Eugene Volokh's Blog, page 2691
October 17, 2011
Knowingly False Statements of Fact and the First Amendment
As I had expected, the Supreme Court has agreed to hear the Stolen Valor Act case (United States v. Alvarez), and in the process decide the scope of First Amendment protection for knowingly false statements of fact. (We can assume, I think, that the Court will interpret the law as only applying to knowing falsehoods, and not innocent mistakes, and as applying only to factual assertions, and not clear fiction or parody.) Among other things, the decision could affect whether state laws banning knowing lies in election campaigns are unconstitutional, a matter on which lower courts are split. I'm on a family trip today and tomorrow, but if you're interested in the subject, check out this set of posts, and especially this one, which I reproduce below:
When are knowingly false statements of fact constitutionally unprotected? That's the issue raised by the Stolen Valor Act ligitation, in which the question is whether Congress may ban people from lying about their having gotten certain military declarations. (I set aside for this post the question of when the government may punish or impose liability for negligently false statements of fact, which the law has often treated differently. I set aside the similar question related to recklessly false statements of fact, which have often been treated the same as knowingly false statements, but which I'd like to skip for the sake of simplicity. I use the term "false statements of fact" to exclude fiction, parody, and humor that reasonable listeners would not understand as making factual assertions. And I set aside special questions posed by false commercial advertising.)
To begin with, note that this issue can arise in many different contexts:Defamation (whether libel or slander) — false statements that injure someone's reputation.False light invasion of privacy — false statements that do not injure reputation but are nonetheless reasonably seen as highly offensive by their subjects (whether or not they "invade privacy" in the lay sense of the term). Classic examples of such statements, from Restatement (Second) of Torts § 652E, include knowingly falsely claiming that someone is endorsing a political movement that he is not endorsing, or knowingly adding false elements to the telling of another's life story or the story of an incident from his life, even in situations where the false endorsement or the false embellishments are not so derogatory as to injure a person's reputation).Fraud and attempted fraud — false statements used (successfully or not) to get money or other valuables, including in contexts (such as charitable solicitation) where true statements used to get money are fully constitutionally protected.Perjury — false statements made under oath.False statements to the government — false statements made not under oath, such as false crime reports to the police, false statements that obstruct justice by deceiving investigators, or more broadly false statements made to government officials and punishable under 18 U.S.C. § 1001.False statements made about the government, which have historically been labeled "seditious libel."Knowingly false statements made about historical, scientific, or broad current events matters, such as false reports about what is happening in the war, false statements about the Holocaust, false statements about the facts (not just the projections) related to global warming, human intelligence, and so on.Knowingly false statements made about more specific scientific matters, such as knowingly false claims that a particular kind of produce contains particularly high levels of certain harmful chemicals, knowingly false claims that vaccines have caused certain harms, knowingly false denials that certain kinds of products (food, the blood supply, etc.) pose certain health risks, and so on (even outside the commercial advertising context of businesses lying about their own or a competitor's products).Trade libel — knowingly false statements about specific companies' products, which reduce the reputations of those products, even when they are made outside the context of commercial advertising (e.g., if they're made in product reviews, in press releases by advocacy groups, and so on).Knowingly false statements made in election campaigns, whether about your own credentials, about which organizations have endorsed you, where voters need to go to vote, who is eligible to vote, and so on.Knowingly false statements about one's military decorations.
Note that the Court has expressly approved of liability for categories 1 (defamation), 2 (false light), 3 (fraud), and 4 (perjury); lower courts have generally approved of liability for category 5 (false statements to the government) and 9 (trade libel). The Court has expressly rejected liability for category 6 (false statements about the government). Lower courts are split on category 10 (false statements in election campaigns). Categories 7 (false statements about science, history, and the like) and 8 (false statements about more specific scientific matters, outside trade libel) are largely unexplored, at least in recent decades. Category 11 is this case.
What can courts do with all this?
1. No protection: They can say that false statements of fact lack constitutional value (which the Court has said, in Gertz v. Robert Welch, Inc. and other cases) and therefore are always constitutionally unprotected, at least if they are knowingly false. But that would be inconsistent with the Court's ruling in New York Times, Inc. v. Sullivan that category 6 statements (false statements about the government, or "seditious libel") are constitutionally protected, and the Court probably wouldn't want to hold this as to category 7 (false statements about science, history, and the like), either. Among other things, punishing such statements would risk punishing even true statements or statements of opinion (if the prosecution and the factfinder err about what's false) and innocent mistakes (if they err about what's knowingly false), and might therefore deter even true statements or statements of opinion.
2. Full protection: Perhaps then courts could say that all such statements are constitutionally protected. In New York Times, Inc. v. Sullivan, three Justices (Black, Douglas, and Goldberg) would have completely rejected libel law, at least as to statements on matters of public concern (whatever precisely that means). But the Court has rejected that, as to categories 1 to 4.
