U.S. female footballers suffer slide tackle in equal pay match: Understanding the summary judgment decision

U.S. co-captain Alex Morgan is the first named plaintiff.
(Photo by Jamie Smed CC BY 2.0.)

The women of U.S. Soccer suffered a major setback Friday with an adverse court decision (e.g., N.Y. Times).

The U.S. District Court in Los Angeles awarded partial summary judgment to defendant U.S. Soccer, rejecting the plaintiffs' core claim in the case, pay discrimination against the U.S. women's national team (USWNT) relative to the men's national team (USMNT).   In the complaint filed in March 2019, USWNT players claimed violation of the Fair Labor Standards Act of 1938, as amended by the Equal Pay Act of 1963, and of the Civil Rights Act of 1964, as amended.

The USWNT always faced an uphill battle on the numbers.  To generalize, the women could not deny, they were paid more than the men, dollar to dollar.  The devil lies in what "more" is.

The USWNT has been fantastically successful.  The team has won the World Cup of women's soccer four times, most recently in 2019 in France (I saw a match from a Paris Fan Zone, and my daughter went to one) and won the Olympic gold four times.  The squad has been a global force to be reckoned with since its inception in the 1980s.  Moreover, many a football fan, such as myself, will tell you that the women's talent is a marvel to behold on the pitch, the United States having substantially defined the women's game for the world.

We were in France for World Cup 2019. (CC BY-NC-SA 4.0.)

Direct comparison between women's and men's play is inevitably uneven, because the style of play in the women's game is different from in the men's, apples and oranges.  And worldwide, many soccer-power nations have failed to invest in developing female talent, so any given head-to-head is not necessarily taking place on a level playing field.  Nevertheless, by many a worthwhile measure, including technical proficiency, the women indisputably are better than the men—who failed even to qualify for the 2018 World Cup in Russia.

The women's superiority was exactly their problem in the equal-pay litigation.  A plaintiff bears the burden of making out a prime facie case of pay disparity.  Compensation in professional soccer in the United States is mostly based on the principle of pay for performance.  The women played more than the men and achieved more than the men, so they were paid more.  Their burden, then, was to show, in essence, that their pay rate was relatively lower than the men's.

We win, 2019.  (Photo by Howcheng CC BY-SA 4.0.)

U.S. civil rights law is, thankfully, sufficiently sophisticated to account for disparity based on pay rate.  As U.S. District Judge R. Gary Klausner explained in the instant case, quoting precedent, it can't be that "an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA ... as long as the woman negated the obvious disparity by working twice as many hours."  However, the parties disagreed about how to calculate rate so as to compare apples to apples.

Hardening defenses on their polar positions, each side posited a favorable calculation.  Plaintiffs urged the court to look at women's compensation through the lens of the men's contract.  If the women had won the World Cup, etc., under the men's contract, they would have been far more richly rewarded.  Defendant U.S. Soccer urged the court to look at the numbers in gross.  The women simply make more than the men, and even though the women play more matches, they make more than the men on a per match basis, too.

Both positions are counterarguable.  The women's and men's contracts are both the result of collective bargaining, and a lot goes into a bargaining contract besides its raw numbers.  Simply pumping the women's performance statistics through the men's contract formula ignores the broader context of each contract, or collective bargaining agreement (CBA), and the inter-dependency of its compensation formula with other bargained-for terms: like squeezing an apple with an orange juicer.

New York ticker-tape parade for the USWNT, 2015

(Photo by Anthony Quintano CC BY 2.0)

At the same time, the women's argument in converse challenges the defendant's attempt to aggregate numbers.  Maybe the women are paid more per match because they are better soccer players, which the evidence supports.  That doesn't mean that they are paid so much more per match relative to the disparity in talent and achievement between the women and the men.  To analogize, oranges might cost more than apples because oranges taste twice as good.  But an orange for $1.20 is still a bargain relative to an apple for a dollar.

