Weapon of Putin's war, anti-gay law jars NHL in US

The NHL Chicago Blackhawks Sunday will host an annual Pride Night, but the team will not be wearing warm-up pride jerseys as intended, for fear of jeopardizing the safety of Russian players and their families.

Yesterday I got to talk about the story with Sasha-Ann Simons of Reset on WBEZ Chicago Public Radio. You can hear the segment online. HT @ ace producer Micah Yason.

WBEZ sports contributor Cheryl-Raye Stout related the facts and layered some nuance on the story. She expressed concern that Blackhawks staff had not consulted their three Russian players. In a Philadelphia Flyers case in January, a player refused to wear a pride jersey, citing his Russian Orthodox religion. It's unclear where the Russian Blackhawks stand.

No one disputes, though, that wearing the jerseys might be problematic for the players as a matter of Russian law and policy. In December 2022, Russia doubled down on the 10-year-old anti-gay law that was a source of controversy during the 2014 Sochi Olympics and the 2018 FIFA men's World Cup.

Under international pressure, Russia was permissive in enforcement of the law during those tournaments. But the failure of the International Olympic Committee and FIFA to reconcile their bold anti-discrimination rhetoric with host-country legal jeopardy for athletes and fans was a bad look and did no favors for human rights. More or less the same drama just played out again with the FIFA World Cup in the fall in Qatar, where homosexual acts are criminalized.

As enacted in 2013, the Russian law imposes civil fines on persons and business, and detention and deportation for foreigners, who engage in "propaganda" promoting same-sex relationships. Propaganda, though, really means any representation of social acceptability, including even the rainbow flag.

The law was enacted as a child protection measure and referred only to expression to children, though that scope encompassed mass media. In 2022, President Putin signed into law an amendment to broaden the law to cover expression to any person, child or adult, and to make plain that trans representations are prohibited, too.

Russian refugees march in New York in 2013.
Bosc d'Anjou via Flickr (CC BY-NC-SA 2.0)

Thus, a Russian athlete photographed wearing a pride jersey in America might face legal repercussions upon returning home. But the risk is really much greater than just civil fines, I explained to Simons on Reset. Informally, the law has signaled indifference by Russian authorities to brutal violence inflicted on LGBTQ persons, or even persons suspected of being LGBTQ, by vigilantes, if not law enforcement. An athlete abroad fairly might fear such reprisal upon returning home, or fear for her or his family meanwhile.

One thing I did not get to say on Reset, that I think is important, is that Putin's expansion of the anti-gay law is complementary of his war in Ukraine, because he perceives both as integral to preserving Russian identity against Western acculturation. Foreign Policy called the issues two sides of the same coin, and Putin has spoken of Western territorial aggression and social policy in the same breath. Doubling down on the anti-gay law in December was calculated as just another salvo in the war. That means, if Brittney Griner were not warning enough, that Putin is prepared to weaponize the law.

Robbie Rogers, 2013
Noah Salzman via Wikimedia Commons CC BY-SA 3.0

Our Reset discussion touched on other related matters, such as the Iranian side's protest at the Qatar World Cup, which I wrote about here in November and spoke about in Poland. I've written previously on the World Cup and sexual equality (with Jose Benavides), the World Cup and human rights, and football and development. 

A paucity of representation in top-flight world sport indicates that laws such as those in Russia and Qatar are hardly the only source of hostility toward LGBTQ athletes. In 2022, in the run-up to the men's World Cup, there was only one openly gay international footballer, and he didn't make the final cut for Australia's squad in Qatar. (There are openly lesbian players in women's world football.)

A good read in this area is Coming Out to Play (2014), an autobiography by Robbie Rogers, co-authored with Eric Marcus. An American and a Christian, Rogers played for Leeds United in the UK and for the U.S. Men's National Team. In 2013, he publicly disclosed that he is gay at the same time he announced his retirement from football, though he returned to the sport to play for four more years with the LA Galaxy in the U.S. MLS.

In wake of Stanford free speech fiasco, Duncan models civility, and dean surprises with powerful letter

Abortion rights rally at Stanford Law in 2022.
(Suiren2022 via Wikimedia Commons CC BY-SA 4.0)

After the brouhaha at Stanford Law School in which protestors disrupted a lecture by Trump-appointed U.S. Circuit Judge Kyle Duncan, Stanford Dean Jenny S. Martinez this week stood up for free speech on campus.

There are video and audio recordings aplenty on the internet if you want to learn more about what happened March 9. Here's David Lat with the play by play. For my money, the take-away is that a guest federal judge was treated disrespectfully—dare I say uncvilly?—in an effort to silence him, and even a school administrator joined in the effort. That must have been the dean's take, too, when she issued an apology to Duncan, which drew a disruptive protest of her office in turn.

Martinez's letter is masterful and worth a read for the First Amendment refresher and expression of commitment to academic freedom at even a private school. She put the protesting administrator on leave and pledged mandatory educational programming for the student body on free speech and legal professionalism. 

Frankly, I was shocked. I do not expect deans in today's legal academy to stake out clear and strong positions on, well, anything other than which way the wind is blowing.

Today Duncan appeared at Notre Dame Law School and talked about the incident. His remarks and the Q&A livestreamed and are available on YouTube. To be fair, many renditions of what went down at Stanford report rudeness from both sides, whoever struck the first blow. However so, there was none of that at Notre Dame. Duncan's remarks were unremarkable, but that struck the right tone. The thrust of his assessment was that zealous disagreement is laudable, but shouting down one's opponent or merely vituperating one's ideological adversary does nothing to enrich the marketplace of ideas. Like me here, he lauded Martinez's letter.

In a curious coincidence, and really the only reason I throw my two-cent hat into this ring, I today (at last) finished legendary lawyer Robert Corn-Revere's superb 2021 book, Mind of the Censor and Eye of the Beholder: The First Amendment and the Censor's Dilemma.  The book could not be more on point in the Duncan matter.

Mind of the Censor is chock full of engaging prose and a paean to the freedom of expression in our troubled times. But it's the final chapter that delivers the biggest bang for the buck with a delightful Jeff Foxworthy-esque list of 10 reasons to suspect "you might be a censor."  And apropos of Duncan's comments today, Corn-Revere's number 8 reads, "You Might Be a Censor if You Believe that Silencing Speech You Dislike Is the Exercise of Your Rights."