3. Full protection, unless the restriction is "narrowly tailored" to serving a "compelling government interest" (i.e., passes "strict scrutiny"): Even true statements, and statements of opinion, may theoretically be restricted if the restrictions are narrowly tailored to serving a compelling government interest; why not uphold, say, defamation law, fraud law, and perjury law under the same test? But in practice, strict scrutiny is rightly a very difficult standard to meet. Only one unreversed Supreme Court majority opinion has upheld a content-based speech restriction on strict scrutiny grounds — last year's Holder v. Humanitarian Law Project — and even that opinion stressed that the restricted speech remained free if it was said without coordination with designated terrorist organizations. Likewise, a plurality opinion upholding a restriction on strict scrutiny grounds in Burson v. Freeman stressed that the restriction was only on speech within a short distance of polling places on election day, and the same speech remained free elsewhere.
It's not clear that, applying strict scrutiny as demandingly as it has been applied to true statements (and to statements of opinion), libel law, perjury law, and fraud law would be upheld. Certainly true speech that injures people's reputations, interferes with judicial processes, and causes people to lose money or things of value (e.g., via a boycott) is often constitutionally protected. Conversely, using normal strict scrutiny to produce several more cases in which content-based speech restrictions are upheld is likely to end up diluting that strict scrutiny for non-false-statement cases, too. (For more on why the Court's decisions in this area are in practice mostly applying a rule of per se invalidation, though with some exceptions, see this article of mine.)
Finally, note that it's hard to see how the false light invasion of privacy tort would be upheld under this test, at least without greatly watering down the threshold for what constitutes a "compelling government interest." Yet the Court has held it to be constitutional, at least if limited to knowing falsehoods. See Time, Inc. v. Hill; Cantrell v. Forest City Publishing Co..
4. Full protection, except for historically recognized exceptions: The Court's decision last year in Stevens v. United States — which was heavily relied on by the Ninth Circuit decision invalidating the Stolen Valor Act — stated that speech is fully protected (though that protection might be overcome under strict scrutiny) unless it fits within historically established First Amendment exceptions. Unfortunately, there hasn't been much research on whether the historical exception for libel law has been sufficiently articulated in the past as dealing with falsehoods more broadly. But if it hasn't, then this might suggest that only category 1 (defamation), 3 (fraud), and 4 (perjury) speech is categorically unprotected.
But this too seems inconsistent with the Court's upholding the false light tort (category 2). (The panel decision striking down the Stolen Valor Act responded to this by saying, "We are not persuaded that Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001), is anything more than a variation on defamation jurisprudence. Hoffman applied the actual malice standard from Gertz/Garrison-Sullivan in a case involving a magazine's alleged creation of a false impression that a famous actor posed for a photograph. Id. at 1187; cf. also Time, Inc. v. Hill, 385 U.S. 374 (1967) (holding constitutional a state law imposing civil liability for malicious false statements that invade a private individual's right of privacy)." But false light is quite different from defamation — defamation law aims at speech that injures people's reputation; false light does not require any such injury to reputation.) And it would also suggest that false statements to the government (category 5) — for instance, false reports to the police that do not libel a particular person, or false statements that obstruct justice — might be constitutionally protected. Maybe that's right, but I doubt it.
5. Full protection, except for speech that is demonstrably harmful: I've heard some people defend the constitutionality of the false light tort, and of laws that ban knowingly false statements to the government that interfere with law enforcement (e.g., false crime reports, obstruction of justice, and the like), on the grounds that knowingly false statements can only be punished if the speech is demonstrably harmful. Causing serious offense and emotional distress to people through knowing falsehoods about the time, the theory goes, is demonstrably harmful; so is lying to the police about some crime, and wasting time that they could have spent catching criminals. But lying about one's military honors, or lying in an election campaign, is not so harmful.
But I wonder why that would be so. Why isn't deceiving voters in ways that are relevant to their casting a vote as harmful as deceiving contributors in ways that are relevant to their contributing money to a charity? Likewise, most people lie about their military honors in order to deceive listeners into giving them something — a vote (as in the Ninth Circuit's Stolen Valor Act case itself), money, friendship, sex, respect, and so on. To be sure, the Act doesn't require proof of such a harm, but such a harm would almost always either be present or intended. (That's the premise of libel law, incidentally: Defamatory knowing falsehoods are very likely to cause harm to their targets, so the targets usually don't have to prove such harm.) Such intent is enough for attempted fraud prosecutions; why shouldn't it be enough for attempts to defraud people, though not necessarily out of money, through lies about military heroism?
Moreover, if the government should have to prove present harm, wouldn't this just mean that it would have to show some listener who could testify that he gave the speaker a vote, money, a free drink, sex, or what have you in reliance on the lie? Or is it that defrauding people out of money is constitutionally punishable, but defrauding them out of other things is on the other side of a constitutional line — and, if so, exactly why?
