Eugene Volokh's Blog, page 2561
May 3, 2012
Nearly Half the New York Assembly Republicans: Require Deletion of Anonymous Comments Whenever Anyone Complains
Twenty-three of the forty-nine New York Assembly Republicans, plus one Independent and one Democrat, introduced this bill last Fall but just “unveiled” it yesterday:
Definitions. As used in this section, the following words and terms shall have the following meanings:
(a) ["]Anonymous poster["] is any individual who posts a message on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.
(b) “Web site administrator” means any person or entity that is responsible for maintaining a web site or managing the content or development of information provided on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages, accessible via a network such as the internet or a private local area network.
2. A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.
It’s not clear what it means to “confirm” that one’s IP address, legal name, and home address are accurate; but at the very least, this bill would require a Web site administrator — me, for instance, if I were found to subject to New York jurisdiction — to remove any comment unless the commenter signs his name to it.
Nor would this be limited to comments that allegedly libel someone, or even insult someone (though that would be bad enough), despite all the talk of preventing cyber-bullying by the bill’s backers. Rather, the law would apply any time anyone makes a “request” that a comment be removed, even if the comment doesn’t mention anyone by name but is simply religiously or politically offensive to the “request[er].” The same would apply to anonymous material added to Wikipedia, if Wikipedia were found to be subject to New York jurisdiction, anonymous videos posted to YouTube, and so on.
The bill is unconstitutional, see Talley v. California (1960) and McIntyre v. Ohio Elections Comm’n (1995); the First Amendment, the Supreme Court has held, protects anonymous speech (except in limited conditions related to election campaigns). The proposal is thus a fitting bookend to the four Democratic New York Senators’ paper on, among other things, how “[p]roponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated,” though more New York Republicans are on board this bandwagon than New York Democrats were on board the other one.
Thanks to Steven Jens for the pointer.
UPDATE: By the way, say that a Web site with tens of thousands of comments gets a batch of demands from a political opponent of the site: “[R]emove any comments posted on [your] web site by an anonymous poster” — defined as “any individual who posts a message on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages” — unless that individual “agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate” (emphasis added). The time and effort it takes to get such “confirm[ation]” from all the commenters, including ones who had signed their names in the first place (recall that “anonymous poster” is defined to mean “any individual who posts a message on a web site,” even if the message is signed with what is ostensibly the poster’s name) might well be prohibitive for many Web site operators, whose only option at that point would be just to delete all the comments.
Misreporting the Costs of Going to (Some) Law Schools
In an effort to educate potential law students about the real costs of attending law school, Law School Transparency has launched a “Data Clearinghouse”, a database of “consumer information” on law schools, including much information law schools have been reluctant to disclose.
The latest addition to the database are projections of the full cost of attending each law school in the nation. Based on Law School Transparency’s calculations, these costs can vary widely. As the NLJ reported:
As part of the comprehensive database of law school employment statistics it launched this week, the organization has projected the total cost of law school loans for students who will graduate in 2015 and 2016 — that is, the ones who will start law school this year or next. The former will owe an average of $195,265 and the latter will owe an average $200,595.
“My jaw dropped when I ran the numbers,” McEntee said.
He added a few caveats. The calculations are based on the assumption that students will borrow the full tuition amount in the form of federal loans, even though many students receive some scholarship money. They also assume that students at public law schools pay out-of state-tuition levels, which generally are higher than in-state rates. . . .
The City University of New York School of Law features the lowest projected debt for the class of 2015, at $96,242. The University of California, Berkeley School of Law had the highest, at $273,667, although that figure assumes graduates paid out-of-state tuition rates; most students from outside California qualify for in-state tuition after one year.
New York University School of Law had the next-highest projected debt at $266,462.
Some of the numbers are quite revealing — and some of the numbers are quite wrong. In a quick review of the numbers for a handful of schools, I’ve found substantial under-reporting of cost-of-living estimates. Lets start with the alleged cheapest school on the list, CUNY. According to the database, the estimated annual cost of living is only $7,425. Really? In New York City? (Yes, it’s Queens. But still.) But it turns out that $7,425 is not the estimated cost of living for CUNY. According to the law school’s website, the actual figure is more than double the reported amount, $17,943. That’s quite a difference.
