'Lights, Camera, Execution!': Political scientist Helen Knowles co-authors new book on capital punishment and popular culture

A new book by poli sci prof and legal researcher extraordinaire Dr. Helen Knowles, SUNY Oswego, has hit the shelf.  It explores the dark edge of the border where popular culture and criminal justice meet.  In this sense it is partly reminiscent of John D. Bessler's unsettling Death in the Dark: Midnight Executions in America (Northeastern 1997) (Amazon).  Supreme Court followers will remember Dr. Knowles for her landmark study of Justice Kennedy in The Tie Goes to Freedom (2009 & updated 2018) (Amazon).

In Lights!, Camera!, Execution!: Cinematic Portrayals of Capital Punishment (Lexington Books 2019) (Amazon), Knowles and co-authors Bruce E. Altschuler and Jaclyn Schildkraut explore the interplay of popular portrayal of the death penalty with the real thing, considering the implications of mass media for policy-making when, literally, lives are on the line.  Here is the publisher's abstract:
 

Lights, Camera, Execution!: Cinematic Portrayals of Capital Punishment fills a prominent void in the existing film studies and death penalty literature. Each chapter focuses on a particular cinematic portrayal of the death penalty in the United States. Some of the analyzed films are well-known Hollywood blockbusters, such as Dead Man Walking (1995); others are more obscure, such as the made-for-television movie Murder in Coweta County (1983). By contrasting different portrayals where appropriate and identifying themes common to many of the studied films – such as the concept of dignity and the role of race (and racial discrimination) – the volume strengthens the reader’s ability to engage in comparative analysis of topics, stories, and cinematic techniques.Written by three professors with extensive experience teaching, and writing about the death penalty, film studies, and criminal justice, Lights, Camera, Execution! is deliberately designed for both classroom use and general readership.

State FOIA critical in practice, not so much in law school, law student observes

Connor Gillen, UMass Law '21 and a thriving alum of my 1L Torts class, was featured in the local Cape Cod Times during his summer internship with the general counsel of the Barnstable County Sheriff's Office.  Connor's a good bloke, "now considering working in the public sector after graduation."  I was intrigued to read, amid his report:

While interning at the Sheriff’s Office I also learned about the Massachusetts Public Record Laws and the Massachusetts Statewide Records Retention Schedule. These are areas that I would not have learned about in my law school classes, and the information I was taught will give me an advantage once I graduate and become a practicing attorney.

He's no doubt right about that.  Somebody ought to write a casebook about multistate access norms, maybe teach a seminar.  Probably wouldn't sell well, though.

Polish court enjoins Facebook 'private censorship': just one sign of new norms in digital rights

Much worry about censorship today focuses on the private sector, specifically and especially the large tech companies--Google, Facebook, Twitter--who have so much power over what we read, hear, and see.  When I was in journalism school, in ethics class in the early 1990s, a student once mentioned the possibility of a news organization withholding a sensitive story and worried that that would be "censorship."  Professor Lou Hodges--a great teacher, great person, since deceased--vigorously corrected the student, saying that censorship by definition must be governmental action. 

Louis Hodges, W&L

Well denotational niceties aside, and with the great respect due to Professor Hodges, I'm not sure the distinction remains salient.  I've been worried about the private sector in the free speech realm for a long while.  I've already posited in print that the greatest looming threat to the freedom of information around the world today is not government, but private corporations, and I've started writing about what can be done (what already is being done in Africa, relative to: the United States, India, and Europe, forthcoming).  Indeed, even the classical distinction between freedom of expression and the freedom of information has lost much salience in the information age.

In the United States, for good historical reasons, our constitutional law draws a sharp line between the freedom of speech and the freedom of information, and also between state action, "censorship," and private action, so-called "private censorship."  Both of those lines have eroded in the real world, while our law stubbornly insists on them.

Foreign constitutional systems, such as the European and African human rights regimes, do not come with the historical baggage that carved these lines in U.S. constitutional law.  These younger systems are proving more adept at navigating the problem of private action that would suppress speech and information.  That flexibility has meant full employment for lawyers in the counsel offices of Big Tech.

It also means that the law of the internet and the law of digital rights is no longer being authored in the United States.

In Poland, a digital rights organization called the Panoptykon Foundation--I assume named for the legendary imaginings of English philosopher Jeremy Bentham--is litigating without shame against Big Tech, Google and Facebook included.  In a suit against Facebook, Panoptykon has taken up for "SIN," an (acronymed appropriately if coincidentally?) anti-drug NGO in Poland.  SIN apparently suffered content-based take-downs and blocks on Facebook.  It's not clear why Facebook (algorithms? censors?) targeted SIN, though TechCrunch speculated that it might have to do with SIN's strategy on drug counseling: more of a "use responsibly" approach than an abstention-only approach.

