Tag: free speech

COVID 19, discrimination, employment law, eviction moratorium, free sppech, landlord tenant, law, religious freedom

Statement of Justice Gorsuch

Arizona, et al v. Mayorkas, 589 U.S. _____ (2023)

Statement of GORSUCH, J.

This case concerns the “Title 42 orders.” Those emergency decrees severely restricted immigration to this country for the ostensible purpose of preventing the spread of COVID-19. The federal government began issuing the orders in March 2020 and continued issuing them until April 2022, when officials decided they were no longer necessary.1 If that seems reasonable enough, events soon took a turn.

In a federal district court in Louisiana, a number of States argued that the government’s decision to end the Title 42 orders violated the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq., because agency officials had not pro­ vided advance notice of their decision or invited public com­ ment.2 The States did not seriously dispute that the public- health justification for the orders had lapsed. The States also understood that their lawsuit would only require the government to take certain additional procedural steps before ending the Title 42 orders. But the States apparently calculated that even a short, court-ordered extension of those decrees was worth the fight. Worth it because, in their judgment, a new and different crisis had emerged at the border and the federal government had done too little to address it.3 Keeping the Title 42 orders in place even temporarily was better than the alternative. In the end, the district court agreed with the States’ APA arguments and entered a nationwide injunction that effectively required the government to enforce the Title 42 orders until and un­ less it complied with the statute’s notice-and-comment procedures.4

Meanwhile, a thousand miles away, a group of asylum seekers filed a competing class-action lawsuit in a federal district court in Washington, D. C. This group argued that, from the start, the government lacked legal authority to issue its Title 42 orders. Ultimately, the D. C. district court agreed with the group’s assessment and issued an equally sweeping form of relief — sometimes called “universal vacatur” — that purported to wipe the Title 42 orders off the books as if they never existed.5 So it is that the federal government found itself in an unenviable spot — bound by two inconsistent nationwide commands, one requiring it to enforce the Title 42 orders and another practically forbidding it from doing so.

If these head-spinning developments were not enough, more followed. Displeased with the D. C. district court’s ruling, some of the States in the Louisiana case moved to intervene in the D. C. case. The States said they wanted to defend the Title 42 orders on appeal because the federal government was unlikely to do so with sufficient vigor. Ultimately, the court of appeals denied the States’ motion to intervene as untimely.6 So, late in 2022, the States turned to this Court seeking two things. First, they asked for expedited review of the appellate court’s order denying their motion to intervene. Second, they asked for a stay of the D. C. district court’s decree vacating the Title 42 orders. The Court granted both requests. In doing so, the Court effectively extended the Title 42 orders indefinitely.7

Now, almost five months later, the Court puts a final twist on the tale. It vacates the appellate court’s order denying the States’ motion to intervene and remands with instructions to dismiss the motion as moot. Why the sudden about-face? Recently, Congress passed and the President signed into law a joint resolution declaring that the COVID-19 emergency is over.8 The Secretary of Health and Human Services, too, has issued his own directive announcing the end of the public-health emergency underlying the Title 42 orders.9 Apparently, these developments are enough to persuade the Court that the Title 42 orders the government wished to withdraw a year ago are now as good as gone and any dispute over them is moot.

I recite all this tortured procedural history not because I think the Court’s decision today is wrong. Nearly five months ago, I argued that the Court erred when it granted expedited review and issued a stay. As I explained at the time, I do not discount the States’ concerns about what is happening at the border, but “the current border crisis is not a COVID crisis.”10 And the Court took a serious misstep when it effectively allowed nonparties to this case to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one.11 Today’s dismissal goes some way to correcting that error.

I lay out the history of this case only because it is so typical. Not just as an illustration of the quandaries that can follow when district courts award nationwide relief, a problem I have written about before.12 Even more importantly, the history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.

Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emer­gency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes.13 They shuttered businesses and schools, public and private.14 They closed churches even as they allowed casinos and other favored businesses to carry on.15 They threatened violators not just with civil penalties but with criminal sanctions too.16 They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct.17 They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.18

Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide.19 They used a workplace-safety agency to issue a vaccination mandate for most working Americans.20 They threatened to fire noncompliant employees,21 and warned that service members who refused to vaccinate might face dishonorable discharge and confinement.22 Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.23

While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress — the bodies normally responsible for adopting our laws — too often fell silent. Courts bound to protect our liberties addressed a few-but hardly all-of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking­by-litigation.

Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action — almost any action — as long as someone does some­thing to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties — the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.24

But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.25 Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.26 Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hope­ fully, we have relearned these lessons too.

In the 1970s, Congress studied the use of emergency decrees.27 It observed that they can allow executive authorities to tap into extraordinary powers.28 Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed.29

At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order.30 In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.31

Despite that law, the number of declared emergencies has only grown in the ensuing years.32 And it is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level. At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. Make no mistake-decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.

Footnotes

1 87 Fed. Reg. 19944-19946, 19956 (2022).

2 Louisiana v. Centers for Disease Control & Prevention, 603 F. Supp. 3d 406, 412 (WD La. 2022).

3 Id., at 417.

4 Id., at 441.

5 Huisha-Huisha v. Mayorkas, 2022 WL 16948610, *15 (Nov. 15, 2022).

6 Arizona v. Mayorkas, 598 U. S. _ , _ (2022) (GORSUCH, J., dissenting) (slip op., at 2).

7 See id., at_   (slip op., at 3).

8 Pub. L. 118-3, 137 Stat. 6.

9 See U.S. Dept. of Health and Human Services, COVID-19 Public Health Emergency (PHE), https://www.hhs.gov/coronavirus/covid-19- public-health-emergency/index.html.

10 Arizona, 598 U. S., at_  (GORSUCH, J., dissenting) (slip op., at 3).

11 Id., at_-_ (slip op., at 2-3).

12 Department of Homeland Security v. New York, 589 U. S. _, _ (2020) (opinion concurring in grant of stay) (slip op., at 3).

13 See, e.g., Republican National Committee v. Democratic National Committee, 589 U. S. _, _ (2020) (Ginsburg, J., dissenting) (slip op., at 2) (noting that the Governor of Wisconsin ordered residents “to stay at home … to slow the spread of the disease”); see generally The Council of State Governments, COVID-19 Resources for State Leaders: 2020- 2021 Executive Orders, https://web.csg.org/covidl9/executive-orders/ (COVID-19 Resources for State Leaders) (cataloging such orders issued throughout the country).

