'Civility' is code for conformity

The Massachusetts Supreme Judicial Court two weeks ago struck down a town policy purporting to require civility in public meetings. The town policy resembles attempts to restrict academic freedom.

Board meeting, via Southborough Access Media video
(Kolenda at center).

'Civility' in Politics

In December 2018, Southborough, Massachusetts, resident Louise Barron took advantage of a public comment period at a town board meeting to call out board members on fiscal policy and, ironically, compliance with state open meetings law. Though not obliged to, board members responded. The discussion became heated, resulting in Barron calling one selectman, Daniel Kolenda, "a Hitler," and Kolenda abruptly ending the comment period and expelling Barron. (The meeting is on YouTube (cued). Read more at Wicked Local.)

Board policy provides for an open public comment period for extra-agenda items with this admonition:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.

Barron challenged the policy and her expulsion under the freedom of assembly and freedom of speech provisions of the 1780 Massachusetts Declaration of Rights, articles 19 and 16, respectively. Barron forewent challenge under the younger (1791) First Amendment to the U.S. Constitution to keep the case in state court. 

And just as well. The Massachusetts Declaration is a revered document in its own right in American history and global human rights, and the Massachusetts Supreme Judicial Court has not hesitated to construe its provisions as more protective of civil rights than the federal standard. Indeed, for many years, well before I came to work in Massachusetts, I taught a public seminar on the First Amendment for the Freedom of Information Foundation of Texas and used the Massachusetts Declaration to demonstrate the close connection of FOI and assembly.

Article 19 provides, "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."

In teaching freedom of information law, I often shorthand the constitutional context of access law as the "flip side of the coin" of the First Amendment. The idea is that the freedom of speech is meaningless, especially in the core protection of political expression, if one does not know the facts to speak about.

The coin characterization is useful, but it's not entirely accurate. The First Amendment recognition of assembly as ancillary to expression aptly indicates an interrelationship that is more an intertwining than a duality.

Board meeting, via Southborough Access Media video
(Barron at right).

In the opinion of the court, Justice Scott L. Kafker recounted Article 19's "illustrious" history.

The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. ... [Article] 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.

Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns. Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble.... Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre.... 

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low ... [to speak his senti]ments of public Affairs.".... Town inhabitants, he wrote, "are invested with ... the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town." .... "The consequences" of the right of assembly, in Adams's words, were that "the inhabitants ... acquired ... the habit of discussing, of deliberating, and of judging of public affairs," and thus, "it was in these assemblies of towns ... that the sentiments of the people were formed ... and their resolutions were taken from the beginning to the end of the disputes ... with Great Britain." .... Alexis de Tocqueville made a similar point in Democracy in America: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it." ....

Cousins Samuel Adams and John Adams
(via JohnAdamsInfo.com)

The court had little difficulty concluding that the town policy thus ran afoul of article 19. 

There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.

The court furthermore held the town policy overbroad and vague in violation of the article 16 freedom of speech. The case did not require the court to determine whether the First Amendment public forum doctrine applies to article 16 problems, the opinion explained. Massachusetts precedents already establish that content-based restrictions of political speech are subject to strict scrutiny. Worse, the court reasoned, the policy is viewpoint based, as it allows "polite[] praise[]" of public officials while condemning "rude[] or disrespectful[] critici[sm]."

Well reasoned as it is, the decision in Barron v. Kolenda, No. SJC-13284 (Mar. 7, 2023), does not break new ground in freedom of speech, even in Massachusetts law. And the case has been well reported with commentary, for example by J.D. Tuccille for Reason ("Let Massholes Be Massholes, Says Bay State's High Court"), and by Pioneer Legal, The New York Times, and the Brennan Center. What enticed me to write about the case is the likeness of the civility code to efforts to extinguish academic freedom.

'Civility' in the Workplace

The go-to code word on American college campuses to curb faculty freedom has been "collegiality." Introducing a 2016 report, the AAUP explained:

In recent years, Committee A has become aware of an increasing tendency on the part not only of administrations and governing boards but also of faculty members serving in such roles as department chairs or as members of promotion and tenure committees to add a fourth criterion in faculty evaluation: "collegiality." For the reasons set forth in this statement, we view this development as highly unfortunate, and we believe that it should be discouraged....

