Fourth Amendment privacy case, set for oral argument Nov. 29, touches on US-EU data protection divide

I've published a short preview of Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016), cert. granted, No. 16-402 (U.S. June 5, 2017) (SCOTUSblog), a Stored Communications Act, 18 U.S.C. § 2703(d), set for oral argument in the U.S. Supreme Court on Wednesday, November 29.  Here's an excerpt; link below to the full article and the ABA publication in which it appears.

U.S. Supreme Court accepts cell phone privacy case with transnational implications

A privacy case headed to the U.S. Supreme Court will give justices an opportunity to examine “the third-party doctrine” in U.S. constitutional law. The doctrine manifests a central feature of American privacy policy, marking a divide that has flummoxed transnational data transfer negotiators.

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The urgent problem on the transnational scene is that the secrecy paradigm is incompatible with emerging global privacy norms. In EU data protection, for example, privacy follows data downstream. A person can divulge information with strings attached, and the strings are enforceable against subsequent recipients, such as Internet retailers. Even in public places, a data collector, such as a surveillance camera owner, has affirmative obligations to captured subjects. This incompatibility goes a long way to explain the incongruence of European apoplexy and American nonchalance in reaction to global surveillance by the U.S. National Security Agency.

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However suspenseful, Carpenter proffers bad facts to kill the third-party doctrine outright. As the Sixth Circuit observed, ordinary people know that cell phones communicate with nearby towers, and their location data are not as damningly precise as GPS. The privacy intrusion was therefore modest, and statute afforded some safeguard. What will be interesting to see in Carpenter is whether more justices lend their voices to the Alito or Sotomayor position, and whether the replacement of Justice Scalia with Justice Gorsuch unsettles the Court’s fealty to originalism.

Read the article at pp. 5-6 of the fall 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the Section of International Law of the American Bar Association, available here in PDF. 

Supreme Court chooses free exercise over anti-establishment today; does status-use distinction remain viable?

The U.S. Supreme Court ruled this morning in favor of the church in the religious freedom case about public subsidy of playground surfacing materials.  The Court held that Trinity Lutheran (Mo.) could not be excluded from the program to provide recycled tire rubber only because it is a church. 

There is some strong religious freedom language in the majority opinion.  From The Washington Post: <<Chief Justice John G. Roberts Jr., who authored the opinion, wrote, “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand.”>>

The vote was 7-2 with Justices Ginsburg and Sotomayor in dissent. 

The majority found the case rather easy, because Trinity Lutheran was excluded from a public program only because of its status as a church.  A discrimination on that basis alone can be supported only under the most exacting scrutiny, which Missouri could manage.  The Court left open the possibility that government discrimination against a church might be permissible, upon a much lesser burden, if a public benefit were to be converted to a religious use.

Justice Gorsuch

I point this out--and mention the case at all, as much more able commentators will opine in droves in the hours and days to come--only to highlight an intriguing (and telling?) paragraph in a separate opinion by new Justice Gorsuch, concurring, joined by Justice Thomas (citations omitted):

[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him)....

I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.

In contrast, in another concurring opinion, Justice Breyer would have sharply limited the case to its facts.

The full decision and opinions in Trinity Lutheran Church of Columbia, Inc., v. Comer (no, not Comey, but a Missouri official, Comer) are available online.

Neil Gorsuch, Benedict Arnold, and the Star Chamber: A media law note

Looking over Judge Gorsuch’s opinions, I was reminded of his role in a media law case of recent note.  Judge Gorsuch in 2011 wrote the Tenth Circuit’s opinion affirming judgment for defendant in Bustos v. A&E Television Networks, 646 F.3d 762, which occasioned a discussion of falsity in defamation law.  Extrapolation is hazardous, but Bustos might evidence some hallmarks of what will become Justice Gorsuch’s jurisprudential style.

Wherefore art thou Aryan?

Bustos arose from the History Channel’s compelling documentary series, Gangland, in particular the premier special episode in 2007, “Aryan Brotherhood,” which examined the prison gang of the same name.  A super-max inmate in Colorado, Jerry Lee Bustos happened to have been captured by video surveillance in a prison fight.  That video found its way into Gangland, suggesting to viewers that Bustos was a member of the Aryan Brotherhood.  The representation yielded death threats against Bustos in prison, he complained, because the gang itself perceived Bustos, a Hispanic man, as having misrepresented himself.  Bustos sued History parent A&E for defamation.