14 See, e.g., Rossi v. Arch Ins. Co., 60 F. 4th 1189, 1192 (CA8 2023) (not­ing that “state and local governments” across the country issued “stay­at-home orders” that shuttered businesses); Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, 981 F. 3d 505, 507 (CA6 2020) (noting that the Governor of Kentucky prohibited “in-person instruction at all public and private elementary and secondary schools”); see generally COVID-19 Resources for State Leaders.

15 Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. _,  _  (2020) (GORSUCH, J., dissenting from denial of application for injunctive relief) (slip op., at 1).

16 See, e.g., D. Burke, Police Arrest Florida Pastor for Holding Church

Services Despite Stay-at-Home Order, CNN (Mar. 30, 2020), https:// http://www.cnn.com/2020/03/30/us/florida-pastor-arrested-river-church/index.html.

17 Roberts v. Neace, 958 F. 3d 409, 412 (CA6 2020) (per curiam).

18 Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. _,  _  (2020) (per curiam) (slip op., at 1-7); see also South Bay United Pentecostal Church v. Newsom, 592 U.S._,_-_ (2021) (statement of GORSUCH, J.) (slip op., at 1-6).

19 Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. _,  _  (2021) (per curiam) (slip op., at 1).

20 National Federation of Independent Business v. OSHA, 595 U. S. _,_  (2022) (slip op., at 1).

21 See, e.g., K. Liptak & K. Collins, Biden Announces New Vaccine Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021), https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html.   22Austin v. U.S. Navy Seals 1-26, 595 U.S._,_ (2022) (ALITO, J., dissenting) (slip op., at 1).

23 See, e.g., S. Myers, Free Speech vs. Disinformation Comes to a Head, N. Y. Times (Feb. 9, 2023), https://www.nytimes.com/2023/02/09/business/ free-speech-social-media-lawsuit.html.

24 See, e.g., Aristotle’s Politics, Bk. V, chs. 2, 4 (H. Rackham transl. 1959).

25 See, e.g., The Federalist No. 10, pp. 80-84 (C. Rossiter ed. 1961) (J. Madison); id., No. 35, at 215-216 (A. Hamilton); id., No. 57, at 350- 356 (J. Madison).

26 Cf. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

27 Congressional Research Service, National Emergency Powers 7 (Nov. 19, 2021) (CRS) (describing congressional studies undertaken from 1972 to 1976 regarding emergency powers).

28 Id., at 8.

29 Id., at 7.

30 Id., at 1, 8-10.

31 90 Stat. 1255 (codified at 50 U.S. C. §§1601-1651).

32 CRS 12 (identifying dozens of existing emergencies as of 2019).

COVID 19, free sppech, law, religious freedom

Flags and masks: SCOTUS and SJC issue new decisions

May 2, 2022:- Two new decisions arrived today, one from a unanimous Supreme Court of the United States (SCOTUS) against the City of Boston’s refusal to let an applicant fly a Christian flag from a municipal flagpole, and the other from the Supreme Judicial Court (SJC) of Massachusetts regarding the City of Lynn’s insistence that a busines owner conduct her business be-masked.

For Shurtleff v. City of Boston click here, and for City of Lynn v. Murrell click here.

Shurtleff v. City of Boston

SCOTUS held that the City of Boston’s refusal to approve Harold Shurtleff’s request to raise a Christian flag on a City flagpole abridged his right to freedom of speech. The City had allowed people to use the City flagpole to fly the flags of other countries, e.g. Venezuela, and various secular organizations, e.g. Metro Credit Union, but claimed that flying this particular flag could constitute “government speech.” Justice Alito’s concurrence addresses this succinctly:

The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker. For
example, the City allowed parties to fly the gay pride flag, but it allowed others to fly the flag of Ethiopia… a country in which “homosexual act[s]” are punishable by “imprisonment for not less than one year.”

The prize for the pithiest observation, however, goes to Justices Thomas and Gorsuch in their concurrence. To see what I mean, scroll down to page 40.

City of Lynn v. Murrell

In this case, the City of Lynn fined business owner Ariana Murrell for her no-mask policy, which defied the Commonwealth mask mandate. How did the City find out? Here are the words in the decision that made my heart sink:

The Lynn police department received multiple complaints about Murrell’s no-mask policy. The Lynn police investigated and corroborated these complaints with their own independent and documented
observations of Murrell’s practices at Liberty Tax. Members of the public also contacted the city’s board of health (board) to notify it of Murrell’s no-mask policy.

This practice (ratting, snitching, informing, whatever you want to call it) was the sort of thing that the bien pensant still seemed to care about as late as 2019, judging by this article in the Atlantic. But no longer.

The habit of informing on one another is now suitably engrained, but the mask mandates themselves have gone, at least for now.

And because the mandates are no more, the SJC decided that the issues were moot. But, in a somewhat encouraging response to Ms. Murrell’s argument that the issues remain alive because the State can reimpose a mask mandate whenever it feels like, the SJC implied (albeit ambiguously) that the widespread availability of treatments makes new mask mandates less likely. In addition, the court cited the SCOTUS decision on the OSHA vaccine-or-mask mandate, stating with sub-optimal clarity:

In light of this decision, we cannot say with any degree of certainty that our understanding of OSHA’s authority to issue general COVID-19 regulations, and the interrelated issue of preemption, would be the same if the Governor were to issue another
Statewide mandate.

For my post on that SCOTUS decision, click here.

In a glass half-full frame of mind, I think that the SJC was signaling that in reviewing any new mask mandates, it would take into account the changed jurisprudential landscape and would determine whether the facts (remember those?) really justify the mandates. Or perhaps I am getting carried away with hope.

appeals court, free speech, law, massachusetts

Appeals Court lifts gag order barring ex-client from saying anything about lawyer

March 30, 2022:- The Appeals Court has ruled that two District Court judges should not have prohibited a woman from posting anything online about the lawyer she and her husband had hired.

According to the lawyer, the couple had made statements on Facebook “calling us thiefs [sic]” and criticizing the lawyer in emails that cc’d other people. On the strength of this, first one judge (in Leominster District Court) then another (in Worcester District Court) issued a harassment prevention order under G.L. c. 258E. As the name suggests, harassment prevention orders are supposed to prevent harassment, not to prevent criticism. Nevertheless, two separate judges employed the harassment-prevention law to ban constitutionally-protected speech.