CUNY is not the only school for which the numbers in the Law School Transparency database are inaccurate. The University of Louisville is another low-cost school according to the database, with a reported cost of living of only $10,490. Again, however, a quick check of the law school website reveals a much higher figure. Louisville estimates the cost of living for its prospective students at over $18,000 per year. Florida State’s reported number is $13,000, but their cost-of-living calculator estimates costs of over $17,000. Albany Law School’s reported number is $12,300, but their website reveals costs of $18,000. And so on.
I contacted the folks at Law School Transparency to ask about the problems with their data. They said they relied upon data provided to U.S. News, and pledged to do more research so that they could provide more accurate numbers (numbers which should be up shortly, perhaps later tonight). The faulty data, they argue, is further evidence of how law schools misreport to U.S. News and highlights the need for more standardized and complete reporting. Fair enough. Yet the whole point of their site, as I understand it, is to give law school “consumers” access to more complete and accurate information than they are getting from U.S. News and law schools themselves. Further, some of these numbers — such as the CUNY cost-of-living figure — should have been dead giveaways that something was wrong.
My own curiosity was piqued not just by the CUNY number, but also by the variation in living cost estimates for schools in particular cities. In Chicago, for instance, the estimated cost of living varies dramatically, from Loyola ($15K) to UChicago ($17K) to DePaul ($28K). This seems like a massive difference across a single city, and is the sort of thing that jumps out after even the most casual review of the numbers. It’s hard to see such figures and not suspect that something is wrong.
Closer to home, I noticed that the estimated cost of living for Cleveland-Marshall was approximately $4,000 less than that for my own institution, Case Western Reserve University, even though the two schools are only a few miles apart. This didn’t seem right — if anything, it’s cheaper to live near Case than it is to live downtown. And here again the reported data was wrong. The cost reported in the database was $16,000, and yet Cleveland-Marshall’s own website lists expenses of over $19,000. Case’s data, I’m proud to report, was accurately reported.
As noted above, the folks at Law School Transparency were quite responsive when I pointed out these errors. They pledged to double-check the numbers and post corrections as soon as possible. This is all to the good, but this is also work that should have been done before trumpeting the data to prospective law students and the press. Some numbers, such as CUNY’s $7,425 cost of living estimate or the $10K spread in living costs across schools in Chicago, should have been red flags that something was amiss. At the very least, it should have been obvious that the cost-of-living numbers they decided to post were not apples-to-apples comparisons. Law schools deserve criticism for their relative lack of transparency, as does U.S. News insofar as it publishes inaccurate information or presents a misleading picture of specific schools. But the self-appointed watchmen of law school transparency should be held to a high standard as well, and need to be more careful about presenting false or misleading information themselves, whatever the source.
Julia and the Community Garden
The Obama campaign is plugging “The Life of Julia,” designed to show how the government in general, and this administration’s policies in particular, help a hypothetical woman throughout her life.
The last entry, showing Julia at 67, really annoyed me:
Under President Obama: Julia retires. After years of contributing to Social Security, she receives monthly benefits that help her retire comfortably, without worrying that she’ll run out of savings. This allows her to volunteer at a community garden.
Really? We’re going to let Social Security remain unsound actuarially and allow it and other benefits for the elderly to bankrupt the country so “Julia” can volunteer in a community garden? I think that if “Julia” is healthy enough to be down on her hands and knees digging and weeding in the Summer sun, “Julia” can retire a couple of years later and help stave off national bankruptcy.
Seventy Years after the New Deal Revolution, Child Labor is Still Legal
In some previous posts, I’ve made two basic points about child labor and the Constitution in response to liberal commentators who can’t resist raising the issue of child labor any time anyone hints that there may be some constitutional limits to government regulatory authority. First, no one has ever seriously questioned the constitutionality of state child labor laws, and every state in the union passed such laws by the 1930s. Second, to the extent the pre-New Deal Supreme Court did question the constitutionality of federal child labor laws, that was both (a) a reasonable interpretation of the Commerce power and (b) arguably a good thing from a public policy perspective, because there’s no reason to believe that a one-size-fits-all policy with regard to specific child labor rules was appropriate in a country with vast regional differences in wealth.
