Court rejects deep-brain-stimulation patient's contract, IIED claims against Boston nonprofit hospital

A patient dissatisfied with deep-brain stimulation (DBS) to treat her depression could not prevail against her nonprofit hospital, the Massachusetts Appeals Court ruled yesterday, in part because she sued in contract rather than medical malpractice.

The plaintiff-patient sued Brigham & Women's Hospital, Inc. (BWH), in Boston over her DBS treatment, which is experimental with respect to depression, but is approved to treat Parkinson's.  BWH paid for the $150,000+ treatment, which the plaintiff's insurance would not cover, with the design of expanding a program in psychosurgery.

CT scan of DBS implants
(Dr. Craig Hacking, A. Prof Frank Gaillard CC BY-SA 4.0)

The plaintiff initially reported favorable results.  But the relationship between patient and hospital "sour[ed]," the court explained.  The plaintiff became dissatisfied with the repeated interventions required to replace batteries and refine the DBS.  She believed that the hospital was short-changing her treatment because the psychosurgery program was not taking off as hoped.  The hospital pledged to do what was needed to support plaintiff's continued treatment, but the fulfillment of that pledge incorporated some cost-benefit analysis.  And the hospital would not accede to the plaintiff's demand that BWH pay for her treatment elsewhere.

The plaintiff sued BWH for breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED).  The trial court entered summary judgment for the hospital, and the Appeals Court affirmed.

BWH (Jim McIntosh)

The court's opinion spends most of its pages establishing that there was no broken promise to support the breach of contract and promissory estoppel claims.  The hospital promised to treat the plaintiff for free, and it never charged her.

Of salience here, the court also concluded that the plaintiff had misstated a medical malpractice claim as a breach of contract claim, possibly to get around the $100,000 state cap on medmal liability for charitable organizations (not to mention the claims-vetting process of the commonwealth's medical malpractice tribunal).  The plaintiff asserted medmal would not be the appropriate cause of action for an experimental treatment and a dispute over cost.  But the court pointed to the plaintiff's repeated claims of the defendant's failure to comply with "scientific and ethical standards."

Finally, the court's treatment of IIED was instructive, if routine:

To prevail on this claim, [plaintiff] must prove "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was 'extreme and outrageous,' was 'beyond all possible bounds of decency' and was 'utterly intolerable in a civilized community'; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was 'severe' and of a nature 'that no reasonable man could be expected to endure it'" (citations omitted) [gendered references in original] ....

BWH's actions do not constitute the sort of extreme and outrageous conduct that would allow [plaintiff] to recover for intentional infliction of emotional distress. BWH's alleged wrongdoing arose in the context of its oral agreement to provide hundreds of thousands of dollars in free care to a patient who otherwise could not afford treatment. Even putting "as harsh a face on [BWH's] actions ... as the basic facts would reasonably allow" [citation omitted], no jury could find it utterly intolerable in a civilized society for BWH to discuss alternative treatment options with [plaintiff], to take cost into account in determining what treatment to provide, or to refuse to pay for her treatment at another hospital (without interfering with her ability to transfer her care at her own expense).

Thus, the court rejected IIED as a matter of law.

The case is Vacca v. The Brigham & Women's Hospital, Inc., No. 19-P-962 (Mass. App. Ct. Sept. 21, 2020) (oral argument).  Justice Eric Neyman wrote the unanimous opinion for a panel that also comprised Justices Englander and Hand.

Man may sue police in tort, civil rights for violent beating, despite his conviction for resisting arrest

"Defund the police" has been a rallying cry in recent protests. (Photo at BLM
encampment, New York City, June 26, 2020, by Felton Davis CC BY 2.0.)

The Massachusetts Supreme Judicial Court last week vacated and remanded the trial court's judgment for police in a civil suit with racial overtones.