.... Historically, "collegiality" has not infrequently been associated with ensuring homogeneity and hence with practices that exclude persons on the basis of their difference from a perceived norm. The invocation of "collegiality" may also threaten academic freedom. In the heat of important decisions regarding promotion or tenure, as well as other matters involving such traditional areas of faculty responsibility as curriculum or academic hiring, collegiality may be confused with the expectation that a faculty member display "enthusiasm" or "dedication," evince "a constructive attitude" that will "foster harmony," or display an excessive deference to administrative or faculty decisions where these may require reasoned discussion. Such expectations are flatly contrary to elementary principles of academic freedom, which protect a faculty member’s right to dissent from the judgments of colleagues and administrators.

I witnessed this problem in action in those "recent years." "Collegiality" as an excuse to demand conformity was key in prompting me to write and speak in 2009 and 2010 about the importance of what I termed "penumbral academic freedom." 

Are you part of "the team" at work?
(Rawpixel Ltd via Flickr CC BY 2.0)

The problem has only worsened. In fact, I see the "collegiality" expectation as a piece of the broader problem of corporate ideology that insists on everyone being a "team player." That's the coded language designed to alienate workers who hesitate to take on extra duties or to give up personal time without fair compensation. Too long in coming, the "quiet quitting" movement is a direct response to this self-serving worldview.

Though "team speak" is not a specially academic problem, the ever more corporatized public university embraces the jargon. Routinely, I hear my work for a public entity described as "public service." The characterization is invariably paired with a demand that I take on some additional responsibility with no more, if not with less, compensation, and certainly with less compensation than a similarly skilled colleague at a private institution.

The rhetoric is exhausting. I'm not on your "team." The faculty is not my football side. The office is not my church. The institutional "mission" is not my creed. Rather, I do a job. I get paid for the job. Quid pro quo. Often, I enjoy my work, and sometimes, I'm good at it. But it's work. Then (even when the switch is merely virtual) I go home. Where I don't work for anyone else. Where I have a family and a life. Where I hope to win the lottery and quit my job.

That arrangement should be a source of pride, not shame. A public institution performing a public service is no less laudable because its staff is paid rather than volunteer. When administrators, especially handsomely compensated deans and chancellors, break out the "public service" rhetoric, hat in hand, I want to ask why they cash their paychecks, if they're so committed to "public service."

Just as I digested the court's Barron decision and commentary last week, Professor Robert Steinbuch, a (genuinely collegial) colleague at another public law school, told me about a proposed amendment to his school's selection criteria for distinguished professorships. 

Apparently, there was dissatisfaction by some faculty, I assume for the very reasons the AAUP warned, that "collegiality" was an express factor in the assessment. Thus, the law school faculty development committee proposed changes including the following (red-ink deletions and additions as in original).

In awarding named professorships, the Dean shall consider criteria in addition to a candidate's meritorious work in their particular field, including but not limited to donor specifications associated with the title, the overall mission of the law school, and continued excellence in scholarship, teaching, service, civility, and respect and collegiality as outlined in the Bowen Faculty Handbook, and established University policy, or the Association of American Law Schools Best Practices.

....

III. SERVICE & COLLEGIALITY

....

In the space provided below, please describe any additional information you wish to provide reflecting exemplary service rendered in the spirit of civility, respect collegiality and collaboration at the law school and the university level and wider recognition at the national or international level.

....

Self-Assessment: Using the categories of scholarship, teaching, service, civility, and respect and collegiality in this Application, in the space provided below, please provide a candid assessment of how you would represent this Named Professorship while you held the award.

I suppose that any candidate selected for a distinguished professorship at this public law school, like anyone commenting on the performance of public officials in Southborough, Massachusetts, before Barron, "must be respectful and courteous" and refrain from the "rude" and "personal." Faculty governance is all well and good, as long as no one is offended.

Let the revolution be quelled.