It was the latter argument, in particular, that raised the hackles of some VC commenters. Only an evil Simon Legree, they suggested, would think that allowing kids under the age of 16 (the federal mandate invalidated by the Supreme Court early in the 20th century) to work in “adult” jobs is proper. Everyone knows that kids that age are too easily exploited by their parents for selfish gain, and allowing them to work would inevitably have deleterious effects on their health, well-being, and school performance and attendance.
I hope these commenters have saved some of their ire for the Obama Administration. I pointed out in one of the comment threads that child labor is, in fact, still permitted in the United States, so long as its agricultural work–and that agricultural work has some of the highest rates of worker injury. After considering a ban on much such work, the Obama Administration has backed down:
The Labor Department withdrew a proposed rule Thursday that would have limited the work that children can perform on farms…. The new regulations would have forbidden children younger than 16 years of age from completing “agricultural work with animals and in pesticide handling, timber operations, manure pits and storage bins.” It would also have barred farm workers under 16 from handling most “power-driven equipment” and from contributing to the “cultivation, harvesting and curing of tobacco.”
It seems to me quite overwrought for critics of the Old Court to denounce the Court for preventing the federal government from forbidding fifteen-year olds to work in factories when, almost one hundred years later, in a much wealthier United States, fifteen-year olds may still handle pesticides, work in timber operations and manure pits, harvest crops and tend livestock, and use power-driven equipment.
UPDATE: Partisan Obamaites are misconstruing this post in the comments as an attack on the Obama administration and/or its supporters. Rather, the point is that “progressive” legal commentators treat tolerance for child (really, young teenage) labor as a defining moral sin of the pre-New Deal Supreme Court. The Court’s decisions prohibiting federal regulation of child labor are deemed a sign of grave moral obtuseness, and any constitutional doctrine that might be deemed to lend support to such decisions is assumed to be obviously unacceptable in modern society, given our revulsion at child labor. But it’s quite difficult to square such outrage with the fact that some forms of child labor, including dangerous and difficult child labor, are still, almost 100 years later and in a much richer society, allowed under federal law, and are sufficiently entrenched in our society that the Obama Administration backed down from its attempt to ban them.
Imagine, for example, if the ghost of Justice William Day, author of Hammer v. Dagenhart, rose from the grave and showed up at Dahlia Lithwick’s door, ready for an interview. Lithwick, in her most outraged tone of voice, asks, “How could you and your colleagues invalidate laws aimed at the odious practice of child labor?” Would Day be out of line in responding, “We were following our best understanding of the Constitution’s limits on federal power, and anyway it didn’t seem to us that impoverished Mississippi needed the same rules as New York with three times the per capita income. But let me ask you something: is it true that even though there are no longer any constitutional restrictions on federal power to regulate labor, and that the U.S. is now wealthy beyond anything we could have dreamed of in the 1910s, that you still allow kids under sixteen year olds to engage in dangerous farm work?”
Swing State Voters Want the Affordable Care Act Held Unconstitutional or Repealed
This new Quinnipac study of swing state voters in Florida, Ohio and Pennsylvania shows the Democratic Party slightly more popular than the Republican Party (and President Obama opening a 47% – 39% lead over Mitt Romney in Pennsylvania):
4. Is your opinion of the Republican Party favorable, unfavorable or haven’t you heard enough about it?
FL OH PA
Favorable 42% 37% 35%
Unfavorable 45 47 51
Hvn't hrd enough 9 12 10
REFUSED 4 4 5
5. Is your opinion of the Democratic Party favorable, unfavorable or haven’t you heard enough about it?
FL OH PA
Favorable 43% 42% 45%
Unfavorable 45 45 41
Hvn't hrd enough 7 9 9
REFUSED 5 4 5
Yet these same voters — including voters in Pennsylvania — want the Affordable Care Act either repealed:
14. Do you think Congress should try to repeal the health care law, or should they let it stand?
FL OH PA
Repeal it 53% 52% 46%
Let it stand 39 37 42
DK/NA 9 11 12
Or found by the Supreme Court to be unconstitutional:
15. The Supreme Court has heard a challenge to the health care law. Do you want the Supreme Court to uphold the health care law or overturn it?
