Prof. Mark Liberman (Language Log) has all about this “exchange” — in this instance, a literal fistfight rather than a figurative one — all about whether to “elevate the status of Russian to a second language, equal to Ukrainian, in about half the regions of the country, including Kiev.” You have to see the picture, or at least the video (which I’m deliberately withholding so that more people can visit and maybe see what a great site Language Log is).
Author Archive
Prof. Julie Sedivy (Language Log) has a very interesting post about a British film ratings controversy involving a Ken Loach movie that uses the word “cunt.” The film rating people are distinguishing “aggressive” uses of the word from “non-aggressive” uses; a British commentator faults this for being a double standard, and a class-based one at that; Prof. Sedivy responds, I think quite soundly. A very interesting discussion. (What the proper rule of film ratings agencies should be, when it comes to either legally binding or non-legally-binding but nonetheless practically coercive ratings aimed at shielding minors from certain images or words, is a different story.)
So held a Florida trial court judge, and he wasn’t the first — I think I’ve seen this in a few cases, but the one for which I have a citation is State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003)
Whether this is the right answer is not clear. It’s a special case of warnings to hide one’s illegal conduct because the police are coming — though here done by a stranger rather than by a lookout who’s in league with the criminals — and that in turn is a special case of what I call Crime-Facilitating Speech (see 57 Stan. L. Rev. 1095 (2005)), which is to say speech that conveys information that makes it easier for people to commit crimes or to get away with crimes. The Supreme Court has never squarely confronted this question.
When I’ve blogged about this in the past, some people have argued that flashing headlights should be protected because it’s encouraging legal behavior (slowing down) rather than illegal behavior, but I don’t think that can dispose of the issue: Many lookouts do the same, e.g., when a lookout warns would-be robbers to abandon their plans because a police car is driving by.
For an interesting similar question though one that doesn’t involve encouraging people to temporarily act legally), this story:
An advocate for immigrant and civil rights has started using text messages to warn residents about crime sweeps by a high-profile Arizona sheriff.Lydia Guzman, director of the nonprofit immigrant advocacy group Respect/Respeto, is the trunk of a sophisticated texting tree designed to alert thousands of people within minutes to the details of the sweeps, which critics contend are an excuse to round up illegal immigrants.
Guzman said the messages are part of an effort to protect Latinos and others from becoming victims of racial profiling by sheriff’s deputies….
What’s the First-Amendment-relevant difference, if there is one, between this and a lookout who alerts criminals when the police are coming? (Assume that the lookout isn’t getting a share of the loot, but is just helping his friends avoid getting locked up.) Should it matter, as one expert who’s mentioned in the article suggests, whether Ms. Guzman’s real goal is preventing lawful arrest of illegal immigrants (as opposed to preventing racial profiling, assuming such profiling is unlawful)? I think there may indeed be a difference between such revelation of facts to the public and individualized communications to a small group of criminals, and I don’t think it should turn on jury inferences about the speaker’s true purpose; my article discusses the question at length. But in any event it’s helpful to think about what the difference might be.
The Los Angeles Times reports:
A Los Angeles County Superior Court judge has reversed the 2002 rape and kidnapping conviction of former Long Beach Poly football standout Brian Banks.
Banks, now 26, was wrongly convicted of the charges based on the testimony of Wanetta Gibson, an acquaintance.
Gibson testified that Banks raped her on the Poly campus. Banks said the encounter was consensual.
Rather than face a prison term of from 41 years to life, Banks accepted a plea deal that [led to his spending 5 years in prison].
Gibson sued the Long Beach Unified School District, claiming the Poly campus was not a safe environment, and won a $1.5-million settlement.
Nearly a decade later, Gibson contacted Banks on Facebook, met with him and admitted that she had fabricated the story.
The AP account adds a twist:
According to documents in the case, she met with Banks and said she had lied; there had been was no kidnap and no rape and she offered to help him clear his record.
But she subsequently refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.
She was quoted as telling Banks: “I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back.”
It’s not clear whether she ultimately did repeat the story to prosecutors, or whether the prosecutors got her admission some other way. In any event, I assume that — absent some statute of limitations barrier (a subject on which I’m not knowledgeable) — what’s left of the $1.5 million will indeed have to be paid back. (Thanks to Robert Dittmer for the pointer.)
This, by the way, raises again a difficult problem with he-said-she-said rape cases, where civil liability is available. I suspect that in a typical such case, one factor that cuts in the prosecution’s favor is “Why would she lie?” A defendant has ample reason to lie by saying that nonconsensual sex was actually consensual — his liberty is at stake. But a complainant in many cases has much less reason to lie by saying that consensual sex was actually nonconsensual; sure, in some situations there might be possible motivations for lying, but they are usually not nearly as strong as the defendant’s motivation.
Yet when the complainant can get millions of dollars in damages, either from a rich defendant on an intentional tort theory, or from some other entity — such as an employer or a school district — that could be held liable on a negligence theory, the complainant now has lots of reason to lie. Of course, this by no means that such a complainant will be lying, just as the defendant’s incentive to lie doesn’t mean that all defendants who testify that they’re innocent are lying. But it does, I think, make the defense’s case stronger and the prosecution’s case weaker.