6. No protection in most cases, protection in some categories of cases where liability is likely to substantially interfere with public debate: This is the reconciliation of the cases that I offered in my amicus brief in the Strandlof case; it helps explain the constitutionality of punishing categories 1 (defamation), 2 (false light), 3 (fraud), and 4 (perjury), the likely constitutionality of punishing categories 5 (knowingly false statements to the government) and 9 (trade libel), the unconstitutionality of punishing category 6 (seditious libel), and the likely unconstitutionality of punishing category 7 (knowingly false broad statements about science, history, and current events). It would also suggest the constitutionality of punishing category 11 (lies about your own military medals, and likely about other credentials), and of sufficiently precisely crafted bans on particular kinds of statements in category 10 (e.g., knowingly false statements about your own credentials, or your own endorses, in election campaigns) and possibly in category 9 (e.g., knowingly false statements about specific facts about specific kinds of products). On the other hand, it's not clear that it's consistent with the historical focus seemingly required by Stevens. And it does leave a good deal of uncertainty — at least until more precedents have been set — about some rather important questions, such as the extent to which the government may punish knowing falsehoods about history, in election campaigns, and so on.
This test would also likely allow punishment of various kinds of lies in one's personal life — a situation colorfully and powerfully condemned by my former boss Chief Judge Kozinski. But I don't think this is as much of a problem as he suggests. First, in practice few of these lies would actually be punished. And second, I'm not sure why there is a First Amendment justification for protecting such lies.
For instance, consider lies aimed at getting sex (whether misrepresentations of one's wealth or achievements, denials that one has a spouse or a sexually transmitted disease, denials to one's spouse that one has been cheating, denials to one's spouse that one has been doing something — such as gambling heavily — that would make the spouse angry, and so on) or aimed at staying married (again, denials to one's spouse that one has been cheating). They are common, and there are lots of good reasons for the legislature to stay away from punishing them. But I'm not sure why such lies should be any more constitutionally protected than lies aimed at getting money, which are punishable as fraud (but which of course are rarely so punished, in personal, non-business contexts). There are important reasons not to heavily regulate such behavior using the law, but I don't think they are First Amendment reasons.
* * *
Naturally, this list of possible approaches is not exhaustive; and, as you can see from the discussion, I think all of them have some problems, both with reference to the Court's precedents (which the Court can of course reverse) and to what makes sense to me. But I hope that the list of approaches, and the list of scenarios in which the problems often arise, would be helpful to people who are thinking about these questions.
Challenging the Conventional Wisdom About the Job Market for Lawyers
St. Louis University law professor Aaron Taylor recently published a good column challenging the conventional wisdom that holds that the job market for lawyers is rapidly collapsing:
It's open season on legal education — falling applications, lawsuits by former students and dooms day warnings about the legal job market. The rampant bad publicity has taken on a sensational flair. Popular blogs and even established news forums are peppered with anecdotes about law school graduates drowning in debt with no good options for the future.
But as is often the case with anecdotes, these compelling tales of woe represent exceptions...
Lawyers have not been immune to the effects of the recent recession. However, they have fared much better than most workers. According to U.S. Department of Labor data, the unemployment rate for lawyers was 1.5 percent in 2010 — more than six times lower than the overall rate of 9.6 percent. Since 2009, while the overall unemployment rate has remained above 9 percent, the rate for lawyers has exceeded 2 percent only once. It is true that unemployment among lawyers has increased significantly over the last few years (it was barely 1 percent in 2007), but the increase pales when compared to other occupations.
Salary data show that the vast majority of lawyers earn relatively high salaries. According to the U.S. Census Bureau, lawyers boast the fourth highest median salary behind medical doctors, dentists and CEOs (some of whom have law degrees). While the majority of occupations have median salaries between $20,000 and $49,999, the median for lawyers in 2010 was almost $113,000. Again, this was the median — the actual midpoint — which means the majority of lawyers made six-figures.
Predictably, starting salaries for new lawyers tend to fall below the median for the profession as a whole, but they still tend to be relatively high. According to NALP, the class of 2010 had a median starting salary of $63,000, a respectable living for a new entrant into any profession. On the downside, the 2010 median was $9,000 lower than the year before. But declining wages have buffeted the entire economy. Fortunately, as the economy sputters back to life, salaries are unlikely to continue falling at the same rate — if at all.
Note that most of the data Taylor relies on comes from the Labor Department and the Census Bureau rather than NALP, which has been criticized for relying on overly optimistic data provided by law schools.
I advanced similar challenges to the conventional wisdom on the legal job market here and here. In this post, I noted that the long-term prospects for the legal profession are likely to be good, because the demand for lawyers is largely driven by the amount and complexity of laws — and that complexity is rapidly increasing.