The essence of the falsity allegation in Bustos was that he was a member of the Aryan Brotherhood.  That allegation carried some additional baggage with it, too.  Considering Bustos’s ethnicity, his membership in a white supremacist organization would carry what the court called a “special sting.”  Moreover, Gangland described murder as a rite of passage prerequisite to gang membership; so in effect, Bustos reasoned, he was cast as a murderer.

Defamation requires falsity.  Historically, the defendant bore the burden of proving truth as an affirmative defense.  But the “constitutionalization” of defamation in the First Amendment jurisprudence of the U.S. Supreme Court in the latter half of the 20th century forced the defendant’s burden in some cases to shift instead to the plaintiff, as a burden to prove falsity.  The ultimate reach of constitutionally compelled burden-shifting is still disputed today.  But many states by common law or statute have anyway moved the burden to the plaintiff.  The notion of requisite falsity is well ingrained in defamation law now, so a defendant’s motion for judgment on grounds of no false assertion is a routine move.

Dissecting the requirements of Colorado defamation law, the court, per Judge Gorsuch, observed the requirement that a defamatory statement be materially false.  Inconsequential error does not render a false statement “false” in defamation law.  The materiality requirement “works as a screen against trivial claims.”  The relevant touchstone is the effect on the reputation of the plaintiff.  The court must “assess the materiality of a misstatement by comparing the damage it has done to the plaintiff's public reputation to the damage the truth would have caused.”

That analysis did not put Bustos’s claim in a favorable light.  He had an association with the Aryan Brotherhood, if not a membership.  In the past, “Bustos [had] agreed to receive balloons filled with heroin from a prison visitor; insert them into his body; and then pass them along to three prison gangs, including the Aryan Brotherhood.”  When the plan was busted by prison authorities, “Bustos sent a handwritten apology to an Aryan Brotherhood leader,” calling him “bro” with “respect,” promising the balloons would yet be delivered, and sending regards to other members.  The court concluded that in the estimation of the Gangland viewer, as to Bustos’s reputation, membership in the gang was not materially different from conspiracy or aiding and abetting.

Though card-carrying membership was an important distinction to the Aryan Brotherhood, and consequently to Bustos, the court refused to recognize defamation within so select a community, citing Colorado law.  And as to the allegation that the public might infer that Bustos committed a murder, well—“we all know now that Mr. Bustos has at least one brutal gang-related attempted homicide in his past.”  The court found again immaterial to public perception of Bustos the difference between his past attempted murder and an implied murder as rite of gang membership.

What does Bustos say about Gorsuch?

It’s dangerous to extrapolate much about a judge from written court opinions—much less just one—which might say more about the law and facts of a case, or the style of a judicial clerk, or the temperament of a judicial panel than about the reputed author-judge.  But that never stops broadcast news, and this is just a blog.  So cautious not to take ourselves too seriously, let’s jump in.

There is delicious evidence in the opinion of Gorsuch’s affection for originalism.  The court offered a short history of the truth defense in common law defamation—and that wasn’t really needed to decide the case under contemporary Colorado law.  After expounding Colorado’s current definition of defamation, the court dug in to the falsity requirement.  The court taught that historically, truth was said to aggravate defamation, rather than to exonerate the defamer.

Even truthful defamation demanded punishment because of its tendency, in the Star Chamber’s estimation, to “incite[] ... quarrels and breach of the peace, and [to] be the cause of shedding of blood, and of great inconvenience.” De Libellis Famosis Case, 77 Eng. Rep. 250, 251 (Star Chamber 1606). Still, this only tells at most half the story. For its part, English tort law took a very different turn, denying compensation to a party truthfully defamed. It did so on the theory that if the statement is true, the plaintiff hadn’t suffered any injury—or at least not any injury he didn’t well deserve. 3 William Blackstone, Commentaries. So, in a twist worthy of an award from the Circumlocution Office, the truth could spare a defendant of liability in civil court only to condemn him to prison in a criminal court across the way.