Authoring the unanimous opinion, Justice David A. Lowy characterized the case as "disturbing."  The court recited the facts as most favorable to the plaintiff, Mark S. Tinsley, the non-moving party.  According to that recitation, Tinsley, who is African American, was stopped by Framingham, Massachusetts, police for speeding in 2012.  Suspecting Tinsley of hiding something, police ordered Tinsley from the car, and he refused.  The traffic stop by two police officers became a physical struggle with five to pull Tinsley from the car.  Once he was out of the car, on the ground,

several police officers began beating him.  Tinsley did not resist. He tried to put his hands behind his back so that the police officers would handcuff him and thus, he thought, stop hitting him. The police officers did not stop. [One officer] struck Tinsley's collarbone and upper shoulder, and stomped on Tinsley's left hand. [A second officer] sprayed Tinsley with pepper spray. [A third officer] called Tinsley a "fucking n[word]" [footnote: "At trial, [the third officer] denied that he or any other police officer swore at Tinsley or called him 'any names.'"] and kicked Tinsley in the head. While Tinsley was on the ground, an officer handcuffed him [footnote omitted quoting Tinsley's trial testimony]. Tinsley suffered a broken nose, a broken finger, and a wound on the side of his head that required stitches.

Tinsley was convicted on counts including assault and battery (criminal), carrying a dangerous weapon ("a spring assisted knife"), and resisting arrest.  While criminal charges were pending, Tinsley sued for civil rights violation and tort claims including assault, battery, intentional infliction of emotional distress, and false arrest.  Upon two motions, the latter decided after the conclusion of the criminal proceeding, the trial court entered judgment for defendants police and town on all counts.

The question on appeal was whether the trial court properly recognized in the civil proceeding the collateral estoppel effect of Tinsley's criminal conviction.  The doctrine of collateral estoppel precludes a later civil court from re-trying facts and conclusions of law that were determined by jury and court in an earlier criminal proceeding.  Thus, after conviction, a defendant may not argue his innocence in a later case.

However, the facts deemed determined in the earlier criminal proceeding are limited to the facts that supported conviction.  Tinsley argued, and the Court agreed, that the jury's conviction was not inconsistent with Tinsley's claim of excessive force for the beating he endured on the ground, outside the car, after his arrest.  The Court reasoned that Tinsley was placed under arrest when he was seized inside the car.  Insofar as Tinsley was resisting arrest inside the car, then, collateral estoppel pertains, precluding suit on the tort of false arrest.  But the jury may have based its conviction on a fact pattern that ended before Tinsley was on the ground. So the facts of the beating, occurring after arrest, remain arguable in the civil case.

The Court explained,

Even where the use of force to effect an arrest is reasonable in response to an individual's resistance, the continued use of force may well be unreasonable, as an individual's conduct prior to arrest or during an arrest does not authorize a violation of his or her constitutional rights....  To hold differently would implicitly permit police officers, in response to a resisting individual, to exert as much force as they so choose "and be shielded from accountability under civil law," so long as the prosecutor could successfully convict the individual of resisting arrest.

Accordingly, the Court vacated judgment for defendants on the civil rights claim and the assault, battery, and IIED counts, and remanded the civil case to proceed.  The false arrest claim was properly barred.

The case is Tinsley v. Town of Framingham, No. SJC-12826 (Mass. Sept. 17, 2020).  Chief Justice Gants participated in deliberations before his death.

Communication education makes people better

Preparing for my Trump Litigation Seminar next week, I just re-read the final chapter of James Zirin's Plaintiff in Chief.  Variously attributed, Zirin catalogs the vocabulary of our truth-challenged culture, discussing "post-truth" (Oxford Word of the Year 2016), "truth [that] isn't truth," (Rudy Giuliani), "truth decay" (RAND), and "alternative facts" (Kellyanne Conway).  And, of course, who could forget the great Stephen Colbert's groundbreaking "truthiness" (The Wørd, and a real word).  Along with Trevor Noah, I've wondered at the breakdown in distinction between fact and opinion.  More than once, my wife, in slack-jawed witness of the news on TV, has declared the need for media literacy education in our K12 schools (and perhaps, I add, in our senior centers). 

