Time travel would warp tort law, attorney imagines

Austin Beast AB (Pixabay)

Tired of earthbound law constrained by the arrow of time?  Attorney, comedian, and comic book fan Adam J. Adler writes an enjoyable column on law for the aptly named Escapist online magazine.  Recently he tackled the implications of time travel in tort law.  Back in August, he considered transporter accident liability.

Time travel in a Groundhog Day-like scenario, Adler observes, would change the moral expectations of the objective reasonable person as he or she acquires additional knowledge about cause and effect through multiple iterations of the timeline.  In the end, Adler offers a theory on why we haven't yet met time travelers.  Check it out, and remember to suspend your disbelief and enjoy.

The article is Adam J. Adler, Time Travel Torts: How Law Gets Dicey When Dealing with Groundhog Day, The Escapist, Oct. 4, 2020.  

And speaking of time travel, Star Trek: Discovery season 3 premiered last night.  Here's the season trailer, if you can stand the excitement!

Court: Family of elder-care resident may use rare 'bill for discovery' to investigate how broken foot occurred

In an unusual case last week, the Massachusetts Appeals Court allowed a "bill for discovery" to proceed despite its arguable incompatibility with rules of civil procedure.

Mary T. Atchue, an elderly resident in an assisted living facility in Worcester, Massachusetts, sustained a broken foot while being moved.  In an action maintained by her family since her death, Atchue filed a "complaint for discovery," based in equity.

Marie Van den Broeck, BE (CC BY 3.0)

The court held that the complaint could proceed, despite objection from defendant Benchmark Senior Living, LLC, that the claim would not be allowed by the state rule of civil procedure for pre-litigation discovery.  Discovery processes specified by statute and rule supersede the historic bill for discovery in equity insofar as they pertain, the court reasoned, but the bill remains available to supplement modern practice where it does not pertain.

The viability of a bill for discovery is dependent on the viability of the underlying potential claim in litigation, the court further held.  Atchue has a viable theory on tolling the statute of limitations, and her claims survive her death under the state survival statute.  So a bill for discovery remains available.

I don't usually dig into civil procedure cases, but this one caught my eye because of the unusual disposition in pre-litigation discovery.  I've written with approval about the use of the access to information law, or freedom of information act, in South Africa having been used as a pre-litigation discovery device, specifically, in fact, for a potential plaintiff to investigate the possibility of negligence in healthcare services.

Shaped by the experience of apartheid, the South African law, and comparable laws elsewhere in Africa modeled on it, allow access to information in the private sector when the complainant can demonstrate sufficient need grounded in civil rights.

The court vacated dismissal and remanded.

The case is Atchue v. Benchmark Senior Living LLC, No. 19-P-125 (Mass. App. Ct. Oct. 5, 2020).  Justice Vickie L. Henry wrote the opinion for a panel that also comprised Justices Rubin and Wolohojian.

Trump supporter vs. MSNBC's Joy Reid heats up for round 2, following reversal on free speech issues

It looks like the two-year-old defamation case by Trump supporter Roslyn La Liberte against MSNBC personality Joy Reid is about to heat up.

Racial Slurs and Other Not-So-Pleasantries

Eponymous host of MSNBC's ReidOut and "one of the few Black women to anchor a major American evening news program," Joy Reid has stirred up her share of schismatic controversy (e.g., "series of homophobic blog posts" (Glenn Greenwald), "casual Islamophobia" (Erik Wemple (pay wall))).  In June and July, on Twitter and Instagram, Reid called out MAGA-hat-bearing Roslyn La Liberte at a Simi Valley, California, City Council meeting (La Liberte at 4:17:45 to 4:19:57) for, as alleged in La Liberte's complaint, "yelling racial slurs at a minor," including that he would "'be the first deported ... dirty Mexican!,'" and "making ... racist statements and ... being racist."