Police negligence suit against BLM organizer goes ahead after La. Supreme Court greenlights duty

BLM protest in Baton Rouge in 2015
(Alisdare Hickson CC BY-NC 2.0 via Flickr)

A lawsuit against Black Lives Matter organizer DeRay Mckesson lives on since the Louisiana Supreme Court opined in March that state law allows imposition of a duty in tort law and does not preclude liability to police under the firefighter rule.

I wrote about the Mckesson case in April and November 2020. In the case's winding appellate disposition, the U.S. Supreme Court faulted the Fifth Circuit for jumping the gun on Mckesson's First Amendment defense and entreated the court to certify questions of state tort law to Louisiana.

It is not alleged that Mckesson himself threw any projectile at police, so the defense asserted that the intentional criminal action of a third party supervened in the chain of causation between Mckesson's organizing and police officer injury. But the Louisiana Supreme Court was unsympathetic, characterizing the pleadings as alleging related criminal conduct by Mckesson. The court reasoned:

Under the allegations of fact set forth in the plaintiff’s federal district court petition, it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety), directly in front of police headquarters, with full knowledge that the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but to police, would render Mr. Mckesson liable for damages for injuries, resulting from these activities, to a police officer compelled to attempt to clear the highway of the obstruction.

The court also rejected Mckesson's the firefighter-rule defense. The common law rule (in Louisiana, "the professional rescuer's doctrine"), not universally recognized, ordinarily disallows recovery by emergency responders for injury incurred in the course of the job, upon the theory that the job is what the responder is compensated for, and responsible parties should not be deterred from summoning emergency response.

The court took the occasion of the Mckesson case to ponder whether the firefighter rule survived the statutory adoption of comparative fault in Louisiana. The rule embodies a form of implied assumption of risk, the court reasoned. Louisiana is not a pure civil law jurisdiction, but the courts rely heavily on statute in accordance with the civil law tradition. Though the legislature left the details of comparative-fault adoption to the courts to work out, the high court acknowledged, the lack of any explicit recognition of the firefighter rule left it displaced.

The case in Louisiana is Doe v. Mckesson, No. 2021-CQ-00929 (La. Mar. 25, 2022). The case in the Fifth Circuit is No. 17-30864.

Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)

A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

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.

Product liability, negligence claims underlie Supreme Court cases with jurisdiction, First Amendment issues

Two cases filed in the U.S. Supreme Court arise out of tort claims, if presenting more immediate questions in other doctrinal veins.  Recent media coverage of each offers worthwhile observations.

U.S. Supreme Court denies government bid to argue for corporate jurisdictional defense in product liability case

Historic Ford Motor Assembly Plant in California
(Almonroth CC BY-SA 3.0)

Ford Motor Company v. Montana Eighth Judicial District Court, No. 19-368 (SCOTUSblog), No. 19-368, might be one for the civil procedure casebooks.  It is consolidated with a similar case, Ford Motor Co. v. Bandemer, No. 19-369 (SCOTUSblog).  In Montana Eighth, a Montana driver died after tire treads separated on her Ford Explorer on a state highway.  In Bandemer, the plaintiff-passenger suffered severe brain injury after the airbag failed to deploy in a Ford Crown Victoria that rear-ended a snowplow in Minnesota.  Plaintiffs in both cases sued Ford upon theories including strict product liability and negligence.  Ford sells cars in both Montana and Minnesota, but not these cars; they wound their way to those states through changes in ownership.  Based on that attenuation, Ford contested personal jurisdiction and lost in both state supreme courts.

U.S. S.G. Noel Francisco

Darcy Covert and A.J. Wang for Slate highlighted an interesting development behind the scenes in the Ford cases: The Supreme Court denied a motion by the U.S. Solicitor General to participate in oral argument.  As Covert and Wang observed, the Supreme Court "[f]or roughly the last decade, ... [has] permitted the solicitor general to weigh in on any case he wants."  That permissiveness exaggerated a trend in the waning decades of the 20th century in which the SG intervened in cases with diminishingly credible legitimate federal interest.  The SG's cause for intervention has become more about politics, or even, my words, the realpolitik of corporatocracy, than about interests of federalism or constitutional law.  Witness the Ford cases, in which the SG hardly articulates any credible rationale to thinly veil the executive's alignment with your friendly neighborhood (non-governmental) U.S. Chamber of Commerce to make it that much harder for a consumer plaintiff to sue a manufacturer.

