Breyer's tastiest torts, Disney's perspective problem play Paramount late night with Colbert, Noah

Late Show monolog mock-up

On Wednesday, Paramount's late-night television kindly obliged my classroom teaching with two legal references, one fit for my Wednesday torts class, and another for my Thursday comparative law class.

First, a gift for Torts II students, from Stephen Colbert: In a monolog on the retirement of Justice Stephen Breyer, Colbert on The Late Show with Stephen Colbert played on the word "torts" to joke about Justice Breyer's stated intention to refine his cooking skills in retirement.  "From Torts to Tarts," Colbert said (cue 2:31), suggesting a name and mock cover for a forthcoming Supreme Cookbook.

The U.S. Supreme Court of course does not often deal directly with torts, or civil wrongs, which are mostly matters of state law in the United States.  It's often a source of misunderstanding for foreign lawyers and new American law students who must learn that SCOTUS is not "the highest court in the land" (even besides that one) when it comes to torts.

 

That said, a good deal of tort law finds its way to the federal high court on all kinds of paths.  Federal courts routinely apply state law in multi-district litigation, including mass tort claims, and in matters involving both federal and state claims.  State tort claims can become mixed with federal questions in problems of constitutional defenses and preemption.  Federal "common law" persists in places of original federal jurisdiction, as in maritime matters.  And the trial of civil wrongs recognized in federal law, such as civil rights, can borrow the "machinery" of state tort law, both procedural, as in application of a statute of limitations, and substantive, as in apprehension of proximate causation.

For Law360, Emily Field and Y. Peter Kang yesterday detailed six must-know Breyer opinions in product and personal injury liability.  These are their six cases (with links to Oyez), which they flesh out in the article (subscription required). 

• Due process / civil procedure / personal jurisdiction: J. McIntyre Machinery, Ltd. v. Nicastro (U.S. 2011), denying state personal jurisdiction for less than minimum contact by British machine manufacturer that marketed its product in United States (Breyer, J., concurring, joined by Alito, J., in plurality opinion of Kennedy, J., in 6-3 decision)
• Due process / punitive damages / product liability: Philip Morris USA v. Williams (U.S. 2007), holding that federal constitutional due process precludes a state punitive damages award predicated on injury inflicted on non-parties, i.e., even like injury on persons like the plaintiff, but not before the court (Breyer, J., for the 5-4 majority, joined by Roberts, C.J., and Alito, Kennedy, and Souter, JJ.).
• Preemption / product liability / warning defect: Merck Sharp & Dohme Corp. v. Albrecht (U.S. 2019), holding that FDA regulatory decision might or might not preempt state warning defect claim, and question is one of law for the court (Breyer, J., for the majority, in part unanimous, in part 6-3, joined by Ginsburg, Gorsuch, Kagan, Sotomayor, and Thomas, JJ.).
  
• Preemption / product liability / design defect: Williamson v. Mazda Motor of Am., Inc. (U.S. 2011), holding that flexible federal regulatory standard did not preempt state claim against automaker (Breyer, J., unanimous decision).
• Evidence / experts: Kumho Tire Co. v. Carmichael (U.S. 1999), extending test for admissibility of scientific evidence to other technical expertise (Breyer, J., unanimous decision).
• Arbitration / class action: Green Tree Financial Corp. v. Bazzle (U.S. 2003), leaving to arbitrator to decide whether to permit class action when arbitration agreement was silent on the question (Breyer, J., for a plurality, 5-4 decision, joined by Ginsburg, Scalia, and Souter, JJ., and Stevens, J., concurring).

The article is Emily Field & Y. Peter Kang, 6 Breyer Product, Personal Injury Opinions Attys
Should Know, Law360 (Jan. 27, 2022) (subscription required). 

Second, a gift for Comparative Law students, from Trevor Noah: On The Daily Show with Trevor Noah, Noah reported on actor Peter Dinklage's criticism of Disney's planned live-action reboot of Snow White and the Seven Dwarves (1937).  There have been other versions; the story is derived from fairy tales that were included in the first Grimms' in 1812.  Dinklage, who has dwarfism, wondered at the inconsistent wokeness of casting Latina actress Rachel Zegler as the lead, while continuing to work with a story about "seven dwarves living in a cave."

While acknowledging Dinklage's objection as legitimate, Noah admitted, "I've never watched Snow White and found the dwarves offensive.  All right?  But I do understand what he's talking about.  I genuinely do.  Because if that movie was called 'Snow White and the Seven Blacks,' I mean, that would be weird."

Noah's take nicely illustrates one dimension of the perspective problem in social research, and it's especially salient in comparative law.  Like Noah, I never thought about the seven dwarves as an insulting characterization of people with dwarfism.  But after hearing Dinklage's perspective from within the dwarfism community, I can perform a "mental rotation" (to use the psych term) and empathize.

The problem when researching law and society in an unfamiliar context, whether it's a shared physical condition, a religion, or a political state, is that my perspective is shaped by my own limited experience in ways that I might not even be conscious of.  The perspective problem can never be entirely eliminated in social research, but it can be mitigated.  It's helpful to think consciously about one's perspective to gain some cognizance of the limitations of one's research.

As to the Seven Dwarves of fairy-tale fame, Disney announced that it is "taking a different approach with these seven characters and ha[s] been consulting with members of the dwarfism community."  I look forward to what creative minds will yield.

Incidentally, in the same Daily Show, Noah did an excellent piece on insider trading in Congress.  Just last week I noted a publication on the subject by Spencer K. Schneider, a former teaching assistant of mine.  I added a video embed from Comedy Central to the bottom of that post.

Mass. high court affirms 'component parts doctrine' in HVAC spat, unless maker was culpable in defect

Historical interior of the William Bliss House, 25 Exeter, Back Bay in Boston,
constructed 1882-1884: today the private home of the Nemirovsky family.
Source: Historic New England. 

In a December decision, the Massachusetts Supreme Judicial Court (SJC) reaffirmed the defense-friendly "component parts doctrine" in product liability.