A well circulated image of La Liberte and the 14-year-old boy at the council meeting, showing La Liberte mocking being choked but not actually talking to the boy, lent credence to Reid's characterization and its viral duplication.  Trolling responses came fast and furious in the Twittersphere and via email to La Liberte, the latter along the lines, "'You are a dirty white woman b***h,'" and "'I’m glad everyone in the entire world knows what a racist piece of s**t you are f**k you a*****e'" (asterisks in complaint).

However, La Liberte denied yelling racial slurs, and her story is backed up by the youth himself.  He described their exchange as "civil."  At least once during the meeting, a racial slur was directed at the boy, his mother said, but it wasn't uttered by La Liberte.  Cited in the complaint, Fox 11 L.A. untangled the story (June 29, 2018).

 

'Racist,' as a Matter of Fact

La Liberte sued Reid in the Eastern District of New York on a single count of defamation.  Alleging defamation per se, La Liberte in the complaint asserted, "Accusations of racist conduct are libelous on their face without resort to additional facts, and, as proven by this case, subject the accused to ridicule, hate, and embarrassment."

That point alone, on the merits, is interesting.  When I made a similar claim many years ago, colleagues and observers told me that an accusation of racism is opinion only, devoid of fact and incapable of defamatory meaning, even if one were asked to resign one's job as a result of the accusation.  Other colleagues, whose counsel I favor, disagreed and asserted that accusing an academic of racism is akin to accusing a youth coach of a child sex offense, in that the claim will persist indefinitely if one does not powerfully contest it.  Distinction between an individual's "racism," and "institutional" or "systemic" racism might complicate the legal analysis, but popular culture has pondered that distinction only recently.

Anti-SLAPP as the Sword of Goliath

A second compelling issue in the La Liberte case is the operation of anti-SLAPP law.  Anti-SLAPP laws, which vary in their particulars across the states, typically allow a defendant to attain fast dismissal of a lawsuit that is a "strategic lawsuit against public participation," that is, a lawsuit through which the plaintiff means to use tort law to suppress the defendant's exercise of civil rights, such as the freedoms of speech, assembly, and petition.  

That sounds good, but problems with anti-SLAPP law are legion.  One big problem is that American defamation law already tilts wildly in favor of defendants, a First Amendment prophylaxis gone corybantic, such that plaintiffs cannot usually get anywhere near the requisite burden of proof without the benefit of discovery.  Anti-SLAPP procedure allows the defendant to terminate the case before discovery can even happen.  

Joy Reid (Luke Harold CC0 1.0)

Designed in principle to protect, for paradigmatic example, a grassroots environmental campaign against the might of an unscrupulous real estate developer, anti-SLAPP in reality is more often deployed by the Goliaths of the latter ilk against Davidic pursuers.  Anti-SLAPP (ab)users include President Trump, Bill Cosby, and Big Media.  No wonder anti-SLAPP is the darling of the media defense bar.  The sad thing is that it's convinced the nonprofit media advocacy crowd to play along.

The proliferation of anti-SLAPP laws at the state level has generated a circuit split over what to do with them when a defamation case lands in federal court on diversity jurisdiction.  The analysis boils down to whether anti-SLAPP law is procedural, in which case it may not override federal rules, or substantive, in which case the federal court must apply the law of the state that governs the case.  The last couple of years have seen the emergence of a circuit split on the question, though the most recent precedents (2d, 5th, 11th, D.C. Circuits, contra 1st, 9th Circuits) point to the procedural conclusion, with which I agree.  

As a result, defamation cases that would have been smothered at birth in state court are given a chance to gasp for air in federal court.  Meanwhile, media advocates, including John Oliver—with whom I am loath to disagree, but he just doesn't get it—have been pushing hard for federal anti-SLAPP legislation.  A bill is pending in Congress, and with left-wing media advocates and right-wing mega-corporations on the same side, David's death blow might be but weeks away.

