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Posts Tagged ‘tort’

The Limitless First Amendment?

April 16th, 2011 4 comments

Originally posted on March 5 (reposted after discussion with students at law school preview day)

Since my first posting on the Westboro Baptist Church case, I’ve discussed it in a bunch of different settings — on Facebook, at swim practice, at work. The case, recall, involved Albert Snyder, the father of a dead soldier who just wanted to bury his son in peace, against Fred Phelps and his sub-human followers (and their exploited children). I’ve also been reading around on the decision, coming up mostly with misty-eyed defenses of the holding. Andrew Sullivan is typical in this regard: In a brief post, he criticized French laws that criminalize certain kinds of hate speech while celebrating the decision in the Westboro case. His conclusion: “I’m glad I live here.”

But let’s look at the kind of behavior Sullivan is defending. According to the linked story from the Guardian, the defendant, John Galliano, has done such things as the following:

Galliano was arrested on Thursday in the chic Marais district of Paris after allegedly shouting anti-Jewish and racist insults at a couple. He denied the allegations and his lawyer said he was counter-suing the couple for defamation. Police said he had drunk the equivalent of two bottles of wine.

Two days later a second woman claimed Galliano had similarly insulted her in the same bar in October. Then a video was put online appearing to show Galliano on another occasion telling two women: “I love Hitler. People like you would be dead. Your mothers, your forefathers would all be fucking gassed.”

The last one is particularly upsetting, and it’s right here:

So this boor got right “into the grill” of these two women (to quote Marjorie Phelps during oral argument in the Snyder v. Phelps case), in a way that is beyond insulting and possibly even threatening. (Phelps herself implied that the speech shouldn’t be protected in such cases.) Is this really the kind of speech — especially the last spew — that the Founders would have wanted protected? And even if it was, so what? Back when the Nation was founded, we didn’t have tort law that protected against invasions of privacy or the intentional infliction of emotional distress, either. Now we do, and I’m in favor of drawing the line where others won’t, in favor of the plaintiff in this case. Here’s dissenting Justice Alito from Snyder v. Phelps:

“Our profound national commitment to free an open debate is not a license for the vicious verbal assault that occurred in this case.”

But almost everyone’s drunk on First Amendment Kool-Aid, and the trickle-down of this poisoned liquid has been to render criticism of the majority’s decision somehow almost un-American. Here’s Philadelphia Inquirer columnist Solomon Jones, trying to reconcile his anger with what he thinks the law requires, and coming up with a call for responsibility:

From a legal standpoint, perhaps the court made the right decision. But when I view it through the prism of fatherhood – a prism that bends and refracts the colors of love and hope that are embodied in our children – I can’t see a circumstance in which the protesters could ever be right.

Had I been that father, confronted by protesters while in the throes of unspeakable grief, I doubt that I could have maintained my composure. If you hate my child because you believe that he is tangentially connected to someone else’s lifestyle, that’s fine. Don’t disrespect or scandalize my child because of it. Don’t wait until he dies to twist the knife. Don’t hurt my child in order to prove a point to someone else. Confront the real target of your rage, and face whatever circumstances result.

That’s not what happened in this case. In this case, a group of people decided that it would be easier to confront the dead than to confront the living. That, in my estimation, is not only wrong. It is cruel. And yet their protests, as distasteful as they may be, are still protected under our laws.

I don’t pretend to understand the twisted logic that would allow professed Christians to compound a father’s grief by protesting at his son’s funeral. But I do understand that freedom brings with it profound responsibility. And in the case of these protesters, they abdicated that responsibility. They went beyond the pale.

Yes, speech in America is free. Yes, we can espouse whatever opinions we wish. Yes, we can gather and protest. But in a land where free speech is at the very root of our democracy, each one of us is responsible for what we say. We are responsible for where we say it, and especially in the case of those who claim to speak for God, we are responsible to an authority that the Supreme Court cannot touch.

But the misguided dopes that are part of the WBC aren’t reading this, much less taking it in. Almost everyone would agree that — laws prohibiting this kind of behavior aside — basic decency and a sense of responsibility militate against what the Phelpses did here. So the question is whether something more is needed. Tort law can supply that missing piece, compensating the injured party and deterring future such acts, and the jury’s verdict should have been allowed to stand. Would such tort liability “chill” speech, the catechismal concern of constitutional law scholars and jurists everywhere? I hope so.

I might be almost alone, but there are others who at least see a big problem here. A particularly astute Facebook friend writes:

I too am befuddled the lack of nuance in the widespread positive response and the increasing conflation of “free speech” with “universally consequence-free speech.” The actual facts–both those considered by the majority in construing the signs and those set aside in (arguably: swept under) the first footnote [she means the “epic”, which the Court declined to consider] –would seem to make for a much closer call than most of the blogosphere recognizes, whichever side one comes down on.

Yes. A little more debate, please.


