren were acting within the scope of their employment with the U.S. Government. And the Federal Tort Claims Act (para. (h)) does not waive federal sovereign immunity for defamation committed by its employees—even the elected kind.
The case is Does 1 through 10 v. Haaland, No. 2:19-cv-00117 (6th Cir. Sept. 3, 2020). Circuit Judge Eric Clay authored the opinion for a panel that also comprised Judges White and Readler.
I have exercised my right under Janus v. AFSCME to separate from my public-employee union. The union plans, without my approval, yet purporting to act on my behalf, to consent to a workforce-wide pay cut that will affect me, and affect me disproportionately adversely. It seems to me that Janus is meaningless if my pay can be cut, against contract, upon the consent of a union with which I have a First Amendment right not to affiliate. Pay cut looming, I am in no position to pay for counsel. Does Janus mean anything, or is it just words on a page? Contact me.
[Read more: Sept. 11, 2020.]
Coronavirus propelled UMass into financial crisis in the spring, and, as a result, law faculty summer research stipends evaporated. With that change in incentives to compound coronavirus travel restrictions, I found myself with more than the usual time to catch up on reading this summer. I'm going to try to keep my observations here brief; drop me a line if you want to talk more detail. (All links are to Amazon.)
Books About Soccer
Books About Free Speech
I read many books about free speech, and I've loosely divided them into three categories here. The broadest ranging works in this "general" set are Timothy Garton Ash's Free Speech: Ten Principles for a Connected World, Lee Bollinger and Geoffrey Stone's The Free Speech Century, and Floyd Abrams's The Soul of the First Amendment. Ash's book is described by a reviewer as "encyclopedic." It is; it's otherwise difficult to categorize and difficult for me to grasp the scope of his knowledge and insight. With a trans-Atlantic perspective, he grapples with the adaptation of free speech norms to our globalized world. The Bollinger-Stone collection is at times interesting. One might ought pick and choose from the contents; it would serve best as a course-supplement reader. The Abrams book is a paean to free speech, not terribly original but eminently quotable.
Samantha Barbas's Newsworthy, Eric Robinson's Reckless Disregard, and Jeff Kosseff's Twenty-Six Words are legal biographies, respectively of Time, Inc. v. Hill (U.S. 1967) (false light privacy tort), St. Amant v. Thompson (U.S. 1968) ("actual malice" as recklessness "plus"), and Communications Decency Act section 230 (1996) (ISP immunity). Each is a solid legal history with important contemporary implications. Robert McWhirter offers a well organized and beautifully illustrated history of the First Amendment, appropriate to scholars of all ages, in The First Amendment: An Illustrated History.
The unexpected best of this set was Mark Tushnet, Alan Chen, and Joseph Blocher's Free Speech Beyond Words: The Surprising Reach of the First Amendment. I had not expected to be so captivated by this work that dares to investigate a question typically glossed over: why, and to what extent, should non-speech, such as art and conduct, be protected by the legal freedom of speech. This interdisciplinary analysis unpacks a problem that runs as deep as the very nature of the human being as a social animal.
Books About Hate Speech and Free Speech on Campus
This second set of free speech books I classify as about campus speech, though the books about hate speech plainly have broader application. A range of perspectives is to be found here. I am persuaded to the more absolutist view of Nadine Strossen, who has capably maintained and defended a consistent position over decades, even as academia and neo-liberal thought have left her increasingly out in the cold. She sticks to her guns in Hate: Why We Should Resist It with Free Speech, Not Censorship. Anthony Lewis's book in the same vein is disappointing. I'm a big fan of Lewis's insightful Make No Law (1991), the seminal biography of New York Times v. Sullivan (U.S. 1964). Unlike that book, this rather facile treatment, Freedom from the Thought That We Hate: A Biography of the First Amendment, could have been written by a research assistant.
In Speak Freely: Why Universities Must Defend Free Speech, Keith Whittington builds the best possible case for universities to care about free speech. I fear, however, that he gives today's university too much credit for not already being overrun and ruled by bean counters. Sigal Ben-Porath has the most academic offering of these with her Free Speech on Campus. But I was frustrated by her refusal to take a firm position consistent with the title of the book, free speech, as if she were afraid of tarnishing left-wing bona fides for failure of sufficient sensitivity. Finally, the entertaining Mick Hume, a hardened alum of the U.K. newsroom, thinks about trigger warnings what Lou Grant would have thought about them, and he isn't afraid to tell you about it in Trigger Warning: Is the Fear of Being Offensive Killing Free Speech? Spoiler alert: yes.