I wrote just this week about "civility" being deployed as a new, conveniently vague code word to suppress academic freedom. To be clear, I wasn't speaking against civility. The problem arises in the misuse of the word to differentiate speech one wants to hear from speech one does not want to hear.

It's OK to disagree with Duncan, indeed, to disagree vehemently. He spoke today of the challenge all judges face in remaining open to the possibility that they are wrong in their preconceptions. Civility is about respecting other people regardless of agreement or disagreement, and acting ethically, accordingly. Thus, willingness to hear challenges to our thinking is part and parcel of civility and goes hand in hand with an expectation that others will hear our challenges, too.

I'm really not wrong about this.

'Civility' is code for conformity

The Massachusetts Supreme Judicial Court two weeks ago struck down a town policy purporting to require civility in public meetings. The town policy resembles attempts to restrict academic freedom.

Board meeting, via Southborough Access Media video
(Kolenda at center).

'Civility' in Politics

In December 2018, Southborough, Massachusetts, resident Louise Barron took advantage of a public comment period at a town board meeting to call out board members on fiscal policy and, ironically, compliance with state open meetings law. Though not obliged to, board members responded. The discussion became heated, resulting in Barron calling one selectman, Daniel Kolenda, "a Hitler," and Kolenda abruptly ending the comment period and expelling Barron. (The meeting is on YouTube (cued). Read more at Wicked Local.)

Board policy provides for an open public comment period for extra-agenda items with this admonition:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.

Barron challenged the policy and her expulsion under the freedom of assembly and freedom of speech provisions of the 1780 Massachusetts Declaration of Rights, articles 19 and 16, respectively. Barron forewent challenge under the younger (1791) First Amendment to the U.S. Constitution to keep the case in state court. 

And just as well. The Massachusetts Declaration is a revered document in its own right in American history and global human rights, and the Massachusetts Supreme Judicial Court has not hesitated to construe its provisions as more protective of civil rights than the federal standard. Indeed, for many years, well before I came to work in Massachusetts, I taught a public seminar on the First Amendment for the Freedom of Information Foundation of Texas and used the Massachusetts Declaration to demonstrate the close connection of FOI and assembly.

Article 19 provides, "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."

In teaching freedom of information law, I often shorthand the constitutional context of access law as the "flip side of the coin" of the First Amendment. The idea is that the freedom of speech is meaningless, especially in the core protection of political expression, if one does not know the facts to speak about.

The coin characterization is useful, but it's not entirely accurate. The First Amendment recognition of assembly as ancillary to expression aptly indicates an interrelationship that is more an intertwining than a duality.

Board meeting, via Southborough Access Media video
(Barron at right).

In the opinion of the court, Justice Scott L. Kafker recounted Article 19's "illustrious" history.

The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. ... [Article] 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.

Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns. Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble.... Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre.... 

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low ... [to speak his senti]ments of public Affairs.".... Town inhabitants, he wrote, "are invested with ... the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town." .... "The consequences" of the right of assembly, in Adams's words, were that "the inhabitants ... acquired ... the habit of discussing, of deliberating, and of judging of public affairs," and thus, "it was in these assemblies of towns ... that the sentiments of the people were formed ... and their resolutions were taken from the beginning to the end of the disputes ... with Great Britain." .... Alexis de Tocqueville made a similar point in Democracy in America: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it." ....

Cousins Samuel Adams and John Adams
(via JohnAdamsInfo.com)

The court had little difficulty concluding that the town policy thus ran afoul of article 19. 

There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.

The court furthermore held the town policy overbroad and vague in violation of the article 16 freedom of speech. The case did not require the court to determine whether the First Amendment public forum doctrine applies to article 16 problems, the opinion explained. Massachusetts precedents already establish that content-based restrictions of political speech are subject to strict scrutiny. Worse, the court reasoned, the policy is viewpoint based, as it allows "polite[] praise[]" of public officials while condemning "rude[] or disrespectful[] critici[sm]."

Well reasoned as it is, the decision in Barron v. Kolenda, No. SJC-13284 (Mar. 7, 2023), does not break new ground in freedom of speech, even in Massachusetts law. And the case has been well reported with commentary, for example by J.D. Tuccille for Reason ("Let Massholes Be Massholes, Says Bay State's High Court"), and by Pioneer Legal, The New York Times, and the Brennan Center. What enticed me to write about the case is the likeness of the civility code to efforts to extinguish academic freedom.

'Civility' in the Workplace

The go-to code word on American college campuses to curb faculty freedom has been "collegiality." Introducing a 2016 report, the AAUP explained:

In recent years, Committee A has become aware of an increasing tendency on the part not only of administrations and governing boards but also of faculty members serving in such roles as department chairs or as members of promotion and tenure committees to add a fourth criterion in faculty evaluation: "collegiality." For the reasons set forth in this statement, we view this development as highly unfortunate, and we believe that it should be discouraged....

.... Historically, "collegiality" has not infrequently been associated with ensuring homogeneity and hence with practices that exclude persons on the basis of their difference from a perceived norm. The invocation of "collegiality" may also threaten academic freedom. In the heat of important decisions regarding promotion or tenure, as well as other matters involving such traditional areas of faculty responsibility as curriculum or academic hiring, collegiality may be confused with the expectation that a faculty member display "enthusiasm" or "dedication," evince "a constructive attitude" that will "foster harmony," or display an excessive deference to administrative or faculty decisions where these may require reasoned discussion. Such expectations are flatly contrary to elementary principles of academic freedom, which protect a faculty member’s right to dissent from the judgments of colleagues and administrators.

I witnessed this problem in action in those "recent years." "Collegiality" as an excuse to demand conformity was key in prompting me to write and speak in 2009 and 2010 about the importance of what I termed "penumbral academic freedom." 