FL OH PA
Uphold it 38% 37% 43%
Overturn it 51 51 46
DK/NA 11 12 11
H/T Jim Geraghty
United Breaks Guitars
I am a million mile flier on United Airlines — that’s actual miles flown, without any bonuses — but lately have been disenchanted with the airline’s treatment of its frequent fliers. But I have no beef like musician Dave Caroll’s (from this website):
Musician Dave Carroll had difficulty with United Airlines. United’s baggage handlers damaged his $3500 custom guitar, and he spent over 9 months trying to get United to pay for damages.
During his final exchange with the United Customer Relations Manager, Dave stated that he was left with no choice other than to create a music video for YouTube exposing United’s lack of cooperation. The manager responded: “Good luck with that one, pal.”
Dave shot and posted his video on YouTube. The video has since received over 11 million hits. (You’ll soon see why!)
United Airlines contacted Dave and attempted settlement in exchange for pulling the video. Naturally Dave’s response was: “Good luck with that one, pal.”
Taylor Guitars sent Dave two new custom guitars in appreciation for the product recognition from the video that has lead to a marked increase in orders.
Here is the video:
And I was thinking about writing a letter. Now that you’ve seen the video, you can visit Dave’s site here. He is selling a book entitled, United Breaks Guitars, which the publisher describes as follows:
Songwriter Dave Carroll wasn’t the first person abused by an airline’s customer service. But he was the first to show how one person, armed with creativity, some friends, $150, and the Internet, could turn an entire industry upside down.
United Airlines had broken Dave’s guitar in checked luggage. After eight months of pestering the company for compensation, he turned to his best tool—songwriting—and vowed to create a YouTube video about the incident that he hoped would garner a million views in one year. Four days after its launching, the first million people had watched “United Breaks Guitars.” United stock went down 10 percent, shedding $180 million in value; Dave appeared on outlets as diverse as CNN and The View. United relented. And throughout the business world, people began to realize that “efficient” but inhuman customer-service policies had an unseen cost—brand destruction by frustrated, creative, and socially connected customers.
“United Breaks Guitars” has become a textbook example of the new relationship between companies and their customers, and has demonstrated the power of one voice in the age of social media. It has become a benchmark in the customer-service and music industries, as well as branding and social-media circles. Today, more than 150 million people are familiar with this story.
In this book, you’ll hear about how Dave developed the “just do it” philosophy that made him the ideal man to take on a big corporation, what it felt like to be in the center of the media frenzy, and how he’s taken his talents and become a sought-after songwriter and public speaker. And businesspeople will learn how companies should change their policies and address social-media uprisings.
Since “United Breaks Guitars” emerged, nothing is the same—for consumers, for musicians, or for business. Whether you are a guitarist, a baggage handler, or a boardroom executive, this book will entertain you and remind you that we are all connected, that each of us matters, and that we all have a voice worth hearing.
Do you suppose Glenn Reynold’s book, An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths, was named after this guy?
Hat Tip, Mike Rappaport.
Secondary Boycotts and the Breakdown of Civil Society
Activist groups of various political stripes are increasingly urging boycotts of companies not because of the companies’ own behavior, but because of the behavior or speech of those the companies patronize or support. The aim of such boycotts is not to affect corporate behavior as much as it is to create economic pressure on third parties or dry up support for political opponents. Former FEC Chairman Brad Smith has an op-ed in today’s WSJ on the danger of such “secondary boycotts” to civil society.
It’s becoming hard to know with whom one can do business.