Dr. Sherry Morreale (UCCS)

It turns out that media literacy is just one piece in the puzzle of what might be missing in our society today. Communication Professor Sherwyn P. Morreale has co-authored a series of scholarly articles on Why Communication Education Is Important.  Her third installment, co-authored with Joseph M. Valenzano and Janessa A. Bauer, has just won the 2020 Distinguished Article Award in the Basic Course Division of the National Communication Association (NCA).  The abstract speaks to the range of life skills that are bolstered by communication education (my highlighting).

The results of this study argue that communication, and specifically oral communication education, is critical to students’ future personal and professional success. Similar to two earlier studies, thematic analysis of 679 documents in academic and popular press publications, published from 2008 to 2015, provide support for the centrality of the communication discipline’s content and pedagogy. These results reinforce the importance of communication to enhancing organizational processes and organizational life; promoting health communication; enriching the educational enterprise; understanding crisis, safety, risk, and security; improving interpersonal communication and relationships; influencing diplomacy and government relations; being a responsible participant in the world, socially and culturally; developing as a whole person; and succeeding as an individual in one’s career and in business. The kinds of communication addressed as important in each of these nine general themes are outlined, and the results are compared with those in the first two iterations of the study.

This conclusion might seem self-evident to the academic outsider (technical term, "real people") but it readily escapes the grasp of the bean counters who run today's STEM-obsessed universities, where faculty in the social sciences (law included) are tormented with demands that their departments generate revenue to justify their existence.  Because that's why we educate people, for the money.

The current study is titled, Why communication education is important: a third study on the centrality of the discipline’s content and pedagogy, and appears at 66:4 J. Communication Educ. 402 (2017).  Dr. Morreale previously published, with co-author Judy C. Pearson, Why Communication Education is Important: The Centrality of the Discipline in the 21st Century, 57:2 J. Communication Educ. 224 (2008); and, with co-authors Pearson and Michael M. Osborn, Why communication is important: A rationale for the centrality of the study of communication, 29:1 J. Ass'n Communication Admin. 1 (2000).

Full disclosure: Dr. Morreale is my aunt.  She always was the cool aunt.  So her parents are probably to blame for my academic nature, and she, in part, for the nurture.

'Miss Juneteenth' speaks both to problems of our times and to timeless problems

Thanks to the Duke (University) Screen/Society, yesterday, I virtually attended a screening and discussion of the 2020 film from Vertical Entertainment, Miss Juneteenth.  It is an insightful and gratifying film, so I want to make this note of it.  In our covid era, it's easy to miss new releases.

Written and directed by Channing Godfrey Peoples, Miss Juneteenth is the story of Fort Worth, Texas, teen Kai (Alexis Chikaeze) and her mom, Turquoise Jones (Nicole Beharie), as Kai prepares to participate in the Miss Juneteenth beauty pageant, a pageant that her mother happens to have won, back in the day.

Yet that description unfairly oversimplifies the film, as would any description that confined the story by race or class.  The film richly portrays Turquoise and Kai's lives.  It explores mother-daughter conflict, romantic entanglements, and socioeconomic struggles. Simultaneously, the film comments softly, not heavy-handedly, on pageant culture, civil rights, the American dream, and, of course, never trumpeted yet omnipresent, the glorious but unfulfilled promise of freedom marked by Juneteenth.

In a striking scene set in a Juneteenth museum, the young contestants are being oriented on Juneteenth history by a passionate docent when the schoolmarmish pageant wrangler directs the kids' attention to framed pictures of past Juneteenth queens.  The docent was speaking to the legacy of slavery, driven out of the American South, while the pageant director educates the girls on such etiquette nuances as table manners imported with the Pilgrims.  The girls' gazes drift to the latter display, which, I contend, speaks subtly but powerfully to how African-American communities have long wrestled with the fine line between cultural subjugation and assimilation that courses through American history from Reconstruction to Civil Rights to present day.  I'm reminded at once of Mike Pence's oddly third-person reference from Fort McHenry in August to "American people ... standing with ... our African-American neighbors" and Dulce Sloan's missive this week on The Daily Show with Trevor Noah, "The Messed Up History of Black Hair in America."