The Leominster judge issued the order on June 25, 2021, and the Worcester judge extended it on July 9, 2021 for a period of one year. The orders banned the defendant — the lawyer’s former client — from uttering any statements about the lawyer via “Internet or social media posts.” More than 8 months later, on March 30, 2022, the Appeals Court vacated the gag order. The part of the decision titled Discussion begins with this clear statement:

There is no basis in the record on which a c. 258E order could lawfully have issued.

Then the Appeals Court points out that the lawyer did not claim that the ex-client ever uttered any threats, and that nothing in the lawyer’s complaint described conduct that could qualify as “harassment,” which the statute defines in this way:

(i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.

To run afoul of the statute, a person needs to engage in three or more acts. Those acts need to be willful and malicious. The person must intend the acts to cause fear, intimidation, abuse or damage to property. And each of the three acts must, in fact, cause fear, intimidation, abuse or damage to property.

The appellate courts have consistently construed this definition so that it does not (or, at least, should not) discourage people, still less prohibit them, from engaging in the sort of robust back-and-forth speech that is essential in a self-governing republic of free people. To put it another way, no appellate court in Massachusetts has ever held that criticism of a lawyer by a disgruntled former client constitutes harassment under chapter 258E, still less that the offending speech warranted a comprehensive year-long ban on the mere utterance of the lawyer’s name online.

On the bright side, the lawyer’s ex-client had the wherewithal to hire another lawyer to file a successful appeal. But it is truly galling that a resident of Massachusetts should have to take a case up to the Appeals Court in order to vindicate her right to speak freely. It is more than galling that a lawyer and two judges (all of whom took an oath to uphold the Constitution of the United States, which still includes the First Amendment) all considered it OK to quash free speech. After all, even today — in the Trudeau-pian era of ochlocracy, Big Tech/Big Pharma shut-uppery, and the categorization of “misleading narratives that undermine public trust in US government institutions” as terrorism — this area of Massachusetts law is absolutely clear. It has been particularly clear since 2016 when the Supreme Judicial Court explained (because it was, sadly, necessary to explain) that judges really should not ban political candidates from mentioning the names of their opponents at election time. For my post on that decision, click here (quick, before they ban it).

So, three cheers for the Appeals Court justices and no cheers at all for the District Court judges who issued the gag order in the first place.

For the Appeals Court’s decision, click here.

Photo by Andrea Piacquadio on Pexels.com
free speech, law, legislative drafting

DEEPFAKE VIDEOS: MASSACHUSETTS MULLS BAN

August 4, 2021:- If you lie awake worrying that there are too few people incarcerated, too few criminal offenses on the statute books, and too much unregulated speech (in fact altogether too much unregulated human activity in general) rest easy. Help is at hand. The Massachusetts Legislature is considering a bill that would criminalize videos that make it look as if people are saying things that they did not really say.

It seems unlikely that the bill, H. 1755, sponsored by Representative Jay D. Livingstone, will become law, not this session anyway. It is a refile of H. 3366, which he filed in 2019. For reasons that I explain below, I hope this bill does not become law, not this session, not next session, not ever.

The clue is in the typo

Whoever drafted the bill apparently drew inspiration, and most of the text, from a federal bill titled the Malicious Deep Fake Prohibition Act of 2018 filed by United States Senator Bill Sasse (R – Nebraska). If you want to read Attorney Nina Iacono Brown’s critique in Slate of Senator Sasse’s bill and similar proposals, click here.

Copying another legislator’s bill is not a violation of the Copyright Act, of course (on which subject see below). In fact, they should have gone the whole hog and copied the title too. Because what did the drafters choose as a moniker for Representative Livingstone’s adaptation of Senator Sasse’s bill? They called it “An Act to protect against deep fakes used to facilitate torturous or criminal conduct.”

Aside from the irony-laden, Freudian-slippy typo (I am quite sure that they meant to write “tortious” not “torturous”) it’s just too much of a mouthful. But that problem is a small one compared with the bill’s potential impact on freedom of expression. It would hand the shut-uppers yet another tool with which to silence heterodox speakers.

Trust me, I’m from Big Tech

H. 1755 was on the agenda for the Joint Committee on the Judiciary on July 27, 2021. If you would like to watch the relevant part of the hearing, click here and scroll to 1:09:40. There you can see and hear testimony from Nick Gatz, manager of State Government Relations for Adobe, who states that the company is neutral on H.1755 and offers the Legislature its expertise “on the topic of content manipulation and online misinformation,” which is the sort of thing Adobe is against, I gather.

Adobe is so very much against content manipulation and online misinformation that it has established an entity called the Coalition for Content Provenance and Authenticity. If that name was approved by a focus group, I am quite sure that its members either: (a) had no familiarity with Orwell’s 1984; or (b) considered the book to have been not so much a cautionary tale as an instruction manual.

Coalition of the all too willing

The purpose of the Coalition for Content Provenance and Authenticity? To deploy technology that will help us — naïve saps that we are — sort the real-news wheat from the fake-news chaff, thereby obviating the need for legislation. Why should politicians bother to extend control over online speech with laws (laws that could conceivably be struck down by bothersome judges or repealed by the great unwashed) when Big Tech has an app for that? If the alternative to the Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct is the Coalition for Content Provenance and Authenticity, forgive me for not sighing with relief.

One of the more famous members of the coalition is Twitter, the company that (like Google’s YouTube) runs advertisements for the Chinese government, says the Columbia Journalism Review:

“According to a number of reports, the most recent ads push the message that protesters in Hong Kong are violent extremists and that state police are simply doing their best to keep the peace.”

Yes, Twitter takes money to promote the Chinese Communist Party line that pro-democracy protestors are violent extremists, a falsehood that does not count as “online misinformation” so far as Twitter is concerned, apparently.

Another coalition member is Microsoft, which, according to Business Insider, complies with China’s censorship laws. For example, earlier this year, when users in the United States tried to find images of Tank Man via Microsoft’s search engine, Bing, their searches yielded no results.

Readers may recall that Tank Man was the protestor who stood in front of Red Army tanks during the Tiananmen Square demonstrations. He was being a “violent extremist,” I suppose. But Bing’s omission was merely the result of “human error,” according to reports on the British Broadcasting Corporation (BBC).

“Beijing is known to require search engines operating in its jurisdiction to censor results, but those restrictions are rarely applied elsewhere.”

The most important word in that sentence is “rarely.” Fans of Gilbert and Sulivan’s H.M.S. Pinafore may be recalling the Captain’s lines, “What, never? Well, hardly ever.”

