Bank battles liability for client's pyramid scheme

The federal district court in Massachusetts has continued in recent months to resist Bank of America efforts to extricate itself from allegations of complicity in a pyramid scheme.

The liability theory working against Bank of America (BoA) in the Massachusetts litigation is a theory of ancillary, or secondary, liability.  I'm fond of ancillary liability theories, which put on the hook not just the actor that most directly injured a plaintiff, but the actor's compatriots.

MLM
by Zainabdawood77 via Wikimedia Commons CC BY-SA 4.0

The myriad ways an injured plaintiff can add defendants to a civil claim improve the plaintiff's odds of recovery. So it behooves the plaintiff attorney to think creatively about ancillary liability. Correspondingly, it behooves the defense attorney to be on guard.

A plaintiff can be especially in need of better odds when a principally responsible defendant acted criminally, because criminal defendants tend to come up short on money to right wrongs. Ancillary liability theories in cases of financial crime are especially compelling, because perpetrators of fraud, before they're apprehended, tend to live large on their proceeds and then declare bankruptcy.

Think Bernie Madoff. His wild ride merited a thrilling fictionalization starring Richard Dreyfuss and still drives public interest with a new docuseries on Netflix. That his victims tended to be wealthy adds a sweet note of schadenfreude for American viewers, the vast majority of whom are trapped on the wrong side of the wealth gap.

That same schadenfreude thirsts for the diffusion of liability to more defendants. Plenty of corporations, namely banks and investment firms, and their directors and officers, leached wealth off schemes such as Madoff's, but bear no liability to victims. Ostensibly, these earners did nothing wrong. They merely engaged in lawful business.

Overlay that dynamic on financial opportunism that victimizes ordinary people, and the thirst for accountability becomes about more than schadenfreude. Financial disasters such as the savings-and-loan crisis of the 1980s and the housing crisis of 2008 infused the public with burning resentments that still smolder in the wreckage of the American dream.

In these crises, people were victimized by risks that enterprise externalized while providing no corresponding benefits. When the civil justice system fails to recognize a wrong in the infliction of such losses, we can expect the very insults to the social fabric that the system is supposed to prevent: more wrongdoing, diminished confidence in public institutions, and, ultimately, vigilantism by the afflicted.

Ancillary liability rides to the rescue. Two liability theories are especially useful in cases of financial fraud: "conspiracy" and "aiding and abetting." Those imprecise terms are useful to convey the essence of it, but the civil theories should not be confused with their criminal counterparts, which give rise to the terms.

More accurate descriptions in civil terminology are, respectively, "common design" and "substantial assistance or encouragement." When a principal defendant cannot be held to account, a plaintiff may demand compensation from a co-defendant that participated in a tortious common design with the principal, or from a co-defendant that knowingly substantially assisted or encouraged the principal in accomplishing a tortious objective.

The availability of conspiracy and aiding-and-abetting liability theories in common law business torts is not settled and not without controversy. The commercial defense bar naturally regards theories derived from personal injury law as ill suited to business torts, in which harms are only economic. Commercial actors are expected to safeguard their own interests to some extent in commercial transactions, more than a person exposed to risk of physical injury. Compensating economic loss is not regarded as socially imperative as the making whole of injured persons. The issue offers a window into a broader debate over whether business torts are torts at all, or, rather, a form of common law market regulation. We can leave that question on the shelves of academia for now.

In multi-district litigation pending in the U.S. District of Massachusetts, plaintiffs allege that Bank of America, among other defendants, substantially assisted or encouraged a pyramid scheme, or, more precisely, a "multi-level marketing" scheme (MLM), in the provision of commercial banking services. Bank of America (BoA) vigorously denies the allegations. In August 2022, the court refused to dismiss BoA, finding the allegation of ancillary liability sufficient to warrant discovery. The court has refused to undo its ruling upon motions for reconsideration since.

The principal defendant in the case is Telexfree, a transnational company with U.S. headquarters in Massachusetts. Having started up in 2012, the multibillion-dollar enterprise was an MLM that enlisted "promoters" to sell voice-over-internet-protocol telecommunication services. For a deeper dive into the rank turpitude of MLMs, check out comedian John Oliver's classic treatment in 2016. True to form, after only a year or two, Telexfree collapsed in bankruptcy under pressure from regulators in various countries, especially the Securities and Exchange Commission in the United States and authorities in Brazil. Private civil suits followed.

There is no question that banks such as BoA literally "substantially assisted or encouraged" Telexfree in its illicit enterprise. A company, even an MLM, needs banking services. The tricky part, though, for plaintiffs successfully to allege tortious aiding and abetting, is to show the ancillary defendant's knowledge of the principal defendant's tortious objective. BoA denies that it knew what Telexfree was up to.

Such denials usually fly. Banks at least purport to do business at arm's length. That impression accords with the experience of the average consumer; we don't imagine bankers poring over our checking accounts to second-guess our spending. And there's a sound argument in public policy that banks should not be held liable for the misdoings of their clients. Imposing weighty responsibility on banks, at best, would slow down commerce, and, at worst, could render capital inaccessible, paralyzing the marketplace. 

At the same time, banks with large commercial clients, in fact, routinely do business at much less than arm's length. Banks may well scrutinize clients, indeed may be fiduciarily obliged to scrutinize clients, if their business will place large amounts of capital at risk. Accordingly, the pleadings in Telexfree indicate that BoA worked closely enough with Telexfree executives to know what they were up to.  Indeed, plaintiffs allege that at least one BoA executive voiced concern that Telexfree's business model was not legal, and evidence suggests that BoA closed at least one account for that reason.

Upon the pleadings, then, the district court ruled that BoA had enough "red flags" to know what Telexfree was up to. BoA objected, and the court conceded, that red flags do not equate to the actual knowledge required for aiding-and-abetting liability. But red flags are evidence enough to allow plaintiffs to dig deeper in discovery, the court concluded.

The ruling has caused some angst in the commercial sector, for fear of the slippery slope of bank liability. I respect the worry, but I welcome the court's fresh take and willingness to rebalance the equities in financial fraud. Madoff was a compelling curiosity, and I don't have much sympathy for his high-roller investors. But more troublesome in America are recurring financial crises that seem only to exacerbate wealth disparity. And at the transactional level, MLMs and their like continue to run rampant, defying regulators and bilking not just high rollers, but ordinary people. 

The rabble is restless, as accountability runs thin. Regulators, whether wearing black robes or bearing pointy heads, had better start noticing.

The case is In re: Telexfree Securities Litigation, No. 4:14-md-02566 (D. Mass. received Oct. 22, 2014). HT @ attorneys Anthony D. Mirenda, Leah Rizkallah, and Nick Bergara of Foley Hoag LLP, writing for Mondaq.

Americans chase dream of air passenger rights, while EU consumer protection reaches age of majority

Boarding a flight in Ilorin, Nigeria, in December 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

A Savory Tort Investigation

The Christmastime Southwest meltdown has prompted tongue wagging in Congress over a "Passenger Bill of Rights" to redress the radical imbalance of market power that has left Americans at the mercy of an oligopolist airline industry for decades.

Don't get your hopes up. In the United States, airlines have been playing cat and mouse with regulators since the mail took to the air in the 1920s. And the cat has never been enthusiastic about the chase. 