La Liberte arose amid this anti-SLAPP circuit split and was, in fact, the occasion on which the Second Circuit joined the recent majority trend.  The court reasoned that the California anti-SLAPP procedure, the defamation having occurred in California, is incompatible with Federal Rules of Civil Procedure 12 and 56, governing motions to dismiss and for summary judgment.

Limited-Purpose Public Figures and the Involuntarily Infamous

La Liberte at the
City Council meeting

Also while the case rested with the Second Circuit, the court reversed the trial court on one more issue, the erroneous classification of La Liberte as a limited-purpose public figure.  That classification would compel La Liberte to prove the often fatal-in-fact fault standard "actual malice," that Reid knew her statements were false or was reckless with regard to their truth or falsity.  

La Liberte had not pleaded actual malice.  And, according to the court, her activism in speaking at city council meetings did not convert her from a private figure to a public figure.  La Liberte was never singled out in news coverage, the court observed, until after the alleged defamation catapulted her to public attention.  A defendant who is responsible for making a plaintiff infamous cannot thereafter escape liability by characterizing the plaintiff as a public figure.  

Incidentally, it's typically ironic that the media defendant here, Reid, purported to defend her free speech with the anti-SLAPP law while seeking to use the First Amendment-protected petitioning of the city council of the plaintiff, La Liberte, to defeat her effort to protect her reputation.

Enter 'the Lawyer for the Damned'

After remand to the Eastern District of New York, La Liberte terminated her representation by Wade, Grunberg & Wilson.  WG&W is a self-described "boutique firm" in Atlanta that boasts of a plaintiff's defamation practice, not a common thing, but maybe a growth area in our polarized post-truth society.  "The law of defamation is nuanced, peppered with landmines under the First Amendment, Anti-SLAPP Statutes, absolute immunities, and qualified privileges," WG&W writes on its website. "We know where those landmines are and, more importantly, how to navigate successfully around them."  WG&W notified the court of its withdrawal on September 28, 2020.

Wood, 2011 (Gage
Skidmore CC BY-SA 3.0)

The reason I suspect the case might now heat up, or at least jump on the express train to settlement town, is that on October 5, 2020, L. Lin Wood entered his appearance for the plaintiff.  Wood already had signed on some of the court papers, but he seems now to be stepping front and center.  Wood's breakthrough claim to fame was representing Richard Jewell, the man wrongly accused of the 1996 Centennial Olympic Park bombing against The Atlanta Journal-Constitution (there's a 2019 movie directed by Clint Eastwood).  His subsequent client list includes JonBenét Ramsey's parents, Gary Condit, Herman Cain, Elon Musk, and the Catholic high school student in the 2019 Lincoln Memorial confrontation, Nick Sandmann, as against The Washington Post.  Wood boasts that CBS news personality Dan Rather tagged him, "the lawyer for the damned."

The case is La Liberte v. Reid, No. 1:18-cv-05398 (E.D.N.Y. Sept. 30, 2019), reversed and remanded by No. 19-3574 (2d Cir. July 15, 2020).  I've not mentioned an ISP immunity issue in the case, on which the Second Circuit affirmed in favor of the plaintiff; read more by Eric Goldman (July 30, 2020).

Secret civil justice undermines employee rights

Pintera Studios

A story investigated by ProPublica and featured on Planet Money highlights the problem of secret justice in perpetuating the willful abuse of at-home gig workers.

I expected that "Call Center Call Out," reported by Planet Money's Amanda Aronczyk and ProPublica's Ariana Tobin, Ken Armstrong, and Justin Elliott, based on the ProPublica story, would be a sad and frustrating tale of work-from-home gig economy labor being exploited, principally by the misclassification of employees as independent contractors to reap savings in compensation, work conditions, and employee benefits.

Turns out, there is even worse dissimulation afoot.  And there are worrisome implications for the health of the civil justice system.

To work these call-center jobs, for intermediary contractors such as Arise Virtual Solutions, the not-quite-employees are compelled to sign non-disclosure agreements (NDAs), arbitration agreements, and class action waivers.  These all are enforceable, even when the workers do not fully understand their implications.