We’ve been told that if you don’t like what Rush Limbaugh or Glenn Beck says on the radio, you should not only not listen to their shows, you should boycott businesses that advertise on their shows. We are told that if you don’t like the activities of the American Legislative Exchange Council—a nonpartisan nonprofit that provides a meeting ground for conservative state legislators to share ideas—you should boycott companies that support the council. . . .
All these examples are what are called “secondary boycotts”—attempts to influence the actions of the target by exerting pressure on a third party. Secondary boycotts should not be confused with primary boycotts. A decision not to patronize a business that discriminates on the basis of race is an example of a primary boycott. Primary boycotts—used to great effect during the Civil Rights Movement—have a long and often laudatory history.
But secondary boycotts have long been recognized as harmful to civil society. They rend the social fabric by making it difficult for people to simply live their lives.
The problem, in part, is that one boycott can lead to another. Progressive groups have gone after corporate supporters of the American Legislative Exchange Council because it supports voter identification requirements. Yet, as Smith notes, most Americans support such laws, so what would happen if conservative groups targeted corporations that support anti-voter-ID groups. The threat of such counter-boycotts is not merely hypothetical. Just as pro-gay marriage groups have targeted companies for donating to anti-gay marriage groups (even if the donations were for wholly unrelated reasons), anti-gay marriage groups have begun organizing boycott campaigns of their own. Progressive groups were able to get some advertisers to drop Rush Limbaugh, but some conservatives responded by encouraging boycotts of companies, such as Carbonite or Arby’s, that succumbed to such pressure.
Secondary boycotts are particularly destructive when they target groups for supporting political speech. As Smith notes, the point of such boycotts is not to alter primary behavior, such as ending discriminatory practices, but to dry up economic support of unpopular speech. “The power of ideas is abandoned for the power of economic coercion.”
If it’s acceptable to place economic pressure on those who support political ideas with which one disagrees, where should this principle end? Should employers be allowed to discriminate based upon political beliefs or contributions? If unions are encouraging boycotts of business that do not declare their opposition of Wisconsin Governor Scott Walker, should employers refuse to hire those who embrace the anti-Walker campaign? Notes Smith, “Any decision not to hire would be, in effect, a secondary boycott of the applicant. This type of thinking will almost certainly lead to the stifling of many valuable political ideas and innovations.” This doesn’t mean secondary boycotts should be illegal, but not everything permissible is also wise.
Secondary boycotts may seem like an effective tool for progressive causes, but they also entail substantial risks. The culture of secondary boycotts threatens to balkanize all of civil society along political lines, making it ever more difficult to espouse unpopular or minority views.
People have a right not to do business with companies or individuals. But blacklists—never a healthy part of political debate—endanger the very commerce that enriches us all.
May 2, 2012
More on Libertarianism and “Social Justice”
“Bleeding heart libertarian” political philosophers Kevin Vallier and Matt Zwolinski have written responses to my post expressing some reservations about some BHLers embrace of the idea of “social justice.” They also comment on critics like David Friedman, Bryan Caplan, Mike Rappaport, and Todd Seavey, who have expressed related concerns. Both Vallier and Zwolinski make some good points. But I don’t either of them really addresses the issues I and some of the others raise.
Vallier attempts to answer the criticism that the BHL conception of “social justice” is vague and unclear by providing a definition of the concept:
How does the term “social” modify the term “justice” such that we are left with an important and illuminating concept that is a kind of justice that libertarians should accept? I’m going to give a Rawlsian answer to this question by holding that social justice is justice with regard to the arrangement of a society’s basic structure… Rawls defines a society’s basic structure as follows:
By the basic structure I mean a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next….
[A] basic structure… rests on certain principles and shared ideas that are the subject of moral and political evaluation.
I certainly agree that a society’s “basic structure” is subject to moral evaluation and that an unjust basic structure should be rejected (at least if superior alternatives are available). However, virtually all political theorists accept the same idea, including libertarians who reject the idea of “social justice,” such as F.A. Hayek (who devoted much of his scholarship to trying to figure out what a more just basic structure of of society should look like). If social justice is simply used to denote the idea that the basic structure of society should be just in some general sense, then it’s not a very useful term because almost every political philosophy turns out to be committed to it. Nazis, communists, socialists, libertarians, liberals, and conservatives all agree that society should have a just basic structure. Where they differ is on the question of which basic structure is actually the most just, and on the criteria for assessing that question.
