Naming rape suspects may draw criminal charges for journalists under Northern Ireland privacy law

Bernard Goldbach via Flickr CC BY 2.0

In Northern Ireland, it's a crime for a journalist to identify a rape suspect.

The relevant provision of the country's Justice (Sexual Offences and Trafficking Victims) Act 2022. Attorney Fergal McGoldrick of Carson McDowell in Belfast detailed the law for The International Forum for Responsible Media Blog in October 2023, just after the law took effect.

The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.

I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.

I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.

We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.

These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.

Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.

There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.

The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.

Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.

Our editorial hearts sank. Had we protected the wrong person?

My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.

Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.

In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.

So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start. 

I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.

Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.

In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.

McGoldrick wrote "that since Bloomberg most media organisations have, save in exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such identification is in the public interest."

Maybe the world isn't the worse for it.

'Statute of limitations is a very real thing in this country'

"The statute of limitations is a very real thing in this country," former President and Republican presidential front-runner Donald Trump told reporters Monday at the New York court where he faces civil fraud claims.

I say the same thing to my 1L class every fall. Finally, some authority to back me up.

Though I can't help but think that the former President is thinking of the E. Jean Carroll matter.  Carroll filed her defamation and battery claims against the former President under New York's Adult Survivors Act (ASA). The act temporarily suspended the statute of limitations for civil claims arising from alleged sexual abuse, allowing a year-long "look-back window." Carroll filed on the day the act took effect.

The ASA opened look-back to all of a complainant's adult life. The window will close on November 23, 2023. In 2019, New York extended the statute of limitations for adult survivor claims from three to 20 years, but the extension is not retroactive. The N.Y. Law Journal reported 67 ASA lawsuits filed by February 2023; according to Katz Banks Kumin, citing The Wall Street Journal, 106 suits had been filed by May 2023. Though in April 2023, The Appeal reported "nearly 1,000" claims under the ASA by incarcerated or formerly incarcerated women against corrections officers.

The ASA was enacted as a political response to the #MeToo movement and a pointed plank in the platform of New York's first female governor, Kathy Hochul. The ASA was modeled on the New York Child Victims Act of 2019, which was in significant part a response to abuse in the Catholic Church.

The Child Victims Act similarly extended the New York limitations period for child survivors' civil claims to a victim's age 55 and opened a look-back window, one year later extended to two, that expired in 2021. That allowance saw "almost 11,000 cases," according to the N.Y. Law Journal. Jeff Anderson has details and data. Child USA tracks such laws across the country.

Charitable immunity does not protect diocese from claims of sexual assault in 1960s, high court rules

St. Michael's Cathedral, Springfield, Mass.
(John Phelan via Wikimedia CC BY-SA 3.0)

Charitable immunity does not protect Catholic Church leaders in Springfield, Mass., from civil allegations of sexual assault, but it does shield them against liability for negligent supervision, the Massachusetts Supreme Judicial Court ruled yesterday.

Pseudonymous plaintiff John Doe alleged sexual abuse, including a "'brutal[] rape'" while being held down by fellow altar boys and priests in the 1960s. Doe alleged that he first recovered memory of the abuse in 2013; he first complained to the church in 2014.

After investigations, the church offered the plaintiff an apology in 2019, and in 2021, he sued over both the abuse in the 1960s and the handling of the complaint since 2014. The Superior Court denied the defendants common law charitable immunity and ecclesiastical abstention under the First Amendment, prompting interlocutory appeal. The Supreme Judicial Court declined any First Amendment question as premature in advance of final judgment.

By statute, Massachusetts curbed charitable immunity to a $20,000 quantitative limit ($100,000 in medmal) in 1971. But the statute is not retroactive to Doe's 1960s claims.

The purpose of common law charitable immunity, the court reasoned, is to protect charitable actors "from the burden of litigation and trial." But in the context of sexual assault allegations, the defendants cannot be said to have been performing a charitable function. In contrast, "negligent supervision ... is exactly the sort of allegation against which common-law charitable immunity was meant to protect," for it implicates managerial functions in the selection of subordinates.

The case arises in the home state of the Boston Globe Spotlight team, whose 2002-04 investigation surfacing church abuse became the subject of a 2015 feature film. The bishop named in the instant suit as a perpetrator, who died in 1982, was implicated in the Spotlight investigation.