Coincidentally, the BBC is another member of the Coalition for Content Provenance and Authenticity. For readers unfamiliar with the BBC, it is Britain’s publicly-funded media organization that makes popular dramas, documentaries, and situation comedies and, once upon a time, used to be a trustworthy source of news, at least in comparison with, say, TASS or Pravda. It is also the organization that employed Martin Bashir, the reporter who secured a TV interview with Diana, Princess of Wales, by using faked bank statements that fueled the princess’s paranoid delusions that she was the victim of a conspiracy involving, inter alia, royal bodyguards; her husband and heir apparent to the Crown, Prince Charles; the Secret Intelligence Service; and GCHQ, Britain’s equivalent of the National Security Agency.

The BBC followed up on Bashir’s fakery with an equally fake internal inquiry and not only retained his services but gave him a promotion. For the report of the independent inquiry, click here.

In addition to Martin Bashir, the BBC employed Jimmy Savile who, during his lengthy broadcasting career, sexually assaulted approximately 72 people and raped several more, including an 8-year-old girl, crimes to which the BBC later admitted it had “turned a blind eye.”

So Twitter, Microsoft, and the BBC are now coalescing with other media corporations in order to protect us — poor, credulous, undiscerning, gullible us — against content manipulation and online misinformation. What, as they say, could possibly go wrong.

Federal question

During the hearing, the House chair of the committee suggested that deepfakes might be better dealt with via a new federal law. This brought to mind a current federal law, namely section 506 (c) of the Copyright Act, which makes it a crime to place on any work a false copyright notice:

“Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false… shall be fined not more than $2,500.”

This provision came to mind for two reasons. First, it was only last year that the Supreme Court of the United States issued its decision in Georgia, et al v. Public.Resource.Org, Inc., on the subject of copyright in legislative works (the public edicts doctrine). The court reiterated the well-established point that legislators cannot claim copyright in the works they create in the course of their official duties.

That’s why Senator Ben Sasse has no grounds to go after State Representative Livingstone. And it is why the Massachusetts Legislature cannot claim copyright in the documents that it publishes. If it did so, e.g. by fraudulently posting a false copyright notice on its website, it would be violating section 506 (c) of the Copyright Act.

And that was the second reason that the provision came to mind as I watched the hearing, because right there on the screen, at the bottom of the page, appeared the following words:

“Copyright © 2021 The General Court of the Commonwealth of Massachusetts”

I wonder if that qualifies as “online misinformation.”

From tort to crime

If we cannot safely place total trust in Twitter, Microsoft, the BBC, and the Coalition for Content Provenance and Authenticity as a whole (and we can’t), would we be any better off with Rep. Livingstone’s Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct? No, and here’s why.

The proposed law would make it a crime to distribute a video in order to “facilitate criminal or tortious conduct” if the video was “created or altered in a manner that [it] would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”

The word “facilitate” is pretty clear, I suppose, and the term “criminal conduct” is easy enough to grasp. It covers things like assault and battery, and fraudulently placing a false copyright notice in violation of section 506 (c) of the Copyright Act.

But what qualifies as tortious conduct? We have torts aplenty in Massachusetts, but here are two that tend to come up in the context of online spats: defamation and the intentional infliction of emotional distress. To me, these are the two torts that seem likely to provide a pretext for political prosecutions under H. 1755, allowing Massachusetts politicians to use the courts to silence their opponents. Do such things really happen here? For just one example, see my post titled “Free speech wins (four years after judge bans candidate from mentioning opponent’s name.”

It can be difficult for public figures such as politicians to shut up their detractors with defamation lawsuits. They have to prove “actual malice,” i.e. that the speaker made a false statement knowing that it was false or with reckless disregard of whether it was false or not.

Easier, then, if you are an elected tribune of the people, to seek a civil harassment-prevention order, as did the politician in the case I discuss in the aforementioned post. Even easier, perhaps, to bring a private criminal complaint under the proposed Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct or, better still, get your friend the prosecutor to ask a grand jury to issue an indictment.

If H. 1755 becomes law and you share a deepfake with the intent to cause emotional distress to, say, Senator Suehappy Thinskin you won’t be looking at your screen for a while; you’ll be looking at two and a half years in the slammer.

To safely forward the video of the esteemed Senator without fear of criminal prosecution, you would need to know — prior to sharing it — that it was not “created or altered in a manner that would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”

How could you be sure? Perhaps you could look for a certificate of authenticity issued by the Coalition for Content Provenance and Authenticity. But the Coalition (i.e. Twitter, Microsoft, the BBC, etc.) might not issue certificates to videos that criticize the powerful. It might routinely withhold certificates from people who say things that the powerful do not like.

But the absence of a certificate would not necessarily mean that the video was deepfake. So you could roll the dice, share the video, and hope that you don’t get a call from the offended hack’s lawyer or from law enforcement.

Even if the video is authentic, you might worry that people with friends in high places might be able to persuade law enforcement — and even a judge and jury — that it is not. Readers may have noticed that when somebody says something true, but embarrassing, about a powerful person, the powerful person first denies it and then attacks the somebody who said it, often with the eager help of the online mob. Even if the truth of the statement eventually becomes apparent, by that point the speaker’s life has been turned upside down.

Yes, H. 1755 says that “no person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.” But when do you, the speaker, find out whether your activity was protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States? When a judge says so, i.e. long after you’ve been interrogated and prosecuted.

Those risks, I suspect, would make you think twice about forwarding the video of Senator Suehappy Thinskin saying or doing something idiotic. We call this the chilling effect.

But shouldn’t there be laws against using deepfakes to defame people or cause them emotional distress? Yes, and we already have them, e.g. the torts called defamation and the intentional infliction of emotional distress.

If you still think we need more criminal offenses for prosecutors to threaten people with, check out @ACrimeADay on Twitter. Spoiler alert: There are a lot.

Conclusion

Back in 2019, the Massachusetts bill to ban deepfakes had two cosponsors, but this time Representative Livingstone is going it alone. The bill is losing support rather than gaining it. You may think that I should take heart from this trend, but I do not. Why? Because of the difference between bad ideas and nuclear waste.

At some point, with the passage of time, nuclear waste stops being dangerous. Not so with bad ideas. You cannot summon forth the ideas that H. 1755 embodies, bottle them, bury them in a lead-lined underground vault, and wait for them to disintegrate into harmless nothingness. No, they remain in the atmosphere, floating freely like wraiths, sometimes for decades, until they suddenly make themselves manifest as emergency bills or outside sections in the State budget.

That is why I am no more relieved at the bill’s feeble prospects this session than I am about entrusting the task of identifying deepfakes to the likes of Twitter, Microsoft, and the BBC.