The action is based on Polish statute, which guarantees freedom of speech and does not get hung up on any American-style state-action limitation.  In June, a Warsaw court ex parte ordered (in Polish, via Panoptykon) Facebook to stop blocking or removing any online SIN content, pending litigation.  Technically the respondent in the case is Facebook Ireland.  But one can imagine that American Facebook execs are on alert, as foreign courts fuss ever less over the public-private distinction.

Professor Hodges might roll over in his grave to hear me say it, but I am confident that "private censorship" will be the free speech story of the 21st century.  America will be dragged into a new world of legal norms in digital rights, willingly or not.  I would rather see us embrace this new world order and confront the problem of a runaway private sector than see our civil rights law relegated to legal anachronism.

Read about SIN v. Facebook at Panoptykon.  Hat tip @ Observacom.

Tragic legacy of conquest renders astonishing diversity on South America's northern coast today

The Guianas (ArnoldPlaton, CC BY-SA 3.0)

I spent time this summer exploring the Guianas--Guyana, Suriname, and French Guiana, on South America's northern coast--and Trinidad and Tobago, an island nation just off the coast of Venezuela.  This is a lesser visited part of the world, to be sure, though it boasts a rapidly developing touristic infrastructure that might be the envy of Caribbean and Brazilian neighbors in the decades to come.

As guides and new friends patiently explained across a mind-blowing array of geographic and historical sub-contexts, the story of this southern basin of the Caribbean is a tragedy of colonial conquest, yet yields today a triumphant range of blended cultural traditions.  Mixed ethnic backgrounds deriving identities from dramatically different parts of the globe informed the experience of the people I met more often than not, rendering a picture of diversity--and moreover of peaceful co-existence--like none I have seen elsewhere in the world.

Ruela Goedewacht is head of the Johannes Arabi primary school in Nieuw
Aurora, Suriname (CC BY-SA 4.0). The Peace Corps painted this world map,
and the school features many beautiful murals for the kids to enjoy.

European possession of these lands was itself a shifting game of Old World thrones, with the British, Dutch, French, and Spanish variously laying claims.  The Europeans then sought to exploit their possessions on the backs of slaves and indentured servants, who arrived in waves from China, India, and Africa.  All of these newcomers mixed violently and not, as usual in the Americas, with the people who now identify as Amerindians, themselves a diverse array of nations to begin with.  Later, in the twentieth century, America found ways to insert its cultural and political presence with the avowed aim of regional security, jumbling cultural allegiances yet again.

Anthony Luces of Trinidad Food Tours at left (CC BY-SA 4.0). At center
is my security officer and virtual nephew, Casey Bius.

As a result:  Churches, mosques, and temples of various kinds take up residence adjacently to one another.  Public calendars are speckled with holidays and cultural traditions, whether Ramadan, Christmas, Holi, or the solstice, which enjoy a surprising embrace of mutual observance--not to mention the universally beloved Carnival.  Many people are fluent in multiple dissimilar languages, from Marroon and Amerindian tongues traceable to African and indigenous tribes, to the curving script renderings of the Far East, as well as unique Creole blends of native and European tongues.  And to my mouthwatering delight, the food traditions have produced unprecedented and delectable blends, such as South American-cultivated beef (Western) in a cumin-rich sauce (Indian/Hindu), or pork ribs (Eastern) upon flatbread (Indian/Muslim).

Dino Ramlal of Travel the Guianas, center. At left is one of my steadfast
travel companions, Debby Merickel, who blogs at the Aging Adventurer
(CC BY-SA 4.0).

Ordinarily I travel independently.  But that's not easy in the Guianas.  Developing infrastructure makes local knowledge and a network on the ground essential, unless you have ample time to burn with missed connections.  If you wish to explore the Guianas, I cannot say enough about Dinesh "Dino" Ramlal and his team at Travel the Guianas.  Sign up before Dino realizes how much more he should be charging for his hard work.  Also, I am especially indebted to Anthony Luces, owner and guide of Trinidad Food Tours, for his mind- and  mouth-enriching street food tour of Port of Spain, Trinidad.  To tell you more would spoil the surprises.

Charcoal ice cream on the streets of Port of Spain (CC BY-SA 4.0).

OK, three words:  Charcoal ice cream.