Are you part of "the team" at work?
(Rawpixel Ltd via Flickr CC BY 2.0)

The problem has only worsened. In fact, I see the "collegiality" expectation as a piece of the broader problem of corporate ideology that insists on everyone being a "team player." That's the coded language designed to alienate workers who hesitate to take on extra duties or to give up personal time without fair compensation. Too long in coming, the "quiet quitting" movement is a direct response to this self-serving worldview.

Though "team speak" is not a specially academic problem, the ever more corporatized public university embraces the jargon. Routinely, I hear my work for a public entity described as "public service." The characterization is invariably paired with a demand that I take on some additional responsibility with no more, if not with less, compensation, and certainly with less compensation than a similarly skilled colleague at a private institution.

The rhetoric is exhausting. I'm not on your "team." The faculty is not my football side. The office is not my church. The institutional "mission" is not my creed. Rather, I do a job. I get paid for the job. Quid pro quo. Often, I enjoy my work, and sometimes, I'm good at it. But it's work. Then (even when the switch is merely virtual) I go home. Where I don't work for anyone else. Where I have a family and a life. Where I hope to win the lottery and quit my job.

That arrangement should be a source of pride, not shame. A public institution performing a public service is no less laudable because its staff is paid rather than volunteer. When administrators, especially handsomely compensated deans and chancellors, break out the "public service" rhetoric, hat in hand, I want to ask why they cash their paychecks, if they're so committed to "public service."

Just as I digested the court's Barron decision and commentary last week, Professor Robert Steinbuch, a (genuinely collegial) colleague at another public law school, told me about a proposed amendment to his school's selection criteria for distinguished professorships. 

Apparently, there was dissatisfaction by some faculty, I assume for the very reasons the AAUP warned, that "collegiality" was an express factor in the assessment. Thus, the law school faculty development committee proposed changes including the following (red-ink deletions and additions as in original).

In awarding named professorships, the Dean shall consider criteria in addition to a candidate's meritorious work in their particular field, including but not limited to donor specifications associated with the title, the overall mission of the law school, and continued excellence in scholarship, teaching, service, civility, and respect and collegiality as outlined in the Bowen Faculty Handbook, and established University policy, or the Association of American Law Schools Best Practices.

....

III. SERVICE & COLLEGIALITY

....

In the space provided below, please describe any additional information you wish to provide reflecting exemplary service rendered in the spirit of civility, respect collegiality and collaboration at the law school and the university level and wider recognition at the national or international level.

....

Self-Assessment: Using the categories of scholarship, teaching, service, civility, and respect and collegiality in this Application, in the space provided below, please provide a candid assessment of how you would represent this Named Professorship while you held the award.

I suppose that any candidate selected for a distinguished professorship at this public law school, like anyone commenting on the performance of public officials in Southborough, Massachusetts, before Barron, "must be respectful and courteous" and refrain from the "rude" and "personal." Faculty governance is all well and good, as long as no one is offended.

Let the revolution be quelled.

Expert explains Ecuadorean constitutional law

Ugo Stornaiolo Silva
(via Mises Institute)

An Ecuadorean lawyer and LL.M. candidate, Ugo Stornaiolo Silva thinks deeply about constitutional law and social and economic organization. Today he'll speak to my Comparative Law class.

The Constitutional Court of Ecuador has been garnering headlines in recent years with landmark rulings in areas such as indigenous rights, animal rights, and the rights of nature. I wrote here last summer about the successful habeas petition of a woolly monkey. That case followed a decision in which the court compelled the government to hear from indigenous people in the Amazon before authorizing extraction projects (before decision).

Last year Stornaiolo wrote a piece for The Libertarian Catholic (other work there) comparing the U.S. Supreme Court with the Constitutional Court of Ecuador. While the Ecuadorean court often appears to the world as a monolithic bastion of progressivism, the court in fact has an ideological divide that is analogous to, though different from, the conservative-liberal divide of the U.S. Supreme Court, Stornaiolo explained. He wrote,

[f]or instance, the Ecuadorian Constitutional Court textualist faction would be composed by President Salgado, and judges Nuques, Herrería Bonnet, Corral, with both Salgado and Corral filling in for Clarence Thomas position as the often-dissenting originalist in the Court, and Herrería Bonnet as more moderate, and its so-called "garantist" and "progressive" faction would consist of judges Grijalva, Ávila, Lozada, Salazar and Andrade, with Ávila and  Salazar filling in for Sonia Sotomayor’s position as the most activist judges, considering they have drafted some of the most controversial majority opinions of the Court in cases such that ruled on the constitutionality of cannabis recreational use, same-sex marriage, abortion and the criminality of teenage consensual sexual relations.

Stornaiolo's other work has examined comparative constitutional interpretation and the public-private divide. In the United States, Stornaiolo has been an academy fellow for the Heritage Foundation and a research fellow for the libertarian Mises Institute. I was fortunate to have Stornaiolo as a student in my American Tort Law class in fall 2022 at Jagiellonian University in Kraków, Poland, where he is studying for his LL.M. in a joint program with The Catholic University of America in Washington, D.C.

On Monday, March 20, Stornaiolo will join my Comparative Law class via Zoom to talk about the Constitutional Court of Ecuador and comparative constitutionalism in Latin America more broadly.

With fascinating developments in constitutional law afoot in Latin America and the Ecuador Constitutional Court driving the trends, Stornaiolo is a lawyer to watch.

FOI seminar shines light on transparency research

In fall 2022, students in my freedom-of-information (FOI) law seminar produced another range of compelling research papers in which they inquired into hot issues in the law of access to government.

It's been my privilege to teach a law school seminar in FOI since 2004. For other teachers who might like to include FOI in the higher ed curriculum, my 2012 casebook and companion teaching notes are now available in full on my SSRN page. Please contact me if my contemporary syllabus or other materials can be of help. I teach the law of access broadly, from state law to federal, and in all branches of government. Students moreover are encouraged to pursue research projects in any vein of transparency and accountability, including access to the private sector, which has been a focus in my research, too.

In fall 2022, my students had the fabulous opportunity to participate contemporaneously in the online National FOI Summit of the National Freedom of Information Coalition (NFOIC).  I'm grateful to NFOIC President David Cuillier and Summit Organizer Erika Benton for making our participation possible.

