Of all the funny takes on an outraged voter's crashing of a Nevada election press conference, John Oliver's takes top honors for featuring government transparency through the Freedom of Information Act.
See the full segment on Election Results 2020 on HBO's Last Week Tonight with John Oliver, Nov. 8, 2020.
Forty-three states have, or previously had, some version of a driver’s license suspension program. These programs are shown to have disastrous financial effects on the lives of those who cannot afford the fines inherent in them. Challenges to such license suspension schemes have been brought throughout the United States but have been largely unsuccessful. Where relief ultimately may be found is in state legislatures or city governments. When those bodies discover that, although these programs are in fact valid and constitutional, many of them have such detrimental and long-term impacts on so many citizens, they ultimately result in more harm than good. This realization has led many states to experiment with changes to, or repeals of, their driver’s license suspension programs with varying success. However, many states still rely on the fines levied by these programs and there is a legitimate argument that the programs are imposed to keep dangerous drivers off the street. Ultimately, this is an issue that arose from legislation and, despite finding its way into the court system, must be solved with legislation.
The article is Spencer K. Schneider, The Wheels on the Bus: The Statutory Schemes that Turn Traffic Tickets into Financial Crises, 77:2 Nat'l Law. Guild Rev. 81 (Summer/Fall 2020).
Trump Golf operates two properties in Scotland and one in Ireland. The club at Aberdeen lost a fight against a nearby windfarm in the UK Supreme Court in 2015. The New York Times Trump tax revelation caused Business Insider to mark
the clubs among Trump's "most failed businesses," while seeming
over-valuation of the clubs figures in New York prosecutors' ongoing investigations
of Trump financial disclosures (Politico). The Scotland properties also garnered unwanted news coverage this year for their receipt of coronavirus government bailouts (Guardian). Nevertheless, Aberdeen recently authorized construction of a second club (BoingBoing).
I just discovered The Bar & Grill Singers, an Austin, Texas-based musical revue of attorneys. My favorite song is "Appointed Forever."
There's more at the group's YouTube channel and on the group's CD, Grilling Me Softly (iTunes, Amazon).
Big thanks to Sai, president of Fiat Fiendum, who first, via FOI-L, pointed me to the also excellent "I'm Billing Time."
 |
| Heard and Depp in 2015 (GabboT CC BY-SA 2.0) |
Johnny Depp is fighting accusations of spousal abuse in defamation suits in England and the United States. Apparently, I can't be disillusioned often enough about actors I like.
At the excellent INFORRM blog, Kirsten Sjøvoll of Matrix Chambers (here) and University of Essex Law Lecturer Alexandros Antoniou (here) have the latest about Depp's suit in London, in which the defense of substantial truth has been asserted successfully.
Sjøvoll explained, "In this case, it was also not necessary for the Defendants to prove that each and every incident or allegation of domestic [violence] relied upon took place. It was enough for them to establish that it was substantially true that Mr Depp had been violent towards his ex-wife during the course of their marriage."
Outside the courtroom, Sjøvoll observed, "an
army of Depp fans" have stated "strong views about the evidence via Twitter," including ridicule of Justice Andrew Nicol. The case meanwhile has generated ample lurid detail in entertainment news about Depp's rocky relationship with ex-wife Amber Heard.
 |
| Post op-ed, from Va. complaint |
A libel defendant who seeks to establish that the words complained of are substantially true takes a considerable risk that, if unsuccessful, the damages they may be liable for will be significantly increased. The costs of a trial in which the truth of the allegations are in issue are also likely to be much higher. Indeed, in the Depp case, it was notable that both parties instructed leading criminal counsel to conduct the cross examination of the key witnesses in addition to media law specialists.
Depp has vowed to appeal, and Sjøvoll and Antoniou noted that he also is pursuing related defamation litigation in the United States. Depp is suing Heard in Fairfax Circuit Court, Virginia, over a #MeToo op-ed she published in The Washington Post in 2018. The op-ed did not refer to Depp by name, but Heard wrote about how she became "a public figure representing domestic abuse" at the time of her divorce from Depp. The case is steaming through contentious discovery with a flurry of foreign subpoenas.
The case in London is Depp v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), Nov. 2, 2020. The case in Virginia is Depp v. Heard, No. CL-2019-2911 (Va. Cir. Ct. Fairfax County filed Mar. 1, 2019). HT @ Private Law Theory.
 |
| Mckesson (HimmelrichPR CC BY-SA 2.0) |
I wrote about this case in April. Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway. Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer. Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.
On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance. The Court vacated the Fifth Circuit decision and remanded. The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.
Both Doe's negligence theory and Mckesson's First Amendment defense are close questions. Mckesson never countenanced a violent attack on police. Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor. Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.
Cases of such "negligent incitement" have long been problematic in First Amendment doctrine. The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous. Results have varied, and no clear rule has emerged. Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.
I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts). Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale. It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer. Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.
The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog). The opinion was per curiam. Justice Thomas dissented without opinion, and Justice Barrett took no part.
Defendant and plaintiff exchanged spiteful messages in a WeChat group. The group comprised 437 persons and was organized to support plaintiffs accusing Harvard University of discriminating against Asian-American applicants in admission. The defendant referred to the existence of "pink-news" about the plaintiff. As the court explained the term, "'pink-news' is a Chinese expression that refers to sex gossip or rumors."
The trial court awarded judgment for the defendant on the pleadings on the alternative grounds that the plaintiff had failed to show damages, or that the allegation of "pink-news" was "imaginative expression" or "rhetorical hyperbole," not a factual assertion capable of defamatory meaning.
The Appeals Court affirmed on different grounds. Plaintiff had been known in the chat group only by a pseudonym. She failed to allege that anyone in the group knew her identity. So she could not prove that the statement in question was "of and concerning" the plaintiff, as the test for defamation requires.
The Appeals Court disavowed the grounds of decision in the trial court. The court's discussion of the "pink-news" issue suggested that there might have been some factual question about the meaning of the term as to preclude judgment on the pleadings. And in a footnote, the court wrote that written communication in WeChat probably is libel, not slander, so would entitle a plaintiff at least to nominal damages under Massachusetts law.
Probably the "pink-news" allegation later would have failed for the reason the trial court supposed, even if further factual investigation was warranted. Courts in a number of cases have recognized the hyperbolic nature of social media posts. In 2018, recognition of "hyperbole" cost "Stormy Daniels" Stephanie Clifford her claim against Donald Trump for his tweet accusing her of a "con job." In 2019, Elon Musk successfully defended a tweet in which he had referred to the plaintiff as "pedo guy."
At the same time, this anything-goes approach to social media means, for better and worse, that tort law cannot be relied on as a social media regulator in our age of coarsening discourse.
The case is Li v. Zeng, No. AC 19-P-1546 (Mass. App. Ct. Nov. 3, 2020). The opinion was authored by Justice James R. Milkey for a unanimous panel that also comprised Justice Wendlandt and Chief Justice Green.