I've said too much.

Torte-spotting

Not savory. Not a tort. Possibly not actual food. And yet my interest is piqued.

Spotted at Rummy Mini Mart, Factory Road, Port of Spain, Trinidad.

'Genetically modified humans are among us'

An alum of my constitutional law class, Paul Enríquez, J.D., LL.M., Ph.D.—Structural and Molecular Biochemistry, is doing some stellar academic work at the cutting edge of genetic science and law and policy.  He privileged me with a sneak peak at his latest contribution to the legal literature, now available on SSRN, Editing Humanity: On the Precise Manipulation of DNA in Human Embryos, forthcoming in 97 N.C. L. Rev. Here is the abstract:

Genetically modified humans are among us. Emerging technologies for genome editing have launched humanity into the uncharted territory of modifying the human germline—namely, the reproductive cells and embryos that carry our genetic ancestry. Reports of the first live births of humans with edited genomes in China recently confirmed that the power to manipulate our genes at an embryonic stage is no longer theoretical. In the wake of enormous scientific progress, questions regarding how the law will treat this technological breakthrough abound.

This Article examines the legality of human genome editing, specifically germline genome editing (“GGE”), from administrative and constitutional law perspectives. It argues that the Food and Drug Administration’s (“FDA” or “Agency”) forbearance in claiming jurisdiction over GGE is creating a perilous void for an emerging field of law. At the same time, the contemporary de facto legislative ban on GGE clinical applications, which categorically prohibits the Agency from evaluating the safety and efficacy of any investigational new drug or biological product application derived from the technology, is unnecessary and creates more societal costs than benefits. On a broad scale, the ban embodies poor public policy because it prevents the FDA from exercising jurisdiction over matters that constitute extensions of the Agency’s traditional regulatory scope. An analysis of the law reveals salient regulatory gaps that could be viewed as rendering some types of GGE beyond the FDA’s regulatory reach. Notwithstanding those gaps, this Article argues that the FDA can work within the existing statutory framework to cure regulatory deficits and promulgate rules to regulate the technology and, thus, urges the FDA to exercise that jurisdiction. This Article ultimately demonstrates how law and policy converge into a proposed new regulatory paradigm for human GGE that flows from the D.C. Circuit’s ruling in United States v. Regenerative Sciences, LLC, which held that specific stem cell mixtures can be regulated as drugs or biological products within the meaning of the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act.

This Article further contends that efforts to ban GGE technologies cannot withstand constitutional scrutiny in the long run because they impinge on a cognizable fundamental right that protects select uses of GGE. This fundamental right flows from jurisprudence in the areas of procreative, parental, and—to some extent—privacy rights, but it is not absolute. The Article presents an interpretive model for this body of jurisprudence in the GGE context, which promotes extrapolation of applicable legal principles that can guide and promote coherent public policy. Launching from this jurisprudential departing point, this Article introduces a novel legal- and science-based normative framework to delineate primary limits for a right to perform GGE based upon four distinct categories: (1) therapeutic uses to remedy disease; (2) prophylactic purposes, which may or may not be therapeutic; (3) cosmetic or enhancement purposes; and (4) uses involving modification of traits that raise concerns of discrimination already prohibited by the law. This conceptual and structural approach outlines a legal blueprint for GGE clinical interventions, but more importantly it circumvents problems that dominate the existing literature, which arise from the conventional tendency to group GGE applications into therapeutic uses on one hand, and enhancements on the other.

Law student, doctor's blog explores medmal issues

An alum of my Torts I & II classes and a medical doctor, Joseph Grillo is doing some intriguing blogging at his Medical-Legal Consulting website.  Here's a teaser to a recent (May 31) item: 

Vicarious Liability Doctrines in Medical Malpractice: Ostensible or Apparent Agency

It is commonplace today that hospitals do not employ physicians. Instead the physician is considered an independent contractor. This relationship may muddy the waters when trying to hold a hospital to account under vicarious liability.

There exists an exception to the general rule that a hospital incurs no liability for the negligence of independent contractors but only for those who provide care within the traditional employment relationship.

The doctrine of ostensible agency or apparent authority has been the predominant theory upon which to base an action for vicarious liability against a hospital for the negligence of independent contractors.

Amity Dubai hosts global mass comm conference

My plenary session on "the death of journalism?" and desinformación online.

In June, I had the privilege of talking about mass communication and the law as a plenary speaker at the International Conference on Current Practices and Future Trends in Media Communication at Amity University Dubai (#CPFTMC2019).  I'm indebted for the opportunity to my long-time friend and colleague Dr. Manish Verma; to Dr. Fazal Malik, dean of humanities, arts and applied sciences at Amity Dubai; and to Prof. Marut Bisht at Amity Dubai.

