Court's strike against Mass. wiretap law for recording police raises bigger questions of 'right to receive,' freedom of information

The "right to receive" expression or information is the long neglected, often doubted, and sometimes maligned sibling of the freedom of expression.  While the First Amendment posits the expression of information that one possesses, the right to receive posits the acquisition of information as an essential prerequisite.  In other words, without access to information, the freedom of expression is meaningless.

By Khairil Yusof (CC BY 2.0).

More broadly conceptualized, the right to receive is an umbrella that covers a great many propositions in civil rights discourse, especially the freedom of information or access to information (FOI or ATI), and including also the right to news-gathering and "citizen journalism"; the right of access to meetings, libraries, and public facilities such as prisons; and, most recently, the right to record police.  Historically, American constitutional law widely rejected propositions in this vein, evidenced by the famously statutory U.S. Freedom of Information Act, 5 U.S.C. § 552, which nonetheless has exerted substantial influence in the advent of ATI as a constitutional and human right elsewhere in the world.

Modern information society has raised new challenges to the American constitutional rejection of a right to receive information and prompted the reexamination of right-to-receive propositions in the courts.  A new appeal has arisen in the logic that access is prerequisite to meaningful democratic engagement through the freedoms to speak, publish, assemble, and petition.  A fair piece of this reexamination has appeared in the case law surrounding the video-recording of police activity, spurred in part by news-media focus on police-involved shootings and subsequent Black Lives Matter and related protests. 

Conventional First Amendment law would have subsumed video-recording under the doctrine of no right to gather the news, thus compelling would-be recorders to obey police orders to stop upon self-serving public-safety rationales, and on pain of civil and criminal justice consequences for failure to comply.  But as electronic media technology has dissolved the distance between recording and public broadcast—the latter unquestionably constitutionally protected by the speech-core prior restraint doctrine—even American courts have been reluctant to find recording devoid of constitutional significance.

In December 2018, the U.S. District Court for the District of Massachusetts held the Massachusetts wiretap statute, a "two-party consent" law (see code; Digital Media Law Project), unconstitutional--facially, though in the limited, articulated circumstances of "the secret recording of police officers performing their duties in public, and the secret recording of government officials doing the same." The court, per Chief Judge Patti B. Saris, held:

On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 [Mass. wiretap] fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

James O'Keefe speaks at 2018 Student Action Summit, West Palm Beach,
Florida, Dec. 21, 2018. By Gage Skidmore (CC BY-SA 2.0).

The ruling came upon joint consideration of two cases involving different partisan affilliations.  In one case, Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, sued under civil rights law to combat authorities' investigation of them for openly and secretly recording police activity in pedestrian and traffic stops and at protests.  A second case involved the conservative activist James O'Keefe and his Project Veritas Action Fund (PVA).  PVA sought to effect secret recordings, and not to be criminally prosecuted for them, in Massachusetts in a broader and intriguing list of scenarios:

• "landlords renting unsafe apartments to college students;
• "government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on 'sanctuary cities';
• "'protest management' activities by both government officials and private individuals related to Antifa protests; and 
• "interactions with Harvard University officials to research its endowment and use of federal funds."

As the court acknowledged, the First Circuit previously joined the majority trend in courts to recognize a constitutional right (subject to reasonable time-place-manner regulation) to record police in public.  Considering the extant threat of prosecution, the court found sufficient merit in plaintiffs' claims to survive ripeness review. 

C.J. Saris

The court then found that application of the law to recording public officials in their official capacity in public places could not survive First Amendment intermediate scrutiny: "narrowly tailored to serve a significant government interest."  Following the First Circuit's example, the court ruled that accountability outweighed slimmer competing interests in public order and officials' personal privacy.  The court left to future cases to determine whether the rule here may be extended to recordings in private venues that are places of public accommodation, such as a restaurant, and to determine who besides police are "government officials."

The case is Martin v. Gross, No. 1:16-cv-11362-PBS (D. Mass. Dec. 10, 2018), available here from Courthouse News Service.  Hat tip to Michael Lambert at Prince Lobel and Christine Corcos at Media Law Prof Blog.

As the courts continue to struggle with right-to-receive cases, rejection of the "right" in American constitutional law becomes increasingly untenable.  A generation of rehearings on the question in the U.S. Supreme Court, and a consequent reshaping of the relevant First Amendment doctrine, seems inevitable.