Some will probably accuse me of wanting to make law seem more attractive than it is because I am a law professor. I preemptively addressed that charge here:
I'm sure someone will argue that I'm just saying this because, as a law professor, it's in my interest for people to believe that going to law school is a good deal. Maybe so. But note that I advocate several reforms that are definitely not in the interest of law professors, such as allowing people to join the profession through apprenticeships, eliminating the legal requirement of spending 3 years in law school, and so on. More broadly, I favor greatly reducing scope and complexity of American law, which cuts against the longterm interests of both lawyers and law professors.
I have also long argued that too many choose law school as a sort of default option without giving sufficient thought to the question of whether they're really likely to be happy as lawyers or entering one of the other professions for which a J.D. is valuable. Law is a lucrative profession and likely to remain so. But many lawyers work long hours at tasks that a lot of people would find boring and repetitive.
I'm far from happy about the continued financial health of the legal profession. Much of it stems from the growth of government and the increasing complexity of our legal system, both trends that I oppose. I also oppose the bar exam, ABA accreditation of law schools, and other government policies that artificially inflate lawyers' salaries by protecting them from competition. These types of policies make it very hard for the poor and lower-middle class to afford basic legal services, which I think is a problem far more worthy of concern than the supposed financial woes of lawyers.
If the long-run demand for legal services really did decline drastically, I would see it as a positive sign. But that's not what seems to be happening right now. Like most other professions, lawyers have suffered during the current recession, and entry-level job prospects have worsened. But, as Taylor explains, these economy-wide trends are actually much less severe among lawyers than in most other fields.
October 16, 2011
Farmer Filburn's Wheat
As an addendum to Randy's post on Wickard v. Filburn, I wanted to point out some additional facts about the case, and farmer Roscoe Filburn's activity in particular. It is commonly asserted that farmer Filburn was barred from growing extra wheat for consumption by his family. This is simply false.
The Agricultural Adjustment Act expressly applied to the growing of wheat for the purpose of feeding livestock, and this is what farmer Filburn was doing. Filburn grew the extra wheat for the primary purpose of feeding his dairy cows. For Filburn, the excess wheat was a factor input of production in a broader commercial enterprise, and that is why he went over his allotment.
Filburn grew 11.9 acres of excess wheat — more than double his quota. The extra acreage generated 239 bushels. How much is that? As Jim Chen points out in his informative essay on the case (included as a chapter in Constitutional Law Stories): "To consume 239 excess bushels, the Filburn family would have had to consume nearly forty-four one-pound loaves of bread each day for a year." Filburn's livestock may have been able to consume this much wheat, but his family sure couldn't.
Whether or not Wickard can or should be read as authority for the proposition that Congress could prohibit a farmer from growing wheat for (in Judge Silberman's words) "the purpose of baking bread for his own family and only for his own family," this is not an accurate characterization of what farmer Filburn had done to violate the AAA.
October 15, 2011
Trial Judge Publishes Opinion With "Inflammatory" Criticism of Higher Court — Higher Court Finds Judge to Be in Criminal Contempt
That's what happened in In re Kendall (V.I. Oct. 12, 2011); here's the offending opinion by the trial judge. The criminal contempt finding is also partly based on the trial judge's decision to recuse himself from the case, which the higher court said was based on the judge's desire to avoid following the higher court's orders rather than on a genuine sense that he had some bias that would justify recusal. The sentencing hearing will come later.
Israelis Debate the Shalit Exchange
Majority public opinion in Israel continues to support the recent deal in which the Israeli government traded over 1000 terrorist prisoners for kidnapped soldier Gilad Shalit, which I criticized here. But as this interesting CNN article explains, there is growing dissent:
While the deal to free Shalit was backed by a commanding Cabinet majority of 26–3 and enjoys wide support from the Israeli public, there is growing debate about the price Israel is willing to pay in order to free a single soldier.
Families of victims of terror, as well as some members of the Israeli government, have expressed fierce opposition to the deal. One minister who voted against the agreement called it "a great victory for terrorism," and there are fears that the release of convicted murderers will lead to further attacks on Israeli civilians — a fear that, critics say, is borne out by statistics.
According to Israeli association of terror victims Almagor, 180 Israelis have lost their lives to terrorists freed in previous deals since 2000....
If the figure of 180 Israelis killed by exchanged terrorists is even remotely accurate, it greatly outweighs the number of Israeli hostages freed in such deals (16 according to this Slate article). And that number does not include the additional hostages taken by terrorists as a result of the success of previous efforts at hostage-taking. It also does not include Israelis killed by terrorists freed in deals prior to 2000, while the total of 16 Israelis exchanged includes all deals going back three decades.
