Tuesday, February 26, 2019
Let's 'open up our libel laws': I'm with Thomas
"Actual malice"—ill named, as it does not have to do with anger or ill will, which is "common law malice"—is akin to the recklessness standard of tort law. In a defamation context, "actual malice" is said to mean "knowledge of falsity or reckless disregard as to truth or falsity." Supreme Court precedents late in the civil rights era amped up "reckless disregard" so much that for many years, actual malice seemed to be a nearly "fatal in fact" test.
Based only on casual observation, I posit that actual malice's rigor has been weakening in recent years. Courts have begun to recognize the need to fine tune the balance between reputational and speech rights. Meanwhile, "actual malice" has had a rough go in the world, even among our fellow human rights-loving western democracies. Actual malice has been largely rejected as a functional standard for its insufficient protection of reputation as a human right countervailing the freedom of expression. (My colleague Prof. Kyu Ho Youm paints a different picture. I deeply admire Prof. Youm, a dear friend, and his work, which I have assigned students to read. But I sharply disagree with his conclusion on this point.)
In his concurring opinion in McKee, Thomas challenged the constitutional imperative of the actual malice standard, which is so much higher than negligence and strict liability. His argument was not so narrow, however. Broadly, he proposed that the Court reconsider the fundamental premise that the the federal Constitution, through the First Amendment, should reshape state tort law, as the Court held it did in the civil rights-era cases. Thomas is a champion of textualism and originalism, and it must be admitted that the Court's First Amendment doctrine from the latter-20th century is on thin ice in those schools of constitutional interpretation.
This blog, any blog, is far from an adequate venue to tackle this question. I just want to do my part to raise consciousness of Thomas's proposition, and to dare to say, I agree. For many years now, I have harbored a deep suspicion of Sullivan and progeny. In my academic circles, especially in the free speech and civil liberties crowd, I have felt something like a church deacon harboring a dark secret. No longer; I confess:
Actual malice swung the pendulum way too far in favor of defendants. I get why, and I appreciate the good intentions. Sullivan arose against the tragic reality of the Jim Crow South and the potential national crisis precipitated by desegregation. But even Anthony Lewis, in his definitive book on Sullivan, Make No Law, recognized that the Court's federalization and constitutionalization of state defamation law had the ill effect of freezing the process of common law evolution. As a result, we have been deprived of the opportunity to experiment with fair and equitable policy alternatives, such as media corrections as a remedy.
I'm not arguing to "open up our libel laws," quite as President Trump proposed. But I'm with Justice Thomas. Sullivan is not holy writ.
Friday, April 3, 2020
'Game changer,' $2.5m punitive affirmance elucidates 'gross negligence' in medmal
According to the court opinion, Laura Parsons died after laparoscopic surgery to repair her hiatal hernia resulted in surgical tacks penetrating her pericardium, the membrane surrounding the heart. The jury laid blame squarely on defendants surgeon, nurse, and employer for tacks having been inserted in the diaphragm too close to heart tissue. Parsons died of cardiac arrest two days after surgery, and an autopsy observed "puncture marks on the posterior aspect of the heart."
In addition to $2.6m in compensatory damages, the jury charged the surgeon with $2.5m in punitive damages for "gross negligence," the threshold for punitive damages in medical malpractice in Massachusetts. The Appeals Court affirmed. Mass. Lawyers Weekly called the decision a "game changer" in favor of punitive damages for medmal plaintiffs (Mar. 5, 2020, pay wall).
An issue on appeal was the jury instruction on "gross negligence." More than negligence and less than recklessness, "gross negligence" is a familiar yet elusive norm in Anglo-American common law. The Appeals Court in part faulted the surgeon's counsel for failing to state objection to the usual jury instruction on the standard, though the court seemed content with the instruction on its merits. The court observed, "While drawing the line between ordinary negligence and gross negligence can be difficult, 'the distinction [between them] is well established and must be observed, lest all negligence be gradually absorbed into the classification of gross negligence [citations omitted]."