The court's recitation of the women's collective bargaining process is painstaking, packing in plenty of detail for those who want it.  In sum, considering that the plaintiffs bear the burden to make out a prima facie case of discrimination, the court found the defendant's position more persuasive.  The contractual context was really the clincher.  Judge Klausner wrote (footnotes omitted):

This history of negotiations between the parties demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure. This method of comparison not only fails to account for the choices made during collective bargaining, it also ignores the economic value of the "insurance" that WNT players receive under their CBA. 

[¶] One of the defining features of the WNT CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the MNT CBA, under which players are only compensated if they are called into camp to play and then participate in a match. ... [T]here is indisputably economic value to this type of "fixed pay" contract, as compared to a "performance pay" contract.  Merely comparing what WNT players received under their own CBA with what they would have received under the MNT CBA discounts the value that the team placed on the guaranteed benefits they receive under their agreement, which they opted for at the expense of higher performance-based bonuses.

There are problems with the court's approach, including prominently that there are systemically discriminatory reasons that the women elected for the terms they did.  Many male players are able to make a living as athletes, so playing for the national team is a bonus.  Women's soccer meanwhile has faltered as a nationwide business model, for arguable reasons that must include the ingrained underdevelopment of women's athletics.  That makes it harder for a woman than for a man to play at the national level, even if the two squads have the same number of seats.

USWNT selfie with the President, 2015 (White House photo)

Consider that a man who plays professional soccer is incidentally training for the U.S. national team while he's at work.  And his day job gives him time off, sometimes months, to play for the national team.  A woman with a collateral occupation that is not professional soccer cannot invest the time and energy in the physical training and playing time required to be a globally competitive athlete.  Of course, some women do find work in professional soccer, but far fewer than men who do.  Characteristically, the USWNT's star players bargained for better job security not just for themselves, but to support their teammates.  And that's not all selflessness; their investment in part explains the ongoing developmental success of the USWNT over athletic generations.

That doesn't mean Klausner is wrong on the law.  The facts of the case show something we already know, which is that historically rooted discrimination can persist well beyond demonstrable intention, is exceptionally resistant to eradication, and is more susceptible to redress socially and politically than judicially.  There are good reasons why the standard to establish a civil rights violation of federal law is high.  Failure to surmount that bar in court does not establish that the plaintiff is right or wrong as a social or moral matter.

Federal courthouse in Los Angeles (Photo by Los Angeles CC BY-SA 3.0)

There were other claims in the case, and the plaintiffs' cause is not formally over, even notwithstanding appeal.  The court's treatment of the plaintiffs' claim of discrimination in turf is a worthwhile read.  Female footballers often play on artificial and unstable surfaces, resulting in physical injury and career wear and tear, while the USMNT always plays on grass.  Despite the disparity in fact, the plaintiffs were unable to prove the discriminatory motive, or intent, that civil rights law requires.

The women's case persists upon some ancillary claims related to fringe benefits, such as better hotels and more frequent charter flights for the men's team than for the women's.  There might not be enough there for the women to want to keep the litigation going.  Plaintiffs probably will ask Judge Klausner to allow interlocutory appeal to the Ninth Circuit directly from this partial summary judgment, and I expect he will.

The case is Morgan v. U.S. Soccer Federation, No. 2:19-cv-01717 (C.D. Cal. May 1, 2020).  Court Listener has the key documents.

Report from a Social Distance Week 6: Chilled goslings stir spicy Creole squall on murderous Mamajuana lakes

Geese with chilly goslings on the East Bay Bike Path

A below-average cold April on WJAR NBC TurnTo10

It’s been a cold week.  One day, Providence, Rhode Island, set a record-low high at 42°F (5.5°C), and that was before wind chill.  My local meteorologist made a graphic (inset) showing it to be one of our coldest latter-halves of April on record.  Like the stay-at-home order, winter drags on.