When a worker has the temerity to commence arbitration proceedings, challenging misclassification as an independent contractor, the worker wins.  In one example in the story, a worker easily qualified as an employee under the labor test applied by the arbiter.  A worker can win thousands of dollars in reimbursement of expenses—they have to pay out-of-pocket for the privilege of their training and then buy their own computers and telecomm equipment—and back wages to bring their compensation history up to minimum wage.  

But here's the rub: the workers already are bound by their NDAs, and the arbitration is secret, too.  So there is no public record of the misdeeds of the employer.  The arbitration-winning complainant cannot even tell other mistreated workers that their labor rights are being violated.

According to the reporters, the secret justice system of arbitration is actually part of the business model for enterprises such as Arise.  They can pay liability to a small percentage of workers while willfully exploiting most others.  Because of the NDAs, arbitration clauses, and, most importantly, class action waivers, a lawyer said in the program, she can fight this abuse only behind a veil of secrecy, one case at a time, amounting to thousands of cases, even though every case is winnable on precisely the same analysis.

There's a classic scene from Fight Club (1999) when the Narrator (Ed Norton) is telling an airliner seatmate about his car company's "formula" for issuing a recall only when it's cost effective, regardless of the cost of human life.  (Think GM ignition switch recall.)

"Which car company do you work for?" the seatmate asks.

The Narrator pauses, staring her in the eyes.  Then, nodding knowingly, he answers,

"A major one."

So what companies use these call centers to take advantage of the cheap and ill-begotten labor forces organized by companies such as Arise?

Major ones.  Ones you've talked to.

Have a magical day.

 

The stories are Amanda Aronczyk & Ariana Tobin, Call Center Call Out, Planet Money, Oct. 2, 2020; and Ken Armstrong, Justin Elliott, & Ariana Tobin, Meet the Customer Service Reps for Disney and Airbnb Who Have to Pay to Talk to You, ProPublica, Oct. 2, 2020.

Ciao and shalom, it's Columbus Day

It was painful and offensive to me to see the Columbus statue in Baltimore ripped down and thrown into the harbor on the Fourth of July.

I appreciated Trevor Noah's Daily Show commentary on Columbus Day, aired last week, because he recognized the meaning of the holiday to the Italian-American community.

Noah excerpted a Vox video (story), from 2018, which gave a good concise summary of how the Columbus holiday came to be.

The video describes "the legend of Columbus," and it is a legend.  Italian-American immigrants, such as my grandparents, came to embrace a legendary Columbus who bore little resemblance to the real historical figure.  Which is not to say that the legend lacked real meaning for real people.  There was a time when Italian-Americans were a "non-white" minority in America, Noah acknowledged.  The community reached out to adopt, and partly to create, a galvanizing icon.  

I studied Columbus quite a bit as an undergrad majoring in Spanish-language literature during the quincentenary of "the Discovery."  As best as we can know Columbus, which is not much, given a paucity of surviving and conflicting accounts, the truth must be that he was complicated.  People are.  He had a multiplicity of motives, some more morally laudable than others.  And probably he wasn't the sweetest sort of guy.  Crossing the Atlantic Ocean with a potentially mutinous crew of adventurers in 1492 was a rugged business, if not recklessly suicidal.  But Columbus did not invent Euro-centrism, Caucasian supremacy, or slavery.  The cultural arrogances and inhumane institutions of the 15th century were certain to encircle the globe aboard every ship that departed the continent.