Dean Fazal Malik and Professor Manish Verma

They gave me the latitude to talk about my nascent theoretical framework for analyzing legal responses to the problem of media misinformation / disinformation —colloquially if ambiguously termed "fake news," or unambiguously, as I prefer, in Spanish, desinformación.  My rubric ranges from non-responses, what I call "the Wild West" approach, to authoritarian responses.

The best of the conference of course came from what I was able to learn from my colleagues of such far-ranging experiences, backgrounds, and focuses of study.  I'll comment on some photographic highlights here, though this testimony will not express how deeply this program enriched my experience in comparativism.

Top paper honors went to Abdulla Saad of Amity Dubai. I was fortunate to serve as a judge on his panel, and his presentation was a favorite of mine. A mass communication scholar and proclaimed leading world expert on karak chai, Abdulla is researching online humor in the face of the gravest of circumstances, such as oppression and war.

Interdisciplinary presenters brought perspective to problems in mass communication. Social media researchers Fathima Linsha Basheer and Sudha Bhattia are considering the implications of this factoid: ten minutes' tweeting yields 13% oxytocin increase in brain.  Oxytocin is also known as "the love hormone."

"Dr. G.," Dr. Geentanjali Chandra, is the head of the law school at Amity Dubai.  Amity Dubai is the only school outside of India accredited to allow its graduates to sit for the bar in India.

Dr. G. kindly invited me to talk to a law class. Students studying at Amity Dubai are surprisingly diverse. The UAE creates a curious dynamic: Indian migrants--already an intrinsically diverse population--make up some quarter of the population of the Emirates and have established multi-generational households. Yet they remain Indian citizens. As a result, the young generation has a unique global identity.

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One class, changed everything. One experiment, gone wrong. Brace yourself for what is about to come. 💀☠️ #cpftpm2019 #outoforderamity #filmmaking #filmtrailer #supportfilm #darkcomedy

A post shared by Ruslan Baiazov (@rus.apocalypse) on Jun 16, 2019 at 10:40am PDT

Amity Dubai studded the scholarly program with creative contributions from the range of student talents fostered at the university, including fashion, dance, and film. Film students spent just one week creating a short-film horror project titled, "Out of Order." I'm getting in the ground floor as a fan of up-and-coming director Ruslan Baiazov.

U.S. Supreme Court widens tort liability exposure of New Deal-era, state-owned enterprises

On April 29, the U.S. Supreme Court held against the Government by reversing and remanding unanimously in Thacker v. Tennessee Valley Authority, No. 17-1201 (Oyez), a negligence claim arising under the Federal Tort Claims Act of 1946 (FTCA).

Per Justice Kagan, the Court held that the test for sovereign immunity in tort claims against New Deal-era "sued and be sued" entities such as the TVA is twofold.  First, the court must determine whether the conduct of the defendant was commercial or governmental.  Sovereign immunity can attach only to governmental conduct.  Second, if governmental, the court must determine whether suit is clearly inconsistent with constitutional or statutory scheme, or suit clearly would threaten interference with the governmental function (the test of FHA v Burr (U.S. 1940)).  Only in those narrow cases—much narrower than the statutory discretionary function exception to FTCA's waiver of sovereign immunity—does sovereign immunity attach.

The Court's decision hews to the plain text of the TVA Act of 1933 and represents a win for plaintiffs.  The case also throws into doubt other lines of federal case law in which the courts have borrowed and extended immunity concepts by analogy to the FTCA to shield government actors from liability in other statutory contexts.

You can hear my verbal review of the case at the Federalist Society's SCOTUScast.  Hear my pre-decision, post-argument analysis on SCOTUScast and view pre-argument analysis with engaging visuals from the Federalist Society on SCOTUSbrief.  The case is on SCOTUSblog with record links and informative analysis by Gregory Sisk.  Find the opinion and oral argument at Oyez.

Practical obscurity, other privacy arguments deliver blow to media in Mass. FOIA case

The Massachusetts Supreme Judicial Court (SJC) decided a state open records case in mid-June that invites lower courts to substantially broaden privacy exemption from access to information. The case is Boston Globe Media Partners, LLC v. Department of Public Health, No. SJC-12622 (Mass. June 17, 2019) (Lexis).