Ironically, as the CNN piece points out, Israeli Prime Minister Benjamin Netanyahu, the man who signed off on the current deal, understands the perversity of these kinds of arrangements perfectly well. He was a prominent critic of similar (though somewhat less lopsided) exchanges that the Israeli government agreed to in the 1980s:
Three years after the [1985] Jibril Deal, Netanyahu explained his philosophy about negotiating with terrorists to CNN's Larry King. "On one case I did not swallow it. When my government did something that I simply could not live with, which was the release of jailed terrorists for three of our POWs. We wanted to get our POWs back, and the government, in my judgment, made a big mistake and traded terrorists. And here I was confronted with a situation that everything I believe in, in fact agitated for and tried to use an example of Israel for, to encourage other countries, especially the United States, to adopt a tough no-concessions policy against terrorists."
In his 1995 book "A Place in the Sun" Netanyahu called the Jibril Deal "a fatal blow to Israel's efforts to form an international front against terrorism" and warned of the hazardous consequences of such moves. "The release of a thousand terrorists...will inevitably lead to a terrible escalation of violence, because these terrorists will be accepted as heroes," Netanyahu wrote.
Netanyahu's critique of the 1985 deal applies with even greater force to his own more lopsided agreement.
'Ten Years In' Conference at BU Law School
Congratulations to Professor Robert Sloane and BU Law School for a fine conference yesterday, "Ten Years In: Appraising the International Law of the 'Long War' in Afghanistan and Pakistan." The conference was co-sponsored by the American Society of International Law's Lieber Society, which deals with laws of war issues, and the Naval War College.
The first panel addressed the future of COIN, and it included Professor Andrew Bacevich — not a lawyer, of course, and instead speaking as a well-known strategist, and lending an important interdisciplinary voice. He offered a blistering critique of COIN (and pretty much every other strategic option as well, including counterterrorism via drones, I should add). I was part of the second panel, on targeted killing and drones. Michael Schmitt of the Naval War College offered a vigorous defense of drones as being essentially like any other weapon system, and on this occasion, at least, it was interesting to see how much agreement there was between him and Human Rights First's Gabor Rona.
I gave a shortened and simplified version of this Hoover Institution article on the evolution of the debate over whether there is a "legal geography of war." I extended it a bit to cover the latest twist in the debate, noted by Charlie Savage in his New York Times coverage. This is the internal debate between State and Defense lawyers over whether there is a legal notion of a "hot battlefield," outside of which not even members of "associated forces," such as Al Qaeda in the Arabian Peninsula, that are belligerent with respect to the United States, can be targeted on account of status alone, and so whether outside of the hot battlefield, such as Yemen, an independent self defense analysis must be made of each target. This self-defense analysis shifts the question from "status" to "threat" and becomes more or less a question of "imminence" of the threat posed by that individual at that time. Harold Koh at State (accepting Savage's reporting on the internal debate) has taken the threat imminence view, while Jeh Johnson at Defense has taken the (more accepted among military lawyers) status view. To judge by John Brennan's Harvard speech a couple of weeks ago, the position of the administration at this point is to accept DOD's view of the law, while taking DOS's view as a matter of current policy.
The argument from Legal Adviser Koh is striking because it moves the self-defense discussion in a different direction from what was said in earlier statements — not contradicting the earlier position, but deploying it in a different direction with different implications. Assuming the accuracy of the press accounts of the debate, it seems that Koh would accept that there is a "legal geography of war" for at least some purposes. Most human rights advocates would say that the implication of this defining legal geography is that it says where the law of armed conflict applies and where human rights law applies. (This leaves aside the further assertion of the human rights advocates that human rights law can be implied into armed conflict in ways that, from my viewpoint, look like ad hoc trumps, but that's for another discussion.)
However, the United States does not accept the extraterritorial application of the canonical human rights treaties with respect to its own conduct and those of its agents outside of the territorial United States, so from the US point of view, that distinction is legally neither here nor there. In order to give the geographical distinction content, Koh's argument says not that human rights law applies with respect to the US, but instead that the requirements of self-defense independently require an imminence of threat analysis even within an armed conflict that includes AQAP as an associated force. The ordinary foot soldiers of an AQAP who are engaged in fighting with other factions in Yemen, but are not themselves targeting the US, would not be counted as targetable threats even though part of an associated force in belligerency with the US.
Of course, I have seen no internal memos, so I don't know how this is being framed as a legal matter; I'm offering my best guess. One possibilty, I suppose, is that although these foot soldiers are in some sense part of AQAP, outside of a defined geographical zone of hostilities, they are not sufficiently "part of" the group with respect to being a threat to the United States to warrant being targeted for status alone. A threat is needed, and without it, "necessity" in both a jus ad bellum and jus in bello sense is missing. (That situation might change if the jus ad bellum changed — if the US, for example, openly aligned itself with a faction in Yemen to win the internal civil war as such.) Without the predicate of necessity, reached through threat and imminence, the US has no self-defense ground to use force, even though an armed conflict that reaches to the group of which the footsoldiers are in some sense a part is indeed underway — and even though leaders of that group, who are engaged directly against the US, are being targeted. This kind of rationale reaches to certain legal-geographic constraints without having to reach to extra-territorial application of human rights law to US conduct abroad — though the results under this self-defense-necessity rationale are different from what human rights law might say.