Slate's headline described the Supreme Court's denial as "a small step in the direction of judicial independence."  Let's hope so.

Black Lives Matter petitions U.S. Supreme Court after Fifth Circuit 'bobbled' freedom-of-assembly defense in negligence case

DeRay Mckesson (Jay Godwin, LBJ Library)

Mckesson v. Doe, No. 19-1108 (SCOTUSblog), not yet granted cert., is likely to turn up in a lot of books—it's already rounded the circuit in legal op-eds—because of its rich social dimensions.  But the core legal problem is pretty straightforward in its articulation.  Doe was a police officer severely injured when a Black Lives Matter protest, blocking a Baton Rouge highway, turned violent.  Doe sued DeRay Mckesson for negligence as a protest organizer, alleging that Mckesson reasonably should have foreseen injury-causing violence.  (Mckesson played a collateral role in another First Amendment case, Johnson v. Twitter (Complaint; read more at The Hill), which I talked about at Amity Dubai last summer on the subject of social media-related liability.)

At first blush, the case looks something like one of the entrants in the unsettled First Amendment genre of negligent "inducement to violence."  In one of the earliest such cases in the modern civil rights era, Weirum v. RKO General, Inc., 15 Cal. 3d 41 (1975), a radio DJ induced first arrival at a giveaway point, resulting in a fatal car accident.  For the California Supreme Court, famous Justice Stanley Mosk summarily rejected the DJ's First Amendment defense: "The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act."

Justice Mosk might have been right on those facts, but his unwillingness to recognize a slippery slope had to have been willful ignorance.  The more familiar "clear and present danger" (or "incitement to imminent lawless action") doctrine and the much debated "true threat" doctrine in First Amendment law more plainly demonstrate the same problem.  It's not at all clear that the RKO DJ "inflict[ed]" physical injury, and doesn't the sticks-and-stones maxim posit that that's impossible?  Cf. James 3:6-8.  I've seen many scholars try to tackle the Weirum problem; they've all concluded either that the case was rightly decided but at the extreme of a spectrum, or that it was wrongly decided, despite the DJ's socially objectionable conduct.

Black Lives Matter protest in Baton Rouge, La.
(Antrell Williams CC BY-ND 2.0)

The First Amendment speech-and-assembly activity in Mckesson is more attenuated causally from physical injury than the radio broadcast in Weirum.  More time, space, and independent decision-makers separated defendant-organizer Mckesson from violence against plaintiff-Officer Doe than separated the RKO DJ from his driving listeners.  And in a way that is difficult and hazardous to quantify, if nonetheless important, much greater political value—at the core of First Amendment protection—attaches to the organization of a protest against the government than to a commercial radio promotion.

Mckesson must be free of negligence liability, even if the right path to get there in First Amendment jurisprudence remains to be worked out.  Professor Eugene Volokh in Reason suggested a smart fix in the firefighter rule.  That rule's nuanced underpinning in public policy invites the First Amendment to put a thumb on the scale, and such clever fixes—including legal causation, for foreseeability, itself—have helped to resolved negligent-speech injury cases before—in a Fifth Circuit case in which now-Chief Justice Roberts represented the media defendant.

The view I want to highlight here, though, is that of University of Baltimore Law Professor Garrett Epps in The Atlantic, who attacked the problem more directly through free-assembly precedent grounded firmly in civil rights-era protection of boycotts.  To Epps's view, the "rogue" Fifth Circuit "has had four chances to apply a foundational First Amendment precedent, and has bobbled it each time."  I hope the Supreme Court sees it the same way.


Ford Motor Co. will be scheduled for oral argument in fall 2020.  McKesson is pending cert. consideration this spring; if the petition is granted, the case also will be scheduled for argument in the 2020-21 term.