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| Classic yellow Ford Pinto (Michael Dorausch CC BY-SA 2.0) |
The story is Shankar Vedantam, Cat Schuknecht, Tara Boyle, Rhaina Cohen, & Parth Shah, The Halo Effect: Why It's So Difficult To Understand The Past, Hidden Brain, Sept. 21, 2020. A real-life Pinto anchors a featured case exhibit at the American Museum of Tort Law.
Social Media Access, Jury Restraint and the Right to a Fair Trial
Zia Akhtar
To Post or Not To Post: The Ethics of Mugshot Websites
Mark Grabowski
The Trouble with “True Threats”
Eric P. Robinson & Morgan B. Hill
Merely Window Dressing or Substantial Authoritarian Transparency? Twelve Years of Enforcing China’s Version of Freedom of Information Law
Yong Tang
Free Expression or Protected Speech? Looking for the Concept of State Action in News
Christopher Terry, Jonathan Anderson, Sarah Kay Wiley, & Scott Memmel
A description from Dr. Easton:
In the current issue, British lawyer Zia Akhtar takes a hard look at the use of social media by jurors in criminal trials and the accompanying concern that the rights of a defendant may be prejudiced by the practice. The article advocates a legal code that would prohibit juror access to information about a defendant’s previous record.
Mark Grabowski follows with an examination of so-called “mugshot” websites through the lens of the Society of Professional Journalists’ Code of Ethics. The article concludes that, while mugshot sites are not an inherently unethical journalism practice, many news outlets present mugshots utilizing ethically dubious methods that urgently need to be reformed.
The need for clear standards governing the kinds of communication that can be considered unprotected “true threats” is demonstrated by the analysis of Eric Robinson and Morgan Hill in our third article. The authors point out that, when the Supreme Court had the opportunity to clarify the elusive concept, in Elonis v. United States and three subsequent cases, they failed to resolve the ambiguities of the doctrine, notwithstanding the prevalence of abusive language online.
It may surprise many of readers that freedom of information is alive, if not entirely well, in China. Based on a massive quantitative study, Yong Tang suggests that enforcement of freedom of information law in the PRC seems more forceful than many Western observers would expect, although there is scant evidence that the law has led to more accountability and better governance.
Finally, Christopher Terry and associates point out that the national press has been woefully remiss in explaining why the so-called censorship of right-wing and other voices by social media platforms is not an abridgment of First Amendment rights. While all likely readers of this journal understand the concept of “state action” in the First Amendment context, the media has generally left the public clueless.
I serve on the journal's editorial board.
My colleague Irene Scharf published further research into easing immigration hardships for undocumented youth who have been victimized by abuse, abandonment, or neglect. She explains (footnotes omitted):In 1990, aiming to ease the difficult situation for undocumented child immigrants who were dependent on juvenile courts for their protection, Congress enacted the Special Immigrant Juvenile provision of the Immigration and Nationality Act, located at 8 U.S.C. § 1101(a)(27)(J) (the provision). In 2008, in an effort to further ease the plight of these young people, it amended the provision to relieve the proof requirement from proving abuse, abandonment, or neglect by both parents to that of one or both parents. Unfortunately, the provision maintains its “two-tier” citizenship system because one of its subsections denies Special Immigrant Juveniles (SIJ) who naturalize the same rights as other citizens possess to petition for their parents to immigrate [8 U.S.C. § 1101(a)(27)(J)(iii)(II)]. In Second Class Citizenship? The Plight of Special Immigrant Juveniles [40 Cardozo L. Rev. 579 (2019)], I concluded that this limitation violates Due Process by creating this two-tier citizenship system. To address this inequity, courts should employ the doctrine of “rational legislating” to interpret this provision in a way that would place SIJs on an equal footing with other citizens. This would more accurately reflect the intent Congress had when it amended the provision in 2008, and permit naturalized SIJs to reunify with their parents.
Professor Scharf in the article further frames the problem in describing its impact on the lives of young people from Guatemala, Honduras, and El Salvador, relating experiences amalgamated from real clients of the immigration law clinic she has supervised for nearly two decades.
The article is Robbing Special Immigrant Juveniles of Their Rights as U.S. Citizens: The Legislative Error in the 2008 TVPRA Amendments, 30 Berkeley La Raza L.J. 41 (2020).
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| McDougal in 2007 (Sam Posten III CC BY-SA 2.0) |
The case arose in connection with allegations that Trump and lawyer Michael Cohen cooperated with the National Enquirer to "catch and kill," that is pay for and suppress, potentially damaging stories about Trump's personal life. Relying on allegations in the complaint (citations and notes here omitted), the court summarized the background as favorable to the plaintiff:
Ms. McDougal ... became the subject of front-page stories following the 2016 United States Presidential Election based on allegations that she had engaged in a year-long affair (from 2006-2007) with now-President Trump.