A character in the film once comments, "Ain’t no American dream for black folks.”  As we wondered at the latest news of government ineptitude yesterday morning, contemplating how our salaries are going down while our workloads are going up, my wife speculated that the anger and resentment that people both black and white feel toward the lack of opportunity for upward mobility in this country is really much the same.  The difference, she suggested, is that black people have always known that meritocracy is an American myth, while white people are just figuring it out.  (She cited Michael Sandel on WBUR talking about his Tyranny of Merit.)

Miss Juneteenth has given me a lot to chew over.  I haven't even mentioned my own daughter's foray into the pageant world when she was a teen: Miss Rhode Island High School 2016!  In Miss Juneteenth, as Turquoise is working herself to death to scrape together the money to support Kai's pageant bid, Kai's father, Ronnie (Kendrick Sampson), shakes his head: "An $800 dress just don’t make no sense to me."

Word for word, I swear, Peoples stole that line from me.

Here is the trailer from Vertical Entertainment.

Happy Constitution Day.

Mass. Chief Justice Ralph Gants dies

Massachusetts Supreme Judicial Court Chief Justice Ralph Gants has died.

Read more:
• NECN
• Boston Globe
• Boston Herald

Also:
• Ralph Gants on this blog

Chief Justice Ralph D. Gants was a graduate of Harvard undergrad and law, one-time AUSA, and recipient of an honorary law degree from UMass Law at 2016 Commencement (pictured and below).

Also:
• On criminal justice reform with Jim Braude at WGBH News
• On access to justice at Harvard Law School

HT @ Prof. Cleary.

Boston Bar webinar will probe privacy law latest

Coming soon, the Boston Bar Association will host a webinar on data privacy class action litigation (and related privacy stuff too).  I'm trying to get up to speed on all of the latest developments so that I will not disappoint moderator Melanie A. Conroy, attorney and CIPP/US, of Pierce Atwood LLP, who graciously if foolhardily invited me to participate.  For The National Law Review in April, Conroy wrote the authoritative rundown on the Mount Ida student class action, which treatment inspired me to write about the case for The Savory Tort.

My task is daunting; a lot happened while I was in Africa early in the year and out of the office over the summer.  Our subject matter includes the new regulations under the California Consumer Privacy Act, burgeoning lawsuits under the Illinois Biometric Information Privacy Act, and the shock waves just now hitting the United States from the "Schrems II" decision in the European Court of Justice.  (Brush-with-greatness note: Max Schrems has been in my car.  Long story.)  That's just to get the ball rolling.

Co-panelists are Matthew M.K. Stein, of Manatt, Phelps & Phillips, LLP, and Marjan Hajibandeh, of CarGurus, Inc.  Here are the program details from the BBA:

BBA Webinar: Roundtable on Recent Developments in Data Privacy Class Action Litigation
Thursday, September 24, 2020, 10:00 to 11:00 a.m.
This webinar will explore the growing prevalence of data privacy class actions through recent developments in data privacy legislation, expanded private rights of action, biometric privacy claims, consumer data suits, post-breach and cybersecurity litigation, and the increasingly complex landscape of rulings by federal courts of appeals. The presenters will discuss national trends and developments within the First Circuit and in Massachusetts. The discussion will look ahead to areas to watch and trends that may shape the development of data privacy class actions in the coming months and years.

The program is free for BBA members and $100 for non-members. Registration at least two hours before the program-start is essential to receive the Zoom link.

Animal champion Barr, J.D. '21, wins scholarship

Abbey and Toby

An alum of my torts class and president of the Student Animal Legal Defense Fund at UMass Law (I'm a faculty adviser), Abbey Barr is one of three first-place national winners of the 2020 Advancement of Animal Scholarships.  The scholarships are awarded by the national Animal Legal Defense Fund (ALDF) for supporting the organization’s mission “to advance the interests and protect the lives of animals through the legal system.”