Passenger protection from exploitative practices in the airline industry has been a congressional dog whistle since overbooking became a business model in the 1960s. Ralph Nader took on the issue, along with so many others, in the 1970s. We've swung back and forth between transparent pricing and the piling on of surprise fees enough times to make you use your sick bag. Over the years, more passenger bills of rights have died in Congress than we have airlines. Well, that's a low bar, but you take my point.

As in all things when corporatocracy clashes with simple equity in the marketplace, the European Union is doing a better job than the United States to level the playing field. The crown jewel of more robust European consumer protection is Regulation 261/2004, which has been on the job for almost twenty years. When flights are delayed or canceled, EU 261 requires compensation to customers in cold, hard cash.

The circumstances that lead to an EU 261 payout are well circumscribed. But when it happens, an airline feels the pinch. The regulation pertains upon delay or cancellation, EU guidance explains (bold in original), when:

• the flight is within the EU and is operated either by an EU or a non-EU airline;
• the flight arrives in the EU from outside the EU and is operated by an EU airline; or
• the flight departs from the EU to a non-EU country operated by an EU or a non-EU airline.

Here is the compensation schedule, per passenger:

• Type 1: €250 for a delay of two-plus hours, or €125 if re-routed to arrive fewer than four hours late, for flights of 1,500 kilometers or less.
• Type 2: €400 for a delay of three-plus hours, or €200 if re-routed to arrive fewer than four hours late, for intra-EU flights of more than 1,500 kilometers and for all other flights between 1,500 and 3,000 kilometers.
• Type 3: €600 for a delay of four-plus hours, or €300 if re-routed to arrive fewer than four hours late, for all other flights.

There need be no compensation when the delay can be attributed to a cause extrinsic to the carrier, such as weather. A passenger's receipt of compensation, including non-monetary assistance, pursuant to the law of a non-EU country precludes an EU claim.

Cash compensation is a welcome recognition that airline passengers suffer real costs when flights are delayed or cancelled—more than what is covered by a meal voucher or even, when necessary, an overnight stay. Ours is now a world of nonrefundable reservations for hotels, cars, and tours. Travel insurance is becoming a must, and yet another expense. Vacation time meanwhile is increasingly scarce, especially for Americans.

Meaningful compensation incentivizes airlines to work smarter. For example, scheduling departures too tightly, failing to anticipate mechanical needs, or simply de-prioritizing the correction of problems all become decisions with bottom-line consequences.

The outer jurisdictional limits of EU 261 are not spelled out on the face of the regulation, but European regulators and courts largely have construed silence expansively. EU 261 claims are not limited to EU citizens and airlines, as long as an EU country can exercise jurisdiction. EU 261 has an exception for "extraordinary circumstances," but courts have construed the exception narrowly, excluding technical problems. Court rulings in the late 2010s led to the application of EU 261 to U.S. carriers operating international connections to and from the EU.

At the same time, compliance has been a mixed bag. The fuzziness at the margins of EU 261 application, along with the reality that not all domestic authorities have been prepared to invest fully in enforcement, has afforded airlines room to fudge fulfillment of their obligations.

In the event of a maloccurrence, airlines are obliged to make passengers aware of their EU 261 rights, and passengers file claims with the airlines, not with regulators. The airlines can be less or more forthcoming with notifications and the ease with which consumers can file claims. There are reports, moreover, of airlines simply not paying what's owed. As a result, a cottage industry has arisen of intermediary companies that facilitate consumer claims in exchange for significant contingency fees.

As an American citizen traveling to, from, and through the EU, I’ve made some EU 261 claims in recent years, since the regulation expanded to reach foreign flight legs. I tested different options to make my claims, and I promised to share some outcomes.

No-Coverage Cases

It’s first important to articulate unfortunately ever more common passenger experiences that are not covered by EU 261—and, needless to say, precipitate no consumer protection in U.S. law.

My fellow Lagos-bound passengers and I wait in Paris.
RJ Peltz-Steele CC BY-NC-SA 4.0

CLAIM DENIED by Air France: EU transit.  In December 2022, I traveled from Boston, Massachusetts, to Lagos, Nigeria, via New York and Paris.  Because of a mechanical problem, after several hours’ delay, the connection from Paris to Lagos was canceled and rescheduled for the following day.  My booking was with Delta; KLM owned the itinerary; and the canceled connection was operated by Air France. EU 261 charges the operator with responsibility. Air France provided a €15 meal voucher and overnight accommodation, including a shuttle after quite a long wait. Such intermediate compensations do not preclude EU 261 awards.

Air France denied the type-3 compensation claim I filed directly with the airline. An Air France agent wrote:

I am really sorry to have to inform you that the EU Regulation 261/2004 does not apply when flight departs from a point outside the EU or EEA and travels to a final destination outside EU or EEA, via a connection in an airport in the EU or EEA.

Since your flight departs from Boston and arrives in Lagos via New York and Paris, we regret our inability to accede to your request for compensation on this occasion.

To be clear, every leg of this journey was a different "flight," with its own flight number; this was not a continuation "flight." My itinerary originated and terminated outside the EU. At the same time, Air France's interpretation of "flight" in EU 261 seems consistent with my other claim experiences. I suppose Air France was obliged to pay compensation to passengers who originated in Paris; I don’t know. I was not given any particular notice of EU 261 rights; maybe passengers originating in Paris were.

NO CLAIM against Air France: Advance cancellation. In November 2022, I traveled from Boston, Massachusetts, to Kraków, Poland, via Amsterdam.  I booked through Egencia; Air France owned the itinerary; KLM operated the connection to Kraków.

A month after my purchase, but still a month before the departure, KLM canceled the connection to Kraków. KLM rebooked me on another flight, lengthening my layover by five hours and putting me late into Kraków. Air France offered a full refund, in the alternative, but refused to book me on another carrier that would arrive earlier into Kraków.

Patriotic illumination aboard an Air France flight.
RJ Peltz-Steele CC BY-NC-SA 4.0

The problem here was that I had paid more for a morning arrival in Kraków, because I had to work there that day. I could have booked for the midday or later arrival with another carrier for less money at the time I purchased, had I wanted to. I chose the SkyTeam Alliance specifically for the early arrival. In the month since the purchase, the alternatives had risen exorbitantly in price as international itineraries. I could still buy a replacement connection to Kraków for midday arrival from another carrier, but Air France also refused to release me from the KLM connection. If I failed to appear for the KLM connection, Air France would cancel my ticket home.  I had no choice but to accept the change and miss most of my work day.

KLM claimed that it canceled the morning connection—a month in advance—because of a "mechanical problem." Apparently, no regulation requires an airline to tell the truth. I rather believe that KLM canceled the flight because SkyTeam's multiple flights to Kraków were undersold.

I could not make an EU 261 claim, because airlines are permitted to make whatever changes they please more than seven days before departure. This is a big gap in consumer protection, because passengers have no ability to rebook with another carrier so close to the departure date.

I did complain to the U.S. Department of Transportation (DOT), because it is impermissible, even under U.S. regulations, for a carrier to cancel a flight merely because it's undersold. Unfortunately, this rule is rarely enforced, because it's so easy for a carrier to point to another reason for the cancellation. KLM continued to claim mechanical failure, never explaining how that hurdle could not be overcome with a month's advance notice.