The court concluded, "The evidence as a whole permitted the jury to find that [Dr.] Ameri's use of the tacker in Parsons's surgery manifested many of the common indicia of gross negligence. See Rosario v. Vasconcellos ... ([Mass.] 1953), quoting Lynch ... [Mass. 1936] ("some of the more common indicia of gross negligence are set forth as 'deliberate inattention,' 'voluntary incurring of obvious risk,' 'impatience of reasonable restraint,' or 'persistence in a palpably negligent course of conduct over an appreciable period of time'").
The case is Parsons v. Ameri, No. 18-P-1373 (Mass. App. Ct. Feb. 26, 2020) (Justia). Justice Massing wrote for a unanimous panel with Sacks and Hand, JJ.
Saturday, February 26, 2022
Judge Jackson Media Law, Torts Tour: From Big Meat 'COOL' to 'A Love of Food' and 'Everlasting Life'
The Hon. KBJ (Wikicago CC BY-SA 4.0) |
Profiles of U.S. Circuit Judge Ketanji Brown Jackson have proliferated since her announcement as a leading contender for the U.S. Supreme Court seat vacated by Justice Breyer, and President Biden announced her nomination yesterday.
Judge Jackson has practiced in both criminal and civil environments, and in public and private sectors. She focused in different practice roles on criminal law and appellate litigation, and she served on the federal bench at the trial and appellate levels. So much of her work, and that which has garnered the most attention, for example in the excellent SCOTUSblog profile by Amy Howe, interests me as a citizen in general more than as an academic and media-law-and-torts aficionado.
Nevertheless, I compiled here cases of interest to me, which I found whilst poking around in her trial-court record on the U.S. District Court for the District of Columbia (D.D.C.). You might not see these discussed elsewhere, but they might be of interest to comparative-bent, media-law types like me, if that's even a thing. In my ordinary-joe capacity, I am not in step with Judge Jackson's inclinations in some other areas of law. But any Supreme Court Justice, just like any political candidate, is going to be a mixed bag, especially in a compulsorily two-party system.
In the cases below, a decidedly unscientific sample, I like some of what I see, especially skeptical diligence in access-to-information cases, sound reasoning in intellectual property law, careful application of preemption doctrine in medical-product liability, and a couple of thought-provoking First Amendment entanglements. I see a mixed record on venue for transnational cases, something I've been worrying about lately, but the outcomes are defensible as consistent with lousy U.S. law.
Main topics:
● Civil procedure/statute of limitations: WMATA v. Ark Union Sta., Inc. (2017)
● Copyright/music royalties: Alliance of Artists & Recording Cos. v. Gen. Motors Co. (2018)
● Defamation, false light/actual malice: Zimmerman v. Al Jazeera Am., LLC (2017)
● First Amendment/child pornography: United States v. Hillie (2018)
● First Amendment/commercial speech, compelled speech: Am. Meat Inst. v. U.S. Dept. Agric. (2013)
● FOIA/national security, law enforcement: Elec. Privacy Info. Ctr. v. U.S. Dept. Justice (2017)
● FOIA/Vaughn index, trade secrets, deliberative process: McKinley v. FDIC (2017)
● FOIA/deliberative process/personal privacy: Conservation Force v. Jewell (2014)
● FSIA/CCFA, forum non conveniens: Azima v. RAK Invest. Auth. (2018)
● FSIA/torture: Azadeh v. Iran (2018)
● Insurance/settlement: Blackstone v. Brink (2014)
● Product liability/causation, preemption, learned intermediary: Kubicki v. Medtronic (2018)
● Trademark/infringement: Yah Kai World Wide Enter. v. Napper (2016)
● Wrongful death/sovereign immunity, contributory negligence: Whiteru v. WMATA (2017)
● Wrongful death, product liability/forum non conveniens: In re Air Crash ... So. Indian Ocean (2018)
Quirky pro se claims:
● Defamation/litigation privilege/statute of limitations: Ray v. Olender (2013)