The case arose from a faulty HVAC system installed in plaintiff's 22,000-square-foot Boston home. Evaporator coils in the system repeatedly failed and required replacement, costing the plaintiff hundreds of thousands of dollars, and then substantially more to replace the system in its entirety.  The coils themselves were not defective, but a defect in the system's Styrofoam drain pan caused the coils to fail prematurely.  The statute of limitations precluded plaintiffs' claims based on sale of the HVAC system, but not claims based on the later sale of replacement coils.

Sensibly, the widely accepted "component parts doctrine" ordinarily relieves from liability the manufacturer of non-defective component parts.  However, the SJC explained, citing the Third Restatement, "a component manufacturer may be liable, even if the component itself is not defective, if the component manufacturer is 'substantially involved' in the integration of the component into the design of the integrated product, the integration of the component causes the integrated product to be defective, and the defect in the integrated product causes the harm."

The Superior Court erred, the SJC concluded, in not applying the general rule of the component parts doctrine.  The Superior Court had reasoned that the coil manufacturer could be liable because the coils were made specifically for integration into the defective HVAC system and had no standalone functionality.  In other words, the product failure was foreseeable to the coil manufacturer.  But there are no such exceptions to the component parts doctrine, the SJC held.  Intended integration is not the same as the "substantial involvement" contemplated by the Restatement rule.  And standalone functionality is not the test to shield a component maker from liability.

The component parts doctrine is widely accepted in the states.  There was some hand-wringing over the vitality of the doctrine in 2016 when the California Supreme Court held the doctrine inapplicable when "injury was allegedly caused directly by the [defendant's] materials themselves when used in a manner intended by the suppliers."  In that case, a metal foundry worker had developed lung disease, he alleged, as a result of fumes and dust generated by the foundry's use of the defendant's materials in manufacturing.  But it was the defendant's materials that caused the disease, even if they had been physically transformed by the foundry.  And the specific intentionality attached to the use of the materials closely resembled substantial involvement, tightening the lasso of foreseeability.  The decision hardly unsettled the component parts doctrine.

Law students should take care not to confuse the component parts doctrine with "the single integrated product rule."  That rule determines when damage to an integrated product can be said to satisfy the injury requirement of product liability.  Standalone functionality is relevant to the analysis, but not necessarily dispositive.  If a component part is intended for integration into a larger product, and a defect in the component causes damage to the larger product, but no damage beyond the larger product, then the buyer of the defective component cannot meet the injury requirement to sue in product liability.  The theory of the rule is that the buyer, anticipating the integration, should protect itself in contract and warranty, rather than depending on tort law.  The component parts doctrine rather precludes component manufacturer liability for a non-defective integrated component upon the theory that the component buyer, responsible for the integration, is in the better position to ensure the safety of the integrated product.

In the Massachusetts case, the SJC's decision vacated a $10.6m award.  The jury had awarded just under $3.4m in its verdict.  Massachusetts does not allow punitive damages at common law, but an expansive statute protecting consumers against misrepresentation, "chapter 93A," subsumes much of what would be separate product liability claims in other jurisdictions and can hit defendants with punishing awards of damage multipliers and attorney fees.  Under 93A, the trial court had awarded double damages and attorney fees against defendant Daikin North American for its "willful and knowing" misrepresentation.  Daikin NA might not be off the hook entirely, as the SJC ordered a reexamination of its culpability on remand, to disentangle product liability based on defect from product liability based on culpable misrepresentation.

The case is Nemirovsky v. Daikin North America, LLC, No. SJC-13108 (Dec. 16, 2021).  Justice Dalila Wendlandt wrote the unanimous opinion.

 Ahh, rich people problems....

Employer may not fire for personnel rebuttal, high court holds, even though statute provides no remedy

Pixy.org CC BY-NC-ND 4.0

Reversing a problematic and divided intermediate appellate court decision, the Massachusetts Supreme Judicial Court held in December that an at-will, private-sector employee may not be terminated for exercising a statutory right to rebut negative information in the employee's personnel file.

I wrote here at The Savory Tort about the intermediate appellate court decision in January 2021:

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

The Appeals Court had struggled with the case, deciding it 3-2 on rehearing after an initial 2-1 ruling against Meehan.  I commented then: The outcome was not inconsistent with American courts' general inhospitality to public policy-based claims of wrongful termination.  At the same time, the outcome was discordant with Massachusetts's more liberal disposition on wrongful termination, especially considering the civil rights-protective vein of the rebuttal statute.

The Supreme Judicial Court (SJC) recognized that public-policy constraints on at-will employment termination must be narrowly construed.  But constraint 

has been recognized "for asserting a legally guaranteed right (e.g., filing a worker's compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)" [SJC's added emphasis].... In addition to these three categories, this court subsequently created a fourth category to protect those "performing important public deeds, even though the law does not absolutely require the performance of such a deed." .... Such deeds include, for example, cooperating with an ongoing criminal investigation.

The rebuttal statute fell in the first category, the SJC held.  The trial court and Appeals Court had improperly second-guessed the importance of the statutory right and discounted it for its relation primarily to internal private affairs.  Those considerations bear on the fourth category, the court explained.  The legislative pronouncement is conclusive in the first category.

Even so, the court opined, the right of rebuttal is important, because it facilitates compliance with other workplace laws, "such as workplace safety, the timely payment of wages, and the prevention of discrimination, and nonemployment-related activity, such as those governing the environment and the economy."

While the lower courts were put off by the legislature's seemingly exclusive express remedy of a fine for non-compliance, the SJC regarded the omission of a retaliation remedy as mere failure to anticipate.  "Indeed," the court opined, retaliatory termination "would appear to be sticking a finger in the eye of the Legislature.... We conclude that the Legislature would not have permitted such a flouting of its authority, had it contemplated the possibility."

An employee claiming wrongful termination still has a hard road to recovery.  The court emphasized that causation, connecting rebuttal and termination, may raise a question of fact in such cases, and here on remand.  Moreover, an employee can overstep and forfeit common law protection.  The statute "does not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal."

The case is Meehan v. Medical Information Technology, Inc., No. SJC-13117 (Mass. Dec. 17, 2021).  Justice Scott Kafker wrote the opinion of the unanimous court.