DOT took no action, but entered my complaint in its "industry monitoring system." I suppose this is the same system through which, a mere 16 years after Southwest began A-B-C boarding, it seems finally to have dawned on federal regulators that maybe children should not be forced to sit next to strangers. That would have been a nice policy change to have had when my daughter was growing up.

NO CLAIM against Turkish Airlines: Airport change.  This is an older matter, but I’m throwing it in here because it's a variation on the problem of advance cancellation that might well happen to other people in today's tight market. 

In November 2020, I was to travel from Boston, Massachusetts, to Khartoum, Sudan, via Istanbul, on Turkish Airlines.  Within a week of departure, Turkish canceled my Boston flight and rebooked me on a departure from New York JFK. That’s not an easy or costless transit, from my home to JFK: a four- to five-hour drive each way, or a slow train with multiple transfers. Turkish refused any compensation, offering only complete cancellation as an alternative, and that only when I asked.

This was not an EU 261 matter, because there was no point of contact with Europe.  If the same thing happened, though, with a transit in Europe, EU 261 would not have applied, at least according to the reasoning of Air France in the above-described claim denial. If Turkish made such a change for an EU-bound flight, I hope that EU 261 would apply. I wonder what would happen if Turkish changed the airport, but not the flight number; that's not a delay or a cancellation.

I'll never find out, because I now exclude Turkish Airlines from my fare searches. I suggest you do the same.

Coverage Cases

CLAIM SETTLED with SATA Air Açores: Delayed flight within EU. In July 2022, I traveled within Portugal, from Lisbon to Terceira Island, on SATA Air Açores. Because of a mechanical failure, my 4:15 p.m. departure was delayed to 9:55 p.m. SATA gave me a €10 food voucher. I incurred some additional expense having to get a nighttime transfer on the island, and I lost some daylight leisure time.

My SATA rights notice.

Lisbon to Terceira maps out at 1,555 kilometers, so just over the threshold for a type-2 claim. When I received the voucher at the airport, the agent also gave me a well copied notice of rights in paper. The notice was in Portuguese with no translation.  In Portuguese, the notice accurately described the three types of EU 261 events, but conspicuously omitted any numerical amounts of compensation. In late July, I filed a €400 claim directly with SATA via email.

In September, SATA responded via email with a counteroffer: €300. I accepted. SATA sent me a form to provide my banking information for a wire transfer. I did so, but SATA wrote subsequently to say that it couldn't get the transfer to go through—foreign payers often struggle to align their parameters with U.S. bank data—and that it would send a check. In November, I received a paper check in the mail for US$322.

I accepted the SATA offer because I thought it was more than fair, even though I was entitled to €400 under EU 261. SATA implicitly acknowledged as much by offering more than €250. But my roundtrip ticket with SATA had cost me only €255. And I didn't feel there was any misfeasance on SATA's part. There was no indication that the mechanical failure could have been anticipated; airport agents acted quickly and efficiently to reschedule; and SATA tasked the flight to another plane the same day, if later. Overall, I remained happy with SATA service, despite my lost time. I don't know what SATA would have done had I refused the offer and insisted on €400.

CLAIM PAID by American Airlines: Delayed flight in United States. Also in July 2022, I traveled from Lisbon, Portugal, to Boston, Massachusetts, via Philadelphia, Pennsylvania. I booked on Egencia, and American Airlines operated all flights. The connection from Philadelphia to Boston was delayed more than three hours, but less than four.

Had American Airlines not made such a mess of this delay, I probably would not have thought to apply for EU 261 compensation. This was the kind of straightforward poor customer service that, sadly, Americans have simply come to expect. The delay seemed to have resulted from the unavailability of crew. Passengers actually boarded the plane, and then we were ordered to deboard and return to the terminal. Gate agents offered conflicting explanations. They seemed to be arguing with each other. The tension was contagious, and information was scarce. Space around the gate was overcrowded. The scene was chaotic, ugly, and frustrating.

It's not immediately apparent that EU 261 applies. The flight was a domestic connection; there were passengers on board with no passports. This was the inverse of the Air France claim-denial situation I described above. My point of origin in the EU was dispositive, even when the problem arose on a domestic connection in the United States. My American citizenship was immaterial. The relevant facts under EU 261 were that my itinerary started in the EU, and I arrived more than three hours late to my final destination.

Even insofar as EU 261 applied, I wasn't sure what type of claim mine was. The overall travel distance, the "flight," defined by itinerary, was more than 5,000 kilometers. But the "flight," defined by a leg with unique flight number, from Philadelphia to Boston was less than 500 kilometers. 

Under the circumstances, I expected that if I made a claim, American would deny it. After all, I might notionally be entitled to make a claim under European law, but where would I enforce? The U.S. DOT barely enforces U.S. regulations; it's not likely to expend resources to enforce foreign law. The relevant EU jurisdiction was Portugal. But would I, a non-European, have standing before a Portuguese regulatory authority? 

With so much uncertainty, I was inclined to let the matter drop. But over the next couple of days, I became angry again that American never reached out with any kind of apology for its mess. What the heck, I thought. At least filing a 261 claim would let me vent.

At the same time, because I seriously doubted that I would see a dime, I decided to try using an intermediary. After reading some reviews, I chose AirHelp, a 10-year-old startup from Berlin that is now global. AirHelp promises to make the claims process easy, and it did. In late July, I uploaded my documents and provided a short description of what happened. I got to vent.

AirHelp kept me apprised of my claim status. It sent me an email saying it had determined that I had a valid claim for €300. That seems right, using the itinerary as the measuring stick to reach type 3, and acknowledging that the delay in the end was under four hours. AirHelp said that it would make that demand of American Airlines. Thereafter, AirHelp periodically let me know that it was still waiting to hear back.

To my surprise, in mid-November, AirHelp told me that American had agreed to pay €300. AirHelp sent me an invoice showing that it was deducting its 35% contingency fee of €105. AirHelp sent me a check for the difference in U.S. dollars, $201.38. The fee was hefty, but maybe not bad for a claim I never thought would be honored.

✈     ✈     ✈

In sum, EU 261 is a powerful accountability tool, even if, 18 years on, it leaves some wide gaps in consumer protection. Americans should have at least as good a mechanism at their disposal. Our airlines meanwhile are fighting against accountability, trotting out the usual "be careful what you ask for" warning that our mere expectation of market equity will make air travel unaffordable. Seems to me that if American consumers are going to lose either way, misery loves company.

Sponsored in the present U.S. Congress by Senators Richard Blumenthal (D-Conn.) and Ed Markey (D-Mass.), the "Passenger Bill of Rights" now pending as S. 178 calls for a ticket refund and re-routing, even on another carrier, for delays of one to four hours, and, additionally, $1,350 cash compensation for delays of more than four hours.

I'm sure the check's in the mail.

Go Red for Women

Today, February 3, is National Wear Red Day, a project of the American Heart Association (AHA) to commemorate American Heart Month and raise awareness of heart disease, especially in women.

Read more about heart disease in women at the AHA, including warning signs and symptoms. Read more at The Savory Tort about how we're losing the war on heart disease and need to retake the upper hand.