The jurors don’t know for sure who’s telling the truth. But once they know that the complainant has a potential motive to lie, they’ll be less inclined to believe her — and at least to conclude that there’s a reasonable doubt about whether she’s telling the truth. If you were a juror and the evidence against the defendant besides the complainant’s testimony was weak, wouldn’t you be influenced by evidence that the complainant has a possible financial motive for making up the charges?
What to do about this, though, is not clear. Even if negligence liability against employers, school districts, and others for crimes by their employees or on their property is cut back — some people have argued that it should be — a victim could still sue a rich defendant, or even an upper-middle-class defendant who has some assets that could be seized. If someone physically attacks you, you’re entitled to get compensation from him. But this very possibility makes it harder to criminally prosecute rapists. I don’t know of a good solution to the problem, absent perfect lie detection technology or pervasive recordi
I’m writing an article that indirectly touches on this question, and I thought I’d ask our readers for their take on it. I’d particularly like to hear from people who are knowledgeable about privacy law, and who (unlike me) support information privacy speech restrictions, such as the disclosure-of-private-facts tort.
Minnesota has an interesting statute that allows courts to enjoin speech that “ha[s] a substantial adverse effect … on the … privacy” of a person, Minn. Stat. Ann. § 609.748. Five months ago it was used to issue an injunction banning online speech by a person about his ex-girlfriend, Johnson v. Arlotta (2011), but it has been used before as well.
I’m curious what people think of this — again, especially people who generally support the disclosure tort — given the lack of a statutory or judicial definition of what constitutes “privacy” for purposes of the statute, and the criminal penalties for violating the order. How should the statute be read, and is it constitutional? Should “privacy” be read as tortious invasion of privacy, with all the common-law twists on that (e.g., the exception for newsworthy speech, and the requirement that the speech be said to the public and not just as gossip within a circle of friends)? Is that sufficiently clear for an order that can be enforced through criminal penalties? Also, are temporary restraining orders under the statute — which may be issued ex parte — unconstitutional prior restraints?
Here’s the relevant excerpt:
(a) “Harassment” includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;
(2) targeted residential picketing; and
(3) a pattern of attending public events after being notified that the actor’s presence at the event is harassing to another….(c) “Targeted residential picketing” includes the following acts when committed on more than one occasion:
(1) marching, standing, or patrolling by one or more persons directed solely at a particular residential building in a manner that adversely affects the safety, security, or privacy of an occupant of the building ….Subd. 4. Temporary restraining order. (a) The court may issue a temporary restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if the petitioner files a petition in compliance with subdivision 3 and if the court finds reasonable grounds to believe that the respondent has engaged in harassment. When a petition alleges harassment as defined by subdivision 1, paragraph (a), clause (1), the petition must further allege an immediate and present danger of harassment before the court may issue a temporary restraining order under this section….
(b) Notice need not be given to the respondent before the court issues a temporary restraining order under this subdivision….
(c) The temporary restraining order is in effect until a hearing is held on the issuance of a restraining order under subdivision 5. The court shall hold the hearing on the issuance of a restraining order if the petitioner requests a hearing. The hearing may be continued by the court upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence or if service is made by published notice under subdivision 3 and the petitioner files the affidavit required under that subdivision.
(d) If the temporary restraining order has been issued and the respondent requests a hearing, the hearing shall be scheduled by the court upon receipt of the respondent’s request. Service of the notice of hearing must be made upon the petitioner not less than five days prior to the hearing. The court shall serve the notice of the hearing upon the petitioner by mail in the manner provided in the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and shall also mail notice of the date and time of the hearing to the respondent. In the event that service cannot be completed in time to give the respondent or petitioner the minimum notice required under this subdivision, the court may set a new hearing date….
Subd. 5. Restraining order. (a) The court may grant a restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if all of the following occur:
(1) the petitioner has filed a petition under subdivision 3 [and the order has been served on the respondent];
(2) the sheriff has served respondent with a copy of the temporary restraining order obtained under subdivision 4, and with notice of the right to request a hearing, or service has been made by publication under subdivision 3, paragraph (b); and
(3) the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.
A restraining order may be issued only against the respondent named in the petition; except that if the respondent is an organization, the order may be issued against and apply to all of the members of the organization. If the court finds that the petitioner has had two or more previous restraining orders in effect against the same respondent or the respondent has violated a prior or existing restraining order on two or more occasions, relief granted by the restraining order may be for a period of up to 50 years. In all other cases, relief granted by the restraining order must be for a fixed period of not more than two years. When a referee presides at the hearing on the petition, the restraining order becomes effective upon the referee’s signature….(c) If the court orders relief for a period of up to 50 years under paragraph (a), the respondent named in the restraining order may request to have the restraining order vacated or modified if the order has been in effect for at least five years and the respondent has not violated the order….At the hearing, the respondent named in the restraining order has the burden of proving by a preponderance of the evidence that there has been a material change in circumstances and that the reasons upon which the court relied in granting the restraining order no longer apply and are unlikely to occur. If the court finds that the respondent named in the restraining order has met the burden of proof, the court may vacate or modify the order. If the court finds that the respondent named in the restraining order has not met the burden of proof, the court shall deny the request and no request may be made to vacate or modify the restraining order until five years have elapsed from the date of denial. An order vacated or modified under this paragraph must be personally served on the petitioner named in the restraining order.