Columbus statue (Brent Moore CC BY 2.0)

So my family, arriving in America in the 20th century, embraced a legend.  It wasn't a terrible choice of legend.  The first Italians to populate Baltimore sailed from Genoa, which is where Columbus probably was from.  My grandparents, who also came to America by boat, from Tuscany, revered Columbus well before the dedication of his Little Italy statue in 1984.  Through their Italian-American organizations, they contributed to the creation of the statue, which was made of marble and crafted by an Italian sculptor.  President Reagan and the mayor of Baltimore dedicated the statue in Baltimore's Little Italy, where my family first lived after immigrating.  When I was a kid, I was taken to Little Italy when my family volunteered and participated in religious rites and Italian-American festivals.  Later, and for many years, my uncle played the character of Columbus in Baltimore's Columbus Day parade, which started and ended at the Columbus statue.  I remember him decked out in cartoonish royal robes, standing atop a float mock-up of the Santa Maria, waving to smiling people, of all colors, who lined the streets.  

He stopped when it became dangerous to be Columbus.  Dangerous to celebrate our history in America, however reimagined and romanticized.

I'm not opposed to taking down statues of Columbus.  I've advocated for "fallen monument" parks, as abound in former Soviet states, Hungary's being the most well known.  They're immeasurably valuable to teach history.  They proffer powerful evidence that, try as we might to be good and to do right, morality has proven a stubbornly mutable ambition in the human experience.  

But taking down Columbus in Little Italy should have been a decision made by a cross-section of community stakeholders, not by a mob.  An effort had been under way in the Italian-American community already to raise money to move Columbus elsewhere.  The mayor of Baltimore promised prosecution of the vandals on July 9, but I've found no report of any arrest or charge to date.  The Italian-Americans who contribute still, vitally, to Baltimore's identity deserve better.  They deserve respect, right alongside every other community that has built Baltimore as a vibrant and diverse city.

As Noah observed, American history is now populated by many Italian-Americans who don't need aggrandizing legends to demonstrate greatness.  It's not too late to create the commission that should have been and to start talking about how to honor immigrant history and the City of Baltimore at the intersection of Eastern Avenue and President Street.  I don't know who, or what, might, or should, stand in "Columbus" square.  I do believe that if we work at it, we can find, or make, an icon that my grandparents would have appreciated, and at the same time raise a testament to a new story.

Oops. We accidentally linked healthcare to your job.

mohamed_hassan (pixabay.com)

I stand with the rest of the world in awestruck horror of America's stubborn insistence that access to healthcare should be a function of both one's wealth and the largesse of one's employer.

Critics of the free market are quick to conclude that it has failed the American worker.  Economic libertarians are just as quick to tout the essentiality of free contract.  Before we make any decisions about the free labor market, maybe we should try it out.  A market in which a worker can't change jobs for fear of a recurring cancer or a bankrupting accident is not a free labor market.

For the NPR podcast Throughline, Lawrence Wu set out recently to explain how we arrived at the problem of employer-dependent healthcare.  The description of the episode, "The Everlasting Problem" (Oct. 1, 2020), reads:

Health insurance for millions of Americans is dependent on their jobs. But it's not like that everywhere. So, how did the U.S. end up with such a fragile system that leaves so many vulnerable or with no health insurance at all? On this episode, how a temporary solution created an everlasting problem.

For This American Life and Planet Money, Alex Blumberg and Adam Davidson also addressed this subject back in 2009.  Their bit ran only 11 minutes, but I have never forgotten the shocking fact that "four accidental steps led to enacting the very questionable system of employers paying for health care."

Arkansas defense of healthcare law invites Supreme Court justices to weigh in on federal preemption

The State of Arkansas defended a state healthcare law in the U.S. Supreme Court Tuesday.

The state argued against federal ERISA and Medicare part D preemption of state regulation of pharmacy benefits managers, the companies that manage most Americans' prescription drug benefits.  The case affords an opportunity to see what newer justices have to say about preemption.