My fall class was joined by a number of guest speakers who vastly enhanced students' exposure to FOI law, research, and practice. I am especially grateful to Professor Alasdair Roberts, UMass Amherst, who joined us live to talk about all things FOI, from his classic book Blacked Out (Cambridge 2012) to the implications for transparency and accountability of the research in his latest book, Superstates (Wiley 2022).

I thank Professor Robert Steinbuch, Arkansas Little Rock, who joined us to discuss his tireless work as an advocate in the legislature for transparency. He now writes powerfully about transparency and accountability as a regular columnist for The Arkansas Democrat-Gazette, and he is author of the treatise, The Arkansas Freedom of Information Act (LexisNexis 8th ed. 2022). I thank Professor Margaret Kwoka, Ohio State, who took time away from her ongoing FOI research in Mexico to join us to talk about that work and her recent book, Saving the Freedom of Information Act (Cambridge 2021).

I also thank attorney Alyssa Petroff and current law student Megan Winkeler, who joined us via Zoom to talk about their FOI research.  An alumna of my FOI seminar (as well as Comparative Law) and now a judicial law clerk for the Maine Supreme Court, Petroff discussed her recent article in The Journal of Civic Information on access to information about private prisons in Arizona.  An alumna of my 1L Torts classes, Winkeler has four years' experience in negotiation and mediation training and currently is researching negotiated rule-making in administrative law.

Here are the students' ambitious projects.

Madison Boudreau, The Benefits and Drawbacks of Reform Targeting Police Misconduct. The movement to increase public access to police misconduct and disciplinary records has proven to be a beneficial and necessary step toward heightened transparency and accountability of police departments and officers. However, states that have taken strides to open up access to these records continue to grapple with the ongoing barriers to public access despite their efforts. States seeking to implement similar changes to their open records laws will benefit by remaining aware of potential drawbacks to access despite reform. In the absence of impactful reform that effectively mandates the disclosure of these records, police departments have shown to prefer to remain under a cover of darkness, their internal personnel procedures left unchecked. As a result, the cycle of police secrecy is bound to viciously repeat itself.

Aaron Druyvestein, The Rise of Vexatious Requester Laws: Useful Regulation or Evasive Government Practice? The concept of freedom of information allows anyone to request any agency record for any reason, a model that has been replicated around the world and celebrated as a necessity for promoting democracy. The underlying goals of FOI to promote accountability are contingent on the government providing a strong and efficient FOI system. However, with the dramatic increase in FOI requests in the country, brought about in large part by better utilization of technology in FOI processes, there has been an increase in the burden on administrative agencies as a result of excessive, repetitive, or vindictive FOIA requests. Since 2010, governments' responses to these burdensome requests have resulted in the creation of so-called vexatious requester laws, which are intended to mitigate the effect of these requests on agencies.

Critics of vexatious requester laws argue that the laws are nothing more than a feeble attempt by the government to undermine otherwise valid records requests under the guise of improving government efficiency and reducing requester harassment. Concerns have been expressed that the laws' reliance on ambiguous terminology such as "vexatiousness" will give agencies discretion to deny requests based on subjective and unverifiable agency determinations of the requester's intent or motives for requesting. This paper analyzes the rise and application of vexatious requester laws as seen in the three states—Illinois, Connecticut, and Kentucky—that have passed statutory provisions permitting administrative agencies to deny requests to vexatious requesters. In addition, this paper investigates the policy implications of such laws on the broader FOIA system.

Alise Greco, Read It Before You Eat It: An Explicatory Review of the 2016 Nutrition Facts Label and Balancing FDA Transparency with Consumer Comprehension and the Food Industry. As the nation recovers from the COVID-19 pandemic, it is difficult to ignore how drastically the American lifestyle has changed, especially with regard to diet and exercise. The Nutrition Facts Label (NFL), largely meant to influence and assist consumer decision-making for food and beverages, was last updated by the U.S. Food and Drug Administration (FDA) in 2016. This paper explains the 2016 NFL regulation in greater detail in light of a current need by many Americans to make informed, healthier choices based on science rather than social media or misleading, corporate-designed packaging. The FDA is put under the microscope and evaluated on its ability to balance the needs of consumers to be provided transparent, useful information and the demands from industry to make a profit.

Nicholas Hansen, Only Those Who Count The Vote Matter: A Comparative Examination of Arizona and Federal Transparency Regulations Pertaining to Election Data and Procedure and Their Impact on Citizen Confidence in Democracy. This analysis details the protections afforded under the state of Arizona’s election data exemptions under both the Arizona Open Meetings Act and the Arizona Open Records Act, and provides comparisons to the protections afforded under similar exemptions provided at the federal level. Characterizations of the election data and procedural protections for both levels of government are offered, and examinations of what information is permitted for provision under FOIA requests substantiate these characterizations. This analysis proceeds with an understanding that examinations must be confined to information that is both the subject of and relevant to either historical or ongoing FOIA requests, rather than the information made available to the public through the procedures associated with courtroom disclosures. 

This author posits that Arizona’s trend toward enforcing relative transparency when courts are compelled to examine the efficacy and validity of local election procedures might serve as a model for states whose courts are less inclined toward making such information available to the public at large. Recent lawsuits, including those associated with the largely settled controversies alleged pertaining to the 2020 Presidential election, and those suits pertaining to the use of Dominion Voting System’s voting machines substantiate this advocacy.

This analysis concludes with a determination as to whether or not Arizona’s FOIA exemptions as they pertain to election data and procedural information inspire greater public confidence than those utilized at the federal level. Also offered are policy recommendations as to how the Arizona judiciary might be able to better handle future election data and procedural controversies by utilizing the already extant tools within the FOIA rules, as well as policy recommendations for legislative reform in other states and the federal level, should local legislators and Congress see fit to implement a more transparent, more accessible system of legal procedures to deal with future election controversies.

