Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Wednesday, September 6, 2017

Free Speech Problems and the Critical Pause

     In his influential work Free Speech and Its Relation to Self-Government (1948), Alexander Meiklejohn wrote:

"To be afraid of ideas, any idea, is to be unfit for self-government. Any such suppression of ideas about the common good, the First Amendment condemns with its absolute disapproval. The freedom of ideas shall not be abridged."

     This statement comes to us as a canonical declaration of sorts. It is an often quoted expression of absolute principle by a revered philosopher, educator, and proponent of free speech.

     I most recently ran across this statement shortly after the events in Charlottesville. It affected me differently than it has before and I noticed several problems embedded within it that I had previously read past and that I think are deeply instructive to our current situation.

     As an initial matter, Meiklejohn seems to equate the fear of speech with the desire to suppress it, even though the latter does not necessarily follow from the former. It is one thing to think that an idea has fearful implications or may have fearful consequences, and another thing to believe that the law should therefore prohibit its expression.

     More fundamentally, though, it seems to me odd--and inconsistent with the realities of human nature--to proclaim that fear is off limits because it renders us incapable of participating productively in the democratic process. I can be both fearful and rational. And I can be afraid of ideas without softening to tyranny.

     Furthermore, it can be argued that Meiklejohn advocates here for just another form of censorship. This passage sounds like yet another remote voice telling us what we are allowed to believe and internally experience. I do not understand why forbidding an emotion is less offensive than forbidding the expression of it. 

     I also hear in Meiklejohn's statement the voice of privilege: "you must not be afraid, those of you who have reason to fear." It is easy to say such things if you stand outside the group targeted by the fear-inducing speech. The courage of the unthreatened is cheap courage.

     Reading this passage afresh reminded me of the cautionary note Dietrich Bonhoeffer sounded with respect to the theological concept of grace. Bonhoeffer warned against the forgiveness that we generously bestow upon ourselves with no expectation of anything like real sacrifice or genuine repentance. True grace, Bonhoeffer argued, comes with a cost.

     Saying "never be afraid of any idea" therefore seems to me twice wrong. Like saying "never be afraid of fire" or "never be afraid of surgery," it ignores the possibility of rational concern over real risk. And it disregards the emotional realities of those who may be different from us and whose fears require real courage to surmount.

     This is not to say that Meiklejohn's famous injunction is useless. To the contrary, as Kwame Anthony Appiah discusses in his recent book As If, philosophers have recognized that "untruths" can be useful to our thinking. Similarly, the law finds utility in "legal fictions"--concepts that we adopt not because they are true but because treating them as if they were true yields doctrinally desirable results.

     First Amendment law makes use of a number of legal fictions. One of the most important is Holmes's famous "marketplace of ideas" model, which maintains that in a free and open exchange of ideas the good ones will prevail over the bad. Of course, as an empirical matter we know that it often does not work out this way--as the realist Holmes understood. Indeed, as I have written elsewhere, we might well conclude that somewhere in the course of the 2016 election cycle the marketplace of ideas crashed.

     One of the problems with such untruths and fictions is that they become ingrained in our thinking and we move to them too quickly. We do not hesitate to acknowledge candidly that they rest upon a proposition that we know is often, or maybe even always, false. We do not pause to recognize that all such thinking comes at a cost--and we do not take time to listen to those from whom that cost is extracted. I will call this the "critical pause"--critical both in the sense of being important and in the sense of entailing careful analysis and questioning.  

     With these thoughts in mind, let me return to Charlottesville. After the events there, those who experienced fear about the ideas being expressed were met with responses that went very quickly to our useful untruths and legal fictions.

     "Do not worry about ideas," they were told, "other, better ideas will win out over them." This a hard fiction for people to accept when they have reasons to think otherwise.

     "Do not worry about ideas," they were told, "worry about your fear, because the only thing you have to fear is fear itself." This, too, is just another useful untruth--even if a rhetorically powerful one. Yes, fear can lead us to do terrible and irrational things; but, surely, we call all admit that it is not the only thing we have to fear.

     I think that these responses generally came from well-meaning people speaking in good faith. But I believe that many of them missed that critical pause--the moment where you acknowledge that the fear being experienced by others is real, legitimate, rational, and important. And, again, every useful untruth comes at a cost, and the failure to pause and to recognize and weigh that cost is not just unfeeling--it is sloppy thinking.

     Many of our great universities have recognized the importance of the critical pause. When a hateful event occurs on campus, they issue empathic statements and take supportive actions directed toward the affected communities. In other words, when hateful speech gets aired, these universities turn first to the reactions of those who were targeted by it.