Preemption is a curious area of law.  Ostensibly statutory interpretation, it has overtones of federalism, as judges are called on to chart the scope of congressional intent as exercised in a power domain shared with state legislatures.  Confounding theories of interpretation, textualism is often insufficient to resolve preemption problems, because statutory schemes, such as the framework for employment-benefit regulation, may be left ambiguous as to what the scheme does not regulate, yet can be undermined by state laws with incompatible purposes.  As a result, preemption cases in the U.S. Supreme Court have been known to render splintered decisions and odd-bedfellow pairings of justices.  More than once, preemption precedent has been criticized as inconsistent and messy.

In an op-ed in The Arkansas Democrat-Gazette (ADG) in 2015, I wrote that Arkansas Act 900 raised serious and compelling questions of federalism.  I didn't pick sides—indeed, each side claims to be on the side of consumers—but I did describe the Arkansas Attorney General's dismissive response to challenge of the statute as glib.  The Eighth Circuit subsequently held the law preempted.  Forty-five states, D.C., and the Trump Administration have sided with the appellant AG, according to the ADG.

The case is Rutledge v. Pharmaceutical Care Management Association, No. 18-540 (argued U.S. Oct. 6, 2020).  Ronald Mann wrote an excellent analysis of the case, on the merits and implications, at SCOTUSblog.

Could 'inverse' First Amendment save us from ourselves?

Journalism professor Stephen Bates, J.D., University of Nevada Las Vegas, has published a fascinating article in The Atlantic on "the inverted First Amendment," as envisioned by philosopher William Ernest Hocking (1873-1966) in the 1940s.

Hocking on National
Educational Television

As Bates explains, Hocking posited that a correct interpretation of the First Amendment command, "Congress shall make no law ... abridging the freedom of speech," incorporates the command that, sometimes, Congress must make laws that further the freedom of speech.

Post-war America was beset with the perception that mass media were out of control, contributing, as Bates describes, to "polarization, echo chambers, and provocateurs."  That's a good reminder for our times that since the Spanish-American War and subsequent, in part consequent, invention of modern journalism, it's never quite been the idyllic institution of our imaginations.  Hocking contributed a key study to the work of the U.S. Commission on Freedom of the Press, on which he served.

The commission, otherwise known as the Hutchins Commission after chair and University of Chicago President Robert Hutchins, produced a landmark 1947 report.  Concluding that the press is a vital institution in American democracy, the Hutchins Report could have been read as justification for government regulation in furtherance of social responsibility.  The report was read to bolster the controversial development of journalism professionalization and ethics codes.

Hocking's inverse, or positive, First Amendment would have compelled the government affirmatively to protect free speech and even to promote journalism.  This model of positive speech regulation is not unknown in American media law.  In the broadcast medium, because it was not afforded full First Amendment protection, the dubiously constitutional fairness doctrine was instigated by the Hutchins Commission.  In the same vein and medium, we still have, however increasingly irrelevant it is, the equal time rule.  There is some debate over whether there is not some minimal positive requirement in the First Amendment penumbra.  For example, due process in the Fifth and Fourteenth Amendments may be read to require that a court respond to a complainant's filing—a petition for redress of grievance—if only to dismiss it.

A positive First Amendment could have been the basis for a constitutional right of freedom of information, or access to information, in lieu of the later enacted and oft beleaguered Freedom of Information Act of 1967.  Some states and many countries, not to mention international human rights systems, declare a constitutional or human right of access to information, which may require government transparency and even the affirmative publication of information.

Pres. Roosevelt
proposes a Second
Bill of Rights in
January 1944.

More broadly, the notion of positive civil rights, as opposed to the mostly negative commands of the U.S. Bill of Rights, animates constitutional law in many other countries, especially in association with what are sometimes called "second" and "third generation," or "red" and "green" rights, guaranteeing socioeconomic interests, such as employment, food, housing, and a safe environment, as opposed to "first generation," "blue" rights of a political nature.  ("Generations" models of human rights have been criticized fairly as inadequate, if not patronizing, to describe socio-legal development, but the model is still usefully descriptive in some contexts.)  In fact, some positive, "second generation" rights would have been enshrined in U.S. law, had President Franklin Roosevelt's "Second Bill of Rights" gained traction.  The famously expansive constitution of South Africa well models the codification of socioeconomic rights, while the experience of the courts and the people of South Africa speaks simultaneously to the challenges of making the model work, and the arguable perils of constitutionalizing aspiration.