Mitchell Johnson, Transparency and Tragedy: How the Texas Public Information Act is Being Weaponized After Uvalde, Yet Can Be Used for Good. This comment examines the Texas "law enforcement exception" under the Texas Public Information Act (PIA) regarding the mandamus lawsuit that several media outlets filed to obtain records from the Department of Public Safety (DPS) after the Robb Elementary shooting on May 24, 2022. The paper focused on the DPS, and not on another law enforcement agency at the scene of the shooting on May 24, because of the actions of Colonel Steven McCraw. Colonel McCraw, the highest ranking official in the DPS, has provided inconsistent accounts to the public of what occurred on May 24. This comment also examines the specific exceptions that the DPS claims. The DPS claims that the records that are sought for disclosure are either (1) records relating to an active investigation, or (2) records that relate to the purposes of law enforcement. The DPS’s current utilization of these exceptions is not grounded in law. No criminal investigation is taking place because the shooter is deceased. Furthermore, while Colonel McCraw has stated that his agency is reviewing his troopers’ and rangers’ actions to determine whether there should be a referral to prosecutors, criminal charges might be futile because of governmental immunity. Also, many of the records requested pertain to "basic information" of a crime that must be disclosed under the PIA. Last, the comment proposes that the PIA should be amended to incorporate case law and create a "criminality showing" if a law enforcement agency wishes to withhold documents under an active investigation exception.

Ashley Martinez-Sanchez, The New Jersey Open Public Records Act and the Public Interest in a Narrow Statutory Interpretation of the "Criminal Investigatory" Exemption. The New Jersey Open Public Records Act (OPRA) expresses a strong public policy in favor of open and transparent government. OPRA champions the idea of a citizen's right of access to government records to ensure an informed public. However, transparency is not absolute. The OPRA permits secrecy for ongoing law enforcement investigations.  Courts should narrowly read the "criminal investigatory" exemption. This paper analyzes the evolution of the exemption over the years. It further examines what the future looks like for it in the legislative and judicial context.  I reference New Jersey case law and recent events in the state to contextualize the importance of narrowly reading the exemption. Inversely, the paper suggests that a narrow interpretation of the exemption not only would impede transparency efforts, but would raise civil rights concerns, particularly for marginalized and vulnerable communities in New Jersey. 

Marikate Reese, Police Accountability: Does it Really Exist? This paper demonstrates the power of police unions, and their contracts, in limiting accountability, transparency, and access.  The contracts are the catalyst to shielding officers from disciplinary actions, limiting civilian oversight, and restricting access to misconduct records. While states, such as New York, have become more transparent with their records, the unions still dictate a large part of police procedure.  This procedure includes, but is not limited to, delay of officer interrogations, obstructing investigations of misconduct, and destroying disciplinary records.  The procedures are safeguards put in place by collective bargaining practices, law enforcement bills of rights, and civil labor law protections.  The overall purpose of these safeguards is to establish rights, protections, and provisions for law enforcement officers including the arbitration process, training standards, and process of investigation. This paper provides a brief coverage of the protections afforded by collective bargaining, police bills of rights, and civil labor laws that stand in the way of the public transparency barriers and racial injustice.  Furthermore, this paper addresses how these procedural protections limit accountability while taking a look at the existing laws among various states.  This paper suggests several ways states have made strides for accountability and what limitations might arise as a result.

James Stark, What's the Deal with Doxing? Doxing is an entropic issue plaguing today’s society. Defining what it means to be “doxed” has been a problem that’s compounded by the fact that not all forms of doxing are equal. Some play a useful role in public discourse, while other forms of doxing enable harassment of private citizens. The current anti-doxing laws can be summed up in three categories. First are the “incidentals,” which tend be older laws that just incidentally happen to address doxing in some way due to the language used. The second category is “Daniel’s Law,” which is a law that has picked up traction for trying to protect public officials from doxing and its harms. Lastly are the “general” statutes, which were crafted to specifically fight doxing in general and protect as many people as possible from doxing. In order to properly combat doxing, legislatures need to agree that doxing is the unwanted release of personal or identifying information about an individual as a form of punishment or revenge, and that it can affect anyone, in government or not. The legislatures must focus on creating “general” statutes, and tailor the laws to protect the individuals, while allowing discourse around public officials. A poorly written anti-doxing law will result in either censorship or inadequate protection of individual Americans.

Marco Verch Professional Photographer via Flickr CC BY 2.0

Chad Tworek, Public But Private Athletic Departments. This paper address the Florida state policy that allows public universities to designate their athletic departments as private, thus evading the records requests for which compliance is required for any other public agency. In Florida, there are athletic departments at public universities that are private. While they are not funded by the university, they still act as an agent of the university and are afforded the same protections as public universities. If anyone is to sue these departments and seek to claim damages, there is a statutory cap on damages, $200,000. The cap pertains because courts find them to be mere components of the public entities they serve. Yet protection from public records requests allows these departments to accumulate money in secret and to spend without accountability. Such organization of athletic departments is moreover occurring elsewhere in the United States. The impact is to keep the public in the dark about how these arms of government do business.

Judge chides attorney for not wearing coat

An Arkansas Supreme Court justice earlier this month called out a professor-attorney for not wearing a coat in a Zoom argument.

Associate Justice Courtney Rae Hudson took to task attorney and Professor Robert Steinbuch, Arkansas Little Rock, my colleague and past co-author on freedom-of-information works (book, essay), first, for not wearing a coat over his button-down shirt in the Zoom argument on February 2, and then for not having asked advance permission to use a demonstrative exhibit. She had the court and counsel wait painfully while Steinbuch and his attorney-client fetched coats.

Steinbuch probably should've worn a coat. He told Justice Hudson he had not because it interfered with his handling of the exhibit, a statutory text, within the small space of the camera view. Good excuse, bad excuse; either way, Justice Hudson's handling of the matter was condescending and, coming as it did after Steinbuch's argument, felt more personal than professional. My impression as a viewer was that Hudson was the one who came off looking worse for the exchange.

Being an aggressive advocate for transparency and accountability in Arkansas, Steinbuch has many allies in mass media, and they were not as gentlemanly about what went down as Steinbuch was. The aptly named Snarky Media Report made a YouTube video highlighting the exchange.  As Snarky told it, "Justice Hudson pulled out her Karen Card." Snarky also observed, with captured image in evidence, that "[s]everal times during the hearing Hudson appeared to be spitting into a cup."