Federal court holds Syria liable to U.S. family for $300m in killing of journalist Marie Colvin

Syria owes more than $300m in wrongful death damages to the family of American journalist Marie Colvin, who was killed while working for the U.K. Sunday Times covering the siege of Homs in the Syrian civil war in 2012, the U.S. District Court for the District of Columbia ruled January 30, per U.S. District Judge Amy Berman Jackson (e.g., N.Y. Times).

The Assad regime did not answer the lawsuit, and the court entered judgment by default.  The claim arose under the state-sponsored terrorism exception to the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1605A.  The exception was amended into the FSIA in 2008 to strengthen an earlier 1996 exception after claims against Iran faltered in enforcement.  Section 1605A spells out the existence of a private cause of action in federal law, irrespective of the vagaries of state tort law.  The court found that the Colvin family presented sufficient evidence to prove that Marie Colvin's death was an "extrajudicial killing," beyond the shield of FSIA immunity.  The law also excepts torture, aircraft sabotage, and hostage taking from FSIA immunity.

The case is furthermore noteworthy because the court awarded damages to Colvin's sister upon a liability theory of intentional infliction of emotional distress.  Typically in state law, actions alleging emotional distress inflicted on a "bystander" by the killing of a loved one fail for the plaintiff's inability to prove intent as to the suffering of the bystander.  However, in the Colvin case, the court reasoned that the very purpose of a terrorist attack is to inflict emotional suffering on third parties.

The court awarded the family $11,836 in funerary expenses and $300m in punitive damages, and awarded Colvin's sister $2.5m in damages for emotional suffering ("solatium").  Photojournalist Paul Conroy, who worked with Colvin and survived the Homs attack, told the BBC that the ruling is not about money, which the family likely will never see, but is important to de-legitimize the Assad regime in the community of nations.

Colvin's story is the subject of Under the Wire, a 2018 documentary film by Chris Martin, available on iTunes (trailer below), and A Private War, a 2018 dramatic film by Matthew Heineman (IMDb), starring Rosamund Pike, due for DVD/Blu-ray release on Amazon in February.  The screenplay derived from Marie Brenner's coverage of Colvin's life and death for Vanity Fair.

The case is Colvin v. Syrian Arab Republic, No. 1:16-cv-01423 (D.D.C. Jan. 30, 2019).  Judge Jackson is an appointee of President Obama and recently presided over the Paul Manafort plea deal.  In 2017, she dismissed a wrongful death suit arising from the Benghazi Mission attack, against Hillary Clinton, on grounds of official immunity.

Teachable moment in Torts:'Complaint alleges mom with dementia dumped outside Long Beach healthcare facility'

National media this week picked up this story from CBS Los Angeles about a woman suffering from dementia who wound up on the street after what looks like a botched transfer between a hospital and her residential facility.  The victim's daughter filed a complaint with regulatory authorities, but so far has said she will not file suit.  As advanced or two-semester classes in U.S. tort law wade into the deep end of the pool this spring, this story invites analysis on a number of fronts.  Here are some questions to get the discussion going.



1. Does the victim, through her daughter, have any cause of action in common law tort?  Can the injury requirement be met for the general negligence tort? for recklessness?

2. Is there a breach of duty here that can support a business tort?  Are there damages recoverable in business torts?

3. Could this be actionable "negligent infliction of emotional distress" (NIED)? in some states?  Can you demonstrate balance in the elements of negligence to persuade a court that NIED here will not open the floodgates?

4. How does the victim's dementia affect the torts case?  Is she an eggshell plaintiff?  Could she have been contributorily negligent?  Can she have been both at the same time?

5. Could the outcome of the regulatory investigation affect proof or liability in a tort case?

6. Does any tort theory rest in the daughter as plaintiff on her own behalf?  Is there any way to plaintiff-bystander liability?

7. Low temperatures in Los Angeles in the last week were only in the 50s (F), but northern cities have been in the grip of below-zero record lows.  Suppose the victim had been outside in Chicago and suffered frostbite.  How does that change the disposition of her tort claims? her daughter's?

8. Further entertaining the idea that the victim suffered physical injury, can the defendant make dispositive arguments on duty? on causation?  What's the difference?  Could there be a "scope of liability" problem in the terms of the Third Restatement?

9. There are two healthcare facilities involved.  Could both be defendants?  Would both be liable?  Would liability be joint or several? apportioned? to what effect?

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🌠 Coming this June from Carolina Academic Press!

