Can ‘Star Trek’ put the U back in –topia?

This weekend will see the premiere of the newest entrant in the Star Trek franchise, CBS’s Star Trek: Discovery (trailer).  Notwithstanding CBS’s dubious bid to build a new model for content delivery in CBS All Access—creative initiatives crushed by commercial imperatives is a tradition in Star Trek history—Discovery marks a worthwhile moment to take stock of where we are now as a global village, 51 years after the premiere of Gene Roddenberry’s groundbreaking Star Trek, now “The Original Series.”

Roddenberry’s vision was a utopian one.  It seems almost cliché now to recount the novel “enterprise” of a multi-national crew spreading humanist idealism throughout the galaxy.  Despite its military trappings, Star Fleet was tasked with exploration of the final frontier on behalf of a United Federation of Planets (UFP).  Star Trek represented all the good parts of cultural imperialism and mitigated all the bad with deep, moral self-reflection.

Martin-Green
(CC 2.0 Gage Skidmore 2016 via flickr)

It looks like Discovery will resonate in the Roddenberry tradition.  The series, which might vary perspective and setting across seasonal sub-arcs, opens with a strong black female lead in Sonequa Martin-Green (The Walking Dead’s Sasha) and a female captain of color in Michelle Yeoh (Crouching Tiger’s Yu).  Discovery takes place after humankind’s first forays into deep space, which were depicted a decade ago by Star Trek: Enterprise, but still before the adventures of James T. Kirk and crew in the 1960s Original Series and the current movie-reboot series.  The nascent UFP is in a cold war with the Klingon Empire.  This fictional era and the name of the starring ship, U.S.S. Discovery, suggest fealty to Roddenberry’s vision of a “wagon train to the stars.” 

But can that vision get traction in today’s world?

However much our multi-platform electronic environment has served up an embarrassing surfeit of science fiction, we remain awash in dystopian imaginings.  Disclaimer one, yes, I realize that dystopian fiction is not new; even 1984 dates to 1949.  Disclaimer two, let me be no hypocrite; I have devoured it all, from The Hunger Games to The Handmaid’s Tale, having just finished the latter’s s1 yesterday.  (Nick is going to save her, right? right?!)  Yet many a commentator has observed the peculiar resonance of dystopian fiction today, in a world in which hunger and poverty persist, the wealth gap widens, and our standard of living and expectation of leisure seem after all not to have skyrocketed in consonance with technological ingenuity.

There was a time after the Berlin Wall fell, in the 1990s amid perestroika and glasnost, that it seemed like we might be on an upward trajectory.  The turn of the century brought with it a cautious optimism.  Maybe the era of world war and nuclear nightmare could be put to bed, and humankind would rise from those ashes and turn at last to the business of life on, and beyond, earth.

Then 9-11 happened.  The world went back to war, and we’re still in it.  Our American streets fill with protests fueled by racial division.  An unprecedented humanitarian crisis tears at the seams of European socio-economic union.  The septuagenarian United Nations—real-world analog of the thinly veiled UFP—seems impotent to stop a threatened nuclear detonation in the atmosphere.  And oh yeah, the ice caps: they’re melting.

Inevitable dystopia seems the apt model to envision our future on earth.  Wherefore art thou, Discovery, into our world of social and political fracture?  Can we even recognize ourselves in utopian science fiction?

It bears remembering that the world to which Roddenberry first introduced Star Trek was itself no utopia.  The Original Series tendered commentary that might seem trite now—e.g., TV’s first interracial kiss between Kirk (Shatner) and bridge officer Uhuru (Nichelle Nichols), the “black on the ‘right’ side” racism of Let That Be Your Last Battlefield, the futile primitive conflict of A Private Little War.  But that commentary was sophisticated and controversial in its time.  Star Trek’s very proffer of earthbound east and west in common pursuit of human survival and space exploration was a calculated critique of Jim Crow, the space race, Vietnam, and the Cold War.  Star Trek’s utopian vision was launched amid the civil rights fire that forged our second national reconstruction.

So maybe now is exactly the time for Star Trek.  Maybe we need utopia now more than ever, precisely because it is so unfamiliar.

As Star Trek turned 50 in 2016, Sir Thomas More’s enigmatic Utopia turned 500.  More’s Utopia was a social critique, not a social blueprint.  Critique always has been the raison d’être of science fiction.  There is no utility in only imagining the future.  The endgame is to hold up that parallel world next to your own, to see how the two compare.

For Star Trek, the final frontier is not space.  The final frontier—the discovery—always has been us.