The case is Doe v. Roman Catholic Bishop of Springfield, No. SJC-13219 (posted temporarily). Justice David A. Lowy wrote the unanimous opinion.

Whitehouse laments mandatory arbitration, civil jury woes; SCOTUS-nominated Jackson does not engage

Senator Sheldon Whitehouse (D-R.I., one of my state senators) just questioned U.S. Supreme Court nominee Judge Ketanji Brown Jackson on the importance of the civil jury.

(I wrote recently about Judge Jackson's trial court record, here and here.)

Tort law does not usually figure much into U.S. Supreme Court confirmation hearings, so when it does, it's worth paying attention. While tort law can be implicated directly in the work of the U.S. Supreme Court, for example, in the application of federal common law in admiralty, tort law is more likely to make an appearance ancillarily to constitutional law, the area of senators' greatest interest in the confirmation process.  

Those appearances of tort law usually are indicative of the interests of the day.  When gun control and the Second Amendment were hot topics in the 20-aughts, tort law made cameos in questioning about the defenses of self and property.  Senators have been interested periodically in the scope of civil rights law to combat gender discrimination.  Dialog on that point has imported principles of causation, because civil rights law, especially in private remedies, borrows both procedural and substantive machinery, including limiting principles, from common law tort.

At about quarter to one in the extended morning of today's confirmation hearings, Senator Whitehouse sought Judge Jackson's endorsement, which she gave, of statements on the importance of the civil jury.  The Seventh Amendment to the U.S. Constitution guarantees a right, if qualifiedly, to a civil jury, and the mechanism was famously admired by Alexis de Tocqueville in Democracy in America (1835).  Yet the institution has been a waning feature of American civil justice, largely as an incidental function of the dramatic decline in civil trials during the 20th century, but also as a deliberate effect of corporate America's embrace of mandatory arbitration.

Mandatory arbitration, removing cases from the courts upon the purported consent of consumers and victims of tortious wrongdoing and breach of contract, has been a preoccupation of consumer protection advocates and anti-tort reformers (or plaintiff-side "tort reformers"), such as Ralph Nader.  (The issue was among those addressed by the documentary Hot Coffee in 2011, particularly in the painful context of purported consent to dispute resolution in event of criminal sexual assault.  Unfortunately, because the point hardly diminishes the problem on the merits, the story highlighted in the film was later challenged as a possible fabrication.)  Among the many shortcomings of arbitration as a mechanism in the service of justice that rub me the wrong way, besides its overwhelming favoritism for corporate respondents, is the lack of transparency, which allows wrongdoers to persist in misconduct in defiance of public accountability.

Senator Whitehouse has been focused lately on what he perceives to be politicization of the judiciary through the use of "dark money," that is, money of unknown or vague origin, to influence the appointment (and in some states, election) of judges, typically to further the interests of big business.  Whitehouse wrote about the problem in the Yale Law Forum in 2021, and I recently wrote about Whitehouse writing about the problem.  He talked about that issue both in his opening remarks on the Judiciary Committee yesterday and at the start of his questioning today.  This focus is a natural extension, and broadening, of his concern over civil juries, about which he wrote also, in a law review article for William & Mary in 2014.

I created a C-SPAN clip from today's hearing.  C-SPAN has a transcript below it, but be warned, the automated system made some egregious errors, e.g., reading "civil juries" as "simple majorities."

Frankly, I didn't care for Judge Jackson's response.  Her initial reflection about citizens sitting in judgment over one another seemed to speak to the criminal trial.  She failed to acknowledge the separate, separately important and separately threatened, civil dimension on which Whitehouse was focused.  When he pressed her again on the question, in relation to the risk of jury tampering, her response, again, was painfully generic and indicated no recognition of the particular problem of the vitality of the civil jury.  On a third go, Whitehouse explicitly cited mandatory arbitration, the Seventh Amendment, the employment context, and corporate power.  Judge Jackson had no opportunity to respond.

I simply can't tell whether Judge Jackson was unclear on what it is Whitehouse is worried about, or she was simply trying, presumably upon handlers' instructions, to remain utterly bland and uncontroversial in any declaration.  Whitehouse thanked Jackson for answering his questions with clarity and expressly recognizing the importance of the civil jury.  But she had not. 