Prof. Bates

An inverted First Amendment could empower the government to combat misinformation, or "fake news," today in ways that the First Amendment as presently understood forbids.  However, Bates recognizes, such a positive First Amendment would have a dark side to contend with.  A strong interpretation of a positive First Amendment could justify government regulation that would suppress speech in the interest of furthering other speech, just as the fairness doctrine was said to have done.  Critiquing contemporary calls to regulate the internet, Paul Matzko for the libertarian Cato Institute wrote in 2019:

In one of her early newsletters, Ayn Rand excoriated the public interest standard as an excuse covering “the right of some men (those who, by some undefined criterion, are the public) to sacrifice the interests of other men (of those who, for unspecified reasons are not the public)” [1962].

Rand’s words were meant particularly for FCC Chairman Newton Minow, who, in what may be the only famous speech by an FCC commissioner, had described television as a “vast wasteland” and called for limits on the number of game shows, Westerns, and cartoons aired....

.... The more serious danger was the routine weaponization of the public interest standard to advance private or partisan interests. For example, during the early 1940s, the Roosevelt administration pushed for a ban on newspaper ownership of radio stations, ostensibly because of the public’s interest in preventing cross-media consolidation, but also to prevent anti-New Deal newspaper owners from having a radio platform from which to criticize the President’s policies. The FCC during Richard Nixon’s administration would use a similar rule to try and pressure the Washington Post into abandoning its investigation of the Watergate scandal. 

Sometimes the government does, itself, get into the business of journalism.  Yet recent rancor between President Trump and the Voice of America over what the President seems to perceive as partisan disloyalty shows that VOA's very credibility throughout the world depends on its statutorily mandated editorial independence.

The line between government action to protect a negative First Amendment, such as an artistic-value savings provision in indecency law, and government regulation to further a positive First Amendment, such as leveling the free speech marketplace with a must-publish or must-censor rule, is much finer in practice than in theory.  As Bates observes, "Hocking was a philosopher, not a lawyer."

The article is Stephen Bates, The Man Who Wanted to Save the First Amendment by Inverting It, The Atlantic, Oct. 7, 2020.

Texas indictment surfaces problem of elected prosecutors; First Amendment protects Netflix film

Actor, model, and District Attorney Lucas Babin
(Steve Stewart CC BY 4.0)

A Tyler County, Texas, grand jury has indicted Netflix for lewd depiction of TV girls in the French film, Cuties (2020).  Sadly, the indictment says more about Texas and American criminal justice dysfunction than about Netflix or contemporary media.  

The film plainly is protected by the First Amendment, rendering the indictment more political stunt than serious legal maneuver.  I wasn't going to watch Cuties, but now I feel like I should, so score one for Netflix, nil for District Attorney Lucas Babin.  Or, I should acknowledge, this might be good campaign fodder for an elected D.A. in East Texas, so it's win-win, minus transaction costs.  

Using the criminal justice system as a means to political ends is a deeply disturbing phenomenon; John Oliver featured the issue in 2018 commentary on Last Week.

Besides being an attorney, Babin is himself, or was, an actor and a model.  His father is dentist and U.S. Rep. Brian Babin (R-Tex.).

The September 23 indictment (image from Reason) relies on Texas Penal Code § 43.262, Possession or Promotion of Lewd Visual Material Depicting Child.  The statute reads:

(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

     (1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

     (2) appeals to the prurient interest in sex;  and

     (3) has no serious literary, artistic, political, or scientific value.

The latter conjunctive element (3), lacking in serious value, is a typical savings provision meant to bring the law into conformity with the First Amendment, which certainly protects the film.