Hospital BAC disclosure prompts tort privacy claims

Photo by Marco Verch (CC BY 2.0)

The federal district court in Montana in December refused to dismiss an informational privacy claim against police, highlighting the space for state law to effect personal privacy protection in the United States.

Plaintiff Harrington was hospitalized after police found her unresponsive in her parked car. In the complaint, she alleged that sheriff's deputies "joked about her incapacitated condition and played along when nurses asked them to guess her blood alcohol content" (BAC). A nurse thereby disclosed Harrington's BAC, and, the complaint alleged, deputies then coaxed the record from a doctor. Harrington was charged with driving under the influence.

Subsequently, Harrington sued county officials and Madison Valley Hospital, the latter on theories of state statutory information privacy and common law invasion of privacy, negligence, and negligent infliction of emotional distress. The hospital sought dismissal on grounds that the federal Health Insurance Portability and Accountability Act (HIPAA), cited by the plaintiff in the complaint, affords no private right of action.  The federal district court, per Chief Judge Brian Morris, denied the motion to dismiss, recognizing that while HIPAA does not itself authorize private enforcement, it also does not preclude state law from providing greater privacy protection.

The case caught my attention because its facts point to something for which I've advocated, the use of tort law to fill gaps in informational privacy protection in the United States.  The law has not kept up with Americans' expectations of privacy, much less the norms of the world, but the common law should be sufficiently dynamic to reflect the evolving social contract.  I see drift in this direction in the expansion of medical fiduciary duty in emerging precedents in the states, such as Connecticut's Byrne v. Avery Center for Obstetrics & Gynecology, P.C., in 2018.

A theory as tenuous as negligent infliction of emotional distress, "NIED," can't usually stand on its own.  And tortious invasion of privacy has a poor track record in protecting personal information that is already in limited circulation.  However, paired with a medical provider's fiduciary duty and bolstered by a privacy violation recognized in regulation, either tort theory might be ripe for redefinition.

The case is Harrington v. Madison County, No. 2:21-cv-00015 (D. Mont. Dec. 6, 2021).  Hat tip to Linn Foster Freedman at Robinson+Cole's Data Privacy + Cybersecurity Insider.

American Airlines resists transparency, sues 'Points Guy' for tortious interference, trademark infringement

Photo by RJ Peltz-Steele at O.R. Tambo International Airport, Johannesburg,
South Africa, 2020 (CC BY-NC-SA 4.0)

The Points Guy (TPG) has become embroiled in litigation with American Airlines over how the TPG app lets users manage their frequent flyer miles, the airline charging the website with tortious interference and trademark infringement.

I read TPG every day.  The website is funded by product placements and advertising, especially by credit card companies.  One has to know that and take the content with heaps of salt.  But I find TPG incomparable and nonetheless worthwhile for keeping up with the travel industry.  And TPG advice has been especially helpful to me with advice on frequent flyer programs, for example, letting me know how much miles are worth on average in real dollars, so I know whether dynamic redemption tables are offering a good deal.

I also like some of the writers at TPG, because they set a tone that resonates with me, mixing a desire for industry accountability, especially for airlines, with a sense of humor and a lighthearted wonder of the world.  Baltimore-based senior editor Benét J. Wilson (LinkedIn, Muck Rack, Twitter; see also Poynter) is especially fabulous; check out her wider world at Aviation Queen.  I met Benét when she taught an outstanding program on advanced Google research tools for the National Freedom of Information Coalition (NFOIC), and thereby for my FOI Law students, who participated.

Last year, TPG launched an Apple app.  I haven't used it, because I'm an Android user.  I avoid Apple products because I've never been a fan of Apple intellectual property (IP) policies, which I mention because it's relevant here.  Apple's limited submission to a right of repair for Apple smartphones is a step in the right direction; more on that momentarily.  Anyway, TPG is working on the Android version of the app.

Among many features, the TPG app empowers users to manage their frequent flyer miles.  TPG deep-links to data from sites such as that of American Airlines (AA), within users' accounts there.  Obviously, this access improves the user's ability to maximize the value of their miles, recognizing good deals and, key, getting advance warning when miles are set to expire.

AA was not happy about that.  The company accused TPG of violating the terms and conditions of the website and frequent flyer program, AAdvantage, thus, allegedly, interfering with AA's contract with its customers and infringing on AA IP.  According to media reports, TPG sued AA in Delaware state court the week before last.  I assume TPG sought declaratory relief; at the time of this writing, the complaint is not yet available from Delaware courts.

Then on Tuesday last week, AA sued TPG in federal court, in AA's home Northern District of Texas.  The complaint alleged tortious interference with, inter alia, contract, unfair competition by misappropriation, (virtual) trespass, trademark infringement and dilution, copyright infringement, and violation of the Computer Fraud and Abuse Act.

For Law360, Jasmin Jackson filled in some background last week (limited access without subscription).  Jackson reported that TPG initially sought AA's partnership in the app.  AA declined.  Since the app's launch, the two were discussing their differences.  AA claimed surprise at TPG's Delaware filing and accused TPG of leveraging its position with litigation costs and compelling, AA said, the suit in Texas.

I see the case as a high-tech relation of the right-to-repair problem.  AA is gaining a business advantage through obfuscation of customer data and control of information under the guise of IP protection.  The same strategy is why I have to pay a high-dollar technician to tell me what's wrong with my car when the check-engine light comes on, and it's why 11% of McDonald's Taylor-made McFlurry machines are broken.

Customer frustration with companies' resistance to transactional transparency to maximize profit margins is manifesting in a wave of state legislation to protect consumers (see N.Y. Times July, Oct. 2021; repair industry website; U.S. PIRG).  Massachusetts voters overwhelmingly approved a right-to-repair ballot initiative in 2020, despite a $25m no campaign by the auto industry (on this blog).  Industry promptly sued, principally claiming federal preemption.  The outcome of a 2021 trial in Alliance for Automotive Innovation v. Healy is still awaited, as the parties battle over a state motion to reopen trial evidence.

There is a Fair Repair Act bill in Congress, even if its odds of passage are dismal.  And the President last summer made overtures, however feeble, ordering the Federal Trade Commission to regulate to protect independent repair shops.  Industry claims it needs exclusive repair rights to protect consumers from incompetent independent technicians.  But a May 2021 FTC report located such industry claims somewhere between baseless and overstated.

