As the sun sets in the U.S. East, I was prepared to let Halloween slide by on the blog, even though so many great tort-related items perennially crop up, and an eagle-eyed 1L Jason Jones sent me an excellent story about the super creepy McKamey Manor (YouTube) haunted house in Summertown, Tennessee (Guardian video coverage four years ago). Then Professor Christine Corcos (of Media Law Prof Blog, via TortsProf List) alerted me to WaPo coverage of McKamey, and Ronny Chieng incorporated McKamey into his Halloween edition of"Everything is Stupid" on The Daily Show (here for the blog, not the classroom).
The "petition" referenced in the news coverage (linked above, top) refers to a Change.org petition, not a legal action. Yet. The case would be useful to consider tort claims, such as the infliction of emotional distress, as well as defenses, such as consent and assumption of risk, vitiation on public policy grounds, and the American ethos of personal responsibility.
Thanks to my TA, here's an even better item, funny without the dark angle, bringing a lawyer into the picture: the first two segments of Nathan For You s1e05.
Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires. The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.
I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.
The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).
I've freshly endured my own reminder at UMass Law of how
readily academics turn on each other. As I nurse the knife wound in my
own back, I find myself re-sensitized to how American university
administrators today exploit the ruthless faculty penchant for
self-preservation to further the faculty's own fall
and the rise of bureaucratic hegemony in its place. Ultimately if
indirectly, the most devastating impact of this dynamic is visited on
the students who should be the beneficiaries of the educational mission.
A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path. Suffice to say, my testimony was breathless.
So this one was the vision of what happens if things don't go the
way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now
call the neo liberal left was ignoring workers' needs and was not paying
attention to the things that give rise to populism and only the right
was paying attention to those needs.
[Rorty] said, 'at that point, something
will crack. The non-suburban electorate will decide that the system has
failed and start looking around for a strong man to vote for. Someone
willing to assure them that, once he is elected, the smug bureaucrats,
tricky lawyers, overpaid bond salesmen and postmodernist professors will
no longer be calling the shots.
'One thing that is very likely to happen
is that the gains made in the past 40 years by black and brown
Americans and by homosexuals will be wiped out. Jocular contempt for
women will come back into fashion. All the resentment which badly
educated Americans feel about having their manners dictated to them by
college graduates will find an outlet.'
—The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,
quoting the speculative fiction of philosopher Richard Rorty in 1997
The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library. Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal. Ian Donnis, political reporter for The Public’s Radio, will moderate.
The First Amendment has been much in the news lately, in our strange times. Two items from my listen-and-read list. First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.
In part one of three, Marantz challenges First Amendment absolutism. That's not a big reach, but lays out the context for his discussion. In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine. It's familiar territory until he hits Citizens United(about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speechauthor P.E. Moskowitz. The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.
The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality. As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical. Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.
Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection. At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement. Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.
A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town. The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."
Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment. A jury trial was had only on the question of damages. In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm. Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:
The crux of the falsity in the defamation claim was defendants'
assertion that Pozner was in possession of and distributing a
falsified death certificate. Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds." Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog. The book publisher earlier settled and agreed to stop selling the book.
James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy
theorist. He retired from UMD in 2006. His theories are his own and are
not endorsed by the University of Minnesota Duluth or the University of
Minnesota System. As faculty emeriti, Fetzer's work is protected by the University of
Minnesota Regents Policy on Academic Freedom, which protects creative
expression and the ability to speak or write on matters of public interest
without institutional discipline or restraint.
The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances. Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.
Fetzer and Palecek have books for all occasions. One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing. Three people were killed at the scene in Boston, and more than 200 were injured.
Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court. Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity. Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.
[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]
Last week the American Society of Comparative Law (ASCL) met at the University of Missouri Law School. I was privileged to participate among 120 scholars from 20 countries.
As part of the works-in-progress program at the front end of the conference, I presented the most recent iteration of my work on access to information law, comparing private-sector transparency and accountability measures in South Africa with selected standards in Europe.