Subd. 6…. (b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.
(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.
(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:
(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency;
(2) because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin;
(3) by falsely impersonating another;
(4) while possessing a dangerous weapon;
(5) with an intent to influence or otherwise tamper with a juror or a judicial proceeding or with intent to retaliate against a judicial officer, as defined in section 609.415, or a prosecutor, defense attorney, or officer of the court, because of that person’s performance of official duties in connection with a judicial proceeding; or
(6) against a victim under the age of 18, if the respondent is more than 36 months older than the victim….
What vegetable’s name is etymologically connected — distantly, to be sure — to an astronomical concept (not just the name of a particular object, such as the name of a planet or a star)? There might well be many answers, but I have one in mind.
From State v. Baker (Iowa 2004):
The parties stipulated to the facts underlying this appeal. Baker was charged with violating section 720.4 based on a telephone conversation Baker had with Debra Krause, who had recently served as a juror in a criminal proceeding against one Greg Schoo, a friend of Baker. On May 8, 2003, the jury convicted Schoo of first-degree burglary, which carries a mandatory twenty-five-year prison sentence.
The day after the verdict was rendered Krause received a phone call that began with the caller’s question, “Is this Deb?” Because Krause and Baker had previously worked together, Krause recognized Baker’s voice. In addition, Krause’s caller ID confirmed the call was made from Baker’s telephone. When Krause responded that yes, she was Deb, the caller stated, “This is Rose.” The caller then asked Krause “if [she] knew that [she] gave him 25 years.” Krause understood Baker was referring to Schoo. Krause told Baker she did not know what sentence Schoo had received. Baker then stated: “Well, I just thought you should know you gave him 25 years,” and hung up the phone.
Krause notified law enforcement of Baker’s call. Although Krause did not feel threatened by Baker, she was bothered and upset by the call and Baker’s tone of voice. According to Krause, she “was in disbelief that [Baker] had called [her] to say that.” Krause said she “did not beg and plead to be one of the jurors,” and would rather not have been picked, but it was “something [she] had to do — whether [she] wanted to or not!”
Baker was charged with jury tampering, under a statute that provides, “A person who … in retaliation for anything lawfully done by any witness or juror in any case, harasses such witness or juror, commits an aggravated misdemeanor.” “Harassment” is in turn defined as, “with intent to intimidate, annoy, or alarm another person, … [c]ommunicat[ing] with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.” The court of appeals concluded that the prosecution could go forward:
Here there was clearly a jury question under the stipulated facts whether Baker contacted Krause to gather factual information about Krause’s knowledge and views of the sentencing system, or whether the contact was intended to intimidate or alarm Krause in retaliation for her role in convicting Schoo.
Rosemary Baker was ultimately convicted on remand.
The court of appeals decision, it seems to me, is wrong and quite dangerous. The court seems to be suggesting that the impermissible purpose might be a purpose to make Krause feel frightened (“intimidate[d] or alarm[ed]“) — but if the stipulated facts are sufficient to permit a prosecution based on this theory, then no-one is safe expressing to a juror that they thought the juror helped work an injustice, or for that matter expressing to other people that they thought those people did something bad. There is always the danger that a hostile prosecutor, judge, and jury will infer a bad purpose on your part, even when there were no threatening words, the listener makes clear that she didn’t feel threatened, and the listener knows you and has no reason from past contact to fear you. Whatever the scope of the “true threats” exception to the First Amendment, I doubt it can be broad enough to cover speech such as this.
Of course, it’s plausible, given the stipulated facts, that Baker might have wanted Krause to feel sorry or unhappy about what she helped do. But I doubt such a desire can strip such speech of constitutional protection, and in any event it seems to me a “legitimate purpose” for purposes of the statute (or else any call to someone to tell them that they did something bad, and to make them feel bad about it, would potentially be criminal “harassment”). At the very least, the phrase “without legitimate purpose” doesn’t sufficiently inform people that such a purpose is impermissible (and is, I think, unconstitutionally vague).
More broadly, I’m quite troubled by such laws that prohibit a considerable amount of conduct, much of which would be constitutionally protected, and then try to avoid this overbreadth by limiting the prohibition to conduct that lacks a “legitimate purpose.” Who can know what purposes the legal system will eventually find “legitimate”? If you want to punish threats, punish threats. If you want to punish behavior that has the purpose of assisting some crime, punish that. But don’t just leave to future prosecutors, judges, and juries the decision about what’s “legitimate” and what isn’t — and thus leave citizens uncertain about what’s allowed and what’s not.