A first sign of spring that I always eagerly anticipate happened: the appearance of goslings at Brickyard Pond.  They must be freezing their fuzzy down off, wondering how they hatched into such a dreary realm.  The gosling stage is the only time that the geese are adorable.  Soon they grow up to be grimy, hissing fiends, churning out green excretions that coat shoes and bike tires.

Yet they look delicious.  If the chicken runs out, be warned….  ̚ – ̚

It’s come to this.

Week 6.


What I’m Reading

John DeMers, Arnaud’s Creole Cookbook: Memoirs and Recipes from the Historic New Orleans Restaurant (1988) (Amazon), and The Food of New Orleans (Periplus World Cookbooks 1998) (Amazon).  My mom-in-law gifted these books to my wife for her birthday, and I was delighted to discover that they both feature generous narratives about New Orleans history and culture, as well as cuisine.  Once upon a time, John DeMers (Delicious Mischief) was a UPI reporter.  He made the jump from hard news to world food and in time became a highly regarded food writer about his native New Orleans and home south Texas.

Arnaud's in 2009 (Infrogmation of New Orleans CC BY-SA 2.0)

In Arnaud’s, DeMers recounted the history of the famous French Quarter restaurant and its original owner, the larger-than-life, namesake “Count” Arnaud Cazenave.  When, on the occasion of his 70th birthday, high-living, nightlife-loving, cigar-toting Arnaud was confronted with the inevitability of his own demise, DeMers recounted, Arnaud answered, “‘It is possibly a fact…. But it is my secretary who usually informs me of such things.’”  DeMers then traced Arnaud's history through the latter 20th century, from the coarse, colorful, and gifted, yet ultimately tragic figure of Arnaud's daughter, Germaine Cazenave, to a renaissance for the restaurant under the management and ownership of Archie Casbarian and family.  At times, the story is curiously newly relevant to the contemporary threat of coronavirus to our family-owned institutions, especially restaurants.

In the Periplus cookbook, DeMers compiled essays from NOLA personalities in food culture.  My favorite entry comes from writer Paul A. Greenburg, U. Mo. journalism alum and Tulane lecturer, who, in “This Ethnic Gumbo Pot,” beautifully describes the kaleidoscope of contributions to New Orleans cuisine from Africa, Ireland, the Mediterranean, and the Pacific Rim.  The only problem with this book is that it will make your mouth water before you even get to the recipes.  By the time I finished DeMers’s restaurant roll call in “A New Orleans Dine Around,” I was hungry enough to strangle a goose.

I’m a periodic online reader of The Guardian, the U.K. daily news source, and a regular downloader of The Blizzard, a U.K.-based electronic quarterly about football (soccer).  I mention this because while I’ve previously urged you, dear reader, to #Save­Our­Restaurants, I’ve overlooked our journalistic institutions that also are suffering in this crisis.  If we lose our independent Fourth Estate, we lose a democratic prerequisite, more than mere dietary diversity.  A Guardian pop-up this week observed that I’d recently read six Guardian stories without making a contribution.  Da*n those tracking cookies.  I was appropriately shamed into giving something small, and you can too, whether to The Guardian or your preferred investigative reporting enterprise.

Meanwhile, The Blizzard launched The Squall, “The Blizzard’s breezy brother,” a shorter and more frequent dispatch designed to help The Blizzard’s brilliant freelance writers, illustrators, and photographers make ends meet during the crisis.  Apparently, the creative juices were well pent-up, as the first Squall comprises 78 pages of illuminated rumination on right-back footballers, all at a “pay what you can” price point.

Isaiah (ProvidenceLithograph Co.)

Our church's Bible reading continues into the Book of Isaiah.   The BibleProject has a video that examines the first 39 chapters.  Those are the ones consistently attributed to the original prophet Isaiah, the "Proto-Isaiah," probably in the 8th century B.C.  There are different opinions about the book's mortal authorship thereafter.  Everyone is welcome to join our church for online worship on Sunday at 0930 US EDT.  Geared to "times like these," the message will be on James 4.