The Boston Globe is seeking access to a database of state birth, marriage, and death records from the Department of Public Health (DPH). In disagreement with state administrative officers enforcing the open records law, DPH refused access in part, citing statutory protections of personal privacy.  The SJC rejected dispositive motions from both sides, electing to clarify the law and remand for a range of further fact finding.

The case resonates with various problems that have become familiar to privacy law over the last few decades. First, can privacy arise in a compilation of records, when the records are not private one by one?  Second, can privacy preclude disclosure of records in government possession because the records are more about individuals than about the government? Third, how can personal privacy in electronic public records account for an individual's hypothetical privacy interests in the future?

First, the compilation problem arises in that these vital records already are available to the public. Members of the public are allowed to go to  DPH's research room during 11 opening hours each week to view vital records in the electronic database. There are limitations, though. A researcher must search for a name, viewing responsive records only one at a time. Printing is not available, though there is no limitation on copying down information.

At issue legally, then, is whether mere compilation can change the public/private disposition of a record. Historically, the answer to this question was no. Norms of public records law as it developed in the 20th century held that a record should be evaluated within its four corners.

However, that position changed at the federal level, under the federal Freedom of Information Act (FOIA), with the landmark case, U.S. Department of Justice v. Reporters Committee for Freedom of the Press (U.S. 1989). In that early instance of database access, the Supreme Court construed the FOIA contrary to access on various grounds.  The case was an infamous loss for the access NGO Reporters Committee, which filed as amicus on behalf of the Globe in this case.

Among the conclusions of Reporters Committee, the Court embraced the doctrine of practical obscurity: the notion that a record that is hard to find, whether by rifling through paper or by collecting geographically disparate components, may therein preserve a privacy interest against disclosure when compiled electronically with other such records. With its limitations on record access through the research room, DPH means to effect practical obscurity. The SJC was receptive to the argument, and it will remain to the lower court to decide what weight that privacy holds. Practical obscurity has been a thorn in the side of access advocates for the 30 years since Reporters Committee, while it has captivated courts.

Second, the content problem goes to the disputed heart of access law, its purpose. In Reporters Committee and subsequent cases, the federal courts embraced the cramped position that the purpose of access law is to reveal "what government is up to." Thus when records contain personal information, access opponents ground resistance in statutory purpose without even needing to rely on privacy exemptions.

Access advocates have argued powerfully against this position, especially in the states. Simply knowing what information government is collecting about individuals seems an important priority in the digital age. And the limited purpose argument ignores the plain theoretical position that government records are public records simply by virtue of ownership or possession, because ours is a government of the people. 

On this score the SJC was more solicitous of a broad construction. The state law expressly cites the watchdog purpose. Nevertheless, the Court reasoned that the statute more broadly means to further public interests, which may require disclosure even of personally identifying information in public possession. At the same time, the Court observed that public interests may weigh against disclosure, acknowledging personal privacy protection as a public interest. In the instant case, the Court cited only a public interest in record accuracy, as argued by the Globe, to favor disclosure. The balance is left to remand, but the interest of accuracy seems thin relative to the array of privacy arguments deployed by DPH.

That array arises in connection with the third and most contemporary problem, the protection of individuals' hypothetical privacy interests. Here again is a privacy interest that conventional access law would have disregarded. Yet the SJC was solicitous.

This same problem has been much discussed in the internet age in the guise of the right to be forgotten, or right to erasure. If a government entity is obliged to disclose databases upon demand, then it becomes difficult, if not impossible, to withdraw information from the public sphere later. Access absolutists say, so be it. But privacy advocates assert that meritorious processes for correcting or sealing sensitive public records, such as criminal histories or family matters, are undermined by an internet that "never forgets."

Especially with regard to vital records, the SJC spent some ink on the problem of sex changes and the discovery of a person's birth identity. That is a factor rightly weighed into the privacy balance on remand, the Court held. While evincing compassion, the Court's position is sure to rile access advocates. There seems no logical stopping point from the Court's position to the conclusion that all personally identifying information must be protected against disclosure, in case any one person wishes to change identity in the future. That would be a rule ripe for abuse in official hands.

This decision is bad news for access advocates. It invites privacy to the table as a weight co-equal with access, virtually lifting the presumption-of-access thumb from the scale. The government won broad discretion to conceal its activities relative to people.

At the same time, the Court showed itself to be in step with contemporary privacy law. For better and worse, people are looking to government to protect them against abuses of information in the private sector, from identity theft to big data analytics. In the absence of legislation, the courts have been ever more inclined to oblige.

It remains to be seen what price this protection will exact from transparency and accountability of the government itself.