I don’t know why I thought of it today — I like to think I’m not that old, but come to think of it Kipling wasn’t that old when he wrote it either. Maybe he was thinking about someone else in particular, but I’m not; it just came to my mind. In any case, it’s The Old Men:
This is our lot if we live so long and labour unto the end –
Then we outlive the impatient years and the much too patient friend:
And because we know we have breath in our mouth and think we have thought in our head,
We shall assume that we are alive, whereas we are really dead.We shall not acknowledge that old stars fade or stronger planets arise
(That the sere bush buds or the desert blooms or the ancient well-head dries),
Or any new compass wherewith new men adventure ‘neath new skies.We shall lift up the ropes that constrained our youth, to bind on our children’s hands;
We shall call to the waters below the bridges to return and to replenish our lands;
We shall harness (Death’s own pale horses) and scholarly plough the sands.We shall lie down in the eye of the sun for lack of a light on our way –
We shall rise up when the day is done and chirrup, “Behold, it is day!”
We shall abide till the battle is won ere we amble into the fray.We shall peck out and discuss and dissect, and evert and extrude to our mind,
The flaccid tissues of long-dead issues offensive to God and mankind –
(Precisely like vultures over an ox that the army left behind).We shall make walk preposterous ghosts of the glories we once created –
Immodestly smearing from muddled palettes amazing pigments mismated –
And our friend will weep when we ask them with boasts if our natural force be abated.The Lamp of our Youth will be utterly out, but we shall subsist on the smell of it;
And whatever we do, we shall fold our hands and suck our gums and think well of it.
Yes, we shall be perfectly pleased with our work, and that is the Perfectest Hell of it!This is our lot if we live so long and listen to those who love us –
That we are shunned by the people about and shamed by the Powers above us.
Wherefore be free of your harness betimes; but, being free be assured,
That he who hath not endured to the death, from his birth he hath never endured!
I quoted Eugene Kontorovich’s criticism of the district court decision when it came down in August 2010; today, the Fourth Circuit reversed, and handed down another piracy opinion in United States v. Dire, which discusses the legal question in detail. Thanks to Howard Bashman (How Appealing) for the pointer.
Thanks to Boston.com for the pointer. (I don’t know whether this was inserted by the alumnus himself — apparently the norm for the directory — or by someone else.)
Apropos yesterday’s Confederate flag / First Amendment post, here’s a story from March: A Delaware Department of Transportation employee had, for 17 years, a decorative plate that said “REDNECK” on a Confederate flag background. A coworker complained, charging “harassment,” and the department threatened him with discipline “if he continued to drive his vehicle with the plate on state property.” But after the ACLU of Delaware intervened, the Department apparently decided not to reprimand him, even if he continued displaying the plate.
Note that the government acting as employer has much more power over on-the-job speech of its employees than it does over the speech of private citizens and private employees (more on that here). In particular, it’s possible that the Department could restrict the display of items that cause substantial tension among coworkers, though it sounds like in this instance the Department ultimately chose not to do this (whether based on a judgment that the plate wasn’t disruptive enough, a desire to avoid litigation, or something else).
So states a Detroit Free Press op-ed headline. Here’s an excerpt from the op-ed itself:
Michigan is one of 10 states in which gun deaths now outpace motor vehicle deaths, according to a study released Thursday by the Washington, D.C.-based Violence Policy Center.
But don’t expect the from-my-cold-dead-hands crowd to embrace the center’s conclusion that the disparity has everything to do with federal regulation — extensive and wildly successful in the case of motor vehicles, and virtually non-existent in the case of firearms.
“The idea that gun deaths exceed motor vehicle deaths in 10 states is stunning when one considers that 90% of American households own a car, while fewer than a third own firearms,” VPC Legislative Director Kristen Rand said. “It is time to end firearms’ status as the last unregulated consumer product.” …
“Motor vehicle deaths are on the decline as the result of a successful decades-long public health-based injury prevention strategy that includes safety-related changes to vehicles and highway design informed by comprehensive data collection and analysis,” a release accompanying the VPC study said. “Meanwhile, firearms are the only consumer product not regulated by the federal government for health and safety.”
But wait: The number of accidental gun deaths in Michigan in 2009 (the most recent year reported in WISQARS) was … 12, compared to 962 accidental motor-vehicle-related deaths. 99% of the gun deaths in Michigan that year consisted of suicides (575) and homicides (495).
Now say what you will about whether some gun control laws might reduce suicides or homicides, but it’s extremely unlikely that any “safety-related changes” or “regulat[ions] … for health and safety” are going to eliminate all but a tiny fraction of those suicides and homicides, which are overwhelmingly intentional acts by people who are willing to kill and are unlikely to be stopped by “regulat[ion] by the federeal government for health and safety.” Yet curiously the op-ed says nothing about how few of the gun deaths were accidental, and how few homicides or suicides could be prevented by “safety-related changes” along the lines of the safety regulations imposed on cars.
This also helps explain, I think, why gun rights supporters are so worried about “health and safety” proposals. Precisely because such proposals are so unlikely to have much of an effect, the gun rights supporters naturally assume that the backers of the proposals aren’t really after modest car-like “regulat[ions] … for health and safety,” but are actually trying to bring about much more aggressive sorts of gun restrictions.
From today’s State v. Brek (N.J. Super. Ct. App. Div. May 22, 2012):
In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice–President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.
Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President’s plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.
Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12–3b, receiving stolen property, N.J.S.A. 2C:20–7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39–3f(1). A restraining order was issued barring defendant from any contact with the President or his family.
Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant’s possession when he was arrested at his place of employment….