What I’m Watching

Red Riding Hood (2011).  We canceled HBO Now one day after our monthly renewal, so we felt like we should work at getting our money’s worth.  Red Riding Hood was better than its Rotten Tomatoes 10% portends.  Famous for big grosser Twilight (2008) and her ouster from the franchise before poorer performer New Moon (2009), Catherine Hardwicke went on to direct Red, which has a similar dark fantasy feel.  The story retold is a murder mystery, like an Orient Express whodunnit set in a fairy-tale village under siege by a monstrous werewolf.  Then fresh from the finale of Big Love, Amanda Seyfried starred.  She’ll be the voice of Daphne in the shortly forthcoming Scoob!.

Dexter s5-8 (2010-13).  Quarantine is the time to catch up, and it had been years since my Dexter viewing lagged after season 4.  Maybe I wasn’t sure the show could get better after “Trinity Killer” John Lithgow’s creepy villainy.  But I found that Dexter’s second series half was up to snuff.  Jonny Lee Miller—whom, I will never fail to remind you, I saw on stage in New York last year—was killer as my now-favorite Dexter nemesis, Jordan Chase, in season 5.  Season 6 was a bit weak; Edward James Olmos deserved a role better befitting his acting admiralty.  But seasons 7 and 8 picked the pace back up with a spicy romantic arc featuring Yvonne Strahovski of Handmaid’s Tale (Serena) fame.  Critics whinged about the series finale, but I thought it was great.  Sometimes things end the way they have to end, not the way we wish they would.  No spoilers.

What I'm Eating

We were neglectful of our #Save­Our­Restaurants agenda this week.  We’ve had goose eggs wrapped and roasted in toilet paper every night. Seriously, we've been cooking at home, using up what's in the fridge, and enjoying it.  My wife whipped up a Southern-style chicken'n'grits with roasted carrots just last night.  It looks like we'll be here for a while, so we'll double down on supporting local establishments this coming week.  No goose was harmed in the making of this dish.

What I’m Drinking

Pecan Praline Coffee.  From storied Louisiana purveyor Community, this shout-out to southern hickory lets us escape the dreary wet cold of a New England morning and for a few minutes imagine ourselves munching candy-coated drupes under the sizzling sunlight of a Natchitoches summer.

Mamajuana Spicy.  I brought this Chez & Brug product back from the Dominican Republic.  Mamajuana is a liquor made from a maceration of “endemic tree bark, leaves, and spices.”  The label describes this Caribbean staple as “reminiscen[t] of wood and anise,” and that’s about right.  Its flavor is similar to chicory, but without the bitter edge, and the concoction goes down with a warm smoothness, a perfect respite before or after dinner.

The Lakes Gin.  This is a workmanlike gin from the holiday-friendly Lakes District of Britain.  The gin comes in an exquisite blue-glass bottle boasting a lace-like diamonded texture.  The Lakes Distillery sits on a renovated Victorian farmstead, lakeside of course, in Cumbria County, and welcomes visitors in normal times.  The gin is made with water drawn from UNESCO World Heritage Lakes District National Park.  The distillery lists botanicals as principally juniper, coriander, and angelica, and secondly, orris root, cassia bark, liquorice, and orange and lemon peel.  The Gin Foundry described the result as “clean” and “polished,” if a “little too manicured.”

Company of the Daughters of Charity
of Saint Vincent de Paul
(Photo by or Eugenio Hansen, OFS
CC BY-SA 3.0)

What Else We Can Do To Help

Our friend Sister Catherine (mentioned here a few weeks ago), who works on the Navajo and Zuni reservations, sent along an alarming story from Today about the rampage of coronavirus there.  Healthcare and hygienic conditions already are subpar—to a shocking point in our developed country—inviting the virus to devastate the Navajo Nation.  Nary a notion of bureaucracy separates the sisters from the people they serve, so not a penny is wasted.  If you want to help, donations may be earmarked for the Navajo Nation, payable to the Daughters of Charity, and sent to: Sr. Patricia Miguel, DC, Provincial Treasurer; Seton Provincialate Administration; 26000 Altamont Rd.; Los Altos Hills, CA 94022-4317.