Here's coverage of Abbey at ALDF; read more at UMass Law.  From hometown Falmouth, Mass., and a graduate of sociology from Keene State College in New Hampshire, Abbey is passionate about animal protection, besides being an energetic collaborator and valuable counsel to her peers.  I look forward to her vibrant advocacy as a member of the bar, and to the difference she's going to make in the lives of many of God's creatures.

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

Notice of Removal in Carroll v. Trump

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

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

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

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

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

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

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

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

Union, university collude to cut Mass. higher ed pay

UMass Dartmouth (LGagnon CC BY-SA 3.0)

The faculty union and university here at UMass Dartmouth, which includes UMass Law School, are busy about the business of colluding to cut faculty (and staff and admin and everyone's) pay in response to financial (mis)management of the covid crisis.  The draft Memorandum of Agreement came out today; temporarily, I am parking a copy here.  In salient part:

The salary reduction shall be calculated as follows[:]

a. There shall be no reduction on the first $30,000 of regular salary and any regular contractual or other stipend for any faculty or staff member.

b. For each $5000 in excess of this threshold there shall be a salary reduction calculated as a percentage of the faculty or staff member’s marginal salary. This percentage reduction shall start at 5% (0.05) and shall increase by 1 percentage point (0.01) for each step up to a maximum of 10% (0.10).

In the law school, we were already hit with a $7,500-each cut in summer research support, which is a little under 5% for me, much more for others. With two generations of educational debt and current college bills looming over our heads in my family, this cut, just more than 12% in sum, hurts.  In a meeting of faculty yesterday, I got a sense of the impact on the lower ranks and less job-secure, and I was left livid.

The progressive structure was the union's idea, not the university's.  The university only asked for 5% across the board.  On Friday, union president Grant O'Rielly gleefully boasted to members that that wasn't good enough, so the union proposed a progressive plan to ensure that higher paid faculty would pay even more money and suffer a higher rate.  Victory!  The university was so impressed that it accepted and gave the union a pat on the head.  Maybe a cookie, too.  Though there was no mention of a cookie.  

The saddest thing here is the aforementioned collusion between union and university to make this all happen.  They entered into a pact by which no jobs would be lost on either side.  But on the admin/management side, there might ought be some jobs shed, and I scarcely see there would be impact on our educational mission.  You can't spit on main campus (not that you should spit in public, especially now) without hitting a handsomely compensated assistant vice chancellor of something-something.  I'm sure students will take solace in knowing that those jobs are all safe, while their newly virtual and long beleaguered legal skills instructors will now make less money than when they were hired.

The union entertained no other alternatives, either, besides admin cuts.  A reserve fund sits at UMass HQ in Boston, untapped.  As a colleague said yesterday, "it's for a rainy day, and it's raining."  The union didn't proffer a faculty furlough for December/January or May, which we could accomplish without cutting into the class schedule, and then faculty would be eligible for unemployment compensation.  Staff furloughs work that way.  The union didn't negotiate for a better separation-incentive program, or reduced workloads, or summer research support, or even a guarantee that the university can't come back to the well again next year.  The union just rolled over in self-effacing obedience to their management masters.

The greatest insult comes to those of us not in the union.  Thanks to Massachusetts's purported system of exclusive representation, we are compelled to accept the pay cut upon a union negotiation and vote in which we have no say.  And the university, to date and despite my demand, refuses to negotiate with us separately.  If that sounds, well, unconstitutional, yes, I think it is, especially since Janus.  That case said we couldn't be compelled to pay for union speech with which we disagree.  It hardly makes sense, then, that we are compelled to speak with union speech with which we disagree.  I am presently seeking counsel, and there's more than just me, so get in touch, #RightToWork advocates.  Exclusive representation is being challenged meanwhile in other states.