P.S. For the full text of Representative Jay Livingstone’s bill, H. 1755, scroll down below the image.

Photo by Kindel Media from Pexels

SECTION 1. Chapter 266 of the General Laws is hereby amended by inserting after section 37E the following section:-

Section 37E 1/2. (a)As used in this section, the following words shall have the following meaning unless the context clearly requires otherwise:

“Audiovisual record,” any audio or visual media in an electronic format and includes any photograph, motion-picture film, video recording, electronic image, or sound recording.

“Deep fake”, an audiovisual record created or altered in a manner that the record would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.

(b) Whoever (1), creates, with the intent to distribute, a deep fake and with the intent that the distribution of the deep fake would facilitate criminal or tortious conduct, or (2) distributes an audiovisual record with actual knowledge that the audiovisual record is a deep fake and with the intent that the distribution of the audiovisual record would facilitate criminal or tortious conduct shall be guilty of the crime of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment.

No person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.

law

Eviction moratorium: federal judge criticizes compelled speech

September 28, 2020:- Another small victory for freedom of expression in Massachusetts, again from a Federal judge rather than the State courts. The key point? Housing providers should not have to promote organizations that seek to strip away their rights.

In the case of Baptiste v. Kenneally, the U.S. District Court did not grant the plaintiffs an injunction against the Commonwealth’s eviction moratorium, but did find that the regulations issued under it impermissibly burden free speech.

In April, the Massachusetts Legislature enacted Chapter 65 (the eviction moratorium) which prohibits landlords from sending notices to quit, but allows them to send missed-payment notices stating how much the tenants owe.

Then the executive branch issued emergency regulations (with no notice-and-comment period) that tell housing providers what to say in these missed-payment notices, including a link to certain “resources.” The “resources” include Massachusetts Housing Partnership, which in turn links to the advocacy group City Life/Vida Urbana, the taxpayer-funded nonprofit corporation* that campaigns for measures that are (I will put this mildly) not entirely consistent with the constitutionally-guaranteed right to possess and enjoy private property, e.g.

“We will fight for legislation to protect and expand rights for all working-class renters and homeowners, including RENT CONTROL, RIGHT TO COUNSEL, and an EVICTION SEALING ACT. We’ll actively support efforts to make corporate developers pay for these initiatives through a TRANSFER FEE on the sale of luxury development” (all caps in original).

That quote is from the page on the corporation’s website titled Our Work. All those measures are diametrically opposed to the interests of housing providers, and members of the statewide organization MassLandlords have consistently voiced their opposition to them.

On September 25, Judge Mark L. Wolf held that the State government regulations infringe the speech rights guaranteed by the First Amendment.

[T]he court finds that plaintiffs are likely to prevail on their claim that the second paragraph of 400 C.M.R. §5.03(2) unconstitutionally compels speech by requiring plaintiffs to include in any notice of rent arrearage addresses of non-governmental websites that, in turn, refer tenants to tenant advocacy groups, including City Life/Vida Urbana, with interests adverse to plaintiffs’.

The judge went on:

“[I]t is a fact that organizations like City Life/Vida Urbana provide legal services to tenants who want to resist being evicted, they also engage in other activities including, among other things, advocating for legislation that restricts landlords’ rights to evict, and litigating against them.”

The judge explained that State government should not compel landlords to endorse and promote these activities, and that compelled speech of this sort would not survive intermediate scrutiny let alone strict scrutiny.

This part of the decision represents a welcome victory for free speech in the Federal District Court. What a shame the State-level courts in Massachusetts so rarely evince a similar regard for that right.

___

*The corporation’s legal name is Urban Revival, Inc. and according to its Form 990 (2017) its mission/significant activities are “racial/ethnic harmony through affordable housing and economic development,” which is more succinct than (and different in tone from) the mission statement on its website:

“City Life/Vida Urbana is a grassroots community organization committed to fighting for racial, social and economic justice and gender equality by building working class power. We promote individual empowerment, develop community leaders and build collective power to effect systemic change and transform society.”

“Riot police” by mac_ivan is licensed under CC BY 2.0

P.S. A note about my choice of image, which illustrates the idea of the mailed fist in the velvet glove. When I write about compelled speech, I like to offer a reminder about who it is, exactly, that is doing the compelling. If ever you disobey a law, you risk an encounter with agents of the only organization in society that (as Max Weber pointed out) claims a monopoly on the legitimate use of violence, namely the government. If you refuse to do what the government tells you to do, or you refuse to speak the words that it demands that you utter, eventually you will come into contact with the government’s agents, people who wear uniforms, carry weapons, and have the power to alter your condition from free to un-free and from alive to dead.

free speech, law, massachusetts

The Big Shut Up: the eviction moratorium and speech

May 19, 2020:-  The Massachusetts eviction moratorium (Chapter 65) has several execrable features, and one of the worst is the abridgment of free speech. The speech in question is in the category that courts refer to as “commercial speech.” Should you care about State government violating people’s right to utter commercial speech? If you care about the non-commercial variety, yes.

Some, but not all, notices to quit

The statute — §3(a)(ii) to be precise — prohibits housing providers from sending “any notice, including a notice to quit, requesting, or demanding that a tenant of a residential dwelling unit vacate the premises” for non-payment of rent, for cause, or for no cause. However, the statute does permit notices to quit where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person, including the general public.

So if a tenant is violating the lease in a way that “may impact the health or safety” of another, the housing provider is allowed to terminate the tenancy and issue a notice to quit (a prerequisite for most eviction proceedings, called “summary process” in Massachusetts).  But if a tenant is simply not paying rent, the housing provider is not allowed to do so.

Before going any further, it is important to remember this key point: The law prohibits some, but not all, notices to quit.

Notices to quit are speech

A notice to quit is, literally, correspondence; a letter from one person to another. Both sender and recipient are parties to a contract, and the notice to quit is how the sender tells the recipient that the contract is at an end. It is a form of “expression related solely to the economic interests of the speaker and its audience” so constitutes commercial speech.  Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980). The housing provider who sends the notice to quit is not evicting the tenant. Only a judge can do that by way of legal proceedings called summary process (see below).

Even though the notice to quit is commercial speech, which means that it gets less protection from the courts than non-commercial varieties, the government does not have free rein. If it wants to restrict someone’s commercial speech, the government still has to follow some rules.