     Great universities do not simply shrug and command people to be unafraid, or tell them they have nothing to fear but fear itself, or offer up false assurances about how good ideas will always prevail over bad ones. Rather, they take the critical pause to think first about the cost at which those potentially useful untruths come. They do so out of respect for those who are called upon to have real courage at real cost. And they do so because forgoing the critical pause is precisely  the sort of superficial and unreflective thinking that great universities reject.

     When universities take the critical pause they are often condemned for it. They are accused of coddling students, of cultivating snowflakes, of manufacturing unrealistically safe spaces, and of being antagonistic to free speech. This is, of course, wrong on multiple fronts. To say that the fear of ideas is the same thing as the desire to repress them is to make the same mistake that Meiklejohn made. To assume that fear is always irrational and is itself the most fearful thing we face is to ignore reality. And to disregard the fact that useful untruths are--while useful--still untrue is to embrace an extravagant illusion.

     Sound free speech arguments can rest upon the proposition that we should behave as if we were unafraid and as if the marketplace of ideas always worked. But arguments that fail to take the critical pause in this analysis will hold little appeal for those who are burdened by the cost of those fictions. On the other hand, acknowledging the existence of emotional realities comes with no cost to free expression. To the contrary, it seems to me the necessary predicate for a respectful and inclusive conversation about this subject--as for every other subject under the sun.

Thursday, August 31, 2017

Why Thinking About Diversity in Law School Helps Prepare You For Practice


Remarks to incoming 1L students at the University of Michigan Law School, Fall 2017

I think there are many reasons why a cultivated awareness of diversity issues is important to success in the practice of law. I’ll highlight three that I think are particularly compelling.

The first has to do with the fact that practicing lawyers spend a great deal of their time doing applied psychology. One of our former deans called this the activity of “sympathetic engagement.” I sometimes refer to this as the “art of understanding.” But these labels get at the same thing: your career will in large measure be devoted to trying to figure out what makes other people tick.

You can imagine why this is true of litigators. A litigator cannot effectively examine or cross-examine a witness without understanding who the person is, his or her perspective, how he or she communicates, and what matters to him or her. Lawyers who cannot “connect” with witnesses—whether the witness is their own or their opponent’s—are simply not as effective as those who can.

In the same vein, a litigator’s ability to persuade a jury or a trial or appellate judge is substantially determined by his or her capacity to understand the audience for the argument. This is why in the jury selection process lawyers try to learn as much as they can about prospective jurors. This is why a lawyer who draws a case before an unfamiliar judge immediately circulates an email to all of his or her partners looking for insights.

Let me give you an example from my own practice experience. Years ago, I defended a major television network and one of its news programs in a defamation case. The players included a middle-aged white Republican judge, a prominent African American journalist, a racially and ethnically diverse jury drawn from a predominantly Democratic region of Michigan, a world renowned research physician, a former state policeman, a suburban divorced mother grieving the loss of her child, and a Jewish veteran of World War II. At one point or another, the case required me to engage empathically with each of these people—to try to understand them, so that I could communicate with them, so that I could convey my client’s case in the most effective way.
   
But the “art of understanding” applies to non-litigators as well. It pertains with equal force to an attorney who represents clients in business transactions, or who drafts estate plans, or who does public interest advocacy before legislatures on behalf of the disabled. All of these lawyers need to cultivate their capacity to listen to, engage with, and understand people who are different than they are. Indeed, I suspect that for as long as the legal profession has existed it has been true that the best lawyers in every field have cultivated the art of understanding.

This brings me to my second point: as the world has become “smaller,” and as it has become increasingly inevitable that we will interact with individuals from diverse racial, ethnic, cultural, socioeconomic, religious, and other groups, it has become correspondingly critical for lawyers to cultivate the art of understanding.

I see this phenomenon in one of my primary areas of interest, privacy law. When I began practicing in the field in the 1980s, discussions of privacy in the United States were very parochial. We were almost exclusively concerned with privacy law in a highly localized sense—for example, focusing on the statutory privacy law of New York as compared to the common law privacy of Michigan.

But the Internet effectively transformed every publisher into an international publisher, potentially exposing it to the legal regimes of other countries. This means that a company like Google has to worry about how countries around the world define “privacy,” how they square the demands of privacy with the demands of free expression, and how they enforce those concepts through their laws.