Empathy and Activism: A Look at Senator Cornyn’s Own Judicial Record

July 16th, 2009 No comments

During the Sotomayor hearings, Sen. John Cornyn of Texas has been among the most aggressive questioners. He seems particularly overwrought about the nominee’s statements that her experience as a Latina would somehow affect, or even improve, her decision-making. (Of course, the would-be justice has run as far from those comments as possible.) He and other conservatives also worry about “activist judges” who “legislate from the bench.” It’s amazing he can express these concerns without blushing.

As I noted when this issue broke, there are several ways to interpret the “wise Latina” comment. The most benign is that all of us are a product of our environment and experience; our empathy should be for all litigants, but we’re not, and shouldn’t pretend to be, robots. (That said, Sotomayor’s performance so far has been that of Automaton Lawyer.)

Cornyn, though, is having none of this; empathy isn’t and shouldn’t be part of decision-making. NY Times columnist Maureen Dowd is at her skewering best in yesterday’s take on the Republican Legion of (White) Super-Attackers. Smashing the tennis ball with deadly accuracy, she nails every line and corner of the court:

“A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

“After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.

“[P]resident Obama wants Sotomayor, naturally, to bring a fresh perspective to the court. It was a disgrace that W. appointed two white men to a court stocked with white men. And Sotomayor made it clear that she provides some spicy seasoning to a bench when she said in a speech: ‘I simply do not know exactly what the difference will be in my judging, but I accept there will be some based on gender and my Latina heritage.’

“Republican Lindsey Graham read Sotomayor some anonymous comments made by lawyers about her, complaining that she was “temperamental,” “nasty,” “a bit of a bully.” Then he patronizingly lectured her about how this was the moment for “self-reflection.” Maybe Graham thinks Nino Scalia has those traits covered.

“But the barbed adjectives didn’t match the muted performance on display before the Judiciary Committee. Like the president who picked her, Sotomayor has been a model of professorial rationality. Besides, it’s delicious watching Republicans go after Democrats for being too emotional and irrational given the G.O.P. shame spiral.

“W. and Dick Cheney made all their bad decisions about Iraq, W.M.D.’s, domestic surveillance, torture, rendition and secret hit squads from the gut, based on false intuitions, fear, paranoia and revenge.

“Sarah Palin is the definition of irrational, a volatile and scattered country-music queen without the music. Her Republican fans defend her lack of application and intellect, happy to settle for her emotional electricity.

“Senator Graham said Sotomayor would be confirmed unless she had ‘a meltdown’ — a word applied mostly to women and toddlers until Mark Sanford proudly took ownership of it when he was judged about the wisdom of his Latina woman.

“And then there’s the Supreme Court, of course, which gave up its claim to rational neutrality when the justices appointed by Republican presidents — including Bush Sr. — ignored what was fair to make a sentimental choice and throw the 2000 election to W.

“Faced with that warped case of supreme empathy, no wonder Sotomayor is so eager to follow the law.”

*********

Cornyn’s own record as a Texas Supreme Court Justice reveals a similar “supreme empathy” — to insurance companies. In the area of tort law, he consistently sided with majorities that eviscerated long-standing rules and principles, consistently to the advantage of defendant businesses and the insurance companies that ultimately would have had to account for the losses.

These decisions, often by the barest of majorities, were not in cases that any other state supreme court would have agreed with. In the 1992 case of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), Cornyn and three other justices held that a supermarket wasn’t necessarily liable for a slippery condition that its own employee had created. Maybe the employee didn’t know the spray he’d used had landed on the floor. The flabbergasted dissenters pointed out that the majority’s decision, in addition to being at odds with settled and uncontroversial law in Texas as well as everywhere else, effectively told employees and store owners to “look the other way.”

The majority also tripped the plaintiff up on a procedural error, one that the dissent noted was now applied only to those bringing suit, not to those defending: “Today the court… extends a dual standard of justice–an easy requirement for defendants, an inexplicably strict one for plaintiffs.” (Mauzy, J., dissenting)

This willingness to use arcane procedural rules to defeat claims sometimes meant that valid cases never got a hearing. In the inexplicable H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992), Cornyn wrote only for himself (but as the majority because of an oddity of Texas law) in tossing out a case involving a woman who’d slipped and been injured allegedly because of an ill-conceived “bag your own chicken”1 promotion. Despite the clear description of the dangerous condition set forth in the complaint, then Justice Cornyn found that it hadn’t provided legally sufficient notice of the problem. I leave to the law-curious among you the details, but this telling comment from the dissent bears quoting:

“”The majority opinion defies modern rules of pleading, which require only that a plaintiff put the defendant on notice of the claim. [This] retrograde analysis runs counter…to modern tenets of procedure….”

Empathy for insurance companies and judicial activism: Not just for leftists, apparently. Cornyn’s decisions spawned dissents that were downright angry and accusatory. Here’s a good place to finish, again stemming from a pro-insurance decision by a Cornyn-led majority:

“When an unequivocal constitutional command and  concern for the insurance industry collide in this Court, the outcome is no longer in doubt. [T]oday’s decision is but one example of the court’s recent indifference to precedent and its commitment to wholesale revision of Texas law.” (Doggett, J., dissenting)

  1. Ick.