After the exchange, Senator Dick Durbin (D-Ill.) noted pending legislation that would override purported consent to mandatory arbitration in sexual assault matters.  The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was signed by the President on March 3: a welcome change, a long time coming (since Hot Coffee; #MeToo revived the appetite), though redressing only a sliver of the mandatory arbitration problem.  Durbin was talking about, I assume, the Forced Arbitration Injustice Repeal (FAIR) Act, which, as H.R. 963, narrowly passed in the House, 222-209, just last week.  Its companion S.505 has been long pending in the Judiciary Committee.  The FAIR Act would apply to employment and consumer disputes.

Incidentally, just before the jury discussion, Senator Whitehouse asked Judge Jackson whether it is ever appropriate for an appellate court to do fact-finding outside the record.  She said that she knew of no such occasion.  Neither of them referred to, nor, doubtless, even thought about, the latitude afforded appellate courts to research the law of foreign jurisdictions, which is treated for most purposes as a question of fact.  I note the issue only because American appellate courts' unwillingness to investigate foreign law in cases in which it is implicated often impedes the attainment of justice in the jurisdictionally transnational cases increasingly generated by globalization, not only in corporate matters such as business contract disputes, but in family law and civil rights.

The Sullivan question has come up today, too, this afternoon by Senator Klobuchar (D-Minn.).  She seemed to suggest that journalists' lives will be put at risk without the "actual malice" standard.  Never mind the reputations and careers that have been ruined in the name of protecting press negligence and blissful ignorance.  I don't have the stomach today to tackle such uninformed melodrama.  As one might expect, Judge Jackson stuck close to tried-and-true principles of stare decisis.

Uber suffers high court loss, but binding arbitration, blanket disclaimers still devastate consumer rights

Image by Mike Lang CC BY-NC-SA 3.0

Signs of life were spotted on the dead planet of consumer rights in click-wrap agreements. But don't get too excited; the life is microbial and already has been exterminated by the corporatocracy.

A blind man who was refused Uber service because he had a guide dog was successful in the Massachusetts Supreme Judicial Court last week in voiding loss of his disability discrimination claim because Uber failed to give him sufficient notice of its terms and conditions compelling defense-friendly arbitration.

Uber can easily correct its notice problem—and likely has already; this plaintiff signed up in 2014—so the rest of us are out of luck if we have an Uber problem.  But the plaintiff's rare win exposes the abject failure of federal and state law to protect consumer rights against gross overreach by online service providers.  And the case arises amid a deluge of reported ride-share sexual assaults, from which service providers have been widely successful in washing their hands of legal responsibility.

In the instant case, the Massachusetts high court followed 2018 precedent in the First Circuit, also applying Massachusetts law to the same Uber interface, to conclude that Uber's means of obtaining the plaintiff's consent to the app's terms and conditions (T&C) in 2014 fell short of the notice required to bind a consumer to a contract.

Uber required ride-share passengers to assent to the T&C by clicking "DONE" after entering payment information.  The court explained that the focus of the app's virtual page was on payment, and the language about the T&C, including the link to the terms themselves, was marginalized in page location and diminished in type size.  (The law gives the plaintiff no special treatment because of his blindness, and the case suggests no contrary argument.)  Uber knew how to do better, the Court reasoned, because drivers signing up with the app plainly must click "I AGREE" to their T&C: an easy fix for app makers.

The Court adopted for the Commonwealth what has become widely accepted as the two-part test for online T&C contract enforcement, "[1] reasonable notice of the terms[,] and [2] a reasonable manifestation of assent to those terms."  It is not necessary that a consumer actually read, or even see, the terms.  The Court acknowledged research (Ayres & Schwartz (2014); Conroy & Shope (2019)) showing that a vanishing number of consumers ever read, much less understand, T&C.  But the law requires only that the consumer be given the opportunity.

This approach to "click-wrap" agreements, kin to "browse-wrap" agreements, dates back to "shrink-wrap" agreements, by which a consumer could be bound to hard-copy license terms upon opening a product box, and earlier to the simple doctrine in analog contract law that a person's mark can bind the person to a contract that she or he has not read.