● Copyright/infringement: Buchanan v. Sony Music Ent. (2020)
● Copyright/pleading: Butler v. Cal. St. Disbursement Unit (2013)
● Copyright/subject-matter jurisdiction: Miller v. Library of Congress (2018)
● FTCA/FOIA, civil rights: Cofield v. United States (2014)
● Legal profession/sovereign immunity, absolute immunity: Smith v. Scalia (2014)
And the case with the best name:
● A Love of Food I v. Maoz Vegetarian USA (2014)
WMATA (D.C. Metro) (Max Pixel CC0) |
D.C. has a generous five-year statute of limitations, but even that time had run. Determining that the corporate-body WMATA remained a creature of government for relevant purposes, evidenced by its operational subsidies—cf. WMATA, infra, in negligence/sovereign immunity—Judge Jackson applied "the common law nullum tempus doctrine, which dates back to the
thirteenth century," to exempt WMATA, as sovereign, from the statute of limitations. The court explained: "Although the nullum tempus doctrine originated as a 'prerogative of the Crown[,]' the doctrine's 'survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.' .... Specifically, 'the source of its continuing vitality ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers'" (citations omitted).
Pixabay |
Zimmerman (All Pro Reels CC BY-SA 2.0) |
Naturally, this case might be of interest to Court watchers, given the present hubbub over the Sullivan actual malice standard. I'm no fan, and I'll have more to say about that in the future. Zimmerman hardly depicts a Judge Jackson ready to pitch in with Justices Thomas and Gorsuch to upend the status quo. But she understands the standard and at least might be amenable to a semantically sincere construction of "reckless disregard."
First Amendment/child pornography. United States v. Hillie, 289 F. Supp. 3d 188 (D.D.C. 2018). Criminal cases are not usually my jam, but this one had a First Amendment angle. Judge Jackson allowed conviction of a defendant for sexual exploitation of a minor and possession of images of a minor engaging in sexually explicit conduct. On the facts as explicated by the court, that sure seems like it was the defendant's intent: "carefully placing and positioning the camera in hidden locations in J.A.A.'s bedroom and bathroom" and "succeed[ing] in capturing several extended images of J.A.A.'s exposed genitals." Missing, though, was the express "lasciviousness" required by federal statutes, a fatal flaw for the prosecution, the D.C. Circuit ruled. 14 F.4th 677 (2021). The defendant relied on statutes, not the First Amendment, but the D.C. Circuit referenced First Amendment case law extensively to support its interpretation of what Congress required. Despite the substantial latitude to which the government is entitled to prosecute child pornography, beyond the legal constraints of outlawing obscenity as to adults, the appellate court concluded that Judge Jackson erred in permitting the jury to infer the defendant's lascivious objective. One might expect that social conservatives would side with Judge Jackson on this case.
Labeled French beef (by Yuka for Open Food Facts CC BY-SA 3.0) |
Anyway, in this case, Judge Jackson capably explicated the niche case law of compelled commercial speech and charted the fine if squiggly line separating free speech and business regulation. The risk of deception was more than merely speculative here, she opined, and consumers were demonstrably confused. Industry mistakenly claimed a burden on its pocketbook, rather than its speech rights, Judge Jackson admonished. The COOL Rule was reasonable and hardly burdensome for its expectation of truthful and uncontroversial disclosure. Preliminary injunction was denied.
Big Meat was not easily deterred; the case went for a rodeo ride the following year. The D.C. Circuit affirmed, 746 F.3d 1065 (Mar. 28, 2014), vacated upon granting rehearing en banc, No. 13-5281 (Apr. 4, 2014), and then reinstated affirmance (July 29, 2014).
