The Emory pro-Trump chalking incident is a symbolic flashpoint for who is permitted a voice at our nation’s universities. At this moment in history, universities must ensure that all students feel safe and included while allowing for cultural and political pluralism. To do this, universities should not cede entirely to students the line between speech and intimidation.
Continue reading “The Emory Chalking Incident, and When Speech Becomes Intimidation”
The Hulk Hogan trial against Gawker is a First Amendment analyst’s dream. The lawsuit, based on Gawker’s publishing a video tape that includes nine seconds of Hulk Hogan engaging in sexual activity, presents the complex legal tension between privacy interests and free speech rights. How society responds to the $140 million verdict a Florida jury awarded Hogan will both reflect and reinforce our views of what is untouchable, even by the media. I plan to write several posts about this case. This first post will discuss why Hulk Hogan’s verdict will likely be overturned on appeal. The next post will explore whether the decision should be overturned on appeal, from both legal and policy perspectives. Later posts will update readers on new developments and further implications of the case.
Hulk Hogan’s verdict will likely be overturned by the Florida District Court of Appeal, Second Circuit. That court, in earlier overturning the trial judge’s grant of a preliminary injunction to stop the publication of the video before trial, already indicated its sympathies to the First Amendment defense. The appellate court held that (1) Hogan is a public figure, as a wrestler and reality television star; (2) Hogan has already discussed his family and sex life in the media; (3) sexually explicit content does not nullify speech’s newsworthiness, (4) the posted video and commentary are linked to a matter of public concern; and, importantly, (5) Gawker carefully published only a small excerpt of the sex tape, not the entire thing. Although a ruling on a preliminary injunction does not bind the Florida court of appeals now that it can view all of the evidence, the appellate court seems poised to disregard the trial court’s First Amendment decisions, all issued without full written orders.
Justice Scalia’s death has brought out what I believe to be the worst (although some strategists might consider the best) in our politicians. Even before the Justice’s funeral, some Republicans clamored to insist that President Obama cannot select Justice Scalia’s replacement. Not to be outdone, Democratic leaders such as Senator Elizabeth Warren scolded Republicans and argued that nominations by the President should not be blocked. This week, Merrick Garland, a centrist, highly qualified, 63-year old D.C. Circuit judge has been nominated. President Obama’s nomination appears to be either a concession to Republicans, an attempt to embarrass Republicans who stall hearings on Garland’s confirmation, or a smart offer to Republicans of an alternative to Hillary Clinton nominating a Justice who is much more ideologically (and judicially) liberal than Judge Garland.
Even for those inclined to view our politicians generously, unclean hands abound. The Republicans’ argument that “the people should decide” the next SCOTUS Justice is disingenuous. The Democrats, for their part, could make promises that allow these situations to be less political in the future. While the desire to avoid a Supreme Court Justice who undermines one’s constitutional (and political) ideals is understandable, and perhaps insurmountable, this current political battle is myopic.
Apple and the federal government continue to battle over whether the FBI can force Apple to unlock the iPhones of suspected criminals and terrorists. These battles are occurring in the media, in the courts, and even before Congress. Ultimately, the right resolution to these battles may be for Congress to give courts the power to allow unlocking, but only in very specific cases, and only if Congress is certain that all of our phone data won’t be at real risk. I am not yet sure how to assess Apple CEO Tim Cook’s concern that the FBI’s requests to access individual phones will compromise all of our cell phones. Until Congress has a better handle on that technological issue, it should resist taking any action. This is a tough issue, and all decisionmakers should proceed with caution.
Continue reading “Quick Update in Apple v. FBI and Tentative Thoughts on What Congress Could Do”
Until now, I have avoided writing about the Harvard Law School/Milbank Tweed free speech incident because the events occurred at the institution where I happily teach. More significantly, I avoided writing about Milbank’s decision to stop funding student organizations at HLS because the conflict between Israel and Palestine is so politically fraught that most people (potentially myself included) lose the ability to be objective/nonpartisan about the free speech issues involved. However, dialog on these issues is so critically important that I have decided, in the name of free speech values, to express my thoughts. My current views are that (1) Harvard Law School was absolutely correct to refuse to allow Milbank Tweed to selectively sponsor particular student organizations; (2) Milbank Tweed is well within its rights to use its money to sponsor only speech it favors, although its actions set a poor example for academic freedom values; and (3) The Palestinian Exception to Free Speech is overstated in ways that may sometimes undermine free speech values.