Indeed, in a relatively recent case a European court protected the claimed privacy rights of a Spanish citizen by entering an order against Google that would almost certainly be invalid if issued by a court in this country. In the field of privacy, we must all be internationalists now, and this requires us to understand not just differing legal principles but the diverse social and cultural norms that drive them.

And this brings me to my third point: we come to law school largely ill equipped to do all of these important things that I just described. For many of us, our personal experience with racially, ethnically, religiously, socioeconomically, and otherwise diverse populations is limited. And most of us have had relatively few opportunities to formally study these issues.

This creates the risk that we will attempt to understand those who are different from ourselves by resorting to the same deeply flawed tools that non-lawyers use: generalizations; stereotypes; characterizations; assumptions. We will run our experiences through the filters that confirm our biases. Sociologists have recently called this “thinking fast”—that is, resorting to devices that help us process the world quickly and easily—and they tell us that it is how we get through much of life.

Of course, “thinking fast” often leads us astray, particularly when we are engaged in the art of understanding other people. Justice Bridget McCormack of the Michigan Supreme Court and I recently wrote an article about this called “When Stereotypes Attack.” In it, we explore some of the ways in which lawyers may rely on such “fast thinking” and how it can get them into serious trouble.

In many respects, one of the most important things you learn to do in law school is to slow your thinking down. We have different labels for this: we talk about learning how to “think critically” or to “think like a lawyer.” At first, you learn to slow your thinking down, and then you get better at it, and then you can think slower faster. One of the great pleasures of teaching law school is watching students acquire the capacity to do this.

In my view, a cultivated interest in and sensitivity to diversity issues helps you develop this skill. Done right, it slows you down; it makes you ask yourself hard questions; it challenges your assumptions; it leads you to conclusions that may be personally uncomfortable but nevertheless profoundly true.

It makes you a better thinker. It makes you a better lawyer. Oh, and not incidentally, it makes you a better citizen of the world.

I’ll close with a story about this from my own practice. As you probably know, a number of years ago a suit was filed against the University of Michigan Law School challenging its affirmative action policy, which considered race as one of many factors in making admissions decisions. The case went all the way to the Supreme Court, which upheld the policy. I was privileged to be part of the team that defended the law school in that case.

When the case started, I thought that I had a good understanding of the role of race in the United States. I had lived in racially diverse neighborhoods; I had worked in racially diverse environments; I had read books—lots of books. But as the case proceeded, and as I took a much deeper dive into the issue, I came to the humbling conclusion that I understood very little about the role of race in America, and that some of what I thought I understood was dreadfully wrong.

It turns out that acquiring this art of understanding is an ongoing enterprise that requires vigilance. In my view, regardless of where you are on that journey, there is no better place to continue it than in the company of the students and faculty at the University of Michigan Law School.

Wednesday, August 16, 2017

Privacy: We Are All Internationalists Now


A Review of Ronald Krotoszynski, Jr., Privacy Revisited (Oxford 2016)


I began thinking seriously about privacy issues in 1984—appropriately, I suppose, given that year’s Orwellian connotations.

At the time, discussions about privacy law and policy tended to be highly parochial, in two senses.

First, they tended to be strongly geographically localized—for example, comparing the statutory privacy law of New York with the common law privacy of Michigan.

Second, they tended to be conceptually localized—for example, analyzing privacy as a protection afforded by tort law or as a right of substantive due process or as insulation from unreasonable searches and seizures or as a legislative restriction on institutional data usage.     

A cliché declares that the Internet changed everything. I’m skeptical about that claim, but at a minimum it clearly changed the workability of these parochial frameworks.

As an initial matter, the Internet forced us to think about privacy not just locally but globally.

Over time, the Internet transformed the vast majority of enterprises into entities with an international presence. For example, most local publishers became international publishers by virtue of their web presence.

Consider: when I entered practice in 1984, a consumer could get my client’s newspaper, The Detroit News, in Michigan, northern Ohio, and Windsor, Canada, and that was about it. Now its content is available to anyone, anywhere in the world, who can access its website.

Corporations and other enterprises suddenly had to start thinking about the requirements of foreign legal regimes—at least to the extent that they had assets or personnel abroad.

If these developments escaped anyone’s notice, that was corrected in 2014 when the Court of Justice of the European Union ruled in the so called "Google Spain case" that a Spanish citizen had a privacy right (often misnamed a “right to be forgotten”) that was enforceable against U.S.-based Google. As a result, Google has had to devote substantial resources to processing de-indexing requests from individuals hungry for more obscurity than the Internet otherwise offers them.

But these developments did not just unsettle our geographic parochialism. They also challenged the prevailing approach of separating privacy into distinct doctrinal compartments.