This definition of social justice also does not conform to the most widely accepted uses of “social justice” in contemporary discourse, which usually have to do with alleviating poverty and promoting economic equality. That said, I recognize that this may be a case where some academic political philosophers use a term in a different sense from that used by laypeople and scholars in other fields.
Zwolinski interprets me and some of the other critics as advocating utilitarianism and puts forward various standard philosophical arguments against utilitarianism. I agree with many of these arguments. However, they only count against a theory that holds that utilitarianism is the only standard by which the morality of our actions should be judged. That is not my view. I reject both absolute utilitarianism and absolute nonutilitarian rights theories. Utilitarian considerations should serve as a constraint on rights claims and vice versa. For example, we should not endorse an absolutist theory of rights that holds, for example, that we can never restrict freedom of speech even if doing so is the only way to keep a totalitarian regime from coming to power and slaughtering millions. On the other hand, we also should not embrace an absolute utilitarianism under which we would have to let sadists torture innocent children so long as the evidence showed that pleasure of the torturers was greater than the pain suffered by their victims.
At what point should rights be sacrificed for utility or vice versa? If I had an air-tight answer to that question, I would be a great political philosopher myself. Sadly, I don’t. But even though I don’t have a good theory for handling difficult borderline cases, I think it’s still easy to recognize that we shouldn’t sacrifice huge amounts of utility for minor rights protections, and neither should we do the opposite. Thus, we should not allow civilization to be destroyed by an asteroid strike, even if avoiding this fate requires some infringement on property rights. On the other hand, we also shouldn’t let “utility monsters” gobble up small children. In my view, genuinely difficult tradeoffs between utility and rights
For reasons outlined by Mike Rappaport here and here, and earlier by David Friedman, I think utilitarianism also does a better job than “social justice” in explaining why libertarians (and others) should be concerned about poverty and economic well-being. One can recognize that without being committed to the idea that utility is the one true moral value that trumps all others.
The Senate and Hyper-Partisanship
I’ve posted a new, short essay on SSRN, “The Senate and Hyper-Partisanship: Would the Constitution Look Different If the Framers Had Known that Senators Would Be Elected in Partisan Elections?” The essay was written for a symposium sponsored by the Georgetown Journal of Law and Public Policy on the topic of “Hyper-Partisanship and The Law.”
Here’s the Abstract:
This article is a contribution to the symposium “Hyperpartisanship and the Law,” sponsored by the Georgetown Journal of Law and Public Policy. The article considers the implications of direct election of United States Senators via partisan elections for the Constitution. As originally designed, the Senate was elected by state legislatures and the Framers anticipated (naïvely perhaps) that the Senate would be comprised of men chosen on the basis of distinction and ability rather than partisan allegiances. That system was changed in 1913 with the enactment of the Seventeenth Amendment, which adopted direct election of Senators. This article asks whether the Constitution would look different if the Framers had anticipated that Senators eventually would be elected by direct election as opposed to indirect election.
In particular, I focus on the distinctive powers given to the Senate within the federal constitutional structure and the reasons articulated for why those powers were given to the Senate: the power to try impeachments, to confirm nominees, and to ratify treaties, as well as the role of the Senate in the system of bicameralism and federalism. Although it is impossible to know for sure what the Framers would have done had they anticipated direct election in partisan elections I argue that it is likely that they would not have given the power to try impeachments to the Senate in the form that they did, it is reasonable that they might have changed the system of nomination and confirmation, and is likely that they would have retained the Senate’s major role in treaty confirmation. Although direct election dramatically diluted the value of bicameralism, it is likely that they would have retained a bicameral structure for most matters anyway. Finally, it is extremely likely that had they anticipated that Senators would be directly elected they would have built in additional explicit constitutional safeguards for the protection of federalism.