I have no idea if this is remotely close to the rationale being considered at State. If it is, however, I can't say I find it persuasive. Broadly speaking, I am open to the US developing "state practice" and articulated legal rationales that adapt legal regimes to transnational counterterrorism. That includes the development of state practice in the conduct of self-defense operations using force that are outside of "armed conflict" in its strict legal meaning. I have sometimes referred to this as developing state practice with regard to "intelligence-driven uses of force" that do not fall under conventional armed conflict — colloquially, state practice and articulated legal rationales governing extraterritorial "covert action," even if it is not in fact very covert. So I am not opposed to innovation in legal rationales in this sphere reached through articulated state practice. My difficulty here is that once we have accepted the premise that this is an armed conflict — the non-international armed conflict, as the US sees it, against Al Qaeda and associated forces — the long-standing rules on status targeting govern. One can talk about further elaborations based around "direct participation in hostilities" and related concepts as "continuous combat function" in the ways that the ICRC argues in its interpretive guidance, but those interpretations are not law and the US has not accepted them.
So one is talking about policy here, rather than law, which is to say, what Brennan said — Defense's view as a matter of the existing law, Koh's view as a matter of existing policy. Again, I am not opposed to the elaboration of state practice and articulations of legal-policy that try and adapt to transnational counterterrorism, but I don't think this is the right direction to go. Given that one is talking about an armed conflict underway, and what are taken as associated forces, then the introduction of a geographic constraint in law seems to me a mistake, if only because the legal touchstone in the law of war is not geography, but the conduct of hostilities. And once one is within an armed conflict, then necessity shifts from being what it would be under self-defense simpliciter, and becomes aligned in jus ad bellum with winning, and in jus in bello with the ordinary strictures of military advantage.
Federalism and Property Regulation Revisited
In an insightful recent post at Land Use Prof Blog, Adam McLeod takes property scholars to task for neglecting issues of constitutional federalism:
When prominent, accomplished land use scholars discuss federalism why do they pay so little attention to the United States Constitution? However one views the desirability of any particular attempt by Congress to regulate land use, if Congress does not have the power to regulate then the rest of the discussion is moot. Yet, though extensive scholarly discussion has in recent months been committed to the problem of federalism in land use controls, scant attention has been paid to the powers enumerated in Article I....
For example, one of the most strenuously-asserted objections to the Religious Land Use and Institutionalized Persons Act (RLUIPA) is that it violates principles of federalism. Two very prominent scholars have argued that RLUIPA intrudes upon local control of land use without sufficient reason. I think these arguments fail, for reasons that I discuss in an article forthcoming in the Real Estate Law Journal. But the critics miss entirely a federalism argument that I believe is nearly-fatal to RLUIPA, namely that RLUIPA is not a permissible exercise of the Commerce Clause power.
RLUIPA does not regulate commerce. It regulates courts in their review of decisions by local governments, which concern land use. Specifically, it directs state and federal courts to subject to strict scrutiny review those land use decisions that substantially burden exercises of religion. And religious exercise is generally performed by claimants engaged in non-commercial activities. Under Morrison and Lopez, which to my knowledge remain good law, the Commerce Clause predicate for RLUIPA seems indefensible....
It's strange. Federalism in land use law is a hot topic right now.... On several occasions recently I have found myself in a room full of land use scholars, all at least as intelligent and informed as I, who have provided sophisticated, detailed accounts of the local, state, and national interests involved in various land use problems but never stop to consider whether any of their proposals are constitutional. Am I missing something?
McLeod's critique has some force. Part of the problem is the nature of specialization in the legal academy. Most land use and property rights scholars are not also constitutional federalism scholars, and vice versa. Naturally, both groups tend to stay within their areas of expertise, which sometimes leads them to ignore relevant issues raised by the other group.
As one of the relatively few academics who does regularly write in both fields, I that McLeod's criticism is a little overstated. Current Supreme Court Commerce Clause doctrine gives Congress virtually unlimited power to regulate "economic activity," defined very broadly as anything that involves the "production, distribution, and consumption of commodities." This is broad enough to encompass most, if not quite all, federal efforts at land use regulation. After all, land is a commodity, and land use regulations control its consumption (in the sense of using its resources) and distribution. State and local land use regulations preempted by federal legislation in most cases also qualify as "economic activity," since they control the use and distribution of land.
