Grant group investigates curious reappearance of US President in Guinea-Bissau island 'ghost town'

From GMA newsletter, vol. XVI, no. 1, fall 2020, at 4, my photo at right.

Earlier this year, I wrote about the short, strange life of statues in Guinea-Bissau, and, in particular, the strange-upon-strange birth, disappearance, and re-creation of a statue of U.S. President Ulysses S. Grant in an abandoned park in the "ghost town" of Bolama Island.

In March, I reported that, since going missing mysteriously in 2007, the Grant statue "was recovered in pieces, and authorities ultimately restored him."

Not quite so.

Grant Monument Association (GMA) President Frank J. Scaturro (Twitter), by day an attorney and historian who is vice-president and senior counsel at the Judicial Crisis Network, noticed that my March photo of the statue did not look like the original.

Your intrepid blogger visits the cane rum distillery in Quinhámel,

Guinea-Bissau, in March. (RJ Peltz-Steele CC BY-NC-SA 4.0)

Scaturro and the GMA dug into the mystery of the statue's reappearance in the middle of the barren park that was once Guinea-Bissau's glorious "Praça Ulysses S. Grant."  (As to why there is a monument to a U.S. President at all on this West African island, see my March post.)  The pieces of the original statue never have been recovered.

A March 2018 photo shows a still empty pedestal.

(Helena Maria Pestana CC BY-SA 4.0)

The latest GMA newsletter (vol. XVI, no. 1, fall 2020) explains how the present likeness of Grant came to be in 2018:

This occurred at the initiative of then-Governor Quintino Rodrigues Bone. Approximately 100,000 CFA francs (roughly U.S. $180) were spent from the local government fund to obtain supplies for the work—a harness, cement, gravel, and colorless paint. With these materials, a local artist, Luizinho (Zinho) Ká, constructed a cement statue. He did not receive any compensation for his work.

....

According to the State Department, there is local interest in replacing the cement statue with a new bronze replica of the destroyed statue, but no funding to do so.

My dispatch from Guinea-Bissau came just before the cancel-culture toppling of monuments across the United States.  Sadly, the fall 2020 GMA newsletter also reported the vandalism and toppling of a Grant bust in San Francisco's Golden Gate Park in June.

Scaturro said, "It is ironic that a monument to Grant was restored in Guinea-Bissau soon before another was torn down in San Francisco. Americans who do not respect our heritage can learn a lesson from the people of Guinea-Bissau."

Anyone can join the New York-based Grant Monument Association or visit the General Grant National Memorial in New York (check for covid updates).  Scaturro wrote in a statement on Grant's civil rights record:

As the principal author of Union victory during the Civil War, Grant was the principal enforcer of the Emancipation Proclamation.  As president, he secured laws that enforced the recently ratified 13th and 14th Amendments and acted decisively to ensure the ratification of a 15th Amendment that would ban racial discrimination in voting. His achievements included five enforcement acts, the creation of the Justice Department, and the Civil Rights Act of 1875, which desegregated various modes of public accommodations and transportation. Grant repeatedly employed military intervention to enforce Reconstruction and crushed the 19th-century Ku Klux Klan. Among America’s top leaders, from military commanders to presidents, none has a more sweeping record on civil rights.

The GMA hosts periodic programs of interest to the public and historians.  On November 19, at 7 p.m. US EST, the GMA will host an online colloquy, "A discussion of the partnership between General Ulysses S. Grant & General William T. Sherman," featuring General David Petraeus and Ulysses S. Grant Association Executive Director John Marszalek.  GMA members receive registration information.

'Oh, the lawyers'

From A Late Show with Stephen Colbert, Nov. 12, 2020: Stephen thanked everyone who made 1,000 shows possible.

Poland scholars explain turmoil in streets over court decision nearly outlawing abortion; what next?

Protesters take to the streets in Kraków on October 25. (Silar CC BY-SA 4.0)

Social stability in Poland has been increasingly shaky since populist politics has threatened the independence of the judiciary in recent years.  Professor Leah Wortham wrote about the issue and kindly spoke to my Comparative Law class one year ago (before Zoom was cool).