I benefited from exchange of critique from a room full of participants, including co-panelists James Maxeiner of the University of Baltimore and Kwanghyuk (David) Yoo of the University of Iowa. Maxeiner presented a fascinating comparative study of lawmaking in Germany and the United States, showing the inventive ways that lobbying-driven American lawmakers might learn from Germany's variegated means of incubating potential legislation. Yoo talked about U.S. and European Union court decisions on antitrust challenges to patent settlements in the pharmaceutical industry: when a company settles a lawsuit to keep a patent challenger out of the market, when does dispute resolution cross into anti-competitive misconduct?
The panel was moderated by Missouri’s Mekonnen Ayano, a Harvard doctoral graduate and formerly an Ethiopian judge and World Bank legal counsel. University of Missouri Dean Lyrissa Lidsky, an accomplished media law scholar, attended and live-tweeted the panel.
[UPDATE: Vainly adding photos with me in them, courtesy of Mizzou Law.]
Prof. Maxeiner and I listen in the lecture hall.
I puzzle over dinner options.
I ramble about ATI in Africa with the generous ear of moderator Prof. Ayano.
Whistleblowers are basking in an adoring limelight in the United States right now. They better enjoy it while it lasts, because the American taste for whistleblowing is fickle.
All the attention being paid to whistleblowing in Washington, you would think that whistleblowers are heroes of democratic liberty, Paul Reveres on midnight rides of revelation. Now there’s a second whistleblower, and maybe a third, and, why, people just can’t get in line fast enough to become whistleblowers.
I have to roll my eyes when I hear people waxing poetic over the great tradition of the American whistleblower. Catch those same people on a different day, different issue, or different side of the fence, and they’ll be lashing the whistleblower to the stake and setting their torches to the kindling like it’s the Spanish Inquisition. For much of American history, whistleblowing has been synonymous with disloyalty and treachery.
The Washington whistleblower caused WNYC’s On the Media to replay a 2015 segment in which Brooke Gladstone interviewed language writer Ben Zimmer and consumer protection advocate and civil rights crusader Ralph Nader. The early-20th-century word whistleblowing, Zimmer explained, comes from what it sounds like: a referee blowing the whistle to stop play in event of a penalty. (See Transparency International for the word’s translations, born of other cultural contexts.) No sooner did the word come about that it acquired a dark connotation. It meant, Gladstone said, “to snitch, to rat, to steal.” You can hear that usage, Zimmer pointed out, in the classic film On the Waterfront (1954), in reference to the enemies of organized labor. In this sense, Trump’s “spy” notion is not so far off the mark.
Nader was responsible for turning the word around in the 1970s. He pleaded for insiders to break ranks in his public safety crusade against Big Auto, and he repurposed the term whistleblowing with the positive spin of serving the greater good, despite disloyalty in the short term. So the word is not the thing. Gladstone nailed the salient distinction, which is whether the whistleblowing accords with one’s value judgments. Trump’s traitor is Pelosi’s star witness. Ed Snowden deserves either a presidential medal or an espionage prosecution. Even Upton Sinclair was a duplicitous meatpacking worker.
Blow the Whistle
Our ambivalence about whistleblowers finds expression in law. When we protect whistleblowers at law—common law usually does not—it’s usually a legislative reaction to something awful that happened, when we wonder why no one in the know said anything. While whistleblower protection statutes are prevalent in the United States at state and federal levels, they are often controversial, hardly comprehensive, and likely to pertain only to the public sector. Protection tends to be narrow and sectoral in scope; to depend upon abundant and variable technical prerequisites; and to offer scant shield from the full range of consequences, formal and informal, that the whistleblower faces. Woe to the would-be whistleblower who fails to hire a lawyer in advance to navigate the legal process. The Washington whistleblower was meticulous. The person either is a lawyer or consulted one.
Far from the glamorous escapades of the Hollywood Insider, the real-life whistleblower’s lot in life is lousy. More whistleblowers become infamous than famous, and most become no one significant at all. Typically whistleblowers find themselves, through no fault of their own, in a catch-22. Behind door number one, go with the flow, stay with the pack, look the other way, and sell out your principles. Behind door number two, stand on principle, and probably lose your job, your livelihood, your home, and your friends, alienate your family, and maybe put your life at risk.