The court in Google Spain proceeded as if it had developed an overarching and unified theory of privacy that could be applied generally to lots of different kinds of information—literally, the entire universe of information available on the Internet.

In that sense, the ruling raised—even if indirectly—a number of foundational questions for all of us: Is that court’s theory viable and intellectually coherent? When we talk about privacy, are we talking about one thing or many things? Are there other possible unified theories of what privacy is and what it protects? Does U.S. privacy law reflect such a theory? Or does U.S. privacy law simply lump together under one label a variety of concepts that are, on close inspection, largely unrelated?

As a result of all this change, there is an urgent need for resources to help us think about privacy in the transnational context—and not just about the competing legal regimes, but also about the cultural and social norms that drive them and the vision of privacy that they reflect.

A number of books have made important contributions on this front; in my view, one of the best is Ronald Krotoszynski’s Privacy Revisited: A Global Perspective on the Right to Be Left Alone (Oxford 2016). It is, in my view, essential reading for anyone interested in the privacy field today.

Prefaces are often optional reading, but the preface to this book provides critical context for the discussion that follows. In it, Krotoszynski identifies a number of themes that should inform any comparative inquiry into privacy law and policy. I will mention a few here, framed as questions:

* What are the respective roles of legislatures and the courts in creating and interpreting privacy law?

*   Is privacy a negative or positive right?

*   Is proportionality analysis—that is, balancing—useful to privacy law?

*   Is privacy about dignity, reputation, personal honor, or all of these, or something else altogether?

*   Is privacy simply a civility norm? If so, is it appropriate to enforce it through the law?

*    Privacy from whom? The government? Private actors? Both?

*  Is privacy in tension with free expression or does it facilitate that right—for example, by resisting the surveillance state?

Different legal regimes have answered these questions in different ways.

After an introductory chapter that stresses the protean nature of privacy law and policy, the book embarks on its comparative project. The ensuing chapters take a close look at privacy law in the United States, Canada, South Africa, the United Kingdom, and as interpreted by the European Court.

A short review cannot explore these nuanced and well-researched chapters in detail. But it may be worth highlighting some of the provocative differences between U.S. and European privacy law that Krotoszynski discusses.

Let’s start here: U.S. privacy law is an assemblage of distinct doctrines protecting various interests that are, perhaps, not obviously related.

These include autonomy interests (for example, protected by the substantive due process right to terminate a pregnancy), interests against government invasiveness (for example, protected by the fourth amendment right to be free from unreasonable searches and seizures), property interests (for example, protected by the claim of intrusion in tort law and by the law of trespass), interests related to the control over personal information (for example, protected by the public disclosure claim in tort law and by statutes like HIPAA and FERPA), and so on.

Given this wide range of purported privacy protections, one might assume that U.S. law would align fairly well with that of other regimes that have construed privacy rights expansively, like that being developed by the European Court. But that is not the case. To the contrary, as Krotoszynski observes, “In a very real sense, privacy in the EU and privacy in the United States have relatively little to do with each other.”

This is so in a variety of respects.

Because the Supreme Court of the United States has interpreted the First Amendment as providing such broad and resilient protection to free expression, that right trumps competing privacy interests much more often under U.S. law than European law.

Further, the U.S. has shown relatively little interest in some issues that have deeply concerned European authorities, such as data mining. This may be the result of distinctively American anxieties about government overreach into economically profitable activity.

The European Court has recognized a right to be “private in public.” This is a notion that a U.S. court would view as incoherent.  For example, Krotoszynski discusses the Egeland & Hanseid v. Norway case (where the court upheld a privacy claim by women who were convicted of three counts of murder and complained over having their picture taken outside the courthouse) and Sciaccia v. Italy (where the court upheld a privacy claim over the publication of a photo of an arrested defendant who had not consented to the picture). The results in these cases are all but unthinkable in an American court.

In Europe, both courts and legislatures have shown a willingness to enforce civility norms. America, in contrast, essentially has “no law of civility.”

And the European jurisprudence is largely driven by proportionality analysis: once the court finds that the right to privacy has been violated, then its role is to balance the degree of the infringement against the state’s justification for the regulation or action. For a variety of reasons, U.S. courts have generally been skeptical of ad hoc balancing tests, particularly where rights claims are involved.

It seems clear that everyone has more thinking to do.

Krotoszynski suggests in his conclusion that privacy and free speech interests are probably more reconcilable than our current jurisprudence recognizes.