The allegations of an affair arose during the 2018 investigation and guilty plea of Mr. Trump’s lawyer and aide Michael Cohen on charges that he violated federal campaign finance laws. Specifically, law enforcement investigators and the media revealed that in the months leading up to the 2016 election, American Media, Inc. (“AMI”)—the company behind National Enquirer and whose CEO, David Pecker, allegedly is close with the President—had paid Ms. McDougal $150,000 in exchange for the rights to her story about the affair with Mr. Trump. AMI then assigned the rights to the story to a corporate shell entity formed by Mr. Cohen allegedly at Mr. Trump’s direction, and in exchange for the assignment Mr. Cohen paid AMI $125,000.
During the Government’s investigation of these payments, Mr. Cohen and Mr. Pecker both revealed that Mr. Trump had directed the AMI payment to Ms. McDougal in the first place, and then personally reimbursed the payments himself, all as part of an effort to avoid having the allegations affect the 2016 election. Mr. Trump initially had denied knowledge of any payments to McDougal, but by December 2018, had admitted to the payments, arguing that they were made on the advice of Mr. Cohen and that any illegality was Cohen’s fault. Mr. Cohen ultimately was charged with and pleaded guilty to violations of campaign finance laws.
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| Carlson in 2018 (Gage Skidmore CC BY-SA 2.0) |
"Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.
"Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.
"Oh, but you're not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions."McDougal sued for slander per se over the accusation of extortion. The court dismissed the case on Thursday on two grounds. First, the court ruled that Carlson's statements were protected by the First Amendment as hyperbolic comment on politics. Second, the court ruled that McDougal had failed to plead a case that could meet the high bar of actual malice, i.e., that Carlson knew the assertions to be false or spoke in reckless disregard of truth or falsity.
The case seems soundly decided, though has curious implications for what passes as journalism today. As Slate observed, the former holding accepts the argument of Fox News that reasonable viewers of Carlson's show are "in on the gag[:] ... [that] Carlson is not 'stating actual facts' but simply engaging in 'non-literal commentary'[;] ... that given Mr. Carlson’s reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about the statements he makes." The court concluded, "Whether the Court frames Mr. Carlson’s statements as 'exaggeration,' 'non-literal commentary,' or simply bloviating for his audience, the conclusion remains the same—the statements are not actionable."
The case is McDougal v. Fox News Network, LLC, No. 1:19-cv-11161 (S.D.N.Y. Sept. 24, 2020). The case was decided by U.S. District Judge Mary Kay Vyskocil, a New York City corporate litigator whom President Trump appointed to the bench. For the related subject of "catch and kill," I added links to McDougal under the Clifford cases at the Trump Litigation Seminar. Read more about Tucker Carlson in the Columbia Journalism Review (Sept. 5, 2018).
I'm indebted to Trump Litigation Seminar student Kevin Burchill, who timely unearthed this interview with the late Justices Ruth Bader Ginsburg and Antonin Scalia by journalist and journalism professor Marvin Kalb. From the cue linked below (at 21:42, for six or so minutes), they discuss New York Times v. Sullivan (U.S. 1964).
Nonetheless a First Amendment advocate, I have long shared Justice Scalia's unpopular position that Sullivan was incorrectly decided. I don't contend that the newspaper should have lost. In the civil rights context in which the case arose, Sullivan played a critical role in relieving segregationists of state tort law as a weapon. However, there were many paths to that outcome that did not require the wholesale federalization and constitutionalization of state defamation torts.
The consequences, as suggested even by chapter 19 ("Back to the Drawing Board?") of Anthony Lewis's classic 1991 panegyric and case biography, Make No Law, have been disastrous, because Sullivan undermined the laboratory of common law experimentation in the states. Today, for example, the "public interest" approach to public-figure defamation in the UK Defamation Act shows great promise as a model to balance the rights of reputation and free speech. And other countries, such as Australia, seem to be getting along well with much more limited Sullivan-like protection for free speech on public affairs, without the big sky of democracy collapsing across the outback. Yet we in the United States remain tethered to a near-immunity doctrine born of a bygone era.
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| RBG (Kalb Report) |
What if, say, new technology caused mass media entry barriers to fall? And then we had a proliferation of partisan pundits, or even disinformation, pouring through our information flows? If Sullivan were then not up to the job, we might find our hands tied by unyielding constitutional cable. We might flail, helpless, in trying to restore integrity to the democratic space.
Perish the thought.
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| Rep. Herod |
The conference's first general session focused on economic development and offered up another compelling colloquy. Nothing was settled, but advocates on both sides of the transparency problem pressed their best arguments and pulled no punches.