EU leverages trade for sustainable development

Attorney Cyprian Liske presents at the University of Bologna.
Used with permission.

"Sustainability" is the word of our times, and the European Union has more than a decade's experience building sustainability expectations into trade agreements.

At the University of Bologna in October, for a program of the Guild of European Research-Intensive Universities, doctoral candidate Cyprian Liske, my friend, colleague, and former student, presented his research on sustainable development provisions in EU trade agreements concluded from 2010 to 2020. Here is the abstract:

On 27th November 2019, Ursula von der Leyen, at that time President-elect of the European Commission, delivered a speech in the European Parliament, in which she set a concise programme for the next 5 years of her term of office. "Sustainability" was mentioned in this speech no less than 8 times. "We have to bring the world with us and this is already happening," Ms. President said. "And Phil Hogan [at that time Commissioner for trade] will ensure that our future trade agreements include a chapter on sustainable development."

Indeed, the EU has been including trade and sustainable development (TSD) chapters in new-generation trade agreements since the Free Trade Agreement with South Korea (2010). However, such TSD chapters, devoted to the realisation of the Sustainable Development Goals, including environmental protection, preventing resource depletion, or protecting workers' rights, differ substantially in agreements concluded with particular countries....

The goal of the project was to comparatively analyse TSD chapters in trade agreements concluded by the EU in 2010-2020, pointing out common elements and differences. The analysis will let us critically explore what the reasons for those differences may be (e.g., the course of negotiations, economic dependency, trade partners’ level of development) and whether the EU is consistent in its sustainability requirements set towards its trade partners. It will also allow us to depict the current tendencies in the way how such TSD chapters are shaped by the EU in comparison with the global trends. The comparative analysis of the EU TSD chapters was conducted by the researcher qualitatively and quantitatively with the use of software (MAXQDA 2022).

The research parses the interests advanced by EU agreements..
© Cyprian Liske; used with permission.

The Biden administration lately has redoubled the U.S. commitment to the developing world, announcing at a December summit, for key example, an investment of $55bn in Africa over the next three years.

Development aid is often viewed skeptically by American taxpayers. That's understandable when the homeland is plagued by homelessness and financial insecurity. Isolationism streaks run through both libertarian and conservative ideologies, evidenced lately by Republican skepticism even of aid to Ukraine. But development aid can be justified with reference simultaneously to socioeconomic benevolence and to the donor's national security, thus, appealing to priorities both liberal and conservative.

Literal signs of Chinese investment are ubiquitous throughout Africa, as here,
in the rural community d'Oukout in the Casamance region of Senegal, 2020.
RJ Peltz-Steele CC BY-NC-SA 4.0

The United States has a lot of catching up to do. With hotly debated motive, China has invested heavily in the developing world, near and far from its borders. Chinese presence in Africa is ubiquitous, from massive infrastructure projects such as ports and bridges to telecommunication access in the remotest of villages. Russia, too, has lately gone all-in on Africa: a "charm offensive," researcher Joseph Siegle wrote last year, and "[t]he reasons aren't pretty."

Incorporating sustainable development into trade agreements allows western powers to facilitate development goals at less cost than direct investment, and even with potential gains through free trade. There's still a lower-common-denominator problem when competing against proffered Chinese and Russian agreements that attach browbeating strings only on the back end. But access to Western markets brings some incentive to the table.

A practicing lawyer and legal translator, Liske is pursuing his doctorate on the nexus between sustainable development and international trade law in the context of EU external policy. He graduated in law from Jagiellonian University and in business linguistics from the Tischner European University, both in Kraków, Poland, and both with distinction. He also is an alumnus of the American Law Program of the Columbus School of Law of the Catholic University of America, and of the English Law and Legal Methods International Summer Programme of the University of Cambridge.

Sunshine filters in to Mass. jail with gloomy history

Bristol County, Mass., Sheriff Paul Heroux is seeking to close a jail with a gloomy history, and last week he gave journalists a look inside.

Built in 1888, the Ash Street Jail in New Bedford, Mass., housed Lizzie Borden during the 1893 trial in which she was acquitted of killing her father and stepmother. The "Lizzie Borden House" is a tourist attraction in nearby Fall River, Mass., today. Undoubtedly the site of executions in Bristol County, Ash Street is often said to be the site of the last public hanging in Massachusetts, in 1898. Records conflict (compare O'Neil with O'Neill, and see Barnes), but if it's not, it's close enough. The commonwealth changed its method of execution to the electric chair in 1900.

Purchase St., New Bedford, Mass., 1888.
Whaling Museum photo via New Bedford Guide.

One of the oldest jails in continuous operation in the United States, Ash Street gained new notoriety beginning in the late 20th century, especially after 1997 during the tenure of Sheriff Thomas Hodgson. In 25 years of service as sheriff, after prior service in local politics, Hodgson earned national press for hardline measures such as the removal of televisions and gym equipment from the jail, the imposition of room-and-board charges for detainees, the institution of chain gangs, and an offer of detainee labor to the Trump Administration to help build the border wall.

Meanwhile, Hodgson was unapologetic for conditions within the jail. Former detainees complained of uncontrolled mold, uncontained sewage, and intolerable cold and heat (WBUR). The complaints have been controverted. A former jail official lauded staff and facility in a 2022 letter to the New Bedford Guide, for example, and a news reporter, upon a tour of the facility in 2016, wrote favorably of a modernized interior.

When Heroux toppled Hodgson in the 2022 election, closing the Ash Street Jail was part of his platform.

President Trump and Sheriff Hodgson at the White House, 2019.
Trump White House Archives via Flickr (public domain)

Former Sheriff Hodgson is reminiscent of an infamous character in the annals of freedom of information law, Sheriff Thomas Lafayette Houchins, Jr., of Alameda County, California. Houchins lent his name to Houchins v. KQED, Inc., a 1978 U.S. Supreme Court case regarded generally as standing for the proposition that the First Amendment does not articulate a right of access to public places, if not more broadly foreclosing use of the First Amendment as any kind of freedom of information act.

In my 2012 casebook, Law of Access to Government, I contextualized Houchins with some biographical information about the sheriff (relying on sources such as the East Bay Times).

Thomas Lafayette Houchins, Jr., was a leader in the sheriff 's department in the 1960s and earned a reputation for uncompromising law enforcement. A veteran law enforcement officer, Houchins had joined the department in 1946 after serving in World War II as a Marine Corps fighter pilot. He was elected sheriff in 1975 and retired in 1979. In 1969, Houchins commanded a force of sixty or more deputies in crowd control at what became an infamously tragic concert headlined by the Rolling Stones. He recounted thirty years later: "Some guy jumped off an overpass because somebody told him he could fly. They lied. Another jumped into the [Delta Mendota Canal] because they told him he could swim. They lied to him, too.... I think we had five deaths and five births, so we came out even." Houchins died at his California home in 2005.

The Houchins case centered on news media investigation of the Santa Rita jail. Reporters wanted to tour "Little Greystone," a part of the jail in which "shocking and debasing conditions" were alleged to have caused inmate illnesses and deaths.