Justice Scalia’s death has prompted even more discussion than usual about which Justice writes the best Supreme Court opinions. Justice Scalia was considered by many to be the best writer on the Court, praised for his use of apt and colorful metaphors to illuminate complex legal concepts. Students are often instructed to write like Chief Justice Roberts, who uses elegant, varied sentences and evocative factual descriptions to ground his legal positions. But Slate recently advanced a convincing argument that Justice Kagan is Justice Scalia’s intellectual heir in both creating legal prose and interpreting legal texts.
I hope Justice Kagan, like Justice Scalia, continues to interpret statutes in a way that honors both the internal logic of the text and the commonsense logic of how people communicate. I also hope she continues, like Justice Scalia, to draft opinions that incisively distill out the essence of complex points without oversimplying them. However, I hope Justice Kagan avoids what I would call Justice Scalia’s “audience problem.” Writing to make a splash and influence law students, Justice Scalia’s legal opinions often resulted in a deceptive accessibility that muddled his arguments and caused many to question his motives.
Continue reading “Supreme Court Opinions and The “Audience Problem””
Yesterday, Apple filed its opposition to the district court’s order compelling Apple to assist the FBI search San Bernardino shooter Syed Farook’s iPhone. As predicted, Apple’s motion focuses on the All Writs Act and the unreasonable burden the court order places on Apple, given Apple’s attenuated connection to the case. Apple also makes powerful points supporting the slippery-slope concern that the FBI will use this precedent to require Apple to compromise the security of its phones in other cases, including cases not involving terrorism. These arguments, in conjunction with the fact that the FBI could have avoided this situation if the Bureau simply hadn’t changed the iCloud password associated with Farook’s account, have firmly convinced me that the district court should vacate its order. That said, Apple’s First Amendment position, spanning just over two pages in a 35-page motion, misapprehends the First Amendment’s role in protecting computer code.
At first, the series of statements and emails to the Georgetown Law School community (and made public) after Justice Scalia’s death seemed to me an indication that free speech values are atrophying at our top law schools. I have since changed my mind. These emails, and their use of divisive, emotionally charged rhetoric, ultimately defeat themselves. In their wake, these emails can teach us important lessons about striking the right balance between sensitivity to others and airing of controversial views. It is critical that law school educators and students learn the right lessons.
Private universities, unlike state actors, can experiment with different ways of maximizing speech and optimizing learning, but certain fundamentals should remain. I am hopeful that these emails can teach us that no group or individual represents everyone’s views, that logic and principle should decide the worthiness of a cause, and that no one earning a legal education should be shielded from dissenting opinions.
Of all of the movies I have seen, The Hurt Locker has my favorite ending. The Ninth Circuit’s disposition of a lawsuit by the solider that inspired The Hurt Locker’s fictionalized main character similarly seemed right yet left me with a sense of unease. Supreme Court review is needed to resolve the complex, difficult issues presented in this case. As I have noted before, claims involving the right of publicity and the First Amendment are adjudicated using conflicting and easily manipulated standards. Further, although some have argued that right of publicity claims are mainly about money – or who has to pay for speech – right of publicity claims are quite different than copyright protections and likely will chill more speech if they are allowed to proceed.
Continue reading “Ninth Circuit Gets it Right in “Hurt Locker” Case; SCOTUS Review Still Needed”
A court order requiring Apple to create software allowing the FBI to crack Syed Farook’s iPhone password (in turn allowing the FBI to decrypt the phone data whose encryption key is derived from that password ) raises distinct but related legal and policy issues. On the legal side, Apple’s best argument is that the court order goes beyond the scope of its power under the All Writs Act. On the policy side, Apple’s chief Tim Cook claims that forcing Apple to create a “backdoor” to its own robust security protections will lead to an erosion of security in all our mobile devices. Apple and others claim that the technology that Apple creates to comply with the court order could lead to law enforcement privacy abuses or malicious attempts by criminals or spies from other countries to gain access to the data in all of our phones. Apple has not yet submitted its opposition brief to the federal court’s order. The persuasiveness of both the legal and policy arguments against the order relies, in part, on slippery slope arguments connecting altering Syed Farook’s phone to risking the privacy and security of all of us. This case shows both the force and the limitations of slippery-slope arguments. At this preliminary stage, I tentatively believe that the slope is too slippery, and the technology too complex, for one federal magistrate judge to force Apple to design an end-run around its privacy and security protections. These very protections were created, in part, in response to Edward Snowden’s revelations about massive, secret government surveillance programs.