The rule works well to smooth commerce.  But the problem for consumer rights is that T&C have become unspeakably onerous.  British retailer GameStation made headlines in 2010 when it was reported that 7,500 online shoppers unwittingly(?) sold their "immortal soul[s]" as a term of purchase; that demonstration is not unique.  Legendary cartoonist Robert Sakoryak turned the infamously voluminous iTunes "terms and conditions" into a graphic novel (2017) years after South Park mocked Apple mercilessly (2011).  On a more serious note, the problem has generated ample scholarship, including at least two books (Kim (2013); Radin (2014)), and has been a flashpoint of controversy in European privacy law, which, unlike American law, requires a bit more than a token click-box to signify a person's consent to process personal data, especially when the person is a child.

The Massachusetts Court recognized the scope of Uber's T&C as a factor to be weighed in the sufficiency of notice.  "Indeed," the Court wrote, "certain of the terms and conditions may literally require an individual user to sign his or her life away, as Uber may not be liable if something happened to the user during one of the rides."  Uber's terms "indemnify Uber from all injuries that riders experience in the vehicle, subject riders' data to use by Uber for purposes besides transportation pick-up, establish conduct standards for riders and other users, and require arbitration."

Though arguably subject to a rare override in the interest of public policy, such terms still can prove prohibitive of legal action when a passenger becomes a crime victim.  And that's been happening a lot.  Uber itself reported in 2019 that over the preceding two years, the company had received about 3,000 claims of sexual assault each year (NPR).  The problem is so prevalent that ride-share sex assault has become a plaintiff's-attorney tagline.  Yet recovery is easier promised than won.  Even if a consumer somehow prevails in arbitration, a process hostile to consumer rights, T&C such as Uber's also limit liability awards.

Litigants have struggled to circumvent ride-share app providers' disavowal of responsibility.  In November, the federal district court in Massachusetts rejected Uber liability as an employer, because drivers are set up as independent contractors, a convenience that has summoned some heat on app service providers in the few states where legislators worry about employment rights in the gig economy.  Lyft won a case similarly in Illinois.  Meanwhile a Jane Doe sex-assault claim filed in New York in 2020 takes aim at Uber upon a direct-negligence theory for failure to train or supervise drivers (N.Y. Post).

In 2018, Uber and Lyft relaxed enforcement of compelled arbitration clauses in sex-assault claims (NPR)—if they hadn't, they might eventually have suffered a humiliating blow to their T&C, as unconscionability doctrine is not completely extinct in contract law—so hard-to-prove direct-negligence cases such as N.Y. Doe's are hobbling along elsewhere too.  Oh, Uber also relaxed its gag on sex-assault victims who settle, allowing them to speak publicly about their experiences (NPR).  How generous.

All of this is tragic and avoidable, if routine.  But in the Massachusetts case, I saw a troubling legal maneuver that goes beyond the pale: Uber counter-sued its passenger.

In a footnote, the Massachusetts Court wrote, "In arbitration, Uber brought a counterclaim for breach of contract against the plaintiffs, alleging that they committed a breach of the terms and conditions by commencing a lawsuit and pursuing litigation in court against Uber. Through this counterclaim, Uber sought to recover the 'substantial unnecessary costs and fees' it incurred litigating the plaintiffs' lawsuit."

So it's not enough that our warped American enslavement to corporatocracy allows Uber and its ilk to impose crushing, if industry-norm, T&C on customers, depriving them of rights from Seventh Amendment juries to Fourteenth Amendment life.  Uber moreover reads its own indemnity clause with the breathtaking audacity to assert that it is entitled to recover attorney's fees from a consumer who dares to make a claim—a claim of disability discrimination, no less. This reactionary strategy to chill litigation by weaponizing transaction costs exemplifies my objection to fee-shifting in anti-SLAPP laws.  Uber here shamelessly pushed the strategy to the next level.