On November 12, 2009, defendant pled guilty to two counts of disorderly persons harassment against the two individuals who heard defendant’s conjectures at the lunch truck, N.J.S.A. 2C:33–4. Both weapons charges were dismissed. At that time defendant requested the return of all property seized from his home, but the prosecutor refused.
On July 12, 2010, defendant moved before the trial judge who had taken his guilty plea for an order compelling the State to return his property, except for the hollow point bullets and stolen rifle. The State filed a written opposition to the motion, which failed to cite any statutory, regulatory or precedential authority. At the hearing on the motion, the assistant prosecutor “concede[d] that after thorough investigation by the federal authorities, the Port Authority police and my office, that we did not see this as a major threat.” The prosecutor also acknowledged the two mental health evaluations that defendant had in prison, which “the State concede[d] he passed.” Nonetheless, based upon “the whole totality of the circumstances,” the State opposed the return of the weapons. In denying defendant’s motion, the trial judge, without providing any legal basis, ruled:
[W]e live in a very different time [since September 11, 2001] and in a very different world; we don’t engage in certain conduct involving words or acts that can be interpreted as threats to our elected officials, threats to our citizens, threats to the health, safety and welfare of everyone. And that phrase, or concept, the public health, safety and welfare, I think trumps everything…. Mr. Brek’s character is not at issue. At no time has the State — at least to my knowledge — brought … [Mr.] Brek’s character into this…. I believe that the public health, safety and welfare of our citizens does come into play here, and accordingly, I am going to deny Mr. Brek’s application for the return of his weapons.
This appeal followed.
Guess how the New Jersey Superior Court Appellate Division ruled, and then read on.
From Dawson v. Donahoe (EEOC Feb. 8, 2012) (just uploaded onto Westlaw several days ago):
[A] claim of harassment is … actionable if the harassment to which Complainant has allegedly been subjected was sufficiently severe or pervasive to alter the conditions of Complainant’s employment….
In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster “procrastinated in taking action on my complaint” and that he filed the complaint, in part, because of the Postmaster’s “lack of concern for my feelings associated with this matter.” Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly and Complainant believes he might have a weapon in his car.
Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation…. [U]nder certain circumstances, a limited number of highly offensive slurs related to a federal employee’s race may in fact state a claim or support a finding of discrimination under Title VII. Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts….
This case involved a government employer, but the EEOC applies precisely the same standards — speech is actionable if it is “severe or pervasive” enough to create a hostile, abusive, or offensive work environment based on race, religion, sex, and so on for a plaintiff and for a reasonable person — to government employment as courts do to private employment. So under the EEOC’s reasoning, an employer must order its employees to stop wearing Confederate flag T-shirts whenever someone complains, or risk massive liability in court.
As I’ve argued before, hostile work environment harassment law suppresses a broad range of speech, including speech related to political, religious, social, or artistic matters. And when applied to what I call “one-to-many” speech (as opposed to speech that is said to one particular person), I think the law is unconstitutional: It involves the government, acting as sovereign, imposing a content-based and viewpoint-based restriction on people’s speech.
To be sure, a private employer has broad authority to restrict speech on its property (just as a private blog operator, service provider, commercial landlord, university, church, or homeowner has such authority). And a government employer has fairly broad such authority as well, for instance if it concludes that such speech sufficiently undermines the employer’s mission. But harassment law involves the government using legal coercion to pressure employers to restrict people’s speech; that’s where the strong First Amendment constraints on government action should come in. Much as I dislike displays of the Confederate flag, the First Amendment can’t allow the government to suppress them through the threat of legal liability.
In any event, this case, I think, helps illustrate my point. If the EEOC is right, then employers essentially have a legal duty to suppress Confederate flag displays whenever they are engaged in by an employee and a coworker is offended. Employers also have such a duty whenever they are engaged in by patrons and an employee is offended, since employers have a duty to prevent “hostile work environments” created by patrons. Bars and other places of public accommodation would also have a similar duty not to display Confederate flags and similar imagery, and to eject patrons who do the same, so long as a patron complaints that he is offended.
And of course the same could in principle apply not just to speech that is perceived as racist, but also speech that is perceived as anti-Islam, anti-Christianity, anti-Hispanic-immigrant, anti-women, anti-men, and so on. (See, e.g., the Tufts anti-Islam ad incident, Doe v. City of New York & Bruce Tefft, and Rodriguez v. Maricopa County Community College Dist..) “Hostile environment harassment law” is a serious and often unconstitutional threat to free speech, whether in workplaces — where most people spend a third of their waking hours — or universities or places of public accommodation; this incident is just the latest example.
UPDATE: Hans Bader (Open Market) has more.
AB 2100, which passed an Assembly subcommittee last month by a 5-3 party-line vote, provides,
To ensure that individuals and entities licensed under this act observe common standards of decency, the commission shall, in consultation with the Association of Boxing Commissioners, establish a professional code of ethical conduct for mixed martial arts promoters and fighters. Notwithstanding any other provision of this code, upon receiving a complaint, the commission shall enforce the code of ethical conduct and may suspend, revoke, or refuse to issue or renew the license of any mixed martial arts promoter or fighter that it finds has violated this code of conduct. Violations of this code shall include, but not be limited to, the following:
(a) Engaging in actions or activities such as acts resulting in felony convictions or convictions for crimes involving moral turpitude, sexual assault, ethnic or religious slurs, hate speech, or obscene language, failing to respond to a subpoena, or incurring sanctions imposed by a judge or court of law.