More seriously, Snarky took the occasion to highlight past instances in which Hudson's ethics were called into question. Hudson (formerly Goodson), who was elected to the court in 2010, and her now ex-husband, a class action attorney, took two vacations abroad, valued together at $62,000, at the expense of Arkansas litigator W.H. Taylor (Legal Newsline). Hudson did report the gifts, and she said she would recuse from any case in which Taylor was involved.

Very well, but my suspicions of bias run a bit deeper. Hudson's vacation-mate ex, John Goodson, is chairman of the board of the University of Arkansas. (Correction, May 9, 2023: I'm told that Goodson ended his service on the board a year or so ago; I've not been able to ascertain the date.) One of Steinbuch's tireless transparency causes has been for Arkansas Freedom of Information Act access to the foundation funding of the university system in Arkansas, especially the flagship University of Arkansas, Fayetteville. Indeed, Steinbuch wrote just last week (and on January 29), in his weekly column for The Arkansas Democrat-Gazette, about that very issue in connection with secret spending at Arkansas State University. University System counsel have fought ferociously and successfully for decades to stop any lawsuit or legislative bill that would open foundation books to public scrutiny.

Goodson also has what the Democrat-Gazette characterized in 2019 as "deep political and legal connections around the state" with disgraced former state Senator Jeremy Hutchinson. Hutchinson is a nemesis of former Arkansas politician Dan Greenberg (a longtime friend of mine). After Greenberg lost the senate race to Hutchinson in 2010, Greenberg sued a local newspaper, alleging a deliberate campaign of misinformation. Steinbuch supported Greenberg in the suit. Though Greenberg was unable to demonstrate actual malice to the satisfaction of the courts, discovery in the suit revealed a problematically cozy relationship between the newspaper editor and Hutchinson.

The day after the oral argument in Steinbuch's case, Hutchinson was sentenced to 46 months in prison on federal charges of bribery and tax fraud—ironic, given that a false report of ethical misconduct was a rumor that Hutchinson had sewn about Greenberg in 2010. 

I don't know; maybe Justice Hudson just gets really hung up on men's attire.  She does hail from a conservative corner of Arkansas.

But a wise friend once told me, "Nothing in Arkansas happens for the reason you think it happens."

The case is Corbitt v. Pulaski County Jail, No. CV-22-204 (Ark. oral arg. Feb. 2, 2023).

Program to examine Genocide Convention, Ukraine

The Jagiellonian Law Society has announced a follow-up seminar, on March 14, 2023, on the subject of Polish-Jewish attorney Rafał Lemkin, his role in creating the UN Genocide Convention, and the relevance of Lemkin and the convention to the war in Ukraine.

In a previous seminar in December, speakers detailed the historical context of Lemkin's life and work. A featured guest in the March program will be the Hon. Stephen J. Rapp, U.S. ambassador-at-large for global criminal justice from 2009 to 2015, and more recently a visiting fellow of practice at the Blavatnik School of Government, University of Oxford.

Here is the program description and information about registration, free but required, CLE credit available, from the Jagiellonian Law Society.

We would like to invite you to another webinar on Raphael Lemkin, Genocide, and the Modern World, keynoted by Ambassador Stephen J. Rapp and featuring distinguished international faculty!

Rafał (or Raphael) Lemkin was a Polish Jewish lawyer best known for coining the term "genocide" and a key person behind the UN Genocide Convention. For that work, he was twice nominated for the Nobel Peace Prize. On the 50th anniversary of the Convention entering into force, Lemkin was honored by the UN Secretary-General as an inspiring example of moral engagement.

The upcoming seminar is the second part of the webinar series discussing the crime of "genocide" and its applicability to the current events in Ukraine and beyond. We will discuss whether Lemkin’s ideas are helpful in the prosecution of mass murders and other crimes aimed at eliminating or erasing entire groups of people. We will also address the likelihood of a successful prosecution of atrocities committed in Ukraine, be it as "war crimes," "crimes against humanity," or a "crime of aggression," via either international or national courts or via special tribunals.

The webinar is presented by the Jagiellonian Law Society with support from the Kosciuszko Foundation and co-sponsored by many organizations, among them ABA, NYSBA, UBA, NJSBA, etc.  It is free and open to the public. Spots are limited. Registration is required.

We are honored and proud to announce that Ambassador Stephen J. Rapp, the United States Ambassador-at-Large for Global Criminal Justice, will be our keynote speaker, and we are honored and delighted to present to you our most distinguished international Faculty:

Professor Agnieszka Bieńczyk-Missala, Professor in Political Sciences at the University of Warsaw

Prosecutor Thomas Hannis, former lead prosecutor, UN International Criminal Tribunal Yugoslavia

Professor A. Dirk Moses, Anne and Bernard Spitzer Professor of Political Science at the City College of New York, CUNY

Professor Ana Filipa Vrdoljak, The UNESCO Chair in International Law and Cultural Heritage, Technical University, Sydney, Australia

Dr. Mykola Yurlov, International Humanitarian Law and Policy Advisor, member of the Council of the Ukrainian Bar Association in Kyiv

Moderator: Dr. Elizabeth M. Zechenter, Visiting Scholar, Emory University

Time: Mar 14, 2023, 12:00 PM in Eastern Time (US and Canada)

To Register 

We offer Continuing Legal Education (CLE) credits. If interested, please contact Jagiellonian Law Society.

Nigerians pin high hopes on horse-race election

Voters bear PDP flags at a rally in Ilé-Ifè, Osun State, in December.
RJ Peltz-Steele CC BY-NC-SA 4.0

Update, March 1, 2023: Nigerian election authorities declared Bola Tinubu of the incumbent APC party as President-elect. Al Jazeera has data. Obi prevailed in Lagos, Abuja, and a band of southern states including Anambra, but turned in 6.1 million votes to Abubakar's 7 million and Tinubu's 8.8 million, according to official numbers. PDP and Labour vowed legal challenges after an election marred by technical difficulties and incidents of violent voter suppression. The U.S. State Department issued a press release.

Nigerians go to the polls in a landmark presidential election tomorrow, Saturday, February 25.