The cause should be, and at least sometimes is, bipartisan.  As I have commented many times, free markets depend on transparency, the free flow of information between business and consumer.  So even economic conservatives should be able to get behind the right to repair.  That bipartisan impulse has fueled congressional appetite for now pending bills to enhance antitrust in the tech sector.  Apple's seemingly open-minded move to allow smartphone repair might have been calculated to head off antitrust enforcement.

Summons issued last week in the lawsuit filed by AA, which is American Airlines, Inc. v. Red Ventures LLC, No. 4:22-cv-00044 (N.D. Tex. filed Jan. 18, 2022).

UPDATE, Nov. 10: The parties settled on undisclosed terms on November 4, 2022.

Business touting 'access,' 'journalism' is an ad broker

I find this ad,* "Because Journalism Matters," below, which I saw on my local morning news, troubling.

One could certainly get the impression that the advertiser is a business concerned principally with what the words say: access, accountability, objectivity, and journalism.  So I was pretty excited to see what journalistic outfit made this sleek sales pitch for all that I hold sacred.

The Trade Desk, it turns out, is not a journalistic outfit at all.  It's a media advertising buying platform.  The kind of outfit, I presume, that uses aggregated personal data obtained under the weak American consent regime to target advertising for viewers like me.

That's not all bad.  My wife was quick to point out that ads pays for the journalism I'm watching, insofar as one can still describe local news as journalism.  And The Trade Desk, on its website at least, does advocate for an open internet, so, I presume, supports net neutrality, which is a good thing.

But the commercial motive hardly equates to the public interest that drives journalism.  The ad opens with images of working journalists.  This is misappropriation, in my estimation.  The selection of words, access, accountability, objectivity, and journalism, doubles down on a misleading impression.

The company's website is a bit more honest, inserting between "because" and "matters": trust, reach, measurement, and innovation.  In descriptions, those words are contextualized in commerce.  Trust means transparency to the ad buyer about the ads, not the public's trust.  Reach and measurement plainly are about advertising efficacy.  And innovation, "[f]rom privacy to identity," "focuse[s] on the interests of the entire industry" (my emphasis), not innovation in journalism, and certainly not innovation in the protection of personal privacy and identity from industry.  

Those priorities don't sync in my mind with what looks like a journalist running down a street with a camera and a press badge in one of the opening stills.  Unless he's in a hurry to invade someone's privacy.

I don't know the answer to our woes in journalism, whether nonprofits, public funding, etc.  But if The Trade Desk, however laudable a model in the advertising business, marks the way forward for journalism, then the craft that I learned in j-school will soon be a quaint anachronism comprising only words.

* I realize that by drawing attention to this ad, I'm giving the advertiser exactly what it wants, in a no-publicity-is-bad-publicity way.  I decided that sharing the ad with commentary was only fair.  You decide, as the saying goes.

Schneider proposes (more) insider trading reform for Congress; background guarantees to outrage

Ever feel like it's harder and harder to pay higher and higher bills, even while the news raves about low unemployment, a rising stock market, and the rich get richer?  Feel like our members of Congress are out of touch and only working to line their own pockets?

Not all paranoia is delusional.  Fuel your outrage with Money, Power, and Radical Honesty: A Look at Members of Congress' Use of Information for Financial Gain, an article published by attorney Spencer K. Schneider, once my teaching and research assistant, in the Pepperdine Journal of Business, Entrepreneurship & The Law in November.  Here is the abstract.

Cleared of wrongdoing due to lack of evidence, Senators Kelley Loeffler and David Perdue continued their bids for re-election, and control of the Senate, in the Georgia run-off. Both Senators Loeffler and Perdue traded stocks in the run-up to the COVID-19 crisis after receiving classified briefings. These are just two of many instances of members of Congress profiting after receiving classified information. While the American public remained uninformed as to the true crisis looming as COVID-19 spread, members of Congress received private briefings and quietly sold securities such as travel and hotel related interests, and purchased other securities, such as remote-work software and medical equipment related interests.

Many members of Congress also profit from federal money earmarked to increase the value of their personal land deals, from access to IPOs, and from corporate board seats. While corporate executives, members of the executive branch, and ordinary citizens are subject to strict insider trading laws, members of Congress sail through loopholes and exceptions that are hand-crafted for their benefit. This article reviews proposals for fixing the problem before proposing a comprehensive solution focused on limiting the financial opportunities for members of Congress and strict reporting requirements.

While many proposals to address this problem exist, none come close to preventing members of Congress from profiting in these often nefarious ways. To ensure that members of Congress work on behalf of the American Public—and not their own pocketbooks—the comprehensive and drastic reform articulated in this article is required.

Spencer K. Schneider

Mr. Schneider worked on a piece of this article when he was still a law student under my tutelage.  I remember being flabbergasted by the background section, and then, in January 2021, thinking that we all should be at the Capitol ramparts, but for different reasons.  What's perhaps most disheartening is that past purported reform efforts in Congress have been devoid of will or insincere in execution. I know that Schneider worked hard on his reform proposal and sought advice from skeptical experts. Whether meaningful reform will precede frustration-fueled revolution in this country is anyone's guess.

The article is Spencer K. Schneider, Money, Power, and Radical Honesty: A Look at Members of Congress' Use of Information for Financial Gain, 14 J. Bus. Entrepreneurship & L. 296 (2021).  Schneider is licensed in Massachusetts and bar pending in his present home state of California.

UPDATE, Jan. 28: Less than a week after I posted this item, The Daily Show with Trevor Noah published a nice exposé on congressional insider trading, incorporating some of the same data that fueled Schneider's article and my ire:

SCOTUS lets stand First Amendment protection of citizen newsgathering via secret recording of police

Pixabay by Bruce Emmerling

Denying review in November 2021, the U.S. Supreme Court let stand court decisions declaring the Massachusetts wiretap statute unconstitutional as applied to recording police in public places.

I wrote about the original U.S. District Court decision here at The Savory Tort in 2019.  As I commented then, the decision and others like it in the federal courts have broader implications for the First Amendment and the right of access to information.  Historically, American courts have been reluctant to locate access rights in the negative command that Congress make no law abridging the freedom of speech.