I don’t think mixed martial arts fighters should be denied the right to compete — and denied it by law, not just by a private organization’s decision — simply because they have a criminal record. That’s especially so when the criminal record can involve relatively less significant offenses, such as contempt of court, or “crimes involving” “obscene language.”
But it seems to me especially wrong, and unconstitutional, to strip people of their livelihood based on viewpoint-based criteria such as whether their crimes involved “ethnic or religious slurs” or “hate speech.” To be sure, such conduct has to be independently a crime (e.g., disturbing the peace through trying to provoke a fight, or making loud noise, or what have you); ethnic slurs, religious slurs, and “hate speech” — whatever that vague term might mean — aren’t themselves crimes. But as R.A.V. v. City of St. Paul (1992) held, even if the government may outlaw certain kinds of speech (such as “fighting words”), it may not outlaw in ways that are viewpoint-based (or otherwise impermissibly content-based). Just as R.A.V. barred the imposition of greater penalties on bigoted fighting words than other fighting words, so it bars the loss of a license for crimes that involve “ethnic or religious slurs” or “hate speech” but not for comparable crimes that don’t involve such speech.
I recognize that hate crimes laws that increase the penalty for crimes based on the defendant’s discriminatory selection of a victim are constitutional, see the unanimous Wisconsin v. Mitchell (1993), and I think that decision is correct: The law has long allowed punishments to turn partly on the defendant’s motivation, and the selection of a victim based on particular criteria may indeed be a permissible basis for such distinctions (just as employment law may permissibly distinguish firing someone based on that person’s race or sex from firing the person based on something else). But R.A.V. makes clear that the law may not make the viewpoint of a person’s speech — as opposed to his victim selection decision — a basis for enhanced punishment.
And the same, I think, would apply to disqualification from the occupation of mixed martial arts fighting. Assemblyman Luis Alejo, the sponsor of the bill, and Assembly members Nora Campos, Betsy Butler, Mike Gatto, Tony Mendoza, and Bill Monning ought to know better, or at least seek out better counsel.
I blogged last month about the school district’s refusal to allow the shirt; “the message communicated by the student’s T-shirt,” the district argued, “was sexual in nature and therefore indecent and inappropriate in a school setting.” The student sued on First Amendment grounds, and Lambda Legal reports that the district has settled; here are the key terms:
2. The Defendants are enjoined from prohibiting Plaintiff Maverick Couch from wearing the “Jesus Is Not A Homophobe” T-shirt, which is more fully described in paragraph 7 of Plaintiff’s Complaint. Plaintiff is expressly permitted to wear the “Jesus Is Not A Homophobe” T-shirt to school when he chooses….
4. Defendants are ordered to pay damages and costs, including reasonable attorneys’ fees, in the amount of $20,000 to Plaintiff on or before July 5, 2012.
Thanks to my coblogger Jonathan Adler for the pointer.
I’m delighted to say that — according to an e-mail I just received (not from Paul or any mutual friend) — Paul Watford has just been confirmed by a 61-34 vote. (The Democratic Senators voted for him, as well as Republican Senators Alexander, Brown, Collins, Graham, Kyl, Lugar, McCain, Murkowski, and Snowe; some of those are quite conservative.) For all the reasons I mentioned before, I’m confident Paul will be a superb judge.
UPDATE: For the official roll call, see here.
An interesting recent sex crime case, In re Tiemann (Mich. Ct. App. May 8, 2012). Because the parties were underage (defendant was 15 and HS was 14), consent was not a defense to the underlying crime, but it proved to be important to deciding whether the defendant could avoid having to register as a sex offender. An excerpt:
On February 20, 2010, Tiemann went to HS’s home at her invitation. They went to the guest house and proceeded to “make out.” HS said that after Tiemann removed her shirt, she protested when he tried to remove her bra and told him “she really didn’t want to do this.” Tiemann allegedly told her he had done this before and not to worry. HS said that ultimately, Tiemann removed all her cloths, digitally penetrated her, and performed cunnilingus on her. She said she told him she “didn’t want to” while he was digitally penetrating her but then “gave in because she knew he wouldn’t stop.” She claimed that during the subsequent sexual acts, she told him to stop, and he did, but then started again. HS said that Tiemann stopped completely when she told him to stop a second time. After that, they dressed, lay down on the couch together, and fell asleep.
Tiemann admitted that HS said once that they were moving too fast, but then she said that she would be okay. He claimed that she pulled him back on three occasions when he asked if she wanted him to leave. He also acknowledged that HS said she wanted to stop while he was digitally penetrating her, and he offered to leave. Further, he acknowledged that she sat up and that he laid her back down four times. He claimed that he was not forcing her during penile-vaginal sex. Further, he acknowledged understanding that she wanted to stop when she expressed that she was uncomfortable. When asked if he should have stopped, Tiemann said “Yeah, lots of times.” Finally, Tiemann stated that he felt he was being pushy when he told her to relax and be comfortable with it and that eventually it seemed that she was comfortable because it “felt like she just gave in.” However, he said he “forc[ed] it on her a couple of times” and that he knew it was wrong….