The election is landmark for many reasons. Nigeria is Africa's most populous nation. Polls show a horse race. The three-way contest with no incumbent offers an outsider option that's especially appealing to young voters. Beset by social and economic crises, Nigeria is perceived as standing at a crossroads from which ways lead either to catastrophic collapse of the rule of law or to sea-change development into continental economic powerhouse. And, unfortunately, Nigerian elections even in the best of times notoriously coincide with violent protest.

The three leading candidates are Atiku Abubakar, Bola Tinubu, and Peter Obi (linked to BBC profiles). I went to Nigeria in December to get the lay of the land.

I visited the Osun-Osogbo Sacred Grove, one of two UNESCO
World Heritage Sites in Nigeria. Regrettably, the other, the
Sukur Cultural Landscape, is not in a safely accessible region.
RJ Peltz-Steele CC BY-NC-SA 4.0

Atiku Abubakar is no stranger to the election process, having run unsuccessfully before against outgoing President Muhammadu Buhari. Abubakar represents the center-right People's Democratic Party (PDP), which was the affiliation of Buhari predecessor Goodluck Jonathan. The PDP tends to conservative economic and social policy, meaning, respectively, deregulation and religious values. The latter is especially significant in Nigeria, because outbreaks of violence and the government's loss of control of northern states are complications principally of religious sectarianism. Both Abubakar and Buhari are Muslim; Jonathan is Christian. Trying to balance the demands of both the Islamic north and the Christian south simultaneously, the PDP has favored deference to regional religious authorities through laissez-faire federalism in social as well as economic policy.

A car in Ilé-Ifè advertises PDP candidates. Ilé-Ifè is a spiritual home of the Yoruba people.
RJ Peltz-Steele CC BY-NC-SA 4.0

At the Central Mosque in Ilorin, Kwara State.
RJ Peltz-Steele CC BY-NC-SA 4.0

Bola Tinubu is the candidate of the All Progressives Congress (APC), the party of Buhari, who also was a military head of state in the 1980s. A millionaire, accountant, and former governor of Lagos, Tinubu is American educated and has past ties to U.S. mega-corporations such as Arthur Anderson, which collapsed after the Enron scandal, and ExxonMobil, specifically, Mobil Nigeria, which bought its way out of the environmental mess of the Niger Delta for $1.3 billion last year. A Muslim, Tinubu hails from southwestern Lagos and Oyo State. To broaden his appeal, he chose a Muslim running mate from the north, though Christian voters are disenchanted with the break from the tradition of a spiritually split ticket. The APC identifies with social-democratic economic policy. A favorite of the populous Yoruba ethnic group, Tinubu boasts of his business acumen, having brought record-breaking foreign investment to Lagos. But his ties to big business and the political establishment cause many, especially younger voters, to eye him warily. As well, kidnapping and violence in Nigeria have reached into even the southwestern states of Oyo and Osun, formerly regarded as safe, surfacing discontent with the incumbent APC's poor record on basic security.

The Nigerian capital of Abuja is developing an arts-tech district,
which I visited in December. The capital was moved in 1991 from
Lagos to Abuja, a planned city at a central geographic location,
selected for practical and symbolic reasons to unite Nigerians
of different ethnic and religious identities.
RJ Peltz-Steele CC BY-NC-SA 4.0

Peter Obi is the wild card. At 61, he's a kind of Nigerian Bernie Sanders for enthusiastic youth fed up with the status quo. He's a Catholic from east of the Niger River, which alienates Muslims in the north, while not necessarily delivering a go-to for Christians in the southwest: an uphill battle. An ethnic Igbo, though, he appeals to another populous ethnic group that feels marginalized by the two parties of the political establishment. In the Nigerian civil war of the 1960s, Igbo nationalists threw in with the secessionist Republic of Biafra, and the Igbo have struggled to reclaim political representation since.

Labour Party logo.
Via Wikipedia (fair use).

Formerly a PDP candidate, Obi in Saturday's election represents the Labour Party, which stands more overtly for social democracy than the APC does. Boasting a logo of a gear encircling people, Labour touts values of social justice and universal economic opportunity. That message strikes a powerful note in a country endowed with a wealth of natural resources, including oil, yet in which almost two-thirds of the population, some 134 million people, live in poverty. Gen Z voters in particular crave change, and they've reclaimed the term "coconut heads," formerly used to disparage perceived laziness, now to signal support for Obi.

Earlier today, I campaigned at one of the largest markets in West Africa, Onitsha Main Market. I also visited the famous Ochanja Market, and the Relief and Mgbuka Markets in Onitsha. -PO pic.twitter.com/qDX8ETEpDE

— Peter Obi (@PeterObi) February 23, 2023

Obi is a former governor of Anambra State, home of the busy river port of Onitsha on the east bank of the Niger. A friend of mine is an Anambra native, American educated in business, and an executive of a manufacturing firm in Onitsha. He's a Christian and Gen X, like me, but, despite his age, you can count him among the coconut heads. (I'm not naming him here for sake of his security. Though he has expressed his views publicly, and support for Obi is widespread in Anambra, we don't know what the future will bring for Nigeria, and there's no need to memorialize online one voter's politics.) He wrote a missive just two days ago that I think well captures the motivation of Obi supporters:

Nigerians have never been able to hold Gen. Buhari to task on any promise made before the 2015 general elections. He has not kept any. The reason is because those promises were made by his campaign spokespersons, aides and APC party officials. Same is repeating itself with Atiku and Tinubu. The two men have been prevaricating on what they would do if elected. In fact, Tinubu has not granted any interview to any Nigerian television/radio stations. He has also avoided every debate for the presidential candidates. He is running away from being held responsible for his words and promises.

In contrary, Peter Obi has attended every debates, townhall meetings and interviews that came up. He has also looked Nigerians straight in the eyes and told them to hold him responsible for his promises. In a television interview yesterday, Ahmed Datti, Mr. Obi's running mate, told Nigerians to fire them if they fail to improve their lives after four years.

The choice is yours. I and my household shall vote Peter Obi's Labour Party for presidency on Saturday, 25th February, 2023.