To be constitutional, commercial-speech restrictions must be effective

The Supreme Judicial Court has held that “a restriction on commercial speech will not be upheld if it provides only ineffective or remote support for the government’s purpose.”  Bulldog Inv’rs Gen. P’ship v. Sec’y of Com., 460 Mass. 647, 669–70 (2011) quoting Central Hudson, 447 U.S. at 564. If the restriction does not effectively support the government’s purpose, it is unconstitutional.

Does the ban on some notices to quit (but not others) effectively support the government’s purpose? And what is the government’s purpose, anyway?

The selective ban on notices to quit is ineffective

The express purpose of the Commonwealth, stated in the statute’s emergency preamble, is to establish “a moratorium on evictions and foreclosures during the Governor’s COVID 19 emergency declaration.” So for the duration of the emergency the government wants to temporarily stop evictions. Fair enough, some might say.

But evictions are not something housing providers can perform. Housing providers cannot evict anyone; only judges can do that. There are statutes that make this clear.  G.L. c. 239 and c. 186.

If landlords try to evict, that is called self help, and it is illegal in Massachusetts. In fact, tenants’ advocates recommend that if a landlord resorts to self help the tenants should call the police and file a criminal complaint. Don’t believe me? Follow this link to the Massachusetts Legal Aid site and scroll down to the words in bold: Call the police and file a criminal complaint.

In order to impose a moratorium on evictions, the Commonwealth need only prohibit the courts from issuing judgments and executions for possession, which it has done by way of §3(b)(ii) which states that the courts must not “enter a judgment or default judgment for a plaintiff for possession of a residential dwelling unit… (iii) issue an execution for possession of a residential dwelling unit… ; (iv) deny, upon the request of a defendant, a stay of execution, or upon the request by a party, a continuance of a summary process case; or (v) schedule a court event, including a summary process trial.”

Courts are not allowed to hold summary process trials, enter judgment, award possession to housing providers, or deny tenants a stay of execution (execution means the eviction itself, where the sheriff forcibly removes the people and their belongings). That part of the statute, §3(b)(ii), is the one part that actually does establish a moratorium on evictions.

But only some evictions. Remember, Chapter 65 prohibits evictions for non-payment of rent and evictions where the housing provider does not specify a particular reason, so-called “no cause” evictions. It does not prohibit evictions where the tenant’s criminal activity or lease violations” may impact the health or safety” of another person or the general public.

How does evicting someone for criminal activity that may impact the safety of the general public (thereby rendering that dangerous person homeless) help keep the general public safe, whereas evicting someone for nonpayment of rent makes the general public less safe?  That is a genuine question. I would like to know the Commonwealth’s answer.

Conclusion

The supposed goal of Chapter 65 is to establish a moratorium on evictions during the COVID 19 emergency. One part of the statute does exactly that (almost), by barring the courts from evicting people, except people who are potentially a danger to the public (putting them out on the street is OK, apparently). What does restricting the commercial speech rights of housing providers do to make the moratorium more effective? Nothing.

Chapter 65 is set to expire on August 18 unless the Governor exercises his option to extend it. Should he let it expire, or grant it an extension?

Exercise your speech rights while you can and let me know what you think.

man in blue crew neck shirt
Photo by Andrea Piacquadio on Pexels.com

anti-SLAPP, free sppech, law, massachusetts, supreme judicial court

Free speech victory for enviro bloggers

February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day  by demonstrating its love for free speech.

The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.

In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The  lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.

The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”

Today’s decision represents a very welcome victory for freedom of speech.

cropped-img_70311.jpg
Peter Vickery, Esq.

discrimination, discrimination defense,, free speech, law, massachusetts, massachusetts commission against discrimination, mcad

OK to exclude gay men, says MCAD

Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.

The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.

In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”

Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:

“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”

For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”

This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public.  The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.

And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.

IMG_7031
Peter Vickery, Esq.

appeals court, employment law, free speech, law

Free speech for public employees?

October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

law, massachusetts

Happy birthday, Massachusetts Constitution

June 16, 2016:-  It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

campaign finance, free speech, law, legislative drafting, massachusetts

Another campaign finance rule. KA CHING!

As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.

The latest state regulation aimed at controlling the funding of political speech  means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.

Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.

Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.

Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?

Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.

Peter Vickery_2012_focus
Peter Vickery, Esq.

anti-SLAPP, law, massachusetts commission against discrimination, supreme judicial court

Free speech wins (four years after judge banned candidate from mentioning opponent’s name)

March 31, 2016:- Yesterday the Supreme Judicial Court issued its decision in Van Liew v. Stansfield, a case I wrote about here involving two Chelmsford politicians. What a relief that the Court ruled that politicians should not use the anti-harassment laws to shut up their critics, and what a disgrace that the question even came up in Massachusetts in the Twenty-first Century.

By way of a reminder: When one politician (Van Liew) referred to the other (Stansfield) as corrupt and a liar, called her uneducated and stupid during a phone conversation, and allegedly said during the course of a meet-and-greet event at the local library “I’m coming after you,” Ms. Stansfield sought a civil harassment-prevention order. The judge not only granted the order, but even prohibited Mr. Van Liew from using Ms. Stansfield’s name online and in print, an order that brings to mind the 1982 Zimbabwean law that forbade jokes about the name of the president, Canaan Banana.

After the election, Mr. Van Liew sued Ms. Stansfield for malicious prosecution and abuse of process, and Ms. Stansfield brought a special motion to dismiss the case under the anti-SLAPP statute. Yesterday’s decision from the Supreme Judicial Court means that Mr. Van Liew’s case can go forward (four years after a judge banned him from uttering his opponent’s name during a political campaign). A welcome vindication of the rights of the citizen, to be sure, but how unfortunate that a candidate for public office would ask a judge for a gag order and how much more unfortunate that a judge would issue one.

Justin Sargent 6
Peter Vickery, Esq.

employment law, massachusetts, supreme judicial court

Court to rule on freedom of political speech in Massachusetts

Should politicians be allowed to use the harassment-prevention laws to silence their opponents? That is one way to frame the question that the Supreme Judicial Court (SJC) will consider in December. Here is the way the SJC frames the political-speech question presented by Van Liew v. Stansfield:

Whether statements made by the plaintiff, allegedly in the context of “political discourse,” could have qualified as acts of harassment for purposes of G. L. c. 258E; whether a request by the defendant, an elected official, for a harassment prevention order under c. 258E “was devoid of any reasonable factual support or any arguable basis in law” for purposes of the anti-SLAPP statute, G. L. c. 231, § 59H, where the plaintiff’s statements on which the request was based allegedly were “political speech” and made to express the plaintiff’s “version of what was happening in the town.”