The Media Method:
Teaching Law with Popular Culture
Edited by LSU Law Prof. Christine A. Corcos, @LpcProf, Media Law Prof Blog
With contribution on torts by yours truly

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Research examines accountability through journalism and right to information in India

I've published a research article (available on SSRN), "Accountability in the Private Sector: African Ambition for Right to Information in India," in the latest volume (25:3) of the Panjab University Research Journal Social Sciences.  Here is the abstract:

The right to information (RTI) has come to recognition as a human right in international law. Conventionally, RTI is a means for a person to demand information from a public body. RTI has proven especially potent in the hands of journalists, who seek information on behalf of the electorate to hold public institutions accountable. But in the recent decades in which RTI has attained human rights stature, power in society has shifted in substantial measure from public to private sector. Journalistic inquiry is frustrated by the inapplicability of access laws to private bodies. In India, direct access to the private sector through RTI law was considered and rejected in the 1990s; however, the 2005 RTI Act allows a generous measure of access to non-governmental actors with public ties. A legal movement has been gaining steam in Africa to push past the public-private divide and recognise the importance of RTI to protect human rights regardless of the public or private character of the respondent. Different approaches are emerging with respect to journalist access in the African model. Amid trending privatisation and burgeoning private power, the time might be coming for India to reconsider the road not taken.

The Research Journal Social Sciences is a peer-reviewed publication of Panjab University in union-administered Chandigarh, India.  Panjab is a public university on 550 acres, enrolling 17,000 students in 78 departments and 15 centers for teaching and research, including a law school.  More than 250,000 more students are enrolled in 198 constituent and affiliated colleges and centers throughout the region.  Founded in 1882, Panjab was split in the 1947 partition of India from the University of Punjab, now in Pakistan.

Dr. Verma

This issue of the journal is dedicated to development and mass communication.  I was fortunate to be invited to contribute by the special editor of the issue, Dr. Manish Verma (LinkedIn), who serves as director of international affairs and director of the School of Media at Amity University Jaipur in Rajasthan.  Dr. Verma is a Ph.D. graduate of Panjab University and an alumnus of the Executive Program in Management and Leadership in Education at Harvard University.  He's also a top-shelf colleague.

Research proposes U.S. FOIA reform upon South African example

I've published in the Villanova Law Review, "Access to Information in the Private Sector: African Inspiration for U.S. FOIA Reform" (available from SSRN).  The article appears as part of a symposium edition of the law review (63:5) on FOIA reform.  The special edition commemorates 50 years of the FOIA, which was passed by Congress in 1966 and went into effect in 1967.  I was privileged to present the piece at the Villanova University Charles Widger School of Law in 2017, upon generous invitation to the Norman J. Shachoy Symposium.  Here is the foreword (footnotes omitted):

The Freedom of Information Act of 1966 (FOIA) was a landmark global example of transparency, or access to information (ATI), to ensure democratically accountable governance.  Government had grown in the twentieth century, especially in the new administrative state, and FOIA re-balanced the distribution of power between people and public authority.  Today in the twenty-first century, much power in American society has migrated from the public sector to the private sector, specifically into the hands of corporations.  Even insofar as it works well, FOIA operates only against the conventional state by enabling an individual’s capacity to realize civil and political rights.  FOIA simply was not designed to enable the attainment of human necessities such as education and housing, much less environmental protection and healthcare, especially when the greatest threat to those rights is not government deprivation, but the commercial marketplace.

ATI in Africa is a different story.  Three decades after FOIA, planted among the unprecedented ambitions of the South African constitution was a right to ATI.   And within that right lay an extraordinary new provision.  As guaranteed by the South African constitution and enabling law, a person may request records from a nongovernmental respondent, a private body, if the person can show that the records are “required for the exercise or protection of any rights.”   In other words, South African ATI law jettisoned the historic barrier between public and private sectors.  South African lawmakers were informed by the experience of apartheid, in which the private sector’s complicity had been a vital and brutal partner in state-sanctioned human rights abuse.

Blossoming beyond even the visioning of an apartheid remedy, ATI in the private sector has been construed by the courts in a wide range of applications, from intrafamilial business disputes to environmental conservation.  South African courts have struggled to define “required” and “rights” in applying the ATI law.  But South Africa has demonstrated that ATI in the private sector can work.  The public-private division justifies a change in the terms of access, but not an absolute barrier.  In the last five years, the South African approach has been reiterated in the domestic law of at least five other African countries and in pan-African human rights instruments meant to inspire more domestic adoptions.