Houchins is one of a family of First Amendment access cases in which the Burger Court put the brakes on the liberal interpretations of the First Amendment that characterized the civil rights era. However, to the dismay of President Richard Nixon, who appointed him, Chief Justice Warren Burger was only marginally effective in rallying the Court to reverse the civil rights direction of the predecessor Earl Warren Court.

Houchins reflects that equivocation. Though Houchins's bar review flash card might read simply "no 1A access to public places," the decision came from a fractured Court of only seven justices and an opinion of only three. Harry Blackmun and Thurgood Marshall did not participate, the former having had recent surgery and the latter recusing. Burger was joined by only two others, including his successor as Chief Justice, William Rehnquist, in the opinion of the Court. They formed a majority of four with the addition of Justice Potter Stewart. (Read more about the fracas behind the scenes from Matthew Schafer.)

Concurring, Stewart joined Burger's conclusion on the facts of the case; he had been the author of two prior Court decisions, in 1974, rejecting press access to prisons or prisoners. Yet in his opinion in Houchins, he speculated that media might articulate a First Amendment claim on better facts. With three dissenters arguing at least as much, thus outnumbering the Burger contingent, Houchins arguably left the jailhouse gate open to a First Amendment theory, if you'll forgive the metaphor. Media law aficionados will recognize a pattern akin to Branzburg v. Hayes (1972), in which similar equivocation on the Court, aided later by clever advocacy from media lawyers, left the problem of constitutional reporter's privilege in disarray.

Much of the dispute in Houchins can be characterized as a frame-of-reference problem. In its broadest frame, Houchins is about public access to places to hold public officials accountable. That seems reasonable. But when I teach Houchins, students are quick to find the media position untenable, reading the case more narrowly as about reporters demanding access to any part of the prison, perhaps even with minimal advance notice.

That dichotomy in framing plays out in the public protests and media frustration over access to the Ash Street Jail in recent decades. There were tours; the writer who toured Ash Street in 2016, cited above, was then a reporter for public radio WBUR. Just like in Houchins, protestors and former detainees of the facility complained that public tours were limited and staged, showing reporters only what officials wanted them to see. Officials said that wider public access would jeopardize the security of the facility and the people inside, both detainees and workers.

The theoretical solution that emerged from Houchins, such as the case held, is that supervision of "non-public public places" should be accomplished not through the free press of the First Amendment, but through political accountability at the ballot box. To some degree, that's what happened when Heroux became sheriff in 2022. At the same time, prison conditions raise a peculiar problem in majoritarianism, familiar in criminal justice and civil rights contexts, and resonant in debate today over policing: The political system is not a reliable way to protect the rights of jailed persons, a minority class widely regarded with little sympathy.

On balance, I don't know whether the truth of the Ash Street Jail is closer to the horrifying complaints of former detainees or to the confident assurances of public officials. Whether constitutionally or statutorily, sunshine must be allowed to penetrate prison walls.

Senate inquisition of Ticketmaster is antitrust theater

Ginny via Flickr CC BY-SA 2.0

Inquisition of Ticketmaster in the Senate last week made headlines, but it's so much antitrust theater, and Ticketmaster and parent Live Nation know it.

Senators love to play hard-nosed before the cameras, and then assiduously do nothing to alienate the corporatocracy. Breathless reporting on the hearing in the Judiciary Committee would have you believe that this is Ticketmaster's first dance. It's not.

The Justice Department signed off on Ticketmaster's very merger with Live Nation in 2010 (N.Y. Times). The N.Y. Times Dealbook Newsletter further recalled:

In 2019, [Sen. Amy] Klobuchar [D-Minn.] and Senator Richard Blumenthal, Democrat of Connecticut, urged the Justice Department to investigate the "broken" ticket industry.

Artists have long complained about Ticketmaster’s role. The band Lawrence, whose co-founder, Clyde Lawrence, wrote a Times Opinion essay on the topic last year, included the line "Live Nation is a monopoly" in its 2021 song "False Alarms." Perhaps most famously, Pearl Jam filed an antitrust complaint against Ticketmaster in 1994—16 years before it merged with Live Nation—kicking off a federal investigation that ultimately fizzled.

(Read more about the Pearl Jam claim from Rolling Stone in 1995. (UPDATE, Feb. 5: On the Media looked back at the Pearl Jam matter two days ago.)) House Democrats asked the Biden Administration to take another look at the Live Nation merger in the spring of 2021, well before the Taylor Swift ticketing fiasco (N.Y. Post).

Founded in 1976, Ticketmaster was on its way to market dominance and a lousy reputation with concertgoers by the time I was a teenager. Already transnational, it took the market lead when it acquired Ticketron in 1991.

Live Nation was once a growing competitor to behemoth Ticketmaster. In 2000, Live Nation was acquired by Clear Channel Communications, and then was spun off in 2005. It soon started work on the Ticketmaster merger, which was announced in 2009 and approved by the Obama Justice Department in 2010.

Clear Channel itself is another chapter in the government's pathetically permissive record of antitrust enforcement in media and entertainment. In 2001, Jesse Morreale, a Colorado concert promoter (and my first cousin), along with partners in Nobody in Particular Presents, Inc., sued Clear Channel for shameless vertical integration in the music business.  The federal district court in Denver denied Clear Channel summary judgment in 2004 (more behind pay wall at Rolling Stone). The case subsequently settled. Clear Channel's vertical integration was a more sophisticated descendant of simple payola, an unfair practice in the music industry as old as regulatory agencies themselves. 

It's a normal market dynamic for industry and antitrust regulators to play a cat-and-mouse game over the long term. But Ticketmaster has been only a clever Jerry to the government's buffoonish Tom for going on half a century.

Israeli law profs raise alarm over judicial reforms

Proposed judicial reforms in Israel have set off a firestorm with critical characterizations comparing Prime Minister Benjamin Netanyahu with the likes of Jair Bolsonaro and Viktor Orbán.

Israel has seen a possible division—now familiar to the United States, cf., most recently, the House Speaker election (NPR)—between a traditionally conservative right and a more extreme right since Netanyahu retained office by allying with parties NPR characterized as "ultra-Orthodox religious" and "ultra-nationalist."

The reforms, which are not yet law, comprise two plans The New York Times described:

Under the first plan, a simple majority of lawmakers could override almost any revocation of parliamentary legislation by the Supreme Court, which can currently block laws on constitutional grounds. The court would only be able to prevent itself from being overruled by Parliament if all of its 15 judges unanimously agreed about the need to block a law.

Under the second plan, the government would be able to appoint a majority of the members of the panel that selects new judges, upending the current system in which government appointees form only a minority of panel members.

Israeli Supreme Court with Knesset behind.
Israeltourism via Wikimedia Commons CC BY 2.0

On the one hand, the proposals would weaken the Israeli judiciary. But some commenters, such as American conservative Josh Hammer, have observed that the proposals are not radical. My colleague Professor Dwight Duncan has argued that a U.S. Supreme Court majority, or at least super-majority, should be required to strike down legislation as unconstitutional. Arguably, the approach better balances the legislative and judicial branches than does extra-textual judicial supremacy. The second proposal would effect a selection process hardly more partisan than federal judicial appointments in the United States.