Recently tensions have reached a boiling point.  In October, the nation's constitutional court outlawed nearly all abortions (Guardian).  Protestors have taken to the streets in the largest numbers since the fall of communism, The Guardian reported, confronting riot police and right-wing gangs.

Friend and colleague Elizabeth Zechenter, an attorney, visiting scholar at Emory College, and president of the Jagiellonian Law Society, writes: "Poland is in upheaval, after the Constitutional Tribunal restricted even further one of the most strict anti-abortion laws in Europe.  I and several other Polish women academics have gotten together, and we created a webinar, trying to offer an analysis, legal, cultural, sociological, etc."

The scholars' webinar is available free on YouTube.  Below the inset is information about the program.  Please spread the word.

Women Strikes In Poland: What is Happening, and Why?

Since the fateful decision of the Polish Constitutional Tribunal (Trybunał Konstytucyjny or TK) on October 22, 2020—further restricting one of the most restrictive anti-abortion laws in Europe—Poland saw massive, spontaneous demonstrations and civic protests in most cities, small and big, and even villages. Protests have been continuing since the day of TK’s decision and show no signs of abating.

To explain what is happening, we have assembled a panel of academics and lawyers to clarify the current legal situation, to analyze the scope of new anti-abortion restrictions, to explain whether this new law may be challenged under any of the EU laws applicable to Poland, and what might be political implications of doing that, as well as offer a preliminary cultural, linguistic, anthropological, and sociological analysis of the recent events.

Contents

0:00:00-0:03:17 Introduction: Bios of Speakers, Disclaimers

Legal Panel

0:03:17-0:26:00 Elizabeth M. Zechenter, J.D., Ph.D., "October 2020 Abortion Decision by the Constitutional Tribunal: Analysis and Legal Implications"

0:26:00-0:46:00 Agnieszka Kubal, Ph.D., "Human Rights Implication of the Decision by the Polish Constitutional Tribunal from 22 October 2020"

0:46:00-0:59:00 Agnieszka Gaertner, J.D., LLM, "Abortion Under EU Law"

Panel: Culture and Language of Protest

0:59:00-1:31:00 Katarzyna Zechenter, Ph.D., "Uses of Language by the Protesters, the Polish Catholic Church, and the Ruling Political Party 'Law and Justice' (PiS)"

Panel: Sociological and Anthropological

1:31:00-1:49:00 Joanna Regulska, Ph.D., "Struggle for Women's Rights in Poland"

1:49:00-2:12:00 Helena Chmielewska-Szlajfer, Ph.D., "Augmented Reality, Young Adults, and Civic Engagement"

Praise for the Webinar

"Wow! That was, without a doubt, one of the most informative, fascinating, engaging, and powerful webinars I have ever attended."

"All of us in your virtual audience 'voted with our feet' ... i.e., it is generally considered that 90 minutes is an audience's absolute maximum attention span for an online webinar, particularly since everyone these days is simply 'Zoomed-out' (over-Zoomed), in this era of COVID-19. But YOUR audience stayed with you for a marathon 2 hours and 45 minutes (and it felt like a sprint, not a marathon)!"

"A high tribute to you and your sister (not fellow!) panelists."

Disclaimers

The webinar was organized impromptu in response to numerous calls to analyze Poland's ongoing protests. The goal of the webinar was to provide a non-partisan review of the evolving situation and better understand the legal, cultural, and sociological underpinnings of the Constitutional Tribunal’s anti-abortion decision that resulted in such massive country-wide protests.

The opinions expressed in the seminar are those of the speakers alone who are not speaking as representatives of any institution; the main goal has been to advance understanding of the situation.

Given the urgency to offer at least a preliminary analysis (and in light of the continuously evolving situation), most speakers had less than 24 hours to prepare their remarks. We apologize for any imperfections.

FOIA scores among John Oliver's three favorite things

Of all the funny takes on an outraged voter's crashing of a Nevada election press conference, John Oliver's takes top honors for featuring government transparency through the Freedom of Information Act.