Other Speech Reads
Other Reads
Tom Wolfe achieves his usual excellence in The Kingdom of Speech, which compelled me to break my blog hiatus in late summer. The Curve: A Novel, about life at the "Manhattan Law School," by Jeremy Blackman and Cameron Stracher, was a delightful self-indulgence in fiction, though if you've ever worked in academics, it'll have you recollecting the truths that are stranger than.... In contrast, Kent Newmyer, The Treason Trial of Aaron Burr is hardcore nonfiction, if excellent supplemental reading for the Hamilton devotee: a biography of one of the most important legal cases in U.S. history that somehow usually manages only the scarcest mention in constitutional legal studies. Equally serious about its social science, Dancing Bears: True Stories of People Nostalgic for Life Under Tyranny tells both the nonfiction history of said bears and the story of their masters, the latter amid a psychoanalysis of dark reaches in the collective human mental condition. More than once a Polish friend has recommended Witold Szabłowski's book when I struggled to understand something about eastern European thinking. And ... yeah, I see it now. Con Job: How Democrats Gave Us Crime ... I know will seem an odd pick for those who know me; I don't usually take my partisanship without at least a teaspoon of Splenda. I admit to interest in how Crystal Wright, self-described "Conservative Black Chick" came to be who she is. As I suspected, disillusionment is not a partisan affliction in America, and we ignore it at our peril.
Most memorable of this set was Mikey Walsh's haunting Gypsy Boy: My Secret Life in the World of the Romany Gypsies. It had been on my to-do list for years, and I never quite felt up to the heartrending drama. It's not unlike Hillbilly Elegy. Walsh evinces a grudging appreciation of his Romany heritage and teaches the reader a great deal about its proud traditions, alongside its shames. The journey was at times painful, but overall enriching.
I only got about halfway through my summer reading to-do list, so more books await. For now, though, I need to get back to figuring out how to teach 1L Torts online. Happy reading.
While our powers-that-be in Congress wring their hands over trying to reconcile allegiance to our corporate overlords with antitrust in the tech sector, a court decision in Uruguay is worth noting. The Supreme Court of Justice in the country of La Celeste held constitutional a law that compels the free live broadcast of some national soccer and basketball games.
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| Uruguay v. Costa Rica in World Cup 2014 (Danilo Borges/Portal da Copa CC BY 3.0 BR) |
The ruling, sentencia no. 244 de 17 de agosto 2020 (search "244/2020" here), doesn't cover many games. Explaining the case in 2019, a representative of the appellant Uruguayan Football Association (AUF) told El Observador (Uruguay) that the law would cost the franchise only some of nine Uruguay football qualifiers in four years. AUF still insisted that its economic interests were meaningfully and unconstitutionally diminished by the imposition.
Notwthstanding the limited reach of the ruling, the Court's willingness to abrogate private economic rights to further the public interest is significant. Accepting the rationale for the law, the Court wrote, "Recuerda y resalta la Corte que la selección uruguaya de fútbol, en función de las hazañas deportivas y copas obtenidas en campeonatos mundiales y juegos olímpicos, forma parte de la identidad nacional y es tópico actual y recurrente en la ciudadanía." ("The Court recalls and emphasizes that the Uruguayan football team, as a function of its sporting achievements and championships won in the World Cup and Olympic Games, forms part of the national identity and is a current and continuing subject among the people.")
The ruling, on article 39 of the Ley de Medios, No. 19307, is one in a series from Uruguayan high courts (e.g., Observacom, Aug. 15) in recent months examining constitutional challenges to a far-ranging 2015 package of populist telecommunication reforms. Civil rights advocates have hailed the courts' rulings for upholding the constitutional framework of the media law overall. But business challengers have succeeded in blocking some restrictions, such as a limitation on subscriber numbers for cable TV providers, as unduly burdensome of commercial freedom. For further example of the mixed results, the Court upheld article 40, which licenses Televisión Nacional de Uruguay to broadcast a game if no other broadcaster bought the rights. But the Court struck down a subparagraph of article 39 that gave the executive authority to convert matches to free TV by resolution recognizing the public interest.
The telecommunication reforms have been championed by "center-right" Uruguay President Luis Lacalle Pou, who came to power in March 2020 after a hard-fought election and contested run-off. Upon a campaign theme of "Uruguay seguro, transparente y de oportunidades," President Lacalle Pou promised to push back against left-leaning policies of the previous fifteen years with a raft of reforms aimed at slashing spending, controlling crime, combating corruption, and realigning foreign policy. Whether or not he could have delivered, he has been, like leaders around the world, hampered by the coronavirus crisis.
Hat tip at Observacom Executive Director Gustavo Gómez (Twitter) for reporting on the case.
The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.
In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content. The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff. That amplification can count toward damages if the plaintiff prevails. But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication. The rule is said to serve interests of both judicial efficiency and fairness to defendants.
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| A newspaper is printed in 2013 on an 18th-century press in Colonial Williamsburg. (Maggie McCain CC BY 2.0) |
There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished. The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download. Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."
The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication. In a decision today, the Massachusetts Appeals Court followed that norm.
The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence. In each of two incidents, Wolsfelt was arrested. After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report." When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."
After the second incident in June 2012, the Times again published online a story that "largely tracked the police report." When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months." Charges were dismissed in 2012 and 2014, respectively.
In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment." But the complaint was not filed until more than three years after the first article, its update, and the second article. The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update. The plaintiff said he learned about the articles only upon applying for employment in February 2013.
The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run. Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods. The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.
The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions. The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.
However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States. Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless. Accordingly, the single publication rule has gained traction as a U.S. export. The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013. And the rule has been a point of proposal in Australia's ongoing defamation reform. The single publication rule became law in New South Wales in July (Lexology).
The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020). Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.