But developments in media technology have dimmed the once bright line between information acquisition and expression.  In an age in which one can retweet scarce moments after reading a tweet, government regulation of receipt seems to impinge intolerably on transmission.  Layer on as well a realpolitik of demand for accountability in law enforcement, and the mechanical application of a wiretap prohibition to a smartphone recording of police conduct, or misconduct, becomes indefensible.

Accordingly, civil liberties advocates applauded the district court holding "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."  Bipartisan claimants in the case included Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, and conservative activist James O'Keefe and his Project Veritas Action Fund.

In December 2020, the First Circuit mostly affirmed.  U.S. Circuit Judge David J. Barron observed for a unanimous panel that also comprised retired Supreme Court Justice David Souter, sitting by designation, and Senior Judge and Rhode Islander Bruce M. Selya, "Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer's mistreatment of a civilian in a city park as it is for a revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse."

The Massachusetts wiretap law, which is restrictive, requiring all-party consent, but not unique in the states, thus offended the First Amendment insofar as it "prohibit[ed] the secret, non-consensual audio recording of police officers discharging their official duties in public spaces."  In the vein of the changing media landscape and advent of citizen journalism, the First Circuit opined: "In sum, a citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired."

However, ruling that Project Veritas's purported fear of prospective prosecution failed to prevent a controversy ripe for adjudication, the First Circuit vacated the judgment of the district court insofar as it reached the "secret, non-consensual audio recording of government officials discharging their duties in public" (my emphasis).  That's not to say the principle of the ruling cannot extend beyond police, to other public officials, when there is legitimate public interest in accountability.  Precedent suggests such extension.  But the court was skeptical of the potential reach of an unqualified ruling: "[I]f we ... construe the term 'government officials' as broadly as 'officials and civil servants,' that category covers everyone from an elected official to a public school teacher to a city park maintenance worker."

The First Circuit ruling thus nudges the First Amendment forward in the access arena.  Meanwhile, First Amendment problems lurk ever more menacingly in countervailing privacy law.

At the end of November 2021, Twitter announced a new privacy policy allowing any individual pictured in a tweet to demand takedown, regardless of whether the tweet contains information held private.  There are public-figure and public-interest exceptions.  But generally, images of ordinary persons in public places are imbued with a right of privacy akin to that which animates the European (and increasingly rest-of-the-world) right of personal data protection.

The balanced protection of personal privacy in public places is proving difficult to draw in European courts, which have generated rulings not always savory to the American palate.  My Google Nest Doorbell, for example, facing the public street in Rhode Island, would be problematic under European privacy law.  A private company, Twitter does not have to contend with the First Amendment.  But if the same privacy value and takedown policy were embodied in law, well, as they say in New England, a stahm is a-brewin'.

Both district and circuit courts rejected Project Veritas's facial challenge to the wiretap law.  Project Veritas filed a petition for writ of certiorari in May 2021, and the U.S. Supreme Court denied review in Project Veritas Action Fund v. Rollins, No. 20-1598, on November 22, 2021.  Hat tip to Brian Dowling at Law360.  Cf. Family in fatal police shooting demands transparency, The Savory Tort, Jan. 19, 2022.

Christian flag, Nazi art color SCOTUS arguments this week, raising First Amendment, choice-of-law issues

On Tuesday, the U.S. Supreme Court heard oral argument in both the Boston flag First Amendment scrap (on this blog) and the latest transnational Nazi-appropriated-art case.

My take of the transcript accords with what I'm reading from commentators (e.g., Brian Dowling (subscription required)): It looks bad for Boston.  The city seems to know that, having already pledged to rewrite its flag policy.  So I'm not sure why this dispute has been belabored into a literal Supreme Court case.

Justice Kagan seemed unsure, too.  She, and not she alone, regarded city commissioner George Rooney's refusal to raise the Christian ecumenical flag on a public pole as based on a mistaken understanding of the Establishment Clause, if "an understandable mistake."

Neutrality in the policy for "guest" flags rides to the rescue, abating any establishment-of-religion issue.  So I don't expect this case will generate establishment or free exercise jurisprudence, nor any new First Amendment principle at all.  The Court seemed willing to locate the case firmly in existing public forum doctrine.  Boston just did a lousy job of defining the forum, creating for itself the "risk of being forced to fly the swastika," in the words of city counsel.

At least the case might yield a neat demonstration-of-principle opinion for law school casebooks.

The same day, the Court heard argument in the latest art appropriation (and expropriation) case.  In the "Woman in Gold" vein, heirs of a Jewish family are trying to recover a Camille Pissarro painting, Rue St Honoré, Apres-midi, Effet de Pluie (1897) (pictured), that came into the possession of respondent Museo Nacional Thyssen-Bornemisza in Madrid.

In its present iteration, the case involves a choice-of-law problem.  Because the Spanish museum is a public entity, the Foreign Sovereign Immunities Act is implicated; claimants are threading the immunity needle through the FSIA "expropriation" exception.  Ownership subsequently hinges on the substantive law of California or Spain.  The district court used federal common law to choose Spanish law and reach a conclusion in favor of the museum.  The claimants assert that California choice-of-law rules should pertain—though it remains arguable that California choice-of-law rules would render a different outcome.

The U.S. Solicitor General is favoring the claimants' position, which generated a curious exchange in oral argument.  Chief Justice Roberts admitted "surprise" that the government wasn't worried about a potential conflict between the federal prerogative in foreign affairs and the application of state choice-of-law rules.  Assistant to the S.G. Masha Hansford responded that if a federal interest were implicated, that problem could be dealt with upon the application of substantive law; and that, meanwhile, state choice-of-law rules employed in other cases have proven fair in choosing between foreign and domestic law.

Boston-based lawyer and writer Martha Lufkin wrote a superb review and analysis for The Art Newspaper (free account after limited access) (HT @ James Romoser). 

The Boston flag case is Shurtleff v. City of Boston, No. 20-1800 (U.S. argued Jan. 18, 2022).  The Pissarro case is Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566 (U.S. argued Jan. 18, 2022).