To be fair, not all whistleblowers are motivated by altruism, and not all whistleblower motives are altruistic. Sometimes whistleblowers themselves are victims of the misconduct they are reporting. Sometimes they are grinding an unrelated ax against a perpetrator—which doesn’t make the perpetrator less an offender. Whistleblowers’ motives can be complicated. People are complicated. Altruism is a factor. Courage is a constant.
Play the Game
Last week, I had the extraordinary experience of meeting some whistleblowers in world sport. For me, it was the highlight of Play the Game, an initiative and biennial conference of the Danish Institute for Sports Studies, its first meeting outside Europe. Play the Game aims to raise ethical standards and to promote democracy, transparency, and freedom of expression in world sport.
That started to change when FIFA and IOC were exposed as corrupt at their cores. Their corruption was exposed by whistleblowers.
Bonita Mersiades (Play the Game CC BY-NC-SA 2.0)
Bonita Mersiades was a top exec with the Australian Football Federation from 2007 to 2010, when she worked on Australia’s failed bids for the 2018 and 2022 FIFA World Cup tournaments. She blew the whistle on the extraordinary demands that FIFA placed on would-be hosts and her own country’s willingness to bend the public interest to conform. Those tournaments we know now were awarded to Russia and Qatar upon such rank corruption as resulted in a 2015 raid by U.S. and Swiss law enforcement and dozens of criminal indictments. Mersiades herself was outed when the investigative report of Assistant U.S. Attorney (now N.Y. Judge) Michael Garcia was made public.
At Play the Game, Mersiades described social ostracism in her community, loss of her career in sport administration, burglary of her home, and hacking and online harassment. She wrote about FIFA corruption and her experience in a 2018 book, Whatever It Takes: The Inside Story of the FIFA Way.
Yuliya and Vitaly Stepanov (Play the Game CC BY-NC-SA 2.0)
Also on the whistleblower panel (below in full) were Yuliya Stepanova and Vitaly Stepanov. Yuliya was a Russian Olympic runner, and Vitaly worked for the Russian anti-doping agency. Together they blew the whistle on Russian doping, breaking open a massive scandal that rocked Russia and the world, exposing not just systematic Russian doping but reckless, if not criminal, indifference in the World Anti-Doping Agency. With good reason, the Stepanovs feared for their lives. They applied for Canadian asylum and now live in the United States (with their adorable little boy, also in attendance).
Vitaly told a spellbound audience that the stress of the couple’s situation had them on the verge of divorce when, at last, they took the leap into whistleblowing history together. They would have to leave homeland and family behind, and their lives would never be the same. But it was OK, he said, because “after that, … we were united.”
My dinner companions: Mersiades and Dr. Joel Carmichael,
chiropractor to U.S. Olympic athletes
When, over dinner, I lamented the state of patchwork American whistleblower protection law, Mersiades was quick to correct me. It’s much better than Australia, she said. [See UPDATE below.] In the United States, we do have a somewhat vigorous qui tam field. (Read more at Troxel, Krauss, & Chapman.) And the federal whistleblower law now at the heart of the impeachment inquiry is better than the yawning void of jeopardy into which FBI Special Agent Coleen Rowley stepped when she testified in the Senate on 9/11 failures in 2002. She retired from the FBI two and a half years later.
Still, it seems to me that as a society, we should be able to do better. When the dust settles around the peculiarly technically adept Washington whistleblower, we might ought wonder why whistleblowers aren’t all around us—at every level of government, and in the private sector. Did no one at Purdue Pharma know about aggressive opioid peddling? We should wonder why, in the land of the First Amendment, there are so many disincentives—legal, social, economic—for anyone to speak out as a citizen on a matter of urgent public interest.
“It is difficult to get a man to understand something, when his salary depends upon his not understanding it,” Sinclair said in 1934. That’s why the rule of law must support the apostate who speaks the truth.
The documentary Icarus tells the Russian doping story. Director Bryan Fogel also spoke on the whistleblowing panel (above) at Play the Game 2019.
[UPDATE, Oct. 21, at 10:50 a.m. U.S. EDT: A testament to Mersiades's lament that Australian whistleblower protection lags behind democratic demands, witness today's remarkable protest action by Australian newspapers.]