On the other hand, Israel is not America, and it might be a more urgently pluralist democratic experiment. As well, the ways of our dated Constitution are hardly exclusive pronouncements of best practices. In the context of populist executive aggrandizement in places such as Brazil and Hungary, and subordination of judicial power, as in Poland, the Israeli reform proposals are at least cause for concern.

Objections have come not only from Israeli liberals, but also from economic conservatives, who don't want the economic apple cart upset. The Jewish Telegraph Agency explained, "Foreign investors and international credit agencies have both signaled that if the reforms go through, they will downgrade their estimation of the country," disrupting perception of Israel as "a democratic oasis in the Middle East" possessed of "business savvy."

For the reform side, a proponent think tank posted a perhaps-too-playful, Schoolhouse Rock-style video on Twitter. For opponents, I received Friday from my friend and colleague Professor Roy Peled a statement signed by 198 Israeli professors, including, Professor Peled wrote, the majority of faculty from 13 law schools in Israel. The brief statement reads:

We, senior academic members of staff at law faculties in Israel, strongly oppose the regime change that the Israeli government is promoting under the guise of “legal reforms”. These far-reaching constitutional changes include providing the government with absolute control over the appointment of the judiciary; near complete elimination of judicial review; dissolution of civil-servant ministerial legal counsels as gatekeepers; and undermining the freedom of the press. In aggregation, these proposals suffocate the independence of the judiciary, dissolve the separation of powers between the branches of governments, and eliminate the rule of law. No recognized democratic country in the world operates under such conditions. The combination of the proposed changes is alarming and dangerous. It will bring far-reaching infringements of human rights, and strip Israel’s system of government of fundamental features of its structure as a democracy.

We call on those involved in the legislative process to avoid hasty constitutional legislation that would transform the character of the State of Israel, and we urge them to initiate a process of open, respectful, and tolerant deliberation with the aim of reaching broad agreements on these deeply consequential matters.

I'll park a copy of the letter with its signatories here for the next few months.

UPDATE, Jan. 31, 2023: Professor Peled today sent news of a companion statement by U.S. law professors.

We're losing the war on heart disease

Last week, my wife's life was at risk because we did not understand that women in heart distress do not necessarily experience the symptoms one might expect; indeed, they might have no chest pain at all.

My wife, a law librarian at Roger Williams University, is now home from Rhode Island Hospital (RIH) after a scary and unpleasant five nights. She will be OK.

But two weeks ago, she was misdiagnosed by her primary care provider. We too thought she was suffering only a stomach inflammation. In fact, she was experiencing a cardiac event.

Pixabay CC0

A week later, when primary care failed to yield an explanation and the pain became intolerable, we went to the ER.

My hat's off to the staff at RIH. In the ER, they respectfully heard out our recitation of symptoms and amateur self-diagnoses, erroneous as it turned out, and nonetheless rapidly and tenaciously checked out the heart. In the blood work, they discovered enzymes indicative of heart-muscle damage at 500 times normal levels. Our primary care provider had not tested for that.

You're going to hear a lot about women's heart health in the coming weeks, because February 3 is National Wear Red Day, a project of the American Heart Association (AHA) that kicks off American Heart Month. But I've known about Wear Read Day, and I've even worn red. I've known that symptoms of women's heart trouble are elusive. Still, I did not recognize the cause of my wife's distress. So this message can't be delivered early or often enough.

The day my wife came home, the January/February AARP Bulletin landed on our doorstep with the cover story, "America's War Against Heart Disease." A subhead reads, "75 years after it started, we’re losing the battle against our number 1 killer."

This isn't just news for seniors. Sari Harrar reported, "Death rates from heart disease rose 8.5 percent for adults ages 45 to 64 between 2010 and 2020." My wife is under 50.

The AHA says that women with any of these symptoms should "call 911 and get to a hospital right away":

1. Uncomfortable pressure, squeezing, fullness or pain in the center of your chest. It lasts more than a few minutes, or goes away and comes back.
2. Pain or discomfort in one or both arms, the back, neck, jaw or stomach.
3. Shortness of breath with or without chest discomfort.
4. Other signs such as breaking out in a cold sweat, nausea or lightheadedness.
5. As with men, women’s most common heart attack symptom is chest pain or discomfort. But women may experience other symptoms that are typically less associated with heart attack, such as shortness of breath, nausea/vomiting and back or jaw pain.

Our home pharmacy since my wife came home.
RJ Peltz-Steele CC BY-NC-SA 4.0

Harrar reported particularly on the risk-compounding factor of gender.

For decades, women were underrepresented in clinical trials and their heart attack symptoms dismissed in emergency rooms as stomach pain or even emotional problems. The [AHA] published its first treatment guidelines for women in 1999, but it's taken longer for science to discover that the anatomy and electrical pathways of the female heart are unique, which may help explain why a woman's heart attack symptoms can be different from a man's.

Yet women's heart health is still understudied, according to a 2022 review of research in the journal Circulation Research, and women's heart attack warning signs are too often overlooked....

... [H]ealth professionals seem to have the same difficulty identifying heart disease in women: The same study found that when women suffering heart attacks arrive at an emergency room, they experience longer wait times ....  Another study found that women tend to wait longer before calling 911 when they're having a heart attack—up to 37 minutes longer.

This is not so simple as a problem of bias in perspective. All of my wife's doctors in primary care and at RIH were women. But the primary care providers failed to check out the heart, and the ER doc picked up on the possibility immediately.

Farrar's reporting showed that socioeconomics, race, and ethnicity further compound the problem of under-diagnosed or misdiagnosed heart disease. There might be real genetic differences based in race, but they cannot explain a 21% higher mortality rate for African-American adults over white adults, nor the increase in that gap over time, and a higher incidence of heart disease in Hispanic women and men over white women and men.

There are many viable explanations for disparities in outcome by race and ethnicity, importantly including consequences of wealth disparity, such as access to healthy food. But costs and fear of costs no doubt lead the pack of problems.

My family is fortunate to have access to healthcare. Insurance is available to us through both of our employers, which pay a portion of the premiums. Co-pays and deductibles for us are expensive, but manageable. 

The Rhode Island Hospital complex.
Kenneth C. Zirkel via Wikimedia Commons CC BY-SA 4.0

We don't yet have explanations of benefits for this bout of healthcare. But for an anecdotal point of comparison, a two-night hospitalization last year, with no surgical procedures, billed about $13,000 to our insurance. We were responsible for about $1,500. That's not going to stop us from going to the ER, but it will cause many people to pause. And lower-premium plans available through the Affordable Care Act can have much higher deductibles than ours.

A New York Times investigation featured on The Daily podcast this week opened with the story of a woman who stalled her emergency care for fear of costs. After at last seeking help and being hospitalized, she was responsible for a $1,900 tab. But that was too much for her fixed income. She struggled to meet even the demand of a payment plan while still buying food.

Alas, the Daily story was not even about costs. Rather, the investigation revealed that that patient's experience represented a prevalent norm at "nonprofit" hospitals that, by law, are not supposed to charge anything to people who can't afford it.

Some numbers about the Washington hospital highlighted in that story: Annual revenue: $27 billion. Tax break for "nonprofit" status: $1 billion. CEO's annual salary: $10 million.