 

See the full segment on Election Results 2020 on HBO's Last Week Tonight with John Oliver, Nov. 8, 2020.

Laws suspending driver licenses for fines need reform

Spencer K. Schneider, a 3L at UMass Law and teaching assistant in my Torts I-II classes, has authored an article for the National Lawyers Guild Review.  He examines state systems that suspend driver licenses upon unpaid fines and their perversely circular detrimental impact.  He concludes that constitutional challenges to the systems don't hold water, but that they should be reformed as a matter of sound legislative policy.  Here is the abstract.

Forty-three states have, or previously had, some version of a driver’s license suspension program. These programs are shown to have disastrous financial effects on the lives of those who cannot afford the fines inherent in them. Challenges to such license suspension schemes have been brought throughout the United States but have been largely unsuccessful. Where relief ultimately may be found is in state legislatures or city governments. When those bodies discover that, although these programs are in fact valid and constitutional, many of them have such detrimental and long-term impacts on so many citizens, they ultimately result in more harm than good. This realization has led many states to experiment with changes to, or repeals of, their driver’s license suspension programs with varying success. However, many states still rely on the fines levied by these programs and there is a legitimate argument that the programs are imposed to keep dangerous drivers off the street. Ultimately, this is an issue that arose from legislation and, despite finding its way into the court system, must be solved with legislation.

The article is Spencer K. Schneider, The Wheels on the Bus: The Statutory Schemes that Turn Traffic Tickets into Financial Crises, 77:2 Nat'l Law. Guild Rev. 81 (Summer/Fall 2020).

All politics is local

This Ayrshire Daily News, Scotland, headline refers to the Trump Turnberry Golf Courses.  The headline caught the attention of BBC's Andrew Marr Show and was shared with me by BBC viewer and friend of the blog, Siobhan Lavery.

Trump Golf operates two properties in Scotland and one in Ireland.  The club at Aberdeen lost a fight against a nearby windfarm in the UK Supreme Court in 2015.  The New York Times Trump tax revelation caused Business Insider to mark the clubs among Trump's "most failed businesses," while seeming over-valuation of the clubs figures in New York prosecutors' ongoing investigations of Trump financial disclosures (Politico).  The Scotland properties also garnered unwanted news coverage this year for their receipt of coronavirus government bailouts (Guardian).  Nevertheless, Aberdeen recently authorized construction of a second club (BoingBoing).

Singers revel in federal judges' lifetime appointments

I just discovered The Bar & Grill Singers, an Austin, Texas-based musical revue of attorneys.  My favorite song is "Appointed Forever."

There's more at the group's YouTube channel and on the group's CD, Grilling Me Softly (iTunes, Amazon).

Big thanks to Sai, president of Fiat Fiendum, who first, via FOI-L, pointed me to the also excellent "I'm Billing Time."

Depp defamation suits in US, UK see London setback

Heard and Depp in 2015 (GabboT CC BY-SA 2.0)

Johnny Depp is fighting accusations of spousal abuse in defamation suits in England and the United States.  Apparently, I can't be disillusioned often enough about actors I like. 

At the excellent INFORRM blog, Kirsten Sjøvoll of Matrix Chambers (here) and University of Essex Law Lecturer Alexandros Antoniou (here) have the latest about Depp's suit in London, in which the defense of substantial truth has been asserted successfully.

Sjøvoll explained, "In this case, it was also not necessary for the Defendants to prove that each and every incident or allegation of domestic [violence] relied upon took place. It was enough for them to establish that it was substantially true that Mr Depp had been violent towards his ex-wife during the course of their marriage."

Outside the courtroom, Sjøvoll observed, "an army of Depp fans" have stated "strong views about the evidence via Twitter," including ridicule of Justice Andrew Nicol.  The case meanwhile has generated ample lurid detail in entertainment news about Depp's rocky relationship with ex-wife Amber Heard.