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| Bryant (RLB) |
Caught in the crossfire, Albuquerque, N.M., chief administrative officer Sarita Nair has worked previously on both sides of the divide, and now, she said, is the policymaker having to balance priorities. I agreed with her sentiment recognizing that, at least, we've come a long way from the bad ol' days of heck-no, everything's-a-trade-secret FOIA exemption.
Other conference topics include access to protected health information during the pandemic and virtual public meetings. Look for more video replays on the NFOIC YouTube channel.
In a case that wrapped up in July, UMass Dartmouth (my employer) settled a pro se lawsuit by a former male student who challenged disciplinary action as improperly gender-motivated under Title IX. UMass Dartmouth agreed to pay the plaintiff $70,000, but the settlement record was muddled by plaintiff's concern over tax liability.
This case intersects with academic freedom and the First Amendment. Notwithstanding partisan politics, Department of Education Title IX regulations revised in May were meant to rein in universities running roughshod over the civil rights of accused persons, even if with the laudable purpose of protecting the civil rights of complainants. The issue was brought to the fore recently with the suspension of a Yale law professor (disclosure: a well liked professor of mine in law school, when he was a visitor at Duke) amid a Title IX investigation. Skeptical observers have wondered whether the professor's long-held position championing respondent rights under Title IX is an irony or impetus in the case. We'll likely hear more about Title IX due process, or the lack thereof, in connection with the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court.
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| Marine science school at UMass Dartmouth (Ogandzyuk CC BY-SA 4.0) |
So I'm going to step aside and let Connecticut law firm Pullman & Comley, via JD Supra, offer facts and commentary on this case. I've reduced to initials the names of the plaintiff and one administrator here, as not to exacerbate any adverse reputational impact on either of them. Appropriately in my opinion, the plaintiff lost a bid in trial court to proceed pseudonymously. These names, and more names and details, including other implicated administrators at UMass Dartmouth, are readily available to the interested reader through links, court records, and news coverage.
One would be hard-pressed to find more egregious allegations than those in [JH]. The plaintiff, [JH], is a disabled veteran who enrolled at the University to pursue a doctorate in Oceanography. [JH] had a prior criminal conviction, which he disclosed, but he was assured that it would be kept confidential. [JH] maintained a 4.0 GPA during his first year of graduate studies and was recruited by Duke University’s Marine Lab for a summer internship. In May 2016, however, near the end of [JH's] first year, Assistant Vice Chancellor [CC] summoned him to a meeting, accused him of “‘fraudulently disclosing his [criminal] history in his application’” and claimed “that several individuals ‘had recently filed formal complaints regarding [his] misconduct, which created a hostile learning environment.’”
[CC] allegedly declined to provide specifics of these complaints other than that they had been received as early as December 2015—which, if true, would suggest a certain lack of investigatory alacrity on the University’s part—but told [JH] that if he withdrew from the school, he would not be subjected to a Title IX investigation and his criminal history would be kept confidential. [JH] declined to withdraw and, in what would prove a pivotal, albeit alleged, statement, [CC] “threated [sic] to ‘get his kind.’” He was immediately suspended, and [CC] subsequently ordered the Dean of [JH's] degree program “‘to hold an unprecedented all hands meeting with compulsory attendance” [end-quote, sic] regarding [JH]. Within a week, every faculty and staff member and student in his program was aware of his criminal record and the pending Title IX investigation. Furthermore, during the course of that inquiry, the University’s Title IX office allegedly approached two female students and asked them to file complaints against [JH], both of whom declined.
On August 30, 2016, the University informed [JH] that it could not substantiate any violations of either school policies or Title IX. Nonetheless, it issued him a written sanction, limited his interactions with other students, confined him to “a remote, supervised workspace,” removed his faculty thesis advisor, and changed his matriculation status to a non-thesis degree candidate, an outcome that would seem analogous to a criminal defendant being found not guilty but still being sentenced.
As Pullman & Comley further observed, courts "routinely dismiss[] claims that the challenged discipline was driven by the student’s gender in violation of Title IX," so the court's refusal to do so in fall 2019 was remarkable. JH's case appeared bound for trial, but the parties exchanged emails in settlement negotiation in the winter and spring.
That's where the case took an odd turn, worth note for the litigation student. In an email exchange on February 3 and 4, 2020, the university accepted the plaintiff's offer to settle for $70,000. Apparently, the plaintiff learned subsequently that the settlement sum would be taxable. On March 4, 2020, he emailed university counsel to counteroffer a higher sum, $100,000, to help cover his tax liability, which he calculated at $33,250.