U.S. Defense Department image (C) |
FOIA/Vaughn index, trade secrets, deliberative process. McKinley v. FDIC, 268 F. Supp. 3d 234 (D.D.C. 2017), then No. 1:15-cv-1764 (D.D.C. Sept. 30, 2018). Judicial Watch, per experienced FOIA-requester attorney Michael Bekesha, represented a plaintiff against the FDIC. In the reported opinion in 2017, the court compelled the FDIC to produce a Vaughn index. The Judicial Watch plaintiff was investigating FDIC placement of Citibank into receivership in 2008 and 2009. The FDIC sought to protect 12 documents as trade secrets and eight documents as deliberative process. The court faulted the FDIC for failing to support either claim of exemption with any contextual explanation, including the nature of its decision-making authority on the latter claim.I note that Judge Jackson's reasoning on the trade-secret analysis might have been undermined subsequently by the Supreme Court's industry-deferential ruling on exemption 4 in Food Marketing Inst. v. Argus Leader Media (U.S. 2019). (I signed on to an amicus on the losing side in FMI.) In an earlier FOIA case, Government Accountability Project v. FDA, 206 F. Supp. 3d 420 (D.D.C. 2016), Judge Jackson similarly relied on pre-FMI doctrine to reject, as unduly conclusory, FDA resistance, at the behest of a pharma trade association, to production of records on antimicrobial medications.
Vaughn index in hand on remand, plaintiff persisted in challenging the adequacy of the FDIC search and "whether withheld information 'has already been made public through an official and documented disclosure.'" Judge Jackson rejected both claims in a short opinion in 2018. She found the first merely speculative. As to the second, the plaintiff "argued that the FDIC's withholdings were improper because the requested information was 'officially' acknowledged by Former FDIC Chairman Sheila Bair in the book Bull by the Horns—a book that Bair published after leaving office." Judge Jackson held that "that contention, too, must be rejected. A book or other material that a former government official publishes in her personal capacity does not qualify as an 'official acknowledgment' of the information contained therein for the purpose of FOIA."
Bison trophy at Beaty Biodiversity Museum, Vancouver, B.C. (by Nikkimaria CC BY-SA 3.0) |
Judge Jackson authored a workmanlike exploration of various exemption theories asserted by Interior: accepting attorney-client privilege (exemption 5) and personal-information exemption (6); rejecting deliberative-process exemption, crime-fraud exception to attorney-client privilege, and work product privilege (all exemption 5). She cited House reports to bolster her interpretations of what exemptions 5 and 6 require. In a pattern that became familiar, or maybe just speaks to agency neglect, she faulted Interior for a conclusory ("woefully short") Vaughn index that failed to support exemption. As to exemption 6, which has been aggressively enlarged by federal courts in furtherance of the privacy rage, Judge Jackson accepted Interior's redaction of employee personal information as more or less immaterial to the sought-after accountability. The D.C. Circuit affirmed summarily in No. 15-5131 (Dec. 4, 2015).
FSIA/CFAA; forum non conveniens. Azima v. RAK Invest. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018). Judge Jackson was reversed in this one, 926 F.3d 870 (D.C. Cir. 2019), but I prefer her analysis. Under the Computer Fraud and Abuse Act (CFAA) and for common law conversion and unfair competition, plaintiff, a Kansas City, Mo., businessman, sued a business partner, a public investment authority (RAKIA) of the United Arab Emirates (UAE, specifically the Emirate of Ras Al Khaimah), after their business relationship soured, alleging that RAKIA "commissioned the repeated surreptitious hacking of his personal and business laptops ... and then published disparaging material that was illicitly gleaned from Azima's computers...." RAKIA sought dismissal under the Foreign Sovereign Immunities Act (FSIA) on grounds of sovereign immunity, under a contractual forum selection clause, and, relatedly, under the common law venue doctrine of forum non conveniens.
Judge Jackson rejected all three grounds. The plaintiff plausibly portrayed RAKIA, an investor rather than governing entity, as a commercial actor and alleged tortfeasor, bringing into play the FSIA commercial and tort exceptions. As alleged, the hacking would have inserted malware into the plaintiff's computer systems, even if the insertion occurred abroad, so the locus of alleged tortious injury was Kansas City, bolstering the FSIA analysis. The forum selection clause did not pertain, Judge Jackson reasoned, because it was articulated in the parties' contract for a prior commercial venture; the contract hardly covered subsequent hacking.