I strongly disagree with the Court's broad interpretation of the Commerce Clause. Perhaps land use scholars should pay more attention to such criticisms (I can always use the extra citations!). At the same time, academic advocates of broad federal power over land use regulations are probably right to assume that most of what they support would pass muster under current Supreme Court doctrine.
There is, however, a different federalism-related flaw in the reasoning of some left-liberal land use scholars. Many of them argue that federalism concerns should lead federal judges to abjure enforcing constitutional property rights against state and local governments. They claim that this kind of federal intervention is undesirable because it interferes with local autonomy and overrides the superior knowledge of local government officials. If this is true, it should count against federal legislative control over land use decisions as well. Yet most of these same critics favor largely unconstrained congressional power to override local land use law.
Conservatives and some libertarians have a similar tension in their thought. If, as we claim, federal power should be strictly limited in order to preserve local diversity, why should federal courts be able to override local land use policies in order to protect property rights? I addressed that potential contradiction in this article.
October 14, 2011
Ayn Rand Comic Book
If you like Ayn Rand and want to introduce her to the kiddies, you might like John Blundell's comic book about her life (I will just go ahead and supply the obligatory jokes by her detractors about how the term "comic book" is redundant). John's first one was a comic book on Margaret Thatcher. I found both books to be quite fun. No reviews to report from my daughter yet though.
Pro-Violence Political Groups' "Negligent Selection" Liability for Criminal Actions by Members Engaged in Group Activities
Edwards v. Gruver (Ky. Ct. App. Oct. 14, 2011) (2–1 vote) involves an especially vile group — a KKK organization. But the principle potentially extends considerably more broadly, to justify imposing massive liability on a wide range of political groups whose ideologies in some situations encourage violence, and whose members indeed act violently while advocating on behalf of the group: potentially, extremist animal rights groups, extremist anti-abortion groups, extremist anti-capitalist or anarchist groups, perhaps unions that engage in harsh rhetoric against employers or supposed "scabs" (though maybe such claims against unions would be preempted by federal labor law), and so on.
Here are the facts in a nutshell: Ronald Edwards founded the Imperial Klans of America, and urged members to go out to recruit prospective new members. Four such members — Jarred Hensley, Andrew Watkins, Joshua Cowles, and Matthew Roberts — went to a fair to recruit, and there met and badly beat up Jordan Gruver, because he was part Hispanic. Gruver sued the attackers for assault, but also sued Edwards for "negligent selection" and "negligent supervision" of the four recruiters. The jury "returned a verdict in favor of Gruver in excess of $2.5 million. Of that amount, over $1.5 million was in compensatory damages against Hensley and Edwards, with Edwards' being found responsible for twenty percent of the amount, and $1 million in punitive damages for which Edwards was found solely responsible."
Negligent selection, which is the non-employment equivalent of negligent hiring, and negligent supervision are both special cases of negligence law; the theory is that when A works or volunteers for organization or individual D and injures P, and D had reason to think A might act this way but failed to take reasonable steps to prevent this (by not using A or by properly monitoring him), D was acting negligently and P could sue D for that negligence. This often arises, for instance, when an employer hires someone with a criminal record (e.g., for burglary or sexual assault) to go into customers' homes (e.g., to clean them, to do door-to-door sales, and so on), and the employee then commits a crime against the customer; the claim is that the employer acted unreasonably in hiring the person, given that person's criminal history.
This is not the "respondeat superior" theory under which an employer is strictly liable for the tortious actions of its employees acting within their scope of employment. Rather, it's based on negligence (not strict liability) but extends even to actions outside the scope of employment, for instance because the actions are motivated by the employee's own greed, lust, or anger and not by a desire to serve the employer.
The (to my knowledge) novel factor in this case is that the defendant is a political group leader held liable for the actions of his activists, and the group's politics served as an important aspect of the plaintiff's claim. (The facts also contained evidence that defendant had specifically solicited identified acts of violence in other contexts, and didn't just preach the propriety of violence in the abstract; but as a legal matter, such facts wouldn't generally be required for negligent hiring/selection/supervision cases, as the block quote below suggests.) So it seems to me likely, but not certain, that the theory could likewise apply to other groups whose activists, especially ones who have criminal records, commit crimes — whether violent crimes or property crimes — and whose ideologies can be seen as egging people on to violence. Perhaps this is legally sound and perhaps it isn't, but in this post I just wanted to flag the issue so that others can follow it. Here is an extended excerpt of the case:
Three of Gruver's four assailants had criminal convictions for violent offenses prior to joining IKA. Hensley, one of the IKA recruiters who assaulted Gruver, testified that he already had been convicted of "a few assaults, aggravated menacing charge, and illegal use of a firearm" when he joined IKA in 2001. Cowles joined IKA the very month he was released from prison after serving two and a half years for wanton endangerment. Roberts, too, had a criminal record before joining IKA; he had been convicted on independent indictments for robbery, burglary, and theft. Edwards was aware of the criminal history of each of these men when they joined. His position, however, was that, "you know, everybody deserves a second chance." ...