Video resources for teaching theory of intent in tort law

I've created some new video resources to help in teaching common law torts.  These videos all relate to theoretical points in the introductory unit on intent.  The videos are available on my public YouTube channel.  They can be used in any torts course, though they track Shapo & Peltz-Steele, Tort and Injury Law (3d ed. 2006) (CAP, FB, Amazon), and Steele's Straightforward Torts (free from SSRN).

Study: Intent in U.S. Tort Law.  This video offers a study in the theory of intent in U.S. tort law.  A movie clip is analyzed to demonstrate analysis of intent in battery.  Running time: 8:50.

Explainer: "Pound Progression" in U.S. Tort Law.  This video briefly explains the three steps Dean Roscoe Pound observed in the development of civil justice systems.  Running time: 2:19.

Explainer: Eggshell Plaintiff Rule in U.S. Tort Law.  This video briefly explain the operation of the eggshell plaintiff rule, as well as the reason for its inapplicability to intentional infliction of emotional distress.  Cited is Vosburg v. Putney (Wis. 1891).  Running time: 2:36.

Explainer: Culpability Spectrum in U.S. Tort Law (Pound to Intent).  This video examines the culpability spectrum in U.S. tort law with an emphasis on variations on intent.  The video further explains how culpability can be varied to compensate for the uncertainty implications of the Pound progression.  Running time: 3:44.

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass

Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.

I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.

Landmark Indian Supreme Court ruling recognizes constitutional right of privacy

In a landmark ruling akin to U.S. Supreme Court Justice William O. Douglas’s famous foray into the “penumbras, formed by emanations” in the U.S. Constitution in 1965 (Griswold on FindLaw), the Supreme Court of India has recognized a constitutional right of privacy, including informational privacy.  Here are some highlights from the unanimous 266-page disposition, per Justice Dhananjaya Y. Chandrachud (overruling his father, according to some commentary), in Puttaswamy v. Union of India.  Download the opinions in PDF here.  A very heartfelt hat tip from me to attorney Shruti Chopra for bringing this blockbuster to my attention.

The case revolved around the government’s “Aadhaar card scheme” (¶ 3).  A project of extraordinary scope, Aadhaar means to assign a unique identity number to every one of India’s 1.3bn residents based on demographic and biometric data.  The 91-year-old named plaintiff is himself a retired judge; read more at The Indian Express.

The Court examined the origin of privacy, beginning with Aristotle’s distinction between “public and private realms” (¶ 29).  The Court traced privacy through Blackstone (¶ 30), John Stuart Mill (¶ 31), Madison (¶ 33), Warren and Brandeis (¶ 34), and Cooley (¶ 36).  “Conscious as we are of the limitations with which comparative frameworks of law and history should be evaluated, the above account is of significance,” the Court explained. “It reflects the basic need of every individual to live with dignity…. The need to protect the privacy of the being is no less when development and technological change continuously threaten to place the person into public gaze and portend to submerge the individual into a seamless web of inter-connected lives.”

Speaking favorably to the evolution of “natural rights,” the Court cited Locke (¶ 40), Blackstone (¶ 40), Roscoe Pound (¶ 42), and Ronald Dworkin (¶ 46), as well as the American Declaration of Independence (¶ 41) and French Declaration of the Rights of Man and of the Citizen (¶ 41).  Applying “a settled position in constitutional law,” the Court regarded constitutional rights as “emanat[ing] from basic notions of liberty and dignity” (¶ 24).

The court regarded recognition of informational privacy as consistent with India’s obligations under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (¶ 66).  “India’s commitment to a world order founded on respect for human rights has been noticed along with the specific articles of the UDHR and the ICCPR which embody the right to privacy” (¶ 91; see also ¶¶ 129-130).  The Court found collateral international legal support in the Convention on the Elimination of Discrimination against Women (¶ 132).  The Court rejected the “theory that civil and political rights are subservient to socio-economic rights” (¶ 154).

Textually, the Court invoked the Preamble of the Indian Constitution, which commits itself to values of “justice,” “liberty,” “equality,” and “fraternity” (¶¶ 93-95).  “The submission that recognising the right to privacy is an exercise which would require a constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable doctrinal position. The argument assumes that the right to privacy is independent of the liberties guaranteed by Part III of the Constitution. There lies the error. The right to privacy is an element of human dignity.” (¶ 113.)

A basic, “inalienable” right to live, the Court reasoned, must predate the Constitution.  “It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right” (¶ 119).

With regard to originalism and living constitutionalism, the Court wrote: “Now, would this Court in interpreting the Constitution freeze the content of constitutional guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future. As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all, constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.” (¶ 116.)