As to venue, Judge Jackson faulted RAKIA for failing to meet its "heavy burden" to show that Azima would get a fair shake in RAKIA's preferred venue of London, where RAKIA might have hoped for a more favorable outcome on immunity. I like that analysis—but cf. infra, re wrongful death/forum non conveniens. My comparative law class just read Professor Vivian Curran's masterful recent work on foreign law in U.S. courts, in which she convincingly demonstrated U.S. federal judges' penchant to over-employ forum non conveniens and thus shirk their responsibility to adjudicate.
Perhaps proving Prof. Curran's thesis, the D.C. Circuit disagreed, holding that the forum selection clause burdened the plaintiff with having to show why London would not work as an appropriate venue, else face dismissal for forum non conveniens. I would be remiss not to mention also: Prof. Curran further faulted the courts for lazy reliance on partisan evidence (my words) when foreign law is concerned, and both Judge Jackson and the D.C. Circuit declared a lack of any responsibility to investigate themselves the adequacy of London as a forum.
FSIA/torture. Azadeh v. Iran, 318 F. Supp. 3d 90 (D.D.C. 2018). Plaintiff was an inmate of an Iranian jail and alleged torture and intentional torts at the hands of the republic. A U.S. court ruling in such a matter is principally symbolic. Iran will not respond; a plaintiff might hope to recover against a U.S. government claim on frozen assets. Accordingly, in this case, a magistrate judge recommended entering default judgment in favor of the plaintiff. I have here omitted cases in which Judge Jackson adopted in toto a magistrate's report; in this case, she did not.
Relying on a manual of the U.S. district courts, the plaintiff had effected service on the state of Iran erroneously, under the wrong order of process under the FSIA. Judge Jackson wrote: "Judges are sometimes called upon to set aside heart-wrenching and
terrible facts about a claimant's treatment at the hands of a defendant
and enforce seemingly draconian, technical mandates of law. This is an
especially difficult duty when the machinery of the judicial system
itself appears to have played a role in the claimant's mistaken view of
the applicable legal requirements. The somber circumstances of the
instant case present one such scenario...." The court put the default judgment on hold and gave the plaintiff a second crack at proper service. Judge Jackson subsequently entered default judgment against Iran, in the sum of $36,411,244, in No. 1:16-cv-1467 (D.D.C. Sept. 5, 2018). Reproduced therein, the magistrate's report detailed the plaintiff's ordeal.
Insurance/settlement. Blackstone v. Brink, 63 F. Supp. 3d 68 (D.D.C. 2014) (D.C. law). In an insurance dispute arising from the alleged wrongful death of a pedestrian, plaintiffs and their attorney apparently changed position on whether to settle with defendant-driver's insurer, State Farm, for the defendant's $100,000 policy limit. After a telephone conversation, State Farm sent a check and a release form to the plaintiffs' attorney. The check crossed in the mail with a letter from the attorney rejecting the offer. Applying D.C. law, Judge Jackson determined that the parties had reached an enforceable agreement on the telephone, evidenced by the specificity of the attorney's instructions on how and where to send the check. The court wrote of the parties' competing narratives: "On this record, it is far more plausible that [plaintiff counsel] accepted [State Farm's] offer on behalf of his clients [plaintiffs], intended that it be final and binding, and later had misgivings about his earlier decision to accept. Unfortunately for Plaintiffs, courts have long held that such buyer's remorse does not vitiate a demonstrated initial intent to be bound by the settlement agreement" (original emphasis).