Massachusetts's bargain-basement approach to public education—a real shock to us when we moved here in 2011—was already criminal, especially for a blue state boasting a Kennedy legacy.  Now the state's proud blue labor tradition is belied by the reality that unions are co-conspirators in the crime.  Together the university and union make a mockery of UMass Law's "social justice" mission.

[UPDATE, Sept. 12, 2020:] 

In a case involving the University of Maine, the First Circuit upheld exclusive representation in state law.  The complainant is Jon Reisman, an economics professor at the University of Maine at Machias, and the case is now pending cert. review in the U.S. Supreme Court.  (Hat tip to a D.C. colleague.)

The First Circuit's reasoning is succinct and somewhat baffling.  The court held simply that state law requires the union to bargain for everyone, members and non-members, as a bargaining unit, but not as individuals; thus, Reisman is not "personally represented" and may be subject to whatever terms are struck for the bargaining unit.

Aside from the illogical and constitutionally unknown distinction between speaking for a "unit" and speaking for people, I fear Reisman's case was premature. At UMass Dartmouth, we see the damage wrought by exclusive representation, and the First Amendment problem is laid bare. The First Circuit pointed to Reisman's ability, under Maine law, to communicate grievances directly to the university, without going through the bargaining unit (though a union representative is then brought in to resolve the matter). At UMass Dartmouth, the university has expressly refused to hear grievances outside the union (specifically, mine).  Reisman also did not well articulate any concrete injury, rather, only the intangible harm of compelled association. At UMass Dartmouth, union non-members are about to suffer a big pay cut.  

Moreover, UMass Dartmouth non-members have been kept completely in the dark about the pay cut and excluded from informational meetings, debate, and voting on the measure.  So it can hardly be said that the union at UMass Dartmouth is acting on behalf of a bargaining unit of the whole, members and non-members alike.  The First Circuit's reliance on how things are supposed to work in the idyllic vision set out in statute in Maine bears no relation to the plain First Amendment affront playing out in practice in Massachusetts.

_________________

A reminder that this is my blog, not edited or controlled by UMass Law/Dartmouth.  At the same time, I write in furtherance of public service, which is part of my job, and in which capacity I am protected by custom, contract, law, and the First Amendment.

Immunity shields tweeting legislators from libel suits, Elizabeth Warren from high school plaintiffs

High schoolers from Kentucky will not get their day in court against Elizabeth Warren.

The students' lawsuit, high profile in the political sphere, was resolved in the Sixth Circuit yesterday on mundane grounds that offer a reminder to torts students of a simple immunity rule.

Remember the fuss in January 2019 over that video of Catholic high school students on a field trip said to be taunting a Native American elder demonstrating at the Lincoln Memorial?

Remember when people used to stand really close together like that?

There were two dramatically different sides to the story about what was really happening there, and they were as far apart as young people joining in celebration of Native American heritage, on the one side, and "MAGA" has inspired privileged youth to racism, on the other side.  For a breakdown that gets closer to the truth, see, e.g., Vox, Jan. 24, 2019; Reason, Jan. 21, 2020.

Senator Elizabeth Warren (D-MA) and Representative Deb Haaland (D-NM) tweeted about the affair from the perspective that cast the students in the wrong.  Haaland wrote, "The students’ display of blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under this administration. Heartbreaking."  And Warren: "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better."

The students sued the legislators for defamation, asserting that the darker interpretation of events was false.  On Thursday last week, the Sixth Circuit affirmed dismissal of the lawsuit—which is not to opine one way or the other on the students' claim of falsity.

As the court observed, the Speech and Debate Clause has no application on Twitter.  But a much simpler analysis pertained.  Whilst tweeting, Haaland and Warren were acting within the scope of their employment with the U.S. Government.  And the Federal Tort Claims Act (para. (h)) does not waive federal sovereign immunity for defamation committed by its employees—even the elected kind.

The case is Does 1 through 10 v. Haaland, No. 2:19-cv-00117 (6th Cir. Sept. 3, 2020).  Circuit Judge Eric Clay authored the opinion for a panel that also comprised Judges White and Readler.