When I visited Nigeria in late autumn, I hoped to learn more about the social and political situation in the country than I could glean from reading from home. For better or worse, I didn't absorb much that was new. Nigeria's reality on the ground is precisely what it appears to be: a nation that exemplifies "the resource curse," awash with oil yet riddled with poverty; a people flush with potential yet stymied by venal institutions. Insofar as Nigeria's present predicament makes it a bellwether for west and central Africa, more might ride on Saturday's election than even one nation's presidency.

I've long witnessed my friend in Onitsha rail in frustration at Nigeria's inability to combat corruption and climb to its rightful place as a social and economic leader on the world stage. Having been welcomed by people of such a famously boisterous yet warmly embracing national culture, I'm brimming with empathy. Maybe this election at last will show a way forward and upward.

 

Celebrants rally for the PDP in Ilé-Ifè in December. Political parties sometimes pay supporters to turn out, so it can be difficult to gauge true voter fervor on the basis of public demonstration.
RJ Peltz-Steele CC BY-NC-SA 4.0

Follow the dollar, name politicians in train disaster

Sen. John Thune (R-S.D.) blocked rail safety measures.
Medill DC via Flickr CC BY 2.0

Government "tried" to regulate rail, but industry "resisted" and "won."

That's what I heard tonight in a news break on National Public Radio about the East Palestine, Ohio, derailment disaster.

As if public safety regulation were a football match. Government just couldn't stop that offensive drive late in the second half.

No.

Blame industry, sure.  There's plenty blame to go around. But profits ahead of people? You can't be surprised. That's American industry's MO. And, to be fair, as long as no one gets hurt, we applaud.

Rather, save a big helping of blame for government. The same government now in Ohio trumpeting how Norfolk Southern will be held accountable.

Buck passed.

Government wasn't defeated in some contest with industry on the gridiron. Government failed. The people who are the government lacked the will to do the right thing, or worse, chose to do wrong.

Lee Fang for The Intercept dug into how the U.S. Senate, namely Sen. John Thune (R-S.D.), blocked industry safety regulations eight years ago.

Follow the dollar.  Thune turns up, too, as a top-five recipient of rail lobbying dollars in 2021-22. Here's that list from Open Secrets:

• Rep. Sam Graves (R-Mo.), $107,343
• Sen. Jerry Moran (R-Kan.), $85,548
• Sen. Eric Schmitt (R-Mo.), $72,900
• Sen. John Thune (R-S.D.), $69,550
• Rep. Earl Blumenauer (D-Ore.), $61,015

I think I know where we should send the contaminated soil from Ohio.

Nonprofit, nonpartisan Open Secrets has plenty of data. Check it out. If your congresspersons are on Big Rail's donee roster, don't send them back to Washington to try again.

Grand juror in Ga. Trump probe says little

Pres. Trump leaves Marietta, Georgia, in January 2021.

Trump White House Archives via Flickr (public domain)

The news is ablaze with the "odd 15-minute PR tour" of the grand jury foreperson in the Georgia Trump investigation, as former U.S. Attorney Harry Litman characterized her appearances to CNN.

Grand juries in the American justice system are secret for reasons that even access-advocate journalists and scholars such as myself tend grudgingly to respect. So I was shocked to see this 30-year-old grand juror, "who has described herself as between customer service jobs" (CNN), appearing above a "foreperson" banner, on my TV this morning.

I'm not naming her here, because I think she has had her 15 minutes. Literally. And she ought not be lauded for her TV blitz, which says more about the desperate breathlessness of the 24/7 news cycle than it does about a millennial's cravings for Likes or secrecy in the criminal justice system.

The legal reality of the foreperson's bean-spilling is not really as dramatic as splashing headlines suggest. In common law and in many states also by statute, grand jurors are bound to secrecy. Georgia grand jurors take an oath to that effect. But experts have pointed out that the grand jury investigating Trump's efforts to "find" votes in Georgia is a special, ad hoc, grand jury, so not necessarily operating under the usual statutes, and that Georgia law authorizes grand juries, though not individuals, to recommend publication of their findings.

More importantly, the judge in the instant matter apparently told grand jurors that they could speak publicly, subject to certain limits. The foreperson here said that she's steering within those limits, which appear to disallow disclosure of information about specific charge recommendations and the deliberations among jurors.

For all the media hoopla, the foreperson actually said very little, only that multiple indictments were recommended and that Trump and associates are targets of the investigation. That much already was publicly known. She refused to say whether the jury recommended charges against the former President himself, only teasing, "You’re not going to be shocked. It’s not rocket science" (CNBC), and there's "not going to be some giant plot twist" (N.Y. Times).

The common law presumption of grand jury secrecy means to protect the identity and reputation of unindicted persons and the integrity of ongoing investigations. Both of those aims further public policy, especially in the age of the internet that never forgets. There is some argument at the margins about when grand jury secrecy should yield to legitimate public interest. Accordingly, grand jury secrecy at common law is not an absolute, but a presumption, subject to rebuttal.

The case for rebuttal is strong when a President of the United States is the target of investigation. If grand jury secrecy is not undone in the moment, it's sure to be leveraged loose in the interest of history. Secrecy in the grand jury probe of the Clinton-Lewinsky affair in 1998 was unsettled by Clinton's own public pronouncements about his testimony. The "Starr Report" ultimately left little to speculation.

In cases of lesser magnitude, journalists and judges, naturally, do not always agree on the secrecy-public interest balance, and modern history is littered with contempt cases that have tested First Amendment bounds.

In a textbook case that arose in my home state of Rhode Island, WJAR reporter Jim Taricani refused to reveal the source of a surveillance tape leaked to him from the grand jury investigation of corrupt Providence Mayor Buddy Cianci. In 2004, Taricani, who died in 2019, was convicted of criminal contempt and served six months' home confinement. He became a symbol in the fight for legal recognition of the reporter's privilege, and, in his later years, he lectured widely in journalism schools. A First Amendment lecture series at the University of Rhode Island bears his name.

Taricani worked closely with the Reporters Committee for Freedom of the Press (RCFP). A superb RCFP series on "Secret Justice" in 2004 included a now dated but still highly informative brief on grand jury secrecy, and the RCFP has online a multi-jurisdictional survey on grand jury access.

Brookings has a report on the Fulton County, Georgia, investigation, last updated (2d ed.) November 2022.