A Medtronic product (Alan Levine CC BY 2.0) |
Trademark/infringement. Yah Kai World Wide Enter. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016). The defendant ran the Everlasting Life Restaurant & Lounge as an enterprise of the African Hebrew Israelite community, "who claim to be descendants of biblical Israelites and who follow a strict vegan diet," until their relationship soured. The plaintiff-community sued when the defendant persisted in doing business as "Everlasting Life," which a community leader had registered as a service mark (pictured). Trial did not go well for the defense; Judge Jackson wrote that the defendant "displayed some signs of dissembling, such as the evasive nature of his answers with respect to the existence of a purportedly independent and unincorporated food business that he claimed to have created by himself in his home garage prior to the Community's formation of its restaurant businesses." The court found likelihood of confusion and, accordingly, infringement. If only defendant had partnered with Big Meat to serve litigious hungry hunters returning from Canada.
Wrongful death/sovereign immunity, contributory negligence. Whiteru v. WMATA, 258 F. Supp. 3d 175 (2017). This time the WMATA, the D.C. transit authority, was a negligent defendant rather than plaintiff—cf. WMATA, supra, in civil procedure/statute of limitations—and this time, the authority was ruled not sovereign for purposes of immunity. In what was essentially a slip-and-fall, the plaintiff-decedent's estate and parents blamed the WMATA for not discovering the decedent—a lawyer, by the way—injured on a train platform, in time to provide life-saving medical treatment. A creature of state compact and D.C. statute, the WMATA enjoys an immunity analogous to that of federal defendants under the Federal Tort Claims Act (FTCA). Borrowing the FTCA rule of immunity for discretionary governmental functions, which often presents a frame-of-reference problem in its granular application, Judge Jackson rejected the WMATA theory that officials' conduct was discretionary. Rather, properly, I think, the court accepted the plaintiff's framing of the case as alleging unreasonable comportment with the WMATA standard operating procedures for platform inspection.
At that time in 2017, factual questions in the case precluded summary judgment. However, in 2020, Judge Jackson awarded the WMATA summary judgment upon the plaintiff's contributory negligence. 480 F. Supp. 3d 185. The District is not a comparative fault jurisdiction. The plaintiff's heavy intoxication when he fell was undisputed, and, Judge Jackson opined, video evidence plainly showed that the plaintiff fell because he over-relied on a low wall for support. Just this month, the D.C. Circuit reversed and remanded, ___ F.4th ___ (Feb. 11, 2022), holding that under D.C. law for common-carrier liability, contributory negligence is not the complete defense that it usually is in negligence in the District.Suggested search area for MH370 debris (Andrew Heneen CC BY 4.0) |
Judge Jackson opined:
All told, the Montreal Convention cases in this MDL involve only six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of passengers on that flight, only three were citizens of the United States, and while the United States undoubtedly has a strong public interest in the claims involving their deaths, its interest pales in comparison to Malaysia's interest in litigating these claims. Malaysia's public interest includes not only an interest in the untimely deaths of the Malaysian pilot and crew, but also an interest in determining precisely what happened to Flight MH370, given that a Malaysian airline owned, operated, and maintained the aircraft; the flight took off from an airport in Malaysia for a destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And Malaysian authorities made substantial investments of time and resources in the wake of this disaster: Malaysia conducted extensive civil and criminal investigations, and changes in Malaysian law led to the creation of a new national Malaysian airline. It is Malaysia's strong interest in the events that give rise to the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370.
I really want to lash out against this reasoning. But probably it would be like when I was a little kid fed up with allergy-testing shots and kicked my doctor. Despite my reservations about forum non conveniens, see Prof. Curran, supra, I admit that my frustration stems from doubt that the case could be fairly prosecuted in Malaysia, even if the plane is found, rather than a confidence that the United States is a logical venue. It might not even matter, as the Montreal Convention probably would curb recovery even in U.S. courts. Insofar as I have any legitimate gripe, it's in part that forum non conveniens is just a witless rule out of step with a globalized world, and in part that Judge Jackson should have done some independent investigation of the adequacy of Malaysia as a forum.