The university declined and moved the court to enforce the $70,000 agreement. Finding no fraud, duress, or mistake, the court refused to cut the plaintiff a break for being pro se (docket no. 92, electronic order; I suspect the fellow might be or have been a lawyer, but can't confirm that). The court entered judgment accordingly, but the final settlement agreement, exhibit 1 to the judgment, was not entered into the case file.
Even had JH been represented, I have heard many a story of clients not advised of the tax consequences of settlement. I emphasize the point, and what should be the lawyer's obligation, every year to my 1L students in Torts. There's no tax break, moreover, for attorneys' fees. A plaintiff who has to pay a hefty contingency fee, and then costs, and then taxes, can end up winning a lawsuit and owing money. Further complicating matters, the taxability of lawsuit winnings is not always clear and might require a tax lawyer to sort out. Ain't America great?
Anyway, the settlement in JH v. UMass Dartmouth does not look good for the university, especially in a time when faculty and staff are being burdened with pay cuts to keep the university solvent.
The case is [JH] v. University of Massachusetts Dartmouth, No. 1:19-cv-10705 (D. Mass. July 23, 2020), Judge Richard G. Stearns presiding.
The case comes just two
months after a failed bid by presidential brother Robert S. Trump to
enjoin publication of Mary's book, and one month after Mary's release of audio recordings in which her aunt condemned the President. Considering the First Amendment and
the futility of last-minute injunction, the court in the earlier case
refused to enforce the confidentiality provisions of a family agreement
that settled litigation arising from the deaths of Robert, Maryanne, and the President's
parents, Mary's grandparents, Fred and Mary Anne, in 1999 and 2000. Robert S. Trump died on
August 15, 2020. Try to keep up.
To navigate the statute of limitations, Mary Trump alleges that she only became aware of the fraud upon the publication of investigative journalism by The New York Times in 2018 (pay wall; about). Links to the dockets, the complaint in the latest Mary L. Trump case, and the court decision denying injunction in the Robert S. Trump case are now posted at the Trump Litigation Seminar blogsite, a project of The Savory Tort. HT @ TLS students Spencer K. Schneider and Richard Grace.
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| Attorneys Melanie Conroy, Marjan Hajibandeh, and Matthew M.K. Stein |
Our topical reach was a breathless sprint across a dramatic landscape. We opened with our respective thoughts on developments in privacy law, Conroy observing that the fast-paced field has undergone seismic shifts again and again in recent years, from the implementation of the California Consumer Privacy Act (CCPA) to the $18m Equifax data breach settlement in Massachusetts.
I spoke to the impact of the European Court of Justice decision ("Schrems II" (ECJ July 16, 2020)) invalidating the U.S.-EU Privacy Shield as a motivator for U.S. reform. Besides the significance of the case in Europe and our foreign relations, the decision signals that a quarter century after adoption of the first European Data Protection Directive, Europe's patience with American recalcitrance has finally run out.
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| Julie Brill (MS CC) and William Kovacic |
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| Sen. Cantwell |
For my part, I predict that our dawning, if belated, understanding of the monetary value of personally identifiable information (PII) will lead us to the inevitable conclusion that theft alone suffices. This is evidenced, for example, in Hogan v. NBCUniversal (D.R.I. filed Aug. 27, 2020), over the sale of Golf Channel subscriber identities, which subsequently were associated with other PII and resold. Though for the time being, my favored conclusion is arguably not the inclination evidenced in the U.S. Supreme Court in Spokeo, Inc. v. Robins, in 2016. Senator Dick Blumenthal (D.-Conn.) mentioned this week, apropos of current events, that Justice Ginbsburg, joined by Justice Sotomayor, dissented in Spokeo on just this point.
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| The late Justice Ginsburg; Sen. Blumenthal |
In parting observations, I offered that we have a long road ahead. Of all the bills pending in Congress (see EPIC's excellent April report), only some propose a private cause of action and none attacks the problem of government surveillance, both purported prerequisites to European restoration of authorized trans-Atlantic data flow. Within the U.S Congress, there appears to be bipartisan support for some kind of nationwide privacy legislation. But the questions of private or FTC enforcement, and whether preemption would mean a legislative floor or ceiling remain sticking points that could derail the process.
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| Mike Ryan |
Attorney Ryan’s previous experience includes government relations, legislative affairs and business law matters. He has significant experience negotiating with municipal and state government agencies regarding economic incentives for Opportunity Zone real estate development and worked as Manager of Public Affairs and Government Relations for a lobbying and communications firm. Attorney Ryan earned his J.D. from the University of Massachusetts School of Law, summa cum laude, where he was Executive Notes Editor of the Law Review. He graduated from the University of Rhode Island, summa cum laude, with a B.A. in Political Science and is a member of the Phi Beta Kappa Honor Society. Attorney Ryan is admitted to practice in Rhode Island and is a member of the Rhode Island Bar Association Business Organizations Committee.
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