Substantial evidence supported each of the elements of Gruver's claim for negligent selection ...
["]Foreseeable risks are determined in part on what the defendant knew at the time of the alleged negligence. The actor is required to recognize that his conduct involves a risk of causing an invasion of another's interest if a reasonable man would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have.["] ... There was abundant evidence regarding what Edwards knew at the time he committed the tort Gruver alleged.
Edwards knew better than anyone that his organization was based on hatred of certain specific groups. He knew what types of persons were attracted to his organization, and he knew their proclivities generally. He specifically knew the violent tendencies of Gruver's assailants. He knew that his selection of these assailants as recruiters would cause them to interact with the targets of the organization's hate-based mission and even with members of the law enforcement community. Edwards' standing order to recruiters to contact him "when" they were arrested is certainly sufficient evidence upon which a jury could infer that Edwards did not expect recruiters to obey his other order to "stay legal." Rather, the order to call him upon being arrested raises a reasonable inference that Edwards actually anticipated just what occurred in this case. If Edwards could not foresee Gruver's assault, it was because he chose not to.
When the acknowledged mission of an organization is to hate groups and individuals based on their appearance or heritage or behavior, its leaders face a daunting but necessary task to see that individuals they select to proselytize for the organization refrain from going beyond the constitutional protections of hate speech to the implementation of violence as a means of spreading the organization's message. Despite the difficult nature of that task, the risk of physical harm to others is not only obvious and foreseeable, it is also potentially great. We conclude that Edwards had a duty to take reasonable care when selecting his recruiters so as to prevent foreseeable acts from occurring. Edwards breached that duty by selecting unfit individuals to recruit members among the general public where, in a multicultural society, they were sure to interact with the individuals they hate — one of them was Gruver.
We also have no difficulty finding substantial evidence of causation. Cowles effectively testified that, but for their selection as IKA recruiters, the four of them would not have been together at the fair where Gruver was assaulted....
Furthermore, the jury was persuaded that Edwards was responsible for the assailants' actions at the fair. In a separate jury instruction, Instruction No. 6, the jury was asked:
Do you believe from the evidence that Ron Edwards induced or encouraged the violent actions of Jarred Hensley, Andrew Watkins, or other Klansmen, and that Ron Edwards' inducement or encouragement was a substantial factor in causing injuries and damages to Jordan Gruver?
Nine of the jurors responded affirmatively. Edwards did not challenge that instruction, and he did not appeal the jury's finding under it. Even if he had, there was substantial evidence supporting the finding....
$75,000 Settlement for Muslim Teacher Denied 19 Days' Unpaid Leave for Hajj (Pilgrimage to Mecca)
A Justice Department press release, issued yesterday, reports:
The Department of Justice announced today that it has entered into a consent decree with the Board of Education of Berkeley School District 87 in Berkeley, Ill. that, if approved by the court, will resolve a religious accommodations lawsuit filed in December 2010. In its lawsuit, the United States alleged that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.
"Employees should not have to choose between practicing their religion and their jobs," said Thomas Perez, Assistant Attorney General for the Civil Rights Division. "The facts of this case show the consequences of an employer refusing to engage in any interactive process to understand and work with an employee to find an accommodation of the employee's religious beliefs that will not cause undue hardship to the employer. We are pleased that Berkeley School District has agreed to implement a training program that puts into place an interactive process to ensure that each request for a religious accommodation will be considered on a case-by-case basis and granted if it poses no undue hardship on the school district."
The government's complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleged that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion, Islam. According to the complaint, Berkeley School District denied Ms. Khan a reasonable accommodation of her religious practice, compelling Ms. Khan to choose between her job and her religious beliefs, thus forcing her discharge. The United States also alleged that the school district maintains a policy under which it refuses to grant leave to non-tenured teachers as an accommodation for their religious practices if the leave requested is not already provided for in the school district's leave policy....
Under the terms of the consent decree, Berkeley School District will pay $75,000 to Ms. Khan for lost back pay, compensatory damages and attorneys' fees. Berkeley School District also is required to develop and distribute a religious accommodation policy consistent with Title VII's requirement to reasonably accommodate the religious beliefs, practices and/or observances of all employees and prospective employees. In addition, Berkeley School District is required to provide mandatory training on religious accommodation to all board of education members, supervisors, managers, administrators and human resources officials who participate in decisions on religious accommodation requests made by its employees and prospective employees....
For more on this case, including some past cases involving Justice Department lawsuits over refusals to give leave — usually 8 to 10 days' worth — for a Worldwide Church of God religious convocation, see here. For the Justice Department's Complaint in the case, see here. Thanks to Education Week's School Law Blog for the pointer.
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