[T]he parties reached a plea agreement whereby Tiemann was to plead no contest to one [Criminal Sexual Conduct] III [statutory rape] count and the other charges [alleging force or coercion] would be dismissed. After reviewing two case report summaries of interviews of the victim and Tiemann, the trial court accepted the plea. The trial court found a factual basis for a determination that Tiemann had intercourse with the victim who was between the age of 13 and 16 (there was no mention of force or coercion).
Apparently, an initial order of adjudication indicated that Tiemann was convicted based on force or coercion. However, a corrected order of adjudication specifies that the victim’s age was the basis for the conviction….
An amendment to [the Sexual Offender Registration Act] subsequently took effect and provided that for cases pending on July 1, 2011, a juvenile could be excused from registration under the SORA under certain circumstances if he could establish consent. The trial court therefore held a trial on the issue of consent. At the trial, various witnesses were called, and HS read a statement into the record giving a more detailed account of what transpired on the night in question. In this account, she indicated that she may have acquiesced “so that he wouldn’t be so mean” but gave further indications that the sex was not consensual. Ultimately, the trial court found that Tiemann was not exempt from SORA registration requirements.
Note that to get an exemption from the registration requirement, the defendant must prove consent by a preponderance of the evidence. In a typical criminal case alleging nonconsensual sex, the prosecution must prove absence of consent beyond a reasonable doubt. Still, the common question in these cases is what counts as “consent.”
I just ran across an interesting case, Memphis Pub. Co. v. Nichols (Tenn. 1978). The Memphis Press-Scimitar published the following article that mentioned Mrs. Ruth Ann Nichols:
WOMAN HURT BY GUNSHOT
Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.
A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect’s husband.
Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.
Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.
No charges had been placed.
Please think briefly about the story, and then click on the link before to learn what the court decided.
A reader asks:
In a discussion thread on another blog, I hazarded an observation that marriage is NOT a contract as typically defined at law. I based this on my view that marriage does not contain elements that a contract must contain, such as a definition of goods and services offered in exchange for consideration.
My interlocutor held that marriage does, indeed, contain all the necessary elements of a contract, including defined exchange and “payment” for it.
I have researched this question online, but can find no satisfactory answer. Black’s Law (2nd ed.) seems to treat marriage as a legal status, but not a contract. At the same time, there’s no lack of other commentaries which pointedly describe marriage as a contractual relationship.
So: Might you and your conspirators shed some light on the question by posting your thoughts: Is marriage — technically — a legal contract?
I thought I’d response to this on-blog because it illustrates a considerably broader point: In law, as in life, concepts like “contract” aren’t unitary things, so that either something is a contract and has all the properties of a contract or something isn’t a contract. There are different kinds of contract, with different qualities, and different possible definitions for the term “contract.”
To begin with, “contract” is a quite broad concept. I don’t want to try to give a thorough definition here, but suffice it to say that an exchange of promises might well be a contract even if the promises don’t involve money, goods, or even services. Thus, for instance, “Each of us promises not to be anyone else’s bridge partner” can be a contract; it’s an exchange of promises not to engage in certain conduct. (Note that the contract doesn’t promise that I’ll be your bridge partner, just that I won’t be anyone else’s.) Substitute something else for “bridge,” and you’ll have one aspect of a marriage contract.
But beyond this, it turns out that a marriage contract is a contract — it’s an exchange of promises, it has effect because of consent of the parties, and it after all is called a marriage “contract.” But it also has many consequences that a normal contract doesn’t have: Not so long ago, it turned otherwise criminal sexual conduct (fornication) into legal conduct. Even today, it has that effect with marriages where one party is too young to consent to sex but old enough to consent to marriage (usually with the parents’ consent). It makes the parties’ children legitimate, which used to have very important legal effects and still has some legal effects. It gives the parties the right to refuse to testify against each other in court. If one party is not a citizen, it gives the party a relatively easy path to citizenship. The list could go on.
It also lacks some of the properties of a normal contract. It can be severed pursuant to divorce laws without the opportunity to sue for damages for breach of contract. It is not governed by the Contracts Clause of the Constitution, so that newly enacted divorce laws could impair the obligation of existing contracts of marriage (see the Dartmouth College Case (1819)).
So marriage is a contract, and has long been described as a contract, but it’s a very peculiar kind of contract that has its own special legal rules. To ask whether marriage is “technically” a contract doesn’t make much sense, because it presupposes a single unique meaning for the term “contract.” If by contract you mean “a contract as typically defined at law,” which is to say a contract that has most of the legal consequences that a typical contract has, then the answer is “largely not,” because marriage contracts have such specialized legal consequences. If by contract you mean “something the law has typically labeled a contract,” the answer is “probably yes,” simply because “marriage contract” has long been a common term. If by contract you mean “a mutual agreement that the law treats as binding as a consequence of the parties’ having agreed to it,” then the answer is “yes.”
So, as I said, there are different kinds of contract, with different qualities, and different possible definitions for the term “contract.” In math, you can ask, “is a number even, or is it odd?” In law, asking “is X a contract?” will often yield the response, “in what sense, and for what purposes?”