But the E.U. approach is also far from perfect: there are good reasons to be concerned about applying balancing tests to matters of such import; such tests tend to yield uneven and unpredictable results, and we see this reflected in the apparent inconsistency of the E.U. decisions in this area.

This much is absolutely clear:

* Competing, and perhaps conflicting, privacy regimes will be bumping into each other with increasing frequency.

* We must talk with and learn from each other.

* We need the sort of excellent comparative work that Krotoszynski’s book embodies.  


* To borrow from the title of a book published twenty years ago about the emergence of multiculturalism: in the field of privacy, we must all be internationalists now.    

Tuesday, August 1, 2017

Privacy: Through the Rear Window



1954, a prophet foretold many of our current dilemmas in privacy law and policy. His name was Alfred Hitchcock. And the prophecy was his film, Rear Window.

In the movie, photographer L.B. “Jeff” Jefferies (played by James Stewart) finds himself with a broken leg and confined to a wheelchair. Stuck at home, but with plenty of telephoto lenses at his disposal, Jeff amuses himself by watching the world go by through the rear window of his apartment. His attention is increasingly drawn across the courtyard to the windows of his neighbors, whom he observes with deepening curiosity.

One night, Jeff hears a scream come from a nearby apartment occupied by a troubled couple, Lars Thorwald (played by Raymond Burr) and his wife. Later, he sees Thorwald take numerous nocturnal trips in and out of his building, always carrying a large sample case. The wife having vanished from sight, Jeff comes to believe that Thorwald murdered her, cut her into pieces, and is systematically disposing of the body.

Jeff involves his girlfriend Lisa, his visiting nurse Stella, and his policeman friend Lt. Doyle in his efforts to prove that Thorwald killed his wife. Thorwarld figures out what Jeff is up to and comes after him. Help arrives in the nick of time, saving Jeff from the murderous Thorwald, although not quickly enough to keep Jeff from falling out of the rear window and breaking his other leg.

Rear Window came out in 1954, decades before we started worrying about the high tech surveillance state, how the Internet monitors our behaviors, and the collection and dissemination of big data. But when I recently watched the film I was struck by how poetically it anticipates the dilemmas we now face.

On one hand, the film shows us the advantages of closely observed human activity. In one of the film’s subplots, Jeff watches over a young female neighbor who becomes increasingly desperate and potentially suicidal. And, of course, it is only through Jeff’s surveillance that the police are able to arrest Thorwald, a character played by Raymond Burr with such brilliant menace that he seems like the very embodiment of creepiness.

On the other hand, Jeff has some creepiness of his own.

Lt. Doyle cautions Jeff that there are parts of other people’s lives we’re not meant to see. He’s right, of course, but Jeff keeps watching anyway. The habit of surveillance is more easily got than got rid of.

Also, although some of Jeff’s snooping ends up serving a greater social good, along the way he takes in a lot of information that serves no higher end than his own idle curiosity. Like many systems of data capture, his telephoto lenses sweep with stunning overbreadth and without discretion.

Further, for all his looking out, Jeff does not want people looking in. At one point when Lt. Doyle is visiting Jeff he notices Lisa’s open suitcase with her lingerie visible. Jeff bristles at the intrusion.

And one of the most chilling moments in the film occurs when Thorwald, realizing that he’s been watched, peers across the courtyard and through the rear window into Jeff’s apartment. Jeff draws violently back into the shadows, the observer recoiling at the thought of being observed.

Of course, Jeff can look through all of these windows because his neighbors opened them to get some fresh air during an oppressively hot summer. And we might say that by doing so they assumed the risk that someone would get a glimpse into things they normally keep hidden from the world at large. It’s like a cinematographic representation of agreeing to a website’s privacy terms.

Indeed, it calls the same sorts of questions. Do these people realize how much of their privacy they’ve surrendered? Do they understand that someone is watching them through the enhanced capacities of a telephoto lens? Is the opening of the windows a reasoned calculation, or an act of blind trust, or a capitulation to the realities of comfort and convenience? It is, after all, easier to throw open the window and take your chances than it is to try to protect your privacy—so it was in 1954, so it is today.

There is surely a required reading list for those interested in privacy law and policy. In an upcoming blog post, I will review a book that I think belongs on that list: Privacy Revisited: A Global Perspective on the Right to Be Left Alone by Professor Ronald J. Krotoszynski, Jr., of the University of Alabama School of Law.

But perhaps there should be a required “watching list”—the pun is intended—as well. If so, then in my judgment Rear Window should be near the top. Cue it up and grab your popcorn—but only after you’ve drawn the shades.