Happy May Day.

(Photos in introduction, "Eating," and "Drinking"
by RJ Peltz-Steele (CC BY-SA 4.0); no claim to underlying works)

Informe costarricense mixto sobre libertad de expresión: tribunales presionan por transparencia; ley se mueve contra discurso de odio, desinformación

[English translation by Google.]

Desde la perspectiva norteamericana, Costa Rica ha sido aclamada durante mucho tiempo como un modelo de democracia en las Américas. Eso es lo que me llevó a enfocarme en Costa Rica para estudios universitarios en periodismo comparativo, y fue así que desperté un amor por el país. Es importante destacar que San José opera como la sede de la Corte Interamericana de Derechos Humanos. La afinidad de Costa Rica con los Estados Unidos se remonta en los tiempos modernos a la transformadora y ahora legendaria primera presidencia de Óscar Arias en la década de 1980 (sin dejar de mencionar las recientes acusaciones, e.g., Time). Si hoy es cierto, en algún sentido, que Costa Rica está a la vanguardia de los derechos humanos regionales, entonces vale la pena ver los acontecimientos en Costa Rica como un referente.

Un nuevo informe exhaustivo sobre la libertad de expresión y la libertad de información en Costa Rica ha sido emitido por el Programa de Libertad de Expresión y Derecho a la Información y el Centro de Investigación de Comunicación de la Universidad de Costa Rica (HT@ Observacom). En general, este informe revela un sistema legal que lucha con problemas que son familiares en otros países—por ejemplo, el acceso público y periodístico a las plataformas de redes sociales cuando un político aparentemente elige hacer negocios allí. Un informe de este tipo no es único en las Américas (mira, e.g., México 2019), y este no es el primero de Costa Rica; admito que me atrajo debido a la coincidencia de algunos problemas que me interesan, incluso colegiación de periodismo, mencionados a continuación.

El primer capítulo del informe (y el único que he leído) está escrito por la abogada, periodista, y académica, Giselle Boza Solano. Boza concluye con preocupación que no ha habido movimiento legislativo en Costa Rica para garantizar la proliferación de las diversas voces en la era de internet, donde el mercado del discurso y la elaboración de la política del habla están cada vez más dominados por los grandes proveedores de servicios, como Google. Su preocupación está sincronizada con los movimientos en Europa, con Francia a la cabeza, y en América Latina, con Uruguay como organizador. Costa Rica parece ser próximo en esta lista. Sin embargo, Boza, y el informe, reconocen y examinan las iniciativas para financiar los esfuerzos cinematográficos y audiovisuales con un impuesto a las plataformas digitales y la televisión por suscripción.

Corte Interamericana de Derechos Humanos
(foto por Eli NW CC BY-NC-SA 2.0)

Además, me anima el comentario de Boza sobre la jurisprudencia costarricense. Si la selección es indicativa, los tribunales, en la mayor parte, parecen mantenerse a la par con su compromiso histórico con las libertades de expresión e información. En el área de libertad de información, el Tribunal Constitucional dictó decisiones que facilitan el acceso electrónico a datos meteorológicos y el registro electrónico de la policía en lugares públicos. Los tribunales dictaron decisiones que facilitaron el acceso de los ciudadanos al proceso legislativo y a la legislación. La inclinación por los legisladores a retirarse a la oscuridad en nuestros tiempos difíciles parece ser una norma universal.