Randal O’Toole (Cato@Liberty) reports on his experience. The technology sounds very cool, and I take it that so far it has been pretty accident-free. Of course, my first reaction to hearing about this was “how dangerous!,” but it’s not like this is a new technology trying to replace an absolutely safe current technology — and it may well be that such a car is already safer than the average real driver, or will soon be safer. It will be very interesting to see how this develops (and of course to explore the legal dimensions).
Thanks to Opher Banarie for the pointer. Disclosure: I have occasionally worked on Google legal projects, and was recently commissioned by Google to write a white paper.
An interesting case in Michigan, in which a Tax Tribunal decision was reversed by Camp Retreats Foundation, Inc. v. Township of Marathon (Mich. Ct. App. May 15, 2012). The question is whether a camp was exempt from property taxes; the camp was rentable by the general public (and sometimes rented by the public), but it was mostly used by Muslim groups, “because (i) the facilities were constructed so that separate ‘villages’ are available to boys and girls such that a ‘conducive environment’ is created to ‘manage the two genders,’ and (ii) word of mouth of the availability of the subject facilities was generated through Muslim lines of communication.” The main user was a summer camp that had a pretty clearly Muslim focus, with a good deal of time devoted to prayer and study of the Koran, and with the rules providing that:
All participants must observe Islamic laws, which includes but is not limited to, good moral standards, maintaining proper hijab, keeping away from backbiting and gossiping, presenting oneself with respect and dignity, maintaining decency with appropriate clothing and more. Brothers and sisters must show respect for each other. Any misconduct may lead to expulsion from the camp if deemed necessary.
Under Michigan law, a property-owning organization is treated as a charitable organization and can therefore claim tax-exempt status for its property when it is organized “for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government” and at the same time “does not offer its charity on a discriminatory basis by choosing who, among the group it purports to serve, deserves the services.” The Township argued that Camp Retreats didn’t qualify, because, in relevant part,
1) it discriminates in determining who can use the subject property, 2) participation in the Tawheed Summer Camp, sponsored by Petitioner’s parent organization, and the primary user of the subject facilities, is conditioned specifically on observance of Islamic laws and management, [and] 3) Petitioner has not established by testimony or exhibits that Petitioner’s purpose is to “bring people’s minds or hearts under the influence of education or religion,” nor do they “relieve people’s bodies from disease, suffering or constraint[.]“
The Tax Tribunal concluded that Camp Retreats was indeed not a charity, because it was “is chiefly organized for recreational purposes rather than for charitable purposes.” The Tribunal’s opinion didn’t discuss the “bringing … minds or hearts under the influence of … religion” part of the test, and relied on the fact that the articles of incorporation for the camp focused on recreation rather than religion.
The Michigan Court of Appeals reversed, reasoning that the tax tribunal should have looked at how the property was actually used rather than focusing on what the articles of incorporation said, and that the actual use of the property was indeed charitable under Michigan law:
In reaching [its] conclusions, the Tribunal disregarded its own factual determination that the facility was chiefly used as camp for children and families of the Muslim faith, and in so doing misapplied the law. We find that the property fulfills the requirements of a charity because its primary use focuses on “bring[ing] people’s minds or hearts under the influence of … religion,” and it offers this charity on a nondiscriminatory basis.
Continue reading ‘Tax Exemption Law and Camp Predominantly Used by Muslims’ »
I was happy to hear that the cloture vote on the nomination of Paul Watford to the Ninth Circuit will be held Monday, and I very much hope that Paul will be confirmed. For those interested, here’s my post praising Paul, whom I know well, Orin’s post praising Paul, my letter to the Senate Judiciary Committee urging that Paul be confirmed, and many Kozinski clerks’ letter urging the same. UPDATE: See also these letters from local prominent conservative lawyers (both former presidents of the L.A. Federalist Society chapter), Henry Weissmann and Jeremy Rosen, plus the General Counsels of CIRCOR, Verizon, Mattel, and Google.
The U.S. Justice Department opined May 14 that the First Amendment does secure such a right, reaffirming a January letter that I had missed. “Recording governmental officers engaged in public duties,” the letter reasons, “is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”
The letter, addressed to the Baltimore Police Department based on the Department’s past interference with such recording, is consistent with the Seventh Circuit’s May 8 decision in ACLU v. Alvarez (which it doesn’t cite) and the First Circuit’s decision in Glik v. Cunliffe (which it does cite, together with some other cases).
Yesterday’s Wall Street Journal reports:
Iranian rapper Shahin Najafi … is now being dubbed the Salman Rushdie of music after two influential clerics in Iran issued fatwas — religious edicts — justifying his murder on grounds of blasphemy [based on a song in which Najafi calls on a Shiite saint, Ali an-Naqi, to save Iran] ….
Mr. Najafi … lives [in Germany] and, since last week, has been in hiding under the protection of German police….
The senior clerics empowered to issue fatwas act independently of the government — but anyone who carries out a death fatwa is granted impunity under Iranian law….
An Iranian website, Shia-Online, [has] put a $100,000 bounty on Mr. Najafi’s head ….
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