The patient in the story was given a payment plan, but never an option not to pay. She prioritized the payments over her groceries because she felt indebted to the hospital for having saved her life. She imagined her money going to the staff who took care of her.

We are fortunate also because we live in the small state of Rhode Island and are only a short drive away from hospitals in Providence. Rural healthcare in America is another matter. In the Louisiana town where my wife grew up, and we still have family, the closest hospital is 70 miles away, and it's no tribute to cutting-edge technology.

On The Takeaway from WNYC this week, Harold Miller, president of the Center for Healthcare Quality and Payment Reform, explained why more than 600, or nearly 30% of rural hospitals nationwide are at risk of closing, and 141 have closed since 2010.

A federal aid package to save rural healthcare might be well intentioned but is misguided, Miller said, because to be eligible, a hospital must shut down its inpatient services. But there are no resources to transport patients to larger urban hospitals hours away. The urban hospitals don't have the capacity for that influx anyway. The resulting healthcare system we are now creating would have failed catastrophically had it been in place during the pandemic, when inpatient capacity was stretched to the limit. And that's to say nothing of separating patients from their families by long distances.

It's critical that every person, man and woman, be enlisted in the war on heart disease. Everyone especially should be on guard for the risk to women that might not be easily identified by symptoms. We're going to have to rely on ourselves and one another all the more with a healthcare system that is inconsistently resourced and increasingly ill equipped for the fight.

Ukraine Bar Association soldiers on

Lawyers have never stopped work in Ukraine, and the bar has been a catalyst in the development of democracy there, I learned today at a presentation of the Federalist Society.

Gvozdiy via Zoom from Kyiv today.

Via Zoom from Kyiv, Dr. Valentyn Gvozdiy, vice president of the Ukraine Bar Association, joined the Federalist Society International and National Security Practice Group to talk about the evolution of the profession in Ukraine and the role of lawyers in the present war. Dr. George Bogden interviewed Gvozdiy.

The talk came on the heels of news of the firing of a slate of top Ukrainian government officials in a corruption scandal. Gvozdiy addressed that developing story, too, in response to questions.

After the independence of Ukraine from the Soviet Union in 1991, the legislature adopted a "Law on the Bar," in 1992, Gvozdiy recounted. The enactment liberated the bar from "complete state control," but instituted only "quasi self-governance."

Ukraine had long looked to join the European community of nations, and work began promptly after independence to move the country in that direction. A key plank in the platform of European standards, Gvozdiy explained, is the existence of an independent bar. A 1995 resolution in the Council of Europe provided an incentive, recommending the organization of Ukrainian lawyers. The recommendation later became a precondition of the landmark Ukraine-EU association agreement in 2014.

Formal progress was long stalled by the very conflict that animates the present war. The fledgling Ukrainian state was weak, and political leaders were susceptible to corruption by easterly interests. Like popular opinion and the commercial sector, the developing bar leaned westward. By the time Donetsk Oblast-born Viktor Yanukovych claimed the presidency in 2010, to the dismay of the United States, the Russian-leaning leader was walking a tightrope that could not hold. Katya Gorchinskaya explained for Eurasianet:

The catalyst for the Yanukovych administration’s downfall was Ukraine’s stop-and-start efforts to sign an association agreement with the European Union. By late 2013, a majority of the population backed a draft agreement. But the pact to draw Ukraine closer to the EU placed Yanukovych in a tough situation. The treaty would open the way for substantial EU economic assistance and other perks, such as visa-free travel to Europe for Ukrainian citizens. But it would also mandate compliance with transparency and accountability provisions that gave Yanukovych and his associates reason to pause. In addition, Russia, the Ukrainian president’s main foreign patron, was steadfastly against seeing Ukraine take even the tiniest step toward Europe.

Amid the push and pull, Parliament coughed up landmark legislation in 2012 that established the Ukraine Bar Association as fully self-governing. Two years later, the Maidan Revolution deposed Yanukovych, Ukraine and the EU concluded the association agreement, and Russia invaded Crimea.

"'An obstacle is often a stepping stone,'" Gvozdiy said of Yanukovych, invoking a maxim usually attributed to U.S. Revolutionary War Colonel William Prescott. "The former president is not only not popular in Ukraine, he is the worst person we can imagine in our recent political history."

The recent ouster of top Ukrainian officials amid a corruption scandal has unsettled supporters of Ukraine with fear that the Zelensky Administration looks unstable. The news broke at a sensitive time, as the Biden Administration is navigating German reluctance to provide advanced tanks to Ukraine and skepticism over military investment in Ukraine from House Republicans. Meanwhile, Joanna Kakissis explained for NPR, Putin will seize on the news to bolster his characterization of Ukraine as a western puppet and threat to Russian security, incompetent in purported independence without Russian intervention.

In fact, the ouster is a good sign for Ukraine and should bolster western support, Gvozdiy said. Zelensky is signaling to Ukrainians and the world that contemporary Ukraine has "complete intolerance to the corruption."

Formerly, politicians robbed public coffers, and any court order to halt corruption was unenforceable, he said. The ouster now demonstrates Ukraine's remarkable progress in only a few years.

Yet in the present war, the bar is among democratic institutions fighting for survival, Gvozdiy said. The bar "would wither and absolutely disappear under Russian law."

Ukrainian advocates have "never stopped practicing law during the war," Gvozdiy said. Their work has included the defense of prisoners of war, if often to the chagrin of Ukrainians. (Other members of the legal community, such as prosecutors and judges, are busy too, for example, collecting evidence of war crimes. They are law-educated, but, unlike advocates, not members of the bar, as Ukraine follows a bar model in the European civil law tradition.)

Upholding the rule of law is the lawyer's constitutional obligation, Gvozdiy said. "We're not defending their crimes," he said of the POWs. "We defend their human rights."

One program attendee asked what American lawyers can do to help. Relayed by Bogden, the questioner expressed frustration that we don't have on-the-ground skills with obvious application, like other professionals have. 

I often have shared this frustration. We can't charge to the rescue like healthcare workers, nor mission like clergy. Even for pro bono projects at ABA conferences in the United States, I've picked up litter and organized dogs for vaccination, but I've never been asked to use my skills as a lawyer.

Gvozdiy's response was revealing, but not gratifying. Ukrainian lawyers need not just financial support, he said, but mental health support.

"We need professionals who can help us in a professional way to understand better how we need to behave and work and combine war with the practice of law," he explained. "We need training ... which will teach us how to react and how to reflect, how to communicate, how to live in peace with yourself and with all this pressure as a professional."

I'm not sure we're well stocked in the United States with experts in practicing law in a war zone. But when the conflict finally comes to an end in Ukraine, I know where we can find some.

Google censors opinion condemning private censors

On December 31, Google blocked access to a Savory Tort post from 2019 on free speech and censorship in New Zealand.

I received this message from Google on New Year's Eve:

As you may know, our Community Guidelines (https://blogger.com/go/contentpolicy) describe the boundaries for what we allow--and don't allow--on Blogger. Your post titled "NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors" [my boldface] was flagged to us for review. This post was put behind a warning for readers because it contains sensitive content; the post is visible at http://www.thesavorytort.com/2019/03/nz-prosecutions-for-vid-sharing-would.html. Your blog readers must acknowledge the warning before being able to read the post/blog.