El Tribunal Constitucional también reprendió al Colégio de Periodistas por afirmar una provincia exclusiva sobre el derecho a llamarse a sí mismo periodista, ante la queja de un periodista digital sin el título universitario, como se requiere. El tribunal reiteró la consecuente opinión consultiva de la Corte Interamericana de Derechos Humanos de 1985, incluso antes de que el periodismo digital existiera propiamente. Es bastante sorprendente que esto todavía sea algo que deba adjudicarse 35 años después. (Escribí sobre este caso cuando era estudiante en 1993 y, para ser justo, la situación es un poco más complicada de lo que parece en la superficie. Aún así….)

Hay motivos de preocupación más allá de la falta de impulso para la libertad de internet. El proyecto de ley mejoraría o aplicaría el castigo penal por el discurso de odio y la difusión de desinformación ("noticias falsas"). Tales leyes se encontrarían en conflicto contra la libertad de expresión. Costa Rica ciertamente no es el único país con tales propuestas sobre la mesa, pero, nuevamente, esto es problemático en una democracia de vanguardia.

Eso es solo el capítulo 1. El informe presenta un análisis cuantitativo de la autopercepción de los medios, y, también, capítulos sobre publicidad, violencia contra las mujeres en las noticias, y más. La publicación es el II Informe sobre el estado de la libertad de expresión en Costa Rica (2020) (descargar por capítulo).

Muchas gracias a mi editor en español, Ricardo Serrano, politólogo, periodista, estudiante de derecho, y creador de contenido electrónico.  Los errores son todos míos.

Recent commentaries ponder privacy in license plates, history of animal identity

Two blog entries tangentially related to areas of interest of mine crossed my desk this week.

CC TV (Adrian Pingstone CC0)

Privacy law.  For The Volokh Conspiracy at Reason, UC Berkeley Professor Orin Kerr wrote about the Massachusetts Supreme Judicial Court decision in Commonwealth v. McCarthy, No. SJC-12750, on April 16.  The Court considered the implications of automatic license plate readers under the Fourth Amendment, concluding that there are constitutional consequences, if not resulting in a violation of the defendant's rights in the instant drug case.  Kerr considers the case relative to the Supreme Court's 2018 cell-tower-location decision, Carpenter v. United States, and against the background of his own work on mosaic theory in privacy law (he's not a fan).  In a purely civil context, mosaic theory, born in the national security arena, has long been a key underpinning of personal privacy rights in their encroachment on the freedom of information, an accelerating conflict in the information age.  The commentary is "Automated License Plate Readers, the Mosaic Theory, and the Fourth Amendment: The Massachusetts Supreme Judicial Court Weighs In" (Apr. 22, 2020).

Peacock plumage (Jatin Sindhu CC BY-SA 4.0)

Animal law.  Evolution of animals at law was the subject of an Earth Day commentary for Legal History Miscellany by history Professor Krista Kesselring at Dalhousie University in Nova Scotia.  She traced the historical change in cultural and common law regard for animals from aesthetic adornment, to property of utility, to something, perhaps, at last, with intrinsic value.  The commentary is "Can You Steal a Peacock? Animals in Early Modern Law" (Apr. 22, 2020).  U.S. courts have evidenced a dawning recognition of animals as more than mere personal property, even in a civil context, moving beyond welcome developments in criminal anti-cruelty statutes.  The nascent trend is evident and needed especially in the area of tort damages, in which the valuation of a pet as an item of property fails profoundly to account for real and rational emotional suffering upon loss.  See furthermore the recent: Richard L. Cupp, Jr., Considering the Private Animal and Damages (SSRN last rev. Apr. 2, 2020).  HT @ Private Law Theory.