Family in fatal police shooting demands transparency

Fall River Police Department
Photo by Kenneth C. Zirkel (CC BY-SA 4.0)

At a rally in Fall River, Mass., on January 15, the family of Anthony Harden, who was killed by police in November, demanded transparency in the investigation into the shooting.

News reports state that Harden, 30, became involved in a physical altercation with two police officers trying to arrest him at his home.  Harden was confined to the home with a GPS bracelet while charges were pending in an assault case, WBZ reported in December.  According to police, Harden repeatedly stabbed at one of the officers with a metal object, possibly a steak knife, and the other officer shot and killed him.

Bristol County District Attorney (DA) Thomas M. Quinn III investigated and announced in December that police had complied with the department use-of-force policy, WBZ reported.  But the family has not yet seen the full record of the investigation, the Fall River Herald News reported after the "Justice for Anthony" rally on Saturday, and the family alleges inconsistencies between a private autopsy and the DA's conclusion.

In light of the police accountability movement that erupted in recent years in the United States, my Freedom of Information (FOI) Law seminar in the fall semester took up law enforcement transparency as a special topic.  Sifting the voluminous writing on police accountability in scholarly, NGO, and popular literature, I found, probably unsurprisingly, that lack of transparency is often a volatile fuel of misunderstanding and vehement distrust between people and police in these matters.  Worse, it doesn't always have to be.

At risk of generalizing to the detriment of the many, many police officers and departments that uphold the law with integrity, there remains the conventional wisdom that police are notorious for resistance to transparency.  My own youthful interest in FOI law was spurred by, and, in fact, a factor in my decision to go to law school in the 1990s was, frustration dealing with the Rockbridge County Sheriff's Office when I was a student journalist in Virginia.  

FOI "audits," occasionally carried out by media and NGOs to test state open records compliance, invariably test police, because a characteristic reluctance to comply with the law, ironically, juxtaposes so sharply with the urgent life and liberty interests of persons subject to police power.  The classic tension in this vein is nicely encapsulated by Amy Sherrill's report on police compliance for a 1999 Arkansas audit.  The piece might as well have been written yesterday; secrecy in policing is a persistent devil.

For my October class, besides some introductory material such as the law enforcement exemption in the federal FOI Act (FOIA) (subpart (b)(7)), after which the states have modeled many statutory open records exemptions, I assigned:

• State ex rel. Standifer v. City of Cleveland, 2021 Ohio 3100 (Ct. App. Sept. 3, 2021);
• Emanuel Powell, Unlawful Silence: St. Louis Families’ Fight for Records After the Killing of a Loved One by Police, 57 Am. Crim. L. Rev. 65 (2020); and
  
• Somebody: Police, The Intercept (Apr. 14, 2020) (podcast ep. 3).

There is so much to unpack on this topic that I had to be judicious.  The Standifer case, arising from an investigation into police violence in Connecticut, frames the subject with First Amendment access implications and the balance between police transparency and the rights of persons named in police records, including police officers themselves.

I can't say enough about the Powell article.  An attorney with ArchCity Defenders, Emanuel Powell related a personal and powerful narrative with a well informed and reasoned call for reform.

The entirety of The Intercept podcast, "Somebody" season, is worth the time.  For this class, I chose the "Police" episode, especially for its audio recordings of a mourning mother, Shapearl Wells, desperately seeking answers in the death of her son, and what she faces with police who are sometimes understanding but more often defensive, guarded, and harsh with her.  The audio medium demonstrates, in a way a cold transcript could not, the communicative disconnect between Wells and police, and the insult, however unintended, of unnecessary opacity upon an already tragic injury.  Somebody was a joint project of the Invisible Institute and comes with, especially useful for secondary school, a 10-unit teaching guide. 

There are some fascinating online clearinghouses on police data, such as NGO Mapping Police Violence and the Invisible Institute's Citizens Police Data Project, the latter focusing on Chicago, having begun as a collaboration with the University of Chicago.  The annual program of the National Freedom of Information Coalition (NFOIC) in fall 2021 featured informative sessions on police transparency reform and tracking police misconduct records (latter trailer only).  Tomorrow, I plan to attend virtually a plenary panel of the Communications Law Forum of the American Bar Association, "Racial Injustice Exposed on Camera: Police Transparency and Government Access in a Viral World."

I am open to persuasion on the basis of what I might not know about the investigation into Harden's death.  But on the face of it, I see no reason at this point for withholding investigative records, especially the autopsy.  Law enforcement authorities sometimes fear record release because it might compromise the public's position in seemingly inevitable litigation.  But discovery will bring the evidence to light anyway, and public entities shouldn't get to hold their cards tightly when accountability for lost life is at stake.

It's especially troubling that on the Bristol County DA website, there is, at the time of this writing, not a single mention of Anthony Harden.   The last two press releases from the office, before and after announcement of the conclusion in the Harden investigation, regard sentencing in other matters, touting the DA's success.  The 11-page report on the Harden matter, described by The Herald News, I cannot find online, not at the DA's site, nor from the State Police Detective Unit that conducted the investigation.

So one might understand how the Harden family, and families similarly situation around the country, might worry that the political heads of law enforcement are concerned more with reelection than with justice.  Transparency would not necessarily solve all ills, but it might diffuse tension and enhance public confidence by some measure.

U.S. rental car oligopoly hits new lows, as customers alleging false arrests intervene in Hertz bankruptcy

Photo by Diego Angel CC BY 3.0

A curious story of alleged false arrests and a corporate lawyer's blunder surfaced in business media earlier this month, and the story speaks to the sad state of consumer protection in America.

In December 2021, dozens of claimants filed (no. 193) in the covid-precipitated bankruptcy of Hertz, the rental car company, alleging the reporting of rental cars as stolen, resulting in false arrests of Hertz customers by police, along with the disgrace of arrest, jailing, and other life disruptions that attend felony charges.

The claims, many recounted by CBS News, allege varied circumstances precipitating the reports of stolen cars, including poor record-keeping and misunderstandings over return times, hardly the stuff of high crime.  The claimants' theory is that Hertz essentially outsourced its (mis)management of late returns to police, disregarding the dramatic mismatch between contract enforcement and criminal justice and the ruinous consequences visited on customers.