The court rejected strict originalism and pledged fealty to living constitutionalism expressly in a meditation upon technology:  “Today’s technology renders models of application of a few years ago obsolescent. Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society. We describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times.”  (¶ 151.)

With regard to precedentialism, the Court rejected precedents incompatible with a constitutional right to privacy.  The Court cited U.S. decisions Buck v. Bell (U.S. 1927) (approving compulsory sterilization) (Oyez) and Korematsu (U.S. 1944) (approving Japanese-American internment) (Oyez) as examples of court decisions contrary to human rights and so appropriately “consigned to the archives, reflective of what was, but should never have been” (¶ 121).

With further regard to comparativism, the Court cautioned that “[f]oreign judgments must ... be read with circumspection ensuring that the text is not read isolated from its context” (¶ 134).  That said, the court explicated precedents from the United Kingdom, United States, South Africa, and Canada, as well as the European Court of Human Rights, the Court of Justice of the European Union, and the Inter-American Court of Human Rights.  In U.S. case law (pp. 141-65), the Court pointed to:

• Boyd v. United States (U.S. 1886) (private papers),
• Meyer v. Nebraska (U.S. 1923) (teaching in foreign languages),
• Pierce v. Society of Sisters (U.S. 1925) (compulsory schooling),
• Olmstead v. United States (U.S. 1928) (Brandeis, J., dissenting) (telephone wiretap),
• Griswold v. Connecticut (U.S. 1965) (contraceptives),
• Katz v. United States (U.S. 1967) (telephone wiretap),
• Stanley v. Georgia (U.S. 1969) (obscene content in home),
• Eisenstadt v. Baird (U.S. 1972) (contraceptive information),
• Paris Adult Theatre I v Slaton (U.S. 1973) (obscene films),
• Roe v. Wade (U.S. 1973) (abortion),
• United States v. Miller (U.S. 1976) (bank records),
• Carey v. Population Services International (U.S. 1977) (contraceptive advertising and sale),
• Nixon v. Administrator, General Services (U.S. 1977) (presidential papers),
• Whalen v. Roe (U.S. 1977) (prescription drug information),
• Smith v. Maryland (U.S. 1979) (pen register),
• Bowers v. Hardwick (U.S. 1986) (sexual privacy),
• Planned Parenthood v. Casey (U.S. 1992) (abortion),
• Minnesota v. Carter (U.S. 1998) (home window view),
• Minnesota v. Olson (U.S. 1990) (home overnight guest),
• Kyllo v. United States (U.S. 2001) (thermal imaging of home),
• Lawrence v. Texas (U.S. 2003) (sexual privacy),
• NASA v. Nelson (U.S. 2011) (background checks),
• United States v. Jones (U.S. 2012) (Scalia opinion and Sotomayor concurrence) (GPS tracking),
• Florida v. Jardines (U.S. 2013) (Scalia opinion and Kagan concurrence) (dog sniff),
• Riley v. California (U.S. 2014) (digital cell phone contents), and
• Obergefell v. Hodges (U.S. 2015) (gay marriage).

Examining informational privacy, the Court reiterated Indian precedents rejecting the U.S. Fourth Amendment third-party doctrine (¶¶ 66, 77). 

The Court spent many pages engaging with commentators on and critics of privacy doctrine, including Richard Posner and Robert Bork (¶ 140, p. 197), Catherine McKinnon (p. 198), Alan Westin (p. 199), Roger Clarke (p. 200), Anita Allen (p. 200), and Bert-Jaap Koops, et al. (p. 201).  Specifically with regard to the formulation of an informational privacy right, the Court discussed the works of Christina Moniodis (¶ 174), Yvonne McDermott (¶ 174), Daniel Solove (¶ 175), and Posner again (¶ 179).  The Court discussed privacy principles developed through the legislative efforts to update Indian data protection, including notice, choice and consent, collection limitation, purpose limitation, access and correction, disclosure, security, transparency, and accountability (¶ 184).

Regarding the protection of life and liberty in article 21 of the India Constitution, the Court wrote: “Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions. ‘Life’ within the meaning of Article 21 is not confined to the integrity of the physical body.”  (¶ 106.)

“To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III [of the Constitution]. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.”  (¶ 107; see also ¶¶ 168-169.)

The Court listed privacy rights previously recognized under article 21 of the India Constitution: right to travel abroad, right against solitary confinement, right of prisoners against bar fetters, right to legal aid, right to speedy trial, right against handcuffing, right against custodial violence, right against public hanging, right to doctor aid at public hospital, right to shelter, right to healthy environment, right to compensation for unlawful arrest, right against torture, right to reputation, and right to pursue a livelihood (¶ 150).