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

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

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

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

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

U.S. S.G. Noel Francisco

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

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

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

DeRay Mckesson (Jay Godwin, LBJ Library)

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

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

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

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

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

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

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


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

Report from a Social Distance Week 5: A Birthday, a Flood, and a Fire

April snow (RJ Peltz-Steele CC BY-SA 4.0)

My plan-B return to Africa in June was just canceled.  I kind of expected that.  Here in New England, it remains unseasonably chilly, lows this week at the freezing point, and highs usually in the low 50sºF, 12ºC give or take, and a mean wind chill.  One morning even brought a light snow.  The long-range forecast shows no warming for the remainder of the month.  We’re getting deeply anxious for the transition to spring, even as the names of the days have become arbitrary.  At least in this week 5 of isolation, we had occasion to celebrate a calendared milestone, my wife’s birthday.

What I’m Celebrating…

It was a Quarantine Birthday!

For my wife, I made a birthday cake!: a classic pound cake with hazelnut buttercream frosting.  I won no points on aesthetics, but the sweet taste was spot on.  I also made our dinner of vegetable pasta with mozzarella garlic bread, heavy on the garlic.  We had my wife’s favorite wine, Gazela vinho verde (she’s a cheap date).  And from her Amazon WishList, she received some admittedly non-essential but long desired Yuxier BBQ gloves (Spider-Man-style, but not really, because a Chinese maker wouldn’t dare test trademark).  Our daughter sent our favorite flavored honeys from the Savannah Bee Company, and there were lots of lovely cards: thanks, family and friends.

What I’m Reading

The Atlantic (May 2020).  The latest issue of my favorite magazine, The Atlantic, hit my doorstep this week, and I’ve never been happier to see it.  This month has the usual plenty of enthralling content, from an assessment of the fractured right in American politics (Robert P. Saldin and Steven M. Telles), to a photo study of social distance (Amy Weiss-Meyer), to an exploration of the everlasting allure of Scooby Doo (Christopher Orr)—this year’s May movie Scoob! will skip theaters.  Most-interesting-item honors go to MacDowell Colony fellow Francesca Mari’s “The Shark and the Shrimpers” for breaking down the legal system’s obscene exploitation of the BP disaster with faked compensation claimants.  The conduct of key plaintiff’s lawyer Mikal Watts, acquitted, I found frighteningly reminiscent of Ecuador v. Chevron's fallen star, Steven Donziger.  According to Mari, Watts even commissioned a documentary about himself; cf. Donziger’s PR panache.  Somehow, despite the well reasoned fury of U.S. District Judge Lewis Kaplan, Donziger last week wrangled the validation of 30 Nobel laureates.  That’s more Bizarro than the “liberate” tweets.

🙏 Our ongoing Bible reading has proceeded from First to Second Kings, and we’ve begun a Sunday Zoom study of my favorite book, James.  If you feel in need, or wish to support others, in these strange times, you are welcome to visit our church’s new virtual prayer wall, as well as Sunday service at 0930 US EDT.

What I’m Listening To

Floodlines (2020).  This eight-part audio series by Vann R. Newkirk II represents a first foray into podcasting for The Atlantic.  It’s a fascinating deep dive into the Hurricane Katrina disaster, exploring all angles, especially race and socioeconomic implications.  Newkirk skillfully weaves a narrative that traces New Orleans history from its roots in slavery to its contemporary demography.  A lot of what’s here wasn’t new to me, because, for work, I’ve done a more-than-normal amount of reading about Katrina, and I'm personally familiar with NOLA.  (The audio pacing is slow, and you can nudge up the speed if you use an intermediary such as Google rather than streaming from the home page.)  There’s still plenty here, though, for anyone, and maybe a lot for some: Katrina was 15 years ago, so young adults might not even remember it.  For my part, I had never heard of the case of Ivor van Heerden, who lost his academic post at LSU Baton Rouge in suspicious subsequence to his criticism of the Army Corps levees.  That one nugget from Floodlines part 3 sent me down a depressing rabbit-hole-reading of van Heerden’s ultimately unsuccessful litigation.  Academics, even with tenure, almost always lose to judges’ sycophantic deference to university bureaucrats, while a 2011 AAUP report had no trouble seeing through LSU’s pretext.  FIRE wrote about the importance of the van Heerden case just this week.