In this article, I suggest that the African example inspire U.S. FOIA reform.  In its time, FOIA shone a light into the darkest corners of American politics.  Now America deserves a new approach to restore power to the people in the age of the corporation.

Who Dat lawsuit for 'negligence,' 'emotional anguish' is really a desperate mandamus plea

Controverted play in Rams vs. Saints conference championship game
(NFL image via GMA and Daily Show: fair use).

Full disclosure: I'm not a football (NFL) fan—rather a football (association) follower—but if I were, I would have a soft spot for the Saints, because I love New Orleans and married into a proud Louisiana family.

So it caught my attention when Roy Wood Jr. on The Daily Show with Trevor Noah (Comedy Central, YouTube) asked whether in fact the "Saints Were Robbed," and then quoted from a lawsuit against Roger Goodell and the NFL claiming negligence and "emotional anguish."  I'm always intrigued by the scent of negligent infliction of emotional distress, which is a kind of chimera in American tort law.

The lawsuit, which can be downloaded from its attorney-author's website and was first reported by WDSU, is really a petition for mandamus, not a tort suit.  It does allege negligence on the part of Goodell and the NFL and asserts that they have the power under NFL rules to remedy the bad call of the Saints-Rams game.  As Roy Wood Jr. observed on The Daily Show, the petition dramatically alleges "emotional anguish" and "loss of enjoyment of life" by Saints fans.  It does not, however, assert any legal basis to order Goodell or the NFL to comply with their own rule book, even if that is what they would be doing by replaying all or part of the game.

On an SB Nation blog, an L.A. attorney and confessed Rams fan fairly if spitefully described the Who Dat petition as "one of the most frivolous lawsuits to be filed. Ever." Of course, Americans have a long tradition of working out sport frustrations in litigation—that I'm today a soccer fan is evidence of the struggle—so maybe professionalism should allow some latitude for that.

Court dismisses prolonged suit against Government over 2009 Ft. Hood mass shooting

From the Defense Department: "Jeffrey and Sheryll Pearson look at the
portrait of their son, Army Pfc. Michael Pearson, before the Purple Heart
and Defense of Freedom award ceremony on Fort Hood, Texas, April 10,
2015. The event honored the 13 people killed and more than 30 injured in
a gunman’s 2009 shooting rampage on the base. U.S. Army photo by Daniel
Cernero."

The U.S. District Court for the District of Columbia, per the Hon. Colleen Kollar-Kotelly, dismissed service-member and family claims against the federal Government arising from the 2009 shooting at Ft. Hood, near Killeen, Texas, in which U.S. Army Major Nidal Hasan killed 13 and injured more than 30 other persons.  CourtListener has the ruling in Manning v. Esper, No. 12-CV-1802 (D.D.C. Jan. 22, 2019).

To the dismay and torment of those involved, this case has dragged on for nearly a decade.  Hasan admitted to the shootings in a 2013 court-martial and was sentenced to death.  He is presently awaiting execution, pending judicial review, at Fort Leavenworth.  The civil claims accuse the Government of negligence in the supervision of Hasan, who was permitted to work as a medical corps psychiatrist despite superior's concerns about his own mental fitness.  While Hasan's case was under way and then on appeal, the Army repeatedly asked the trial court to stay civil proceedings, provoking "anger, frustration and suspicion" on the part of the plaintiffs, in their words.

The dismissal was predicated principally on grounds of the Feres doctrine. Arising from the 1950 U.S. Supreme Court decision in Feres v. United States (Justia), the Feres doctrine bars tort claims arising from active-duty service when the claims otherwise might be authorized by the Federal Tort Claims Act (FTCA).  The Feres doctrine has made news in recent years in allowing the government to resist medical malpractice claims against healthcare providers of Veterans Affairs.  

Plaintiffs in the Ft. Hood case knew that Feres would be a problem, but hoped to work around it, as some victims were not on active duty at the time of the shooting, and some defendants were federal law enforcement officials rather than active-duty military.  The ambiguous status of some persons involved in the shooting, as well Hasan's motivations, was at issue in the intervening years in an ugly collateral dispute over victims' entitlements to military honors, which the Government for a time resisted.  In this same vein of ambiguity, the court did allow some plaintiffs' claims to proceed in administrative processes, dismissing them without prejudice for failure to exhaust remedies as the FTCA requires.

Information and privacy law aficionados might recollect the name of Judge Kollar-Kotelly.  For seven years after 9/11, she was the presiding judge of the Foreign Intelligence Surveillance Court.