Post op-ed,
from Va. complaint

Sjøvoll and Antoniou wrote that truth was a risky defense strategy for defendant News Group Newspapers (NGN), publisher of The Sun.  When a defendant asserts truth under the 2013 UK Defamation Act, the defendant assumes the burden of proof by preponderance ("balance of probabilities").  Sjøvoll wrote:

A libel defendant who seeks to establish that the words complained of are substantially true takes a considerable risk that, if unsuccessful, the damages they may be liable for will be significantly increased. The costs of a trial in which the truth of the allegations are in issue are also likely to be much higher. Indeed, in the Depp case, it was notable that both parties instructed leading criminal counsel to conduct the cross examination of the key witnesses in addition to media law specialists. 

Depp has vowed to appeal, and Sjøvoll and Antoniou noted that he also is pursuing related defamation litigation in the United States.  Depp is suing Heard in Fairfax Circuit Court, Virginia, over a #MeToo op-ed she published in The Washington Post in 2018.  The op-ed did not refer to Depp by name, but Heard wrote about how she became "a public figure representing domestic abuse" at the time of her divorce from Depp.  The case is steaming through contentious discovery with a flurry of foreign subpoenas.

The case in London is Depp v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), Nov. 2, 2020.  The case in Virginia is Depp v. Heard, No. CL-2019-2911 (Va. Cir. Ct. Fairfax County filed Mar. 1, 2019).  HT @ Private Law Theory.

Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)

A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

I wrote about this case in April.  Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway.  Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer.  Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.

On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance.  The Court vacated the Fifth Circuit decision and remanded.  The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.

Both Doe's negligence theory and Mckesson's First Amendment defense are close questions.  Mckesson never countenanced a violent attack on police.  Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor.  Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.

Cases of such "negligent incitement" have long been problematic in First Amendment doctrine.  The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous.  Results have varied, and no clear rule has emerged.  Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.

I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts).  Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale.  It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer.  Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.

The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog).  The opinion was per curiam.  Justice Thomas dissented without opinion, and Justice Barrett took no part.

Court: Pseudonymous WeChat user cannot be libeled

As matter of law, statement is not 'of and concerning' plaintiff

Statements about a person on a social media platform are not defamatory as a matter of law when the person is known only by a pseudonym, the Massachusetts Appeals Court held this week.

Defendant and plaintiff exchanged spiteful messages in a WeChat group.  The group comprised 437 persons and was organized to support plaintiffs accusing Harvard University of discriminating against Asian-American applicants in admission.  The defendant referred to the existence of "pink-news" about the plaintiff.  As the court explained the term, "'pink-news' is a Chinese expression that refers to sex gossip or rumors."

The trial court awarded judgment for the defendant on the pleadings on the alternative grounds that the plaintiff had failed to show damages, or that the allegation of "pink-news" was "imaginative expression" or "rhetorical hyperbole," not a factual assertion capable of defamatory meaning.

The Appeals Court affirmed on different grounds.  Plaintiff had been known in the chat group only by a pseudonym.  She failed to allege that anyone in the group knew her identity.  So she could not prove that the statement in question was "of and concerning" the plaintiff, as the test for defamation requires.

The Appeals Court disavowed the grounds of decision in the trial court.  The court's discussion of the "pink-news" issue suggested that there might have been some factual question about the meaning of the term as to preclude judgment on the pleadings.  And in a footnote, the court wrote that written communication in WeChat probably is libel, not slander, so would entitle a plaintiff at least to nominal damages under Massachusetts law.

Probably the "pink-news" allegation later would have failed for the reason the trial court supposed, even if further factual investigation was warranted.  Courts in a number of cases have recognized the hyperbolic nature of social media posts.  In 2018, recognition of "hyperbole" cost "Stormy Daniels" Stephanie Clifford her claim against Donald Trump for his tweet accusing her of a "con job."  In 2019, Elon Musk successfully defended a tweet in which he had referred to the plaintiff as "pedo guy."

At the same time, this anything-goes approach to social media means, for better and worse, that tort law cannot be relied on as a social media regulator in our age of coarsening discourse.

The case is Li v. Zeng, No. AC 19-P-1546 (Mass. App. Ct. Nov. 3, 2020).  The opinion was authored by Justice James R. Milkey for a unanimous panel that also comprised Justice Wendlandt and Chief Justice Green.