What I’m Watching

Code 8 (2019).  Eh.  It killed a couple of hours.  Did you know that Stephen Amell (Arrow) and Robbie Amell (The Tomorrow People) are first cousins?

For All Mankind s1 (2019).  A pandemic gift on free Apple TV+, I’m loving this series.  It’s not what I expected, and I don’t want to give away too much.  The premise of the show is an alternate history in which the Soviets won the moon race; that much was in the trailers.  Unexpected was the clever imagining of an alternatively unfolding history of American civil rights as a consequence of that pivotal national shame.  The title of the show turns out to have much greater significance than a fleeting reference to the Lunar Plaque or an innocent homage to Neil Armstrong’s famed phrase.  Joel Kinnaman returns to earth from Altered Carbon s1 to deliver a credible old-school astronaut struggling to find his place in a changing NASA, while Sonya Walger, as America’s top female astronaut, shines among an extraordinary cast of leading women.

KN Aloysh (Apr. 19).  My friend Komlan Aloysh launched his YouTube channel of interviews with African changemakers by sitting down to Zoom with Rhode Island-residing, Liberian tech entrepreneur Jacob Roland, founder and CEO of West Africa-serving Pygmy Technologies.  Their wide-ranging conversation reached from the transnational tech sector to Liberian food and culture.  Roland well observed, in whatever area one might wish to create, the Liberian market is ripe and ready.  And he tipped viewers off to top unspoilt beaches in Liberia, though I suggest you get there before Chinese developers do.  The show made me conscious of how much I am missing West Africa just now.

What I’m Eating

Bluewater Bar + Grill. This week's self-sacrifice (sarcasm) to #Save­Our­Restaurants went to a local institution and its generous and hard-working staff.  Our bounty included R.I. calamari, battered cauliflower, chili broccoli, burgers and truffle fries, and the pièce de résistance, cinnamon beignets worthy of their Louisiana heritage.

Bread machine.  “While you're watching Ozark and baking bread ... ,” Trevor Noah began a bit this week.  He had my number.  Ozark s3 is on the to-do list, and already I had dragged the bread machine up from the basement.  My aim was to save from waste the remaining brine from a finished jar of pickles.  For reasons unknown, my pickle-juice bread didn’t rise properly.  I got over the initial disappointment.  Though it was dense and a touch chewy, my undersized loaf was delicious, and I ate it up in the course of the week.

What I’m Drinking

New Orleans Blend.  My wife doesn’t usually care for dark roasts, but even she fell for this offering from Community Coffee.  Its rich texture kicks off your day with a Bourbon Street party in your mouth.  Maybe that’s the cabin fever talking, but laissez le bon temps rouler.

Bombay Sapphire East.  This geo-themed gin in classic Bombay blue boasts of Thai lemongrass and Vietnamese peppercorns.  I’m not sure I could distinguish it from straight Sapphire in a taste test, but I’m willing to pay for a foreign feel while stuck in the States.

Veiner Nössliqueur von Pitz-Schweitzer.  A yummy sample of hazelnut liqueur I picked up in Luxembourg: I used it in the icing for the birthday cake.  And maybe I sampled some according to the one-for-the-cup-one-for-the-cook rule.  The drinking policy at my work-from-home-place is super chill.

What I’m Doing to Stay Sane

Burn this.  Our town has suspended yard-waste pickup, so I collected from the yard and burned in the fireplace the winter season’s accumulated kindling.  We had a nice, hot fire for the birthday celebration.  Though I always worry whether the trees outside are alarmed by the smell of smoke from their fallen limbs.

This is the matrix.  Ramadan Mubarak to our Muslim friends, and blessed weekend to all.

Photos in Celebrating, Eating, Drinking, and Staying Sane are mine, CC BY-SA 4.0.