The Court rejected the recognition of privacy in statute or in common law as a basis to refuse recognition in constitutional law.  Citing the Max Planck Encyclopaedia of Comparative Constitutional Law, the Court found validity in privacy as both a negative right and a positive right.  (¶ 158.)  With regard to the separation of powers, the Court heralded the importance of judicial review as “a powerful guarantee against legislative encroachments on life and personal liberty,” not to be surrendered easily (¶ 166).  The Court frowned on the proposition of recognizing privacy only as ancillary to substantive due process, pointing with disapproval to consequent “vagaries of judicial interpretation” in U.S. law (¶ 167).

The Court concluded, in key parts:

- “Privacy is a constitutionally protected right which emerges primarily from the

guarantee of life and personal liberty in Article 21 of the Constitution. Elements of

privacy also arise in varying contexts from the other facets of freedom and dignity

recognised and guaranteed by the fundamental rights contained in Part III” (part T(3)(C), p. 262).

- “At a descriptive level, privacy postulates a bundle of entitlements and interests” (part T(3)(E), p. 262).

- “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life” (part T(3)(F), p. 263).

- “While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place” (part T(3)(F), p. 263).

- “This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted” (part T(3)(G), p. 263).

- “An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them” (part T(3)(H), p. 264).

- “Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual” (part T(3)(I), p. 264).

- “Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection” (part T(5), p. 264).

Additional and collateral opinions run from PDF page 267 through 547.

Mass. App. upholds $2.9m 'actual malice' verdict over 'bitter feud' in local politics

The Range Feud (Columbia Pictures 1931)

The Massachusetts Appeals Court today rejected appeal of a defamation verdict.  The case is Van Liew v. Eliopoulos, no. 16-P-567 (soon available from the Reporter of Decisions), per Justice Blake.

The case arose amid what the court described as "a bitter feud ... between Chelmsford residents," focusing on the redevelopment of a historic property.  Plaintiff Eliopoulos was a selectman, real estate attorney, and project developer; defendant Van Liew was a business owner and project opponent.  The latter's vigorous opposition included a newsletter titled, "Why Perjury Matters."  The jury found, and the trial court entered judgment, against the defendant for 29 defamatory statements, to the tune of $2.9m.  The Appeals Court affirmed upon 26 statements.

Because the plaintiff was a public official and public figure, the case occasioned review of some First Amendment basics, namely, the Sullivan (FindLaw) "actual malice" standard and the Bose Corp. (FindLaw) standard of independent appellate review, besides the common law fact-opinion dichotomy.  Actual malice was supported, inter alia, by evidence that the defendant had reiterated charges of unethical conduct knowing that an ethics commission had exonerated the plaintiff.

The jury's damages award comprised $2.5m for reputational injury, $250,000 for emotional distress, and $150,000 in other compensatory damages.  Refusing remittitur, the Appeals Court held the damages sufficiently supported and neither excessive nor punitive.  A real estate broker had "testified that potential real estate buyers and sellers do not want to work with [plaintiff] because 'a lot of folks think that he is a—a corrupt, unethical person, because it's been said hundreds ... of times, over the past few years, in mailings and e-mails to their homes.'"  The Appeals Court opined, "The jury well could have found that the defamation turned [plaintiff] into a pariah in his own community, a status for him that has no end in sight."

Not many years ago, a politician-plaintiff's favorable verdict on actual malice was about as likely as, well not quite a unicorn, but maybe a California condor.  I advised more than one public-figure colleague not to pursue a cause because of cost, emotional toll, and mainly the overwhelming probability of loss under prophylactic free speech rules, all notwithstanding merits.  The "actual malice" standard on its face suggests no more rigor than a thoughtful recklessness analysis, but trial courts seemed to find it, to borrow the sometimes critique of strict scrutiny, "fatal in fact."

The efficacy of that conventional wisdom has been on the wane in recent years, and I welcome the return to fairness.  The $3m defamation verdict against Rolling Stone and its reporter in November  for "Rape on Campus" (NYT) and the Hulk Hogan (Bollea) privacy win against Gawker (settlement in NYT; new Netflix docko in The Atlantic) are high-profile instances of what might be a sea change underway to balance the scales.  Much hand-wringing has attended the President's "open up our libel laws" statement (NYT), and rightly so.  But that doesn't mean that the frustration that propelled Trump into office is wholly ill derived, on this point any less than on jobs and the economy.

The Appeals Court's application of "actual malice" was workaday and workmanlike.  That's the kind of cool rationality we need in our courts, now more than ever.