Early in January, journalist-blogger Minda Zetlin of The Geek Gap reported a verbal gaffe in court on the part of a Hertz lawyer.  Zetlin's report was picked up by a number of outlets, including Inc.  The only recent transcript on file in the case (no. 251) is "not available" on PACER, maybe because the claimants, Hertz, and CBS News are now in a tussle over sealing, the docket suggests.  Anyway, I can't verify Zetlin's report, so I'm not going to name the lawyer here.

According to Zetlin, a Big Law lawyer representing Hertz responded in court to the allegations: "It is a fraction of 1 percent of annual police reports that are filed that turn into actual litigation claims.... We actually think the number of legitimate claims that arise out of annual rentals is a tiny, tiny, tiny, tiny, tiny, tiny fraction."

Zetlin fairly observed that even a "tiny" "number ... does not count customers who were falsely arrested but accepted an early settlement from Hertz, resolved the matter in arbitration, or simply decided they didn't have the funds or the stamina for a lawsuit."  Zetlin further opined that "[m]ost [Hertz customers] would likely prefer a car rental company where their chances of going to jail are zero, rather than just tiny."  Count me in that majority.

I can't speak to the merits of the claims.  But for my part, I have been frustrated by car rental companies' shocking embrace of the contemporary trend to forego all pretense of customer service.  This skimpflation has been exacerbated by the pandemic, but we were well on our way before 2020.

Hertz, in particular, raised my ire more than once last year.  Having been lured into Hertz's "Gold" program, I once made a reservation directly on the Hertz website, rather than running my usual price comparisons with intermediaries.  Afterward, I discovered a lower rate on USAA.  But every time I was forwarded to Hertz.com to confirm the reservation at the USAA rate, I was automatically logged in to Hertz, and the rate jumped substantially.  When I tried linking to Hertz in a private window, without logging in, I got the lower rate.  In other words, Hertz was charging me substantially more because I was a member of the "loyalty program."

When I waited on hold for hours to ask a Hertz agent to log my anonymous reservation in my Gold account, I was told it couldn't be done without elevating the rate.  An agent told me that the Gold program does not guarantee lowest rates.  Actually, it does.  So much for loyalty.

Another new practice of car rental companies is to manipulate the time of pickup and drop-off to increase the likelihood of a late fee.  A customer reserving a car for pickup has to make a ballpark estimate of the time, considering how long it might take to deboard a plane, claim bags, transfer to a ground transportation center, etc.  Reservation systems offer pickups usually in only half-hour increments, 12, 12:30, 1, 1:30 etc.  So it's an inexact science, and the rental company knows that.  Accordingly, it was once common for the companies to afford an hour's grace on the clock one way or the other.  No longer.

When I picked up a car early, Hertz, without the agent saying a word, pre-charged me a late fee on the return while giving me paperwork showing the car due back at the original return time.  When I complained, Hertz said the charge would be taken off if I returned the car earlier than the indicated time, days to the minute from my actual pickup.  Yet when I rented another car and picked it up late, my return time still did not change.  The car was due back at the same time, and I just lost the hours to my late arrival.  So whether a customer is early or late for pickup, an inevitability because of deliberate inexactness, the company wins, either time or money.  No doubt the company is betting that the small loss on one rental will go unnoticed to the customer but add up big for the cumulative bottom line.

I admit, my complaints are small potatoes, mere annoyances, compared with being jailed.  But the theme that unifies my experience and that of the claimants against Hertz is Hertz's profound indifference to the customer.

So, free market, right?  Treating a customer like an entitlement is a consumer protection problem that should solve itself when a competitor comes along and offers to do better.  (Southwest's free checked bags and transparent pricing come to mind in the airline industry.)  Part of the problem is our public officials' dereliction of duty in antitrust.  The experiences I just described also characterize the policies of Dollar and Thrifty, because, guess what, they're owned by Hertz.  Likewise, Enterprise owns National and Alamo, and Avis owns Budget and Payless.  Three "beasts" account for almost all of the U.S. rental market.

Free markets only work when the playing field is level, information flows freely, and barriers of entry to the market for new competitors are surmountable. None of those conditions holds true in our car rental oligopoly.  Rather, if the claims in the bankruptcy court are to be believed, we've come to the point that a company can jail customers in case of contract dispute and hardly fear market reprisal.

Debtors' prison must be around the next corner.

The bankruptcy case is In re Rental Car Intermediate Holdings, LLC, and CBS Broadcasting Inc., No. 20-11247 (Bankr. D. Del. filed May 22, 2020).

With DeJoy still at helm, U.S. Postal Service seems determined to demonstrate its own inutility

It looks like the U.S. Post Office is catching up on a backlog—and maybe trying to annihilate itself.

At home in Rhode Island, I was surprised this week when my cousin in Denver messaged me to report receipt of his birthday card from August.  Then my mother in Baltimore emailed to report receipt of a Halloween greeting from my daughter in Atlanta, as well as a Valentine's Day card—from February 2020.

Media reported this week that a Massachusetts widow just received the letter her husband had written to his mother from World War II Germany in 1945.  (NPR, WUSA 9.)

I was frustrated in recent weeks with inability to send a Christmas gift to a friend in New Zealand, given the Post Office's suspension of service to there, Australia, and elsewhere (furious reaction).  As if it's not already sufficiently outrageous that it costs $25 to $40 to send a small box.  The USPS blamed the suspension on covid-related shipping cancellations. 

I could be mistaken—I can't confirm this—but I thought that some years ago, the USPS eschewed ground shipping for all international mail (save hazards, animals, and the like), preserving only priority air.  No-hurry ground vanished, and rates spiked to their present levels.  So how can it be that shipping cancellations have caused service suspensions?

Planet Money recently tried to explain how Amazon manages "free shipping" thanks to scale.  I was utterly unconvinced.  No matter how much cost savings is realized by volume, negotiation, and incorporation into price, I find ordinary commodities such as my daily vitamins still cheaper on Amazon than my local big-box retailer, which should have some of those advantages, too.  Anyway, no one paid $40 to ship my $10 product in a bigger-than-medium box.  I smell corporate subsidies....

