This semester, I am teaching torts and criminal procedure. Tort law imposes civil liability to redress wrongs that private individuals/entities commit against other private individuals/entities. Criminal procedure concerns the rights afforded to criminal defendants, including rights against unreasonable searches and seizures, the right against self-incrimination, and the right to counsel. Both tort law and criminal law involve society’s response to harms, with criminal law’s harms meriting not just civil damages, but imprisonment and sometimes death. The rationales motivating tort law– compensation, deterrence, fairness, and the efficient administration of the law – are often in tension with one another. Fairness to a defendant, for example, may thwart the goals of compensation and deterrence.
This week, debates over Judge Rosemarie Aquilina’s handling of Larry Nassar’s sentencing hearing provide strong evidence that our country is deeply divided not just over the purposes of criminal law – incapacitation, deterrence, punishment, and rehabilitation – but over the purposes of criminal proceedings.
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Considering the free speech dimensions of the accusations against comedian Aziz Ansari can help frame the issues thoughtfully. In some ways, anonymous Grace’s account of an evening with Aziz Ansari, as told to writer Katie Way, is a triumph for the First Amendment and its underlying values. In other ways, the account and responses to the account are disastrous for free speech values. By examining the First Amendment and free speech values dimensions, we can better wrap our heads around the babe story, the backlash to the babe story, the backlash to the backlash to the babe story, and the backlash to the backlash to the backlash to the babe story.
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I awoke this morning to a tweet from National Review columnist Heather Wilhelm that said, “Modern feminism: 1. Go on awful date with awkward/gross/aggressive famous person, but lack the agency to get up and leave. 2. Famous person texts, clearly clueless, gets scolded, apologizes. 3. Stay anonymous, but shame him in front of the whole world.”
This tweet reminded me of the “strong person,” theory of the First Amendment, where a properly functioning free speech doctrine generally requires that listeners deal with emotional upset, have the agency to turn away from or ignore speech they would rather not hear, and use counter-speech to undermine unreasonable positions. So much of how we discuss sexual harassment and sexual assault touches upon notions of agency and harmful speech in ways that also implicate our thinking on First Amendment doctrine. I planned on blogging about some of the similarities between notions of agency in the First Amendment and in the sexual assault context. However, then I read the link attached to Wilhelm’s tweet.
The story – an exclusive on a website called “babe” – involved worse conduct than I expected based on the tweet. Aziz Ansari was oblivious to a woman’s desires not to sleep with him, and kept pushing her to do so in fairly objectifying ways. That said, her description of the story was much worse than the actual events. The woman, who remained anonymous to protect her own identity, never actually had intercourse with Ansari, and appeared to consent to a range of activities that required her participation. Nonetheless, she called the incident “sexual assault,’ despite the fact that she did not leave the apartment (until she decided to) or clearly say, “no.” Sexual assault, to this woman, occurred because Ansari ignored her “clear non-verbal cues.” He also kept attempting physical intimacy despite some less obvious verbal cues, like telling Ansari that she didn’t want to feel “forced,” because then should would hate him.
I think it is time, at this cultural moment, to define and analyze the proper legal definitions of terms like sexual assault and sexual harassment.
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President Trump has now sent “cease and desist” letters to former White House Chief Strategist Stephen Bannon, author Michael Wolff, and publisher Henry Holt & Co. over comments Bannon made in a forthcoming book, Fire and Fury: Inside the Trump White House. According to the cease and desist letter, comments Bannon made to Wolff, excerpted in a New York magazine article, violated a non-disclosure agreement forbidding Trump’s staff from making disparaging remarks about the President, his family, and the Trump campaign. Bannon made comments to Wolff that, among other things, labeled a meeting between Donald Trump, Jr. and the Russians, “treasonous,” and “unpatriotic,” and called Ivanka Trump, “dumb as a brick.”
President Trump and his attorney believe he is entitled to monetary damages and injunctive relief for Bannon’s disparaging and libelous comments. Injunctive relief would block further release of Fire and Fury and prevent Bannon from making further disparaging comments. The analysis of whether President Trump can stop publication of disparaging comments from Bannon involves two parts (1) does Trump have a meritorious claim, and, if so, (2) what are Trump’s remedies – i.e., can he block further release of the book.
Continue reading “The Fire and Fury over “Fire and Fury”: President Trump’s Legal Claims.” →