Promotional image of Cuties French release

Cuties, or Mignonnes in the French original, is a 96-minute drama about a Senegalese-French girl coming of age in contemporary Paris.  She struggles to reconcile her conservative Muslim upbringing with the popular culture of her schoolyard peers in the social-media era.

A Sundance 2020 award winner in dramatic world cinema, the film was written and directed by Parisian born Maïmouna Doucouré, herself of Senegalese heritage.  In a September 15 op-ed in The Washington Post (now behind pay wall), Doucouré wrote:

This film is my own story. All my life, I have juggled two cultures: Senegalese and French. As a result, people often ask me about the oppression of women in more traditional societies. And I always ask: But isn't the objectification of women's bodies in Western Europe and the United States another kind of oppression? When girls feel so judged at such a young age, how much freedom will they ever truly have in life?

The sexualization of the girls in the film is already familiar in the life experience of an 11- or 12-year-old, Doucouré further wrote. Still, a counselor was on set, and French child protection authorities signed off on the film.

Some of the flap over Cuties, and probably precipitating the Texas indictment, was Netflix's initial promotion of the film with an image of the child stars in sexually suggestive outfits and pose (see Bustle).  Netflix apologized publicly and to Doucouré and withdrew the portrayal.

Here is the trailer for Cuties.

The case is State v. Netflix, Inc., No. 13,731 (filed Tex. Dist. Ct. Tyler County Sept. 23, 2020).

Ted Lasso heads to UK, will coach AFC Richmond

From The Daily Show with Trevor Noah (Oct. 6, 2020)

A new Apple TV+ show has Saturday Night Live alum Jason Sudekis playing southern-drawl-wielding American football coach "Ted Lasso," as he is recruited to coach an English Premier League (PL) soccer squad.

Lasso's fictitious team in the Ted Lasso comedy series is "AFC Richmond," but Sudekis wore an authentic Manchester City FC (my team) hoodie for his interview with Trevor Noah on last night's Daily Show.

Financially regrettably, this show compels my wife and me to re-subscribe to Apple TV+.  We shelved the channel, pending new content, after we finished the highly gratifying For All Mankind (blog), and after I finished the sufficiently compelling if after all tritely pedantic Morning Show (both shows 2019, second seasons forthcoming).

Ted Lasso is a co-creation of Scrubs (2001-2010) creator Bill Lawrence, which scores dispositively in my playbook, though I don't think Lawrence has since re-created that Scrubs magic.  Ted Lasso is a spin-off, or spin-up, of NBC Sports promotional shorts imagining Lasso's appointment as head coach of Tottenhan Hotspur.

 

Incidentally, I'm a consistent critic of NBC's intellectual-property monopoly over PL broadcast rights in the United States.  NBC carves up the PL season so that one would have to subscribe to an impossible, and impossibly expensive, range of commonly owned services to follow a favorite team.  Americans would never tolerate such exploitation of American football broadcast rights.  NBC and the PL are greedily short-sighted, because inculcating loyalty to a single side is essential to sell British soccer to the American viewer in the long term.  It remains to be seen how UK regulators would react were NBC, since merging with Sky, to dare to try such such shenanigans there, where team loyalty is a multi-generational sacrament.  Other sports-loving countries won't have it.

Sports comedy is supremely watchable when it's well executed.  I thoroughly enjoyed Hank Azaria's Brockmire (2017-2020), though I have not watched baseball in many years.  And who can forget comedy-drama Sports Night (1998-2000)?  The West Wing (1999-2006) is too often credited for Aaron Sorkin's introduction of fast cuts and fast-paced dialog into small-screen canon, but it was on Sports Night that he pioneered the art.

The Sudekis interview appeared on The Daily Show just a day after Trevor Noah opened with some Premier League humor (cue to 1:13), noting Aston Villa's defeat of both Manchester United and Liverpool, the latter 7-2.  Noah is a Liverpool supporter.

Here is the trailer for Ted Lasso.