The aftermath of the MH370 disappearance revealed concerning deficits in transparency, and, thus, potentially in accountability, in the Malaysian investigative process. And while I don't think Boeing is to blame, having watched Downfall: The Case Against Boeing (2022) on Netflix just last weekend—Langewiesche wrote about the 737 MAX for The New York Times—leaves me distrustful. Indeed, however relying upon precedent, Judge Jackson declined MH370 plaintiffs' last-ditch demand that, at least, Boeing be compelled to promise to abide by U.S. discovery in connection with any subsequent litigation abroad.
The D.C. Circuit affirmed, 946 F.3d 607, and the Supreme Court denied cert., 141 S. Ct. 451, in 2020.
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Here are some quirky pro se claims, just to stimulate the noggin.
Defamation/litigation privilege/statute of limitations. Ray v. Olender, No. 13-1834 (D.D.C. Nov. 21, 2013). Judge Jackson dismissed an odd $5m pro se defamation claim against an attorney, apparently based on a 1965 suit for copyright infringement and counter-suit. She held the claim barred by the one-year D.C. statute of limitations and, anyway, based on statements in pleadings, protected by the litigation privilege.
Copyright/infringement. Buchanan v. Sony Music Ent., No. 18-cv-3028 (D.D.C. May 26, 2020). In a wide-ranging complaint, pro se plaintiff accused defendant music producers of stealing from songs he submitted for consideration. Dismissed, because three of four songs were not registered; plaintiff could not show that any producer actually received a copy of the fourth song demo tape; and plaintiff anyway failed to allege substantial similarity, beyond allegation of "steal[ing]," between defendants' hits and the plaintiff's "I Gos Ta Roll."
Copyright/pleading. Butler v. Cal. St. Disbursement Unit, No. 13-1684 (D.D.C. Oct. 23, 2013). Pro se plaintiff accused the state of copyright infringement for using his name in all capital letters. Dismissed for failure to plead adequately. BUTLER.
Copyright/subject-matter jurisdiction. Miller v. Library of Congress,
No. 1:18-cv-02144 (D.D.C. Nov. 5, 2018). Judge Jackson dismissed for
lack of subject matter jurisdiction a $100m pro se copyright
infringement claim by an author of "a book of songs" who alleged that
the Library of Congress stole the book and allowed it to be used by
others. Held, he should have filed in the Federal Claims Court. I'd return the book, but the fines....
FTCA/FOIA, civil rights. Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014). A Maryland prisoner, pro se plaintiff sought billions in damages against ICANN and the Obama Administration for improper FOIA denials and race discrimination. On the latter count, the plaintiff essentially accused the government of establishing a business monopoly in ICANN that leaves African-American persons "intentionally omitted, to be left behind when it comes to technology ... by design[.]" An intriguing idea, but not the best spokesperson. The court dismissed for sovereign immunity, as the Federal Tort Claims Act (FTCA) authorizes neither FOIA complaints, which do not entitle a plaintiff to tort damages, nor constitutional claims.
Defendant-Justice Scalia (Shawn CC BY-NC 2.0) |
Maoz Falafel, Paris (Björn Söderqvist CC BY-SA 2.0) |
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Finally, I don't really care what happened in this case; I just love its name: A Love of Food I v. Maoz Vegetarian USA (D.D.C. 2014). Plaintiff Love of Food was "a franchise of Maoz's vegetarian quick service restaurant" in D.C. When the business failed, Love of Food blamed Maoz. Maoz had failed to register its offering prospectus properly with the state of Maryland, but, Judge Jackson held, that omission did not give Love of Food standing. The court issued mixed results on the, uh, meatier claims of misrepresentation, finding a material dispute of fact over the veracity of startup estimates.
Just wait 'til Big Meat hears about this.
I gos ta roll.
Tuesday, April 24, 2018
Revenge porn law can survive First Amendment scrutiny by requiring 'actual malice'
A person commits an offense if:(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;(3) the disclosure of the visual material causes harm to the depicted person; and(4) the disclosure of the visual material reveals the identity of the depicted person in any manner[.]
“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.“A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.”
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 |
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 |
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).