Why was your blog post put behind a warning for readers?

Your content has been evaluated according to our Adult Content policy. Please visit our Community Guidelines page linked in this email to learn more [link below]. We apply warning messages to posts that contain sensitive content. If you are interested in having the status reviewed, please update the content to adhere to Blogger's Community Guidelines. Once the content is updated, you may republish it at [URL omitted]. This will trigger a review of the post.

For more information, please review the following resources:
Terms of Service: https://www.blogger.com/go/terms
Blogger Community Guidelines: https://blogger.com/go/contentpolicy 

Sincerely,
The Blogger Team

Setting aside for a moment the irony of private censorship of a post about private censorship,* I wanted to understand what triggered the block. As the headline indicates, I fretted in the post about New Zealand criminal law being turned against online re-publishers of the horrifying video of mass shooting at a Christchurch mosque in 2019. I wrote that the lack of newsworthiness exception in New Zealand law would be problematic in U.S. First Amendment law, and the prosecution could not withstand analysis under Brandenburg v. Ohio (1969). And I wrote some about how the modern internet has posed a challenge to the dated First Amendment doctrine.

Willow Brugh via Wikimedia Commons and Flickr CC BY-SA 2.0

At first, I thought maybe I linked to the objectionable video itself; I had not. I did mention by "dot com" name a problematic website from earlier internet days that was infamous in freedom-of-information circles for hosting gruesome content. But I didn't hyperlink it, and the site no longer exists at that address anyway.

The message from Google referred to the "Adult Content policy."  Here's what the policy disallows:

We do allow adult content on Blogger, including images or videos that contain nudity or sexual activity. If your blog contains adult content, please mark it as 'adult' in your Blogger settings. We may also mark blogs with adult content where the owners have not. All blogs marked as 'adult' will be placed behind an 'adult content' warning interstitial. If your blog has a warning interstitial, please do not attempt to circumvent or disable the interstitial - it is for everyone’s protection.

There are some exceptions to our adult content policy:

• Do not use Blogger as a way to make money on adult content. For example, don't create blogs that contain ads for or links to commercial porn sites.
• We do not allow illegal sexual content, including image, video or textual content that depicts or encourages rape, incest, bestiality, or necrophilia.
• Do not post or distribute private nude, sexually explicit, or non-explicit intimate and sexual images or videos without the subject’s consent. If someone has posted a private nude, sexually explicit, or non-explicit intimate and sexual image or video of you, please report it to us here [hyperlink omitted].

There's nothing remotely sexual about the 2019 post. Nor is there any depiction or description of violence, other than a reference to the mere occurrence of the tragedy, which was well reported in news media with plenty more detail.

Links to The Savory Tort were once banned from Facebook, too, for more than a year. When I inquired, Facebook sent me a form message saying that The Savory Tort violated Facebook terms of service for content. I sent further inquiries, made appeals, etc., but Facebook never clarified how the terms were violated. Indeed, Facebook never responded with other than form messages confirming the ban. For all the hoopla about a "Facebook supreme court" and thoughtful, human review of content, those avenues apparently are not open to the little people such as me.

Ultimately, a former student and labor attorney complained about the ban to Facebook, after he was denied permission to share a link to my blog. He kindly let me know. Subsequently, consequently?, and suddenly, links could be posted. The ban vanished as mysteriously as it had appeared. Not a word from Facebook, then or since.

The Facebook ban came about upon a complaint from someone who didn't like something I wrote, I suspected. That happens. For example, I wrote once about a family law case in the Massachusetts Supreme Judicial Court, and I was threatened with legal action by the disappointed party. 

It's easy for someone to complain to Facebook or Google Blogger about online content. The complaint is not necessarily reviewed by a real person, or it is and the person is incompetent or indifferent. It's easier to block or take down content than arbitrate a dispute. That's why trolls and publishers have been able to abuse the notice-and-takedown system that has debilitated fair use of intellectual property.

Here, Google said that the post "was flagged to us for review" (my italics) and "has been evaluated." The choice of words, muddling passive voice notwithstanding, suggests that a third party triggered the review. How anyone, even a bot, at Google then could have found adult content, or anything in violation of the content terms, is a mystery to me. I can conclude only that the block was imposed automatically upon the complaint, with no review at all.

I would seek further explanation or ask for a human review, but that, it seems, is not an option. Google offers me the opportunity to have the block reviewed only after I "update the content to adhere to Blogger's Community Guidelines." I see no violation of the guidelines now, so I don't know what to update.

Now let's come back around to that irony, which might not be coincidental.  (Irony and coincidence are not necessarily the same thing, whatever Alanis Morissette would have you believe.)  The dangers of private online censorship was the theme of my post in 2019. The block on my post occurred in December 2022 only weeks after Elon Musk began to censor his critics on Twitter. Musk is still at it, by the way, seemingly having acceded this week to Indian government demands that Twitter censor critics of Prime Minister Narendra Modi. 

At the same time in December that Musk was making headlines with Twitter censorship, the Supreme Court scheduled (for Feb. 21) the oral argument in Gonzalez v. Google LLC (track at SCOTUSblog). The case asks whether internet service providers such as Google enjoy section 230 immunity from liability in the provision of targeted content, such as search results, apart from the conduct of traditional editorial functions, akin to newspaper editors choosing letters to the editor. David McGarry explained for Reason two weeks ago, "The plaintiff is Reynaldo Gonzalez, whose daughter was murdered in a 2015 terrorist attack. [He] argues that YouTube, a Google subsidiary, should face liability because its algorithms recommended terrorist content posted on the platform that Gonzalez says aided the Islamic State."

That's a potential liability exposure that might incline Google to censor first and review later.

Perhaps someone triggered the automatic censorship of a great many online articles about private censorship, hoping to make the very point that private censorship is dangerous. If that's what happened here, I would offer a grudging salute. But I would like to see the point actually made, not just fruitlessly attempted.

At the end of the day, I'm not so broken up about the block, as opposed to a ban like Facebook's, which frustrated me no end, as I could not share content at all with family and friends. A reader who encounters a sensitive content warning wall might be only more interested to know what lies beyond. And my target audience isn't children anyway. 

I figure there's a reasonably good chance that this post will wind up behind a warning wall for having referred to a warning wall. So be it. Anyone interested enough to be investigating a four-year old story of censorship probably will get the ironist's point, and mine.

* My journalism ethics professor at Washington and Lee University in the early 1990s, the late great Lou Hodges, railed against the word "censorship" to describe private action, so would have regarded the term "private censorship" as outrageously oxymoronic. Professor Hodges was steeped in classical learning and recognized that the word "censor" comes from the Ancient Roman word referring to a public magistrate whose responsibilities, on behalf of the state, included counting people and property—thus, "census"—and the enforcement of public morals through what we now call "censorship." To honor Professor Hodges, I long insisted on the same distinction. But in recent years, I have given in to the modern trend to employ the term regardless of the private or public nature of the actor. Professor Hodges could not then have anticipated that we would soon have an "Internet" that looks very much like a public commons, thus reviving the seemingly antiquated First Amendment problem of the company town. The term "censorship" seems to me apt for a world in which transnational corporations such as Google and Meta might as well be governments from the perspective of ordinary people.