Meanwhile in Washington, D.C., Louis DeJoy persists in office as Postmaster General.  Supposedly making the Post Office run in the American market tradition seems to mean disregarding the needs of people in favor of the profit margins of corporations, if not diverting public revenues to pad the latter.

I have come to suspect that DeJoy's whole undertaking is to turn the Post Office into such a parody of itself that Americans, in their outrage, abolish the institution.  Corporations, in the sparse numbers to which our antitrust regulation seems blind, will be left to occupy the field and fix prices that effectively kill off the nuisance of personal correspondence for good.  Transportation channels will be left to commerce and commerce above all else.

I guess that is the American way.

RIP Andrew Jennings, legendary investigative sport reporter who exposed corruption in FIFA, IOC

Andrew Jennings testifies in a Brazilian legislative probe  of the national football
federation (photo by Waldemir Barreto/Agência Senado CC BY 2.0).

A pause today to take stock of the work of investigative reporter and anti-corruption advocate Andrew Jennings, publisher of Transparency in Sport, who died on January 8.

Jennings was a tireless and cantankerous thorn in the side of Big Sport.  It would be difficult to overstate the role he played in precipitating the sea-changing revelations of corruption in the administration of the Olympics and international football.  He broke new ground with his books, The Lord of the Rings (1992) and Foul! The Secret World of FIFA (2006).  The "fall of the house of FIFA" and boss Sepp Blatter in the 2015 corruption scandal probably would not have happened had Jennings not sewed the seeds a decade earlier.

Jennings was a prolific writer across media, his many books besides.  Notwithstanding a more-than-fair share of earned global acclaim and enmity, Jennings also was a tirelessly supportive colleague in his crusade.  Email to his blog's contact address went directly to him; he personally and kindly answered a query of mine when I was researching on sport accountability.  He penned a foreword and praise for Whatever It Takes: The Inside Story of the FIFA Way, the book (reviewed) by Australian whistleblower (and friend of The Savory Tort) Bonita Mersiades.

Andrew Jennings has been widely memorialized, e.g., Sports Illustrated. His death leaves a gaping hole in the agencies of accountability for the quasi-corporate behemoths of transnational sport.  But his work has shown the world irrevocably that corruption thrives in the dark soil of secrecy.

Code might inevitably regulate journalism in digital age

The U.K. Information Commissioner's Office is working on a "journalism code of practice" to legislate against defamation and invasion of privacy by mass media.

Principally and ostensibly, the code is intended to bring media law into conformity with U.K. data protection law, essentially the European General Data Protection Regulation (GDPR), including the stories "right to be forgotten," or right to erasure (RTBF). On the ground, the picture is more complicated. The British phone hacking scandal and following Leveson Inquiry constitute a strong causal thread in public receptiveness to media regulation.

Cambridge legal scholar David Erdos analyzed the draft code for the INFORRM public in part one and part two postings in October.  The code incorporates media torts such as defamation of privacy and misuse of private information (MOPI), the latter a common law innovation of British courts to facilitate enforcement of data protection rights. I have posited in other venues that common law tort similarly might provide a way forward to fill gaps in information privacy law in the United States.

Journalism and data protection rights have been on a collision course for a quarter century, like a slow-motion car wreck, and the draft journalism code is a harbinger of the long anticipated impact.  Back in 1995, when the EU GDPR-predecessor Data Protection Directive was brand new, the renowned media law scholar Jane Kirtley published an article in the Iowa Law Review, "The EU Data Protection Directive and the First Amendment: Why a 'Press Exemption' Won't Work."  Kirtley foresaw data protection and the First Amendment's arguably irreconcilable differences before most U.S. scholars had even heard of data protection.

In those innocent days, journalism ethics was reshaping itself to preserve professionalism in the newly realized and anxiety-inducing 24/7 news cycle.  A key plank in the new-ethics platform was its essentiality to resist regulation.  In 2000, media law attorney Bruce Sanford published the book Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us.  Then in 2001, everything changed, and mass media and their consumers became engrossed by new concerns over government accountability.

In a way, the consolidation of media regulation in a generation of code could be a relief for journalism, especially on the European continent.  In an age of ever more complex regulatory mechanisms, codification can offer bright lines and safe harbors to guard against legal jeopardy.  Information service providers from local newspapers to transnationals such as Google are struggling to comply with new legal norms such as the RTBF, and there is as yet little evidence of uniformity of norms, much less convergence. Yet even if industry ultimately embraces the security of code, what's good for business is not necessarily good for wide-ranging freedom of expression. 

Courts, too, are struggling with novel problems.  For example, in late November, the European Court of Human Rights ruled in Biancardi v. Italy that RTBF de-indexing orders extend beyond search engines and bind original news publishers.  Writing for Italian Tech and INFORRM, attorney Andrea Monti fairly fretted that the decision effectively compels journalistic organizations to expend resources in constant review of their archives, else face liability in data protection law.  The result, Monti reasoned, will be to discourage preservation, manifesting a threat to the very existence of historical record.

On the one hand, it's foolish to wring one's hands for fear that journalism is being newly subordinated to legal regulation.  Tort itself is a regulatory mechanism, and defamation has been around for a long time, notwithstanding the seeming absolutism of the First Amendment.  On the other hand, media regulation by law looks nothing like the punctilious supervision of regulated industries, including the practice of law.

In my own education, I found the contrast in approaches to ethics perplexing.  In journalism school, my ethics class had been taught aptly by a religion scholar who led impassioned discussions about handout hypotheticals.  In law school, the textbook in legal profession hit the desk with a thud for what was as much a study of model or uniform code as was crim or sales.

With no "First Amendment" per se, media regulation by code is not the novelty in the U.K. that it would be in the United States.  Still, with privacy and digital rights sweeping the globe, law is poised to regulate journalism in new ways everywhere, whether through the subtlety of common law or the coercive power of civil regulation.  American courts will not be able to escape their role in reshaping fundamental rights for the digital world, as European courts are at work doing now.  Kirtley foresaw the issues in 1995, and the chickens are slowly but surely turning up at the roost.

The present ICO consultation closes on January 10, 2022.