My impetus for writing this was the farcical Clinton impeachment proceedings many years ago, in which the Senate bore no real resemblance to the sort of jury contemplated by the Framers. While it is plausible to think of an indirectly-elected Senate (at least how the Framers conceived of it) performing that function, that trial demonstrated the unsuitability of the currently-devised Senate in doing so (although it is not clear what the Framers might have put in its place). That prompts some additional considerations on nominations, the treaty power, and other ruminations.
Suing a Spouse — or a Lover — for Cheating (or Other Lies or Failures to Disclose)?
From Neal v. Neal (Idaho 1994):
Mary Neal contends that she has alleged a prima facie case of battery against Thomas Neal. Her battery claim is founded on her assertion that although she consented to sexual intercourse with her husband during the time of his affair, had she known of his sexual involvement with another woman, she would not have consented, as sexual relations under those circumstances would have been offensive to her. Therefore, she contends that his failure to disclose the fact of the affair rendered her consent ineffective and subjects him to liability for battery.
Civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive. The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Further, lack of consent is also an essential element of battery. Consent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery.
The district court concluded that Thomas Neal’s failure to disclose the fact of his sexual relationship with LaGasse did not vitiate Mary Neal’s consent to engage in sexual relations with him, such consent being measured at the time of the relations. We do not agree with the district court’s reasoning. To accept that the consent, or lack thereof, must be measured by only those facts which are known to the parties at the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of the occurrence, the “consented to” act would never occur.
Mary Neal’s affidavit states that: “[I]f the undersigned had realized that her husband was having sexual intercourse with counter-defendant LaGasse, the undersigned would not have consented to sexual intercourse with counterdefendant Neal and to do so would have been offensive.” The district court opined that because the act was not actually offensive at the time it occurred, her later statements that it would have been offensive were ineffective. This reasoning ignores the possibility that Mary Neal may have engaged in a sexual act based upon a substantial mistake concerning the nature of the contact or the harm to be expected from it, and that she did not become aware of the offensiveness until well after the act had occurred. Mary Neal’s affidavit at least raises a genuine issue of material fact as to whether there was indeed consent to the alleged act of battery.
Note that the reasoning isn’t limited to married couples, but would also apply to other lovers who had an understanding of fidelity. Nor would it just apply to cheating on a relationship in which fidelity was understood: It could also apply to other situations where plaintiff argues that he or she wouldn’t have consented to sex with defendant had he or she known certain things about the defendant — e.g., that the defendant was already married, or that the defendant had been a prostitute at some point in the past, or that the defendant had lied about something in order to get plaintiff into bed, and so on. It’s a pretty broad theory that the Idaho Supreme Court adopted.
Now I should say that the court’s theory is not illogical: The principle that consent procured by lies, or by failure to disclosure something that plaintiff and a reasonable person would have likely found material, is not a valid consent is well-established in other contexts. The main objection, I think, is pragmatic: The theory would turn a vast range of relationship misconduct into a basis for litigation, with lots of opportunity for fraudulent claims. And the question is how to weigh this pragmatic objection with the argument that consent procured by deceit or nondisclosure of highly material facts is not consent (especially in a civil case).
The case is apparently unusual, at least outside cases of lies about sexually transmitted disease, or intentional concealment of such a disease. For the one case I know of involving a similar approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was infertile, see Barbara A. v. John G. (Cal. Ct. App. 1983) (2-to-1), disagreed with by Perry v. Atkinson (Cal. Ct. App. 1987). For a different approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was fertile, see Conley v. Romeri (Mass. App. Ct. 2004):
There is no indication that the defendant’s statement in July, 1996, after several dates, that he had been told by a fortune teller that he would have six children was made with the intent to induce the plaintiff to have sexual intercourse. At that stage of their relationship, such a statement may be seen only as an inducement to continue dating. There were no discussions between the parties about having children together, or of marriage. Moreover, the plaintiff’s feeling that she wasted time with the defendant because her biological clock was running does not constitute a battery. We conclude, as a matter of law, that the plaintiff’s consent was not vitiated, and that summary judgment properly was allowed for the defendant.
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