Nader (2008)
Photo by Brett Weinstein CC BY-SA 2.5

Compelled consumer arbitration has stuck in the craw of consumer and Seventh Amendment advocates, such as Ralph Nader, for decades.  Nader is widely quoted: "Arbitration is private. It doesn't have the tools to dig into the corporate files. It's usually controlled by arbitrators who want repeat business from corporations not from the
injured person."  As the corporatocracy is wont to do, it pushes for more and more, ultimately beyond reason.  Industry pushing got a boost when the Trump Administration set about dismantling the Consumer Finance Protection Bureau.  Make no mistake that compelled arbitration is somehow about a free market; a free market depends on a level playing field, a fair opportunity to exercise bargaining power, and transparency of transactional information.  The unilateral imposition of an absolute liability disclaimer upon penalty of fee-shifting in a secret tribunal is none of that.

I'm tempted to say something like "enough is enough," but I would have said that 20 years ago, to no avail.  So I can only shake my head in amazement as we double down on the abandonment of civil justice in favor of secret hearings to rubber-stamp rampant venality.

Full disclosure: I use Uber, and I like it.  Taxis got carried away with their market monopolization, and a correction was needed.  Now that's feeling like a Catch-22.

The case is Kauders v. Uber Technologies, Inc., No. SJC-12883 (Jan. 4, 2021) (Justia).  Justice Scott Kafker wrote the opinion for a unanimous Court.  In amicus briefs, the ever vigilant U.S. Chamber of Commerce and the "free market"-advocating New England Legal Foundation squared off against plaintiffs' lawyers and "high impact lawsuit"-driving Public Justice.

Defamation case against Trump fits woeful pattern, while DOJ defense is defensible, if disconcerting

Notice of Removal in Carroll v. Trump

The recent news (e.g., N.Y. Times) that the Department of Justice (DOJ) will defend the President in the defamation suit arising from sexual-assault allegations by E. Jean Carroll has caught the interest of both my Torts I class and my Trump Litigation Seminar (TLS).  The DOJ's announcement manifests on the docket in removal of the case from the New York Supreme Court to the U.S. District Court for the Southern District of New York.  Links and key court documents are now posted atop The Savory Tort's TLS blogsite.

The strategy of using a sexual-assault denial and accompanying charge that the accuser is a "liar" as the basis for a defamation suit against the alleged perpetrator, i.e., Carroll v. Trump, is now, unfortunately, a familiar feature of our high-profile tort-litigation landscape.  It might have been Bill Cosby who committed the pattern to popular culture's long-term memory.  The Cosby case came complete with counterclaims, making the defamation dispute the dueling ground for truth and falsity.

It's unfortunate, because the tort of defamation was not designed to be a truth-finding mechanism.  Historically, truth wasn't even a defense; that's a modern artifact inferred by the freedom of speech.  The flaws in our defamation law are legion and one of my favorite subjects; one that matters here is that defamation is rarely capable of delivering exoneration, much less satisfying any of a plaintiff's legitimate aims.

Among reforms of defamation that have been proposed over the years are mechanisms to ferret out and publicize truth, rather than focusing on the plaintiff's alleged injury or the defendant's asserted rights.  Though not always well crafted, laws that incentivize correction or settlement over protracted litigation at least aim in the right direction.  Regrettably, reform of defamation has been hamstrung for decades by the Supreme Court's well intentioned but ultimately improvident constitutionalization of defamation in the 1960s and 1970s.  I hope one day, we'll wade our way out of that morass.

Anyway, on the question of the DOJ's intervention, there's a curious conundrum about Carroll v. Trump.  The DOJ position is that Trump was acting in the scope of the office of the President when he denied Carroll's sexual-assault allegations.  We would, after all, hope that any President would deny such allegations, and we would have to admit that the truth of the allegations bears on his fitness for office.  Thus, the DOJ reasons, it must represent the position of the President.  The bitter pill for Trump opponents to swallow is that that's probably right.

The kicker comes in that Trump's denial is only presidential if he's telling the truth.  If he did what Carroll alleged, then the operative facts of the case occurred before Trump was elected.  His later denial then feels more like the mere pleading of a private defendant in an ordinary civil suit.  You know, one in which we might debate what the meaning of is is.  So the rationale for defense by DOJ is predicated on the very question at issue in the litigation.  For DOJ to take the President's denial as true, for now, is a fair, if uncomfortable, choice.  If one day the court rules in Carroll's favor, though, maybe we can send the legal bill to the former President.