In a nutshell, during a municipal election campaign in Chelmsford one local politician (Stansfield) obtained a court order banning another local politician (Van Liew) from using Stansfield’s name “in any email, blog, twitter, or any document through the internet, television show, ad, or otherwise.” In an ex parte hearing (i.e. without the opposing party) Stansfield alleged that Van Liew’s conduct amounted to harassment under M.G.L. c. 258E. The court later decided not to extend the order. Van Liew then sued Stansfield for malicious prosecution and abuse of process. After the district court dismissed his complaint and the appellate division re-instated it, the matter ended up on docket of the commonwealth’s high court.

Given the case’s implications for freedom of speech, it is not surprising that the SJC has requested amicus briefs. But with oral arguments scheduled for December, there is very little time for interested parties to weigh in.

If you would like to see and hear the litigants, click here for Ms. Stansfield (from minute 12:25) and here for Mr. Van Liew (from minute 19:40).

chelmsford PB with caption
Colleen Stansfield: seated, left

roland van liew
Roland Van Liew

The question before the court is whether the statements that Mr. Van Liew made to Ms. Stansfield could constitute harassment, which the statute (chapter 258E) defines as “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”  I shall write more on that question in a later post. In the meantime, an equally important question is one that the SJC has not articulated in its request for amicus briefs, namely whether  a judge issuing a harassment-prevention order should engage in such sweeping prior restraint as the judge in this case.

At Ms. Stansfield’s request, the judge prohibited Mr. Van Liew from using Ms. Stansfield’s name in any TV appearance, advertisement, email, blog, or tweet. Because of this, according to his brief, Mr. Van Liew cancelled a Meet the Candidate show that had been going to run online and on TV.  By way of the anti-harassment law Ms. Stansfield achieved a result that she probably could not have obtained via defamation law.

If Ms. Stansfield had been suing Mr. Van Liew for libel, and sought a preliminary injunction to prevent Mr. Van Liew from publishing further defamatory statements about her, I suspect the judge would have looked at her request through First Amendment lenses and denied the request.

So I have a question, particularly for any of my Legislative Drafting students who are reading this: Is this something best left to the discretion of a trial judge, or should the Legislature amend chapter 258E to make clear that it must not be used to chill freedom of speech? If you think a legislative fix is necessary, what would your proposed amendment say?

employment law, massachusetts, Uncategorized

Will Massachusetts Ban Employers from Googling?

In my online column for Business West last month, I wondered whether Massachusetts lawmakers might enact a law in 2015 that would prohibit employers from perusing a job applicant’s online writings unless those writings are in the public domain (i.e. not subject to copyright). If the proposed bill became law an employer could not lawfully look at an applicant’s blog without the applicant’s express prior permission.  To find out why this is even a possibility, scroll down to the third item, titled “State Level Developments.”

With the next session of the Legislature poised for kick-off, it is time to do more than wonder. After reviewing the newly-filed bills I shall post an update, so stay tuned.

If you are curious about when, if ever, a social-media diatribe can serve as the basis for terminating employment, you might want to read the rest of the article.

Justin Sargent 1
Peter Vickery, Esq.

 

law, massachusetts

New Political Disclosure Law

A new report describes some of the changes that the Massachusetts Legislature made to our commonwealth’s campaign finance laws after the decisions in SpeechNow.org v. FEC and Citizens United v. FEC. Most of the changes will come into force next January, but some are already in effect.

The report highlights some of the “remedies,” as the Office of Campaign and Political Finance (OCPF) calls them,  including the new requirement that some people who help pay for certain political advertisements must reveal their names. By way of an Act Relative to Campaign Finance Disclosure and Transparency, the Legislature amended General Laws Chapter 55, Section 18G so that any entity that makes an independent expenditure* in a political campaign (including a ballot-question campaign) has to publicly list the people who contributed $5,000.00 or more. This is one of the changes that has immediate effect, so it applies to the current state election campaign.

Compulsory-disclosure advocates such as Common Cause say that the goal is to help voters make “informed decisions,” prevent wealthy individuals from “secretly influencing” elections, and “hold corporations accountable.” It is no secret that people like Tom Steyer, Michael Bloomberg, George Soros, and the Koch brothers, spend large amounts of money on political campaigns; nor is it a secret that these big-dollar interventions are themselves subject of political debate and non-profit advocacy.

Prior to the new law, Massachusetts voters could already learn which organizations were making independent expenditures. For example, OCPF’s winter 2013 newsletter (page 2) explained that in the 2012 state elections the biggest independent-spender was none of the afore-mentioned billionaires, but rather the Massachusetts Teachers Association, closely followed by another union, SEIU 1199. One result of revised compulsory-disclosure law is that Massachusetts voters will promptly know the identities of some of the individuals — the ones who spend ≥$5,000 — behind the independently-funded political ads that precede Election Day.

Voters may well find it helpful to know who is paying for a particular piece of political propaganda. After all, show me who a man’s friends are, and I will tell you who he is, as Ralph Waldo Emerson said (I think). But compulsory-disclosure laws have come in for criticism not only because they arguably favor incumbents but also because of the way some organizations use the information to target and intimidate individuals who disagree with them, individuals such as Scott Eckern and Marjorie Christoffersen. Indeed, as this article in The Nation makes clear, the very purpose of “outing” donors is to apply public pressure so as to “shame them and hurt business” until they “stay on the sidelines” at election time. Given this explicit objective of chilling speech, it seems likely that opponents will challenge the constitutionality of the latest version of the compulsory-disclosure law in court.

*An independent expenditure is where people promote or oppose a candidate or cause independently, i.e. not by making a campaign contribution to a candidate or ballot-question committee.

Justin Sargent 1
Peter Vickery, Esq.

law, massachusetts

Climate Control

defamation_mudslingingAs an ongoing case in the District of Columbia demonstrates, what other people think about us really does matter, whatever our parents may have said to the contrary when we were schoolchildren. Because each individual’s pursuit of happiness and a livelihood depends, to varying degrees, on the opinion of neighbors and colleagues, our reputations have value, which is why the law protects them against some forms of attack.

What degree of protection? The case I discuss below might surprise you. But first some background:

The First Amendment covers many forms of expression – such as parody, protest, and pornography – but not statements that are false and damaging. Intentionally saying something untruthful and damaging about another person orally (slander) or in permanent form (libel) constitutes defamation.