This is like softcore porn for legal historians.  The Star Chamber in 1606: same year Guy Fawkes was executed, and King James awarded the Charter of Virginia.  Blackstone’s Commentaries on the Law of England, published 1765-69: font of Anglo-American common law, and a cipher key for Benedict Arnold.  And then a bureaucracy joke to round out the paragraph?  Does it really get better than this?  You know, for lawyers?

And then it does get better.  The court devoted significant space to a theory of falsehood called “the incremental harm rule.”  The opinion gives “e.g.” props to a law review article on defamation by lawyer Kevin L. Kite, 73 N.Y.U. L. Rev. 529 (1998); I like to see that nod to an academic assist.  The incremental approach analyzes falsehood relative to different statements about the plaintiff within the same publication.  The court wrote that Colorado has not adopted the incremental approach, and that’s what’s interesting.  Again, here, ink is spent on a monolog that is not really needed to decide the case.  The court goes to some length, relative to this short opinion, to explain the shortcomings of the incremental approach.  The rejection of the incremental approach is further illustrated by a hypothetical starring—wait for it—

Benedict Arnold:

[E]ven more troubling is the [incrementalist] doctrine’s breadth. If an article calls Benedict Arnold a thief and a traitor, the “incremental harm” done by the first statement might be nothing compared to the unassailable truth of the second (entirely unrelated) statement, and this would leave Mr. Arnold to recover nothing for the patently false and defamatory accusation that he’s a thief. . . .  Taken to its logical conclusion, moreover, incremental harm analysis suggests that individuals with really bad reputations in one area may be “libel proof” in all areas, free game for the publication of even the most outrageous and damaging lies. Call Benedict Arnold whatever you like; his public reputation is already so soured by his treason that no incremental harm could be done to it. . . .

That’s General Arnold to you.

The court shores up its opinion with ample and appropriate case law.  The first case cited in the opinion after the Colorado definition of defamation is the media defense staple, New York Times v. Sullivan (U.S. 1964).  Once upon a time, the media defense bar lived with the omnipresent fear that the Rehnquist Court would dismantle Sullivan’s powerful, defense-friendly First Amendment doctrine, so it’s interesting to see how Gorsuch invokes the case:

This [truth] defense has, in comparatively recent years, taken on a constitutional patina, becoming not just a feature of the common law but a First Amendment imperative.

1964 to 2011 is “comparatively recent years” for Gorsuch, who himself was born in 1967.  The fellow has a sense of history.  I’m not sure what it says to describe the Sullivan/Gertz constitutionalization of state tort law as a “patina.”  Maybe because a patina can be polished off?  As someone who thinks that the Sullivan/Gertz doctrine went too far and ironically stunted the evolution of fundamental rights—another post for another day—I’m enticed by the possibility.

Judge Gorsuch’s handling of the Bustos appeal is workmanlike.  Reference to British history and the use of a personality from the American Revolution to illustrate a hypothetical—especially when it’s all in dicta—certainly smack of originalism.  But an interpretivist bent is no surprise in a judge tapped in express memory of Justice Scalia. 

Bustos comes off as an erudite opinion, and maybe that sits ill with people, such as Elizabeth Warren, who worry that the Court majority will be disconnected from the trials and tribulations of life for ordinary Americans.  Fair enough, someone whose education resume lists Georgetown Prep, Columbia, Harvard, and Oxford is not your go-to for the experience of the American commoner.  But even Justice Sotomayor went to Yale, so let’s not pretend we’re shopping the whole U.S. News list to populate the federal bench.  As long as we’re playing reindeer games, let’s demand erudition.  I learned something from Bustos.  It’s an opinion I would assign in law school.  That’s a good thing.

The cited “Star Chamber” has unfortunately become a pejorative term, because that English court’s broad powers in equity were too often in its history perverted to the predilections of the powerful.  The story proves Lord Acton’s (and James T. Kirk’s) maxim that power tends to corrupt.  But England had in place none of the checks and balances that the American Framers later developed.  It should be remembered that the Star Chamber was created initially with admirable intentions: an independent judicial body to hold powerful political actors—even monarchs and autocrats—accountable, lest they be corrupted. 

Maybe a sense of history is just what we will need.