Thanks to TLS student Ricardo Serrano and Torts student Paul McAlarney for helping me think about this one.

[UPDATE Oct. 27, 2020.]  The court denied the government's motion to substitute party on Oct. 27, 2020.  See Special Coverage at the Trump Litigation Seminar.

Teachable torts, Patriots edition: Civil complaint against Antonio Brown

Antonio Brown in 2014 (by Brook Ward CC BY-NC 2.0)

New England news is afire today over the civil lawsuit filed against NFL Patriots football acquisition Antonio Brown.  It happens that many 1L law students are presently immersed in their first exposures to intentional torts and federal jurisdiction.  So here from Mnwilla at Scribd is the complaint and some comments for thought.

Antonio Brown Lawsuit by mnwillia on Scribd

Notes and Questions

1. The case is filed in federal court in Florida, but the claims are all in state tort law. What is the basis for federal jurisdiction?  Why do you think the complaint was filed on Brown's first scheduled day of practice with the Patriots?

2. The fact statement is lengthy, paragraphs 14 to 74. But federal practice requires only "notice pleading."  Plaintiff's counsel gives up a lot of information about the plaintiff's theory of the case by putting more content than necessary into pleadings.  So why so much ink on factual allegations?

3. There are five straightforward counts, or causes: two in battery, one in false imprisonment, one in IIED, and one in invasion of privacy.

• Notice how false imprisonment appears incidentally to other claims.  Unlike MBE hypotheticals, few cases in real life support false imprisonment by itself. 
• One of the battery counts is called "sexual battery (rape)."  That's not really a distinct kind of battery in multistate common law, and it doesn't here appear to be covered by any specific statute, apart from common law.  Nevertheless, a plaintiff may claim separate counts of tort upon discrete factual bases.  What are the advantages of doing so?
• What challenges does the plaintiff face in proving IIED?  Do the factual allegations get her there?  Is there vulnerability on this count or any other to a 12(b)(6) motion?

4. The plaintiff seeks punitive damages, and the bases for that claim are stated within the counts. Some jurisdictions require that sufficient allegations to support a claim for punitive damages be stated in a separate count, even though "punitive damages" is a damages claim, not a tort.  Can you discern the rule for punitive damages in the state jurisdiction, based on the allegations?

Minhaj: With tort impunity, cruise lines externalize risk, costs to workers, passengers, environment

One of my favorite comedians—saw him perform Homecoming King at intimate Cherry Lane in NYC in 2016—Hasan Minhaj (self-described "second brown John Oliver") has taken on the wide range of problems associated with cruise lines' foreign flagging and legal impunity at sea, threatening the safety and well-being of passengers with legal impacts including virtual immunity from tort liability.  (Patriot Act s4e04.)

Instrumental in this deplorable state of affairs for our part, in U.S. law, is the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301–30308.  On its face the act simply invites maritime wrongful death actions into U.S. courts.  However, the act's "shortcomings" have been documented in legal scholarship for a long time; the devil is in the details, specifically, damages, which are limited by § 30303 to "fair compensation for the pecuniary loss sustained."  Note, "pecuniary," not the familial wrongful death intangibles recoverable in domestic tort law, and maybe zero for, say, an elderly retired person.  Minhaj reports that attempts to amend the law have been torpedoed in Congress.

But DOHSA is just one piece of the big, messy picture of maritime liability, or non-liability, for cruise lines.  Most civil wrongs involving passengers are sexual assaults, which can come under the lax, overwhelmed, or de facto non-existent jurisdiction of the vessel's flag home.  Same for the abusive conditions to which cruise ship workers are subject, from working hours that would never be tolerated on land, on through to the minuscule compensations available for debilitating injury, such as loss of limb.  And all that's to say nothing of the devastating environmental impact of cruise ship polluting and dumping that occurs beyond the reach of regulators.

Minhaj aptly paints the ugly picture of what happens when an industry escapes the norm-setting and deterrence mechanisms of domestic tort law.  As he suggests, the relatively affordable cost of a cruise as a vacation option—and I confess, I've gone, I've loved it, and I'd like to go again—is born disproportionately by an oppressed workforce, injured passengers, and the voiceless marine environment.