Most of us understand that there is a permanent, uncomfortable tension between free speech and freedom from harmful speech. We also appreciate that conversing in the public sphere is a civic virtue, even when the conversation turns critical or crude. But we are not always sure about where, exactly, speech slips across the boundary from civil to slanderous, from lawful to libelous. What is the precise location of that line? It shifts, according to the status of the plaintiff and the state of mind of the speaker.

One factor is whether the plaintiff is a public figure as opposed to an ordinary citizen who has not actively sought the spotlight. Public figures suing for defamation carry a heavy burden. They have to prove that the speaker knew that the statements were false or showed reckless disregard for their truth or falsity, a standard known as “actual malice.” Hyperbole and harsh opinions are endemic to meaningful discussion, and in this self-governing republic we prefer our debate heated, not chilled. If public figures do not like the heat they know where to find the kitchen door.

Using lawsuits to go after political opponents for what they have said deters people from participating in public discussion. Strategic lawsuits against public participation (the source of the acronym SLAPP) tend to chill speech so, to prevent such lawsuits, state legislatures across the country have enacted anti-SLAPP statutes. Among those jurisdictions is the District of Columbia, whose anti-SLAPP law requires a court to dismiss any claim that arises from “an act in furtherance of the right of advocacy on issues of public interest” unless the plaintiff “demonstrates that the claim is likely to succeed on the merits.” D.C. Code §16-5502.

Together, the “actual malice” requirement and anti-SLAPP statutes place significant hurdles in the path of public figures seeking to silence their critics. So if a public figure – a famous scientist, for example, who had joined the public debate around a controversial policy – came to my office after suffering harsh criticism impugning his integrity and competence and asked whether to sue for defamation, I would probably demur.

On the other hand, if he showed me a stack of published statements describing him as a careless, irresponsible, hypocritical, paranoid conspiracy theorist with a cavalier attitude to data analysis, guilty of planting crimes on other scientists, and whose employers should conduct an investigation of him, I would think again.

Those are the exact terms – including the phrase “planting crimes on others” – various critics have employed to describe Richard Lindzen, the atmospheric physicist who taught at MIT until his retirement last year. As a scientist, albeit retired, Richard Lindzen might wonder whether some of those statements were actionable.

But Richard Lindzen is not the scientist who is suing for defamation. That scientist is Michael E. Mann.

As readers may recall, back in 2009 somebody misappropriated emails from the University of East Anglia’s Climate Research Unit occasioning a scandal of sorts.  One of the emails mentioned Michael Mann and referred to one aspect of his work, rather ambiguously, as a “trick.” Professor Mann’s employer, Penn State University, investigated Mann (or, at least, interviewed him) and cleared him of three out of four charges. But a later investigation by the National Science Foundation criticized Penn State for “not adequately review[ing] the allegation” against Mann and for failing to interview critics of his work.

In 2012, writing in the conservative National Review Online, Mark Steyn quoted Rand Simberg’s previously published comment about Professor Mann, comparing Penn State’s investigation of Mann to its investigation of Jerry Sandusky:

“Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”

Mann sued Simberg, Steyn, and the two entities that published their statements. The defendants filed a motion to dismiss under the D.C. anti-SLAPP statute. The judge denied the motion. That threshold decision means that the case will go forward, with all parties incurring significant legal fees and the defendants facing the risk of a large damages award. Alternatively, the defendants may choose to pay Professor Mann to settle the matter short of trial.

According to the judge, Mann’s defamation claim is “likely to succeed on the merits.”  In stating that Mann had “molested and tortured data” Simberg and Steyn did more than express an opinion through rhetorical hyperbole, said the judge. Rather, they made “statements based on provably false facts.”  Therefore, the judge reasoned, Professor Mann would likely prevail at trial, meaning the court should deny the writers’ and publishers’ anti-SLAPP motion. The decision is troubling: not because falsely accusing scientists of deceptive practices is right, but because muzzling contrarians is wrong.

When applied to a distinguished scientist and his data, the words “molest” and “torture” may strike some readers as vulgar and others as amusing. Either way, the words are disparaging. Of course, any reasonable reader would understand that Simberg and Steyn were using a metaphor to convey an opinion. Data are not sentient beings, after all. They are capable of being tortured and molested only figuratively, not literally. But clearly the writers meant their statements to denigrate Professor Mann by implying that he had distorted the facts to suit his agenda, an allegation similar to the one Richard Lindzen’s critics throw about.

Does that mean the government, in its role as guarantor of Michael Mann’s reputational interests, should effectively ban them? If Richard Lindzen sued, should the government silence his critics too?

Perhaps climate science is the sole area of study where we already know all there is to know, where we have incontrovertible proof about not only what has already happened but also what will happen. Perhaps, but probably not.

From what I have read, it is beyond reasonable doubt that Earth’s climate is changing and that humans are contributing to that change. Assessments of the climate’s sensitivity and predictions about future global temperatures, however, do not seem quite so clear cut. Still less obvious are the most effective ways to adapt human behavior so as to reduce the risk that the changing climate poses to the species. This aspect of the climate-and-energy policy debate is not an open-and-shut case. Answers will emerge, if at all, through rigorous exchanges in the metaphorical marketplace of ideas.

Free speech begets better policies than censored speech. So when we favor some speech rights at the expense of others, there are trade-offs and real costs. For example, in copyright and trademark law we sacrifice some free speech in exchange for encouraging creativity and preventing consumer confusion. In attempting to strike the right balance courts use use the doctrine of fair use. Similarly, in the realm of reputation, in order to promote robust debate we require that public figures accept a greater degree of uncompensated denigration than private citizens have to endure. In the language of economics, when public figures endure ignominy and absorb its cost, society as a whole acquires a positive externality.

The trade-offs here are considerable. We can hold climate scientists harmless and insulate their reputations even when their predictions serve as the basis for policy decisions that could cause more damage than they prevent. That is the decision the judge made in Professor Mann’s case. We know that Simberg, Steyn, and their publishers are paying a heavy price. But what price will fall on society as a whole?

Simberg and Steyn wrote words that undermined the reputation of a famous scientist. They expressed an opinion that seems to fly in the face of the facts. If the case goes to trial, the central question for the court will be whether their allegations were baseless. But the deeper question for all of us is this: Should the law accord Simberg and Steyn’s speech the same level of protection it gives pornography, or a lower level; as much as flag-burning receives, or not so much; safeguards equal to those it grants the open advocacy of ethnic cleansing, or less than equal?

As we ponder these questions, it is worth bearing in mind whether our answers would be different if the aggrieved scientist was not Michael Mann but Richard LIndzen.