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.

Thursday, December 16, 2010

Judges All A-Twitter

Earlier this year, the Communications Lawyer published an article ("Of Tweets and Trials," 27 Communications Lawyer 3, September 2010) where I pointed out that the phenomenon of social media is forcing judges to rethink the measures they take to ensure that the trials over which they preside are conducted in a fair and orderly manner.

In that article, I focused on the impact of social media on the "gag orders" that judges enter against parties, witnesses, and attorneys and on the instructions that judges give to jurors.

My friend Dave Farrell brought to my attention an interesting piece from yesterday's online edition of the Guardian that can be found here. The article praises a British judge's decision to allow tweeting from the courtroom during the Julian Assange extradition hearing. It argues that there is no principled basis on which to distinguish real-time tweeting in the courtroom from the journalist's long-recognized right to take notes on what happens in open court, walk into the hallway, and phone the story in.

The argument has a lot of appeal, although questions obviously remain. Does the character limitation of tweets work against their accuracy? Is the real-time nature of the medium inconsitent with the kind of reflection that provides depth and context to a report? Should judges allow journalists to tweet in their courtrooms, but not members of the general public? If so, then which category do bloggers fall into?

Judges throughout the United States who find themselves presiding over high-profile trials are looking for answers. Are they finding any?

Stay tuned.

Friday, December 10, 2010

What the Bird Heard

Here's an intriguing puzzle for students of evidence.

A 60-year-old South Carolina woman has been charged with abusing and neglecting her 98-year-old mother. The evidence against her includes, of all things, statements made by a parrot. Police report that the parrot was mimicking the phrase "Help me! Help me!" and then laughing. They believe the parrot is repeating the cries for help from the mother and the mocking laughter of the daughter. The ABA Journal report on the story can be found here.

There are several obvious obstacles to admitting the bird's statements into evidence. Surely one of the most significant is authentication. How do we know whose statements they really are? How do we know when they were made? How do we know that the parrot is accurately repeating what it heard?

Life, we learn once again, is strange. Even stranger than the imaginations of law professors who have to write Evidence exams.

Thursday, December 2, 2010

Dilemmas of Transparency

This has gone unnoticed, but two important stories that have emerged in the last few days raise related issues.

The first story concerns the exploits of Julian Assange and WikiLeaks in releasing confidential State Deparment communications Some of the material is interesting; some seems gossipy and petty; much of it appears unlikely to do any harm. But Assange's reckless release of so much sensitive information obviously raises legitimate concerns about putting innocent people at risk and further destabilizing already unstable situations.

Common sense tells us that some parts of our government cannot be fully transparent if they are to work properly.

The second story concerns the failure of the State of California to bring its prisons up to constitutional standards, despite two decades of operating under court orders directing it to do so. At a recent hearing on the issue, photographs of California prison conditions left United States Supreme Court Justice Stephen Breyer shaking his head in shock and dismay. Of course, our prisons got into these horrible straits in the first place because they were largely operated outside of public scrutiny--a situation that the states and federal government perpetuate by placing absurd restrictions on media access to those behind bars.

Common sense also tells us that some parts of our government must be highly transparent if they are to work properly--indeed, if they are to pass even the most basic expectations of human decency.

Monday, November 22, 2010

On Justice Brennan

The Nation just published a thoughtful review of a new biography of Justice William Brennan. It can be found here.

I remember the first time I met Justice Brennan. I was still a very young lawyer, and somehow I found myself attending the annual meeting of the Supreme Court Historical Society in Washington, D.C. I was sipping a drink at a reception when I discovered I was standing about three feet away from him. I approached and he immediately took me by the arm, lathered me in stories, and asked about my family and career. I was having a wonderful time.

Then something happened that threatened to break the spell. I could feel the presence beside me of someone else who wanted to talk with him. Alas, the lesser angels of my nature took charge and I studiously ignored the intruder, unwilling to cede the conversational territory. Finally, Justice Brennan reached over, put his hand on my shoulder, turned me toward the third man and said "Mr. Niehoff, may I introduce you to my colleague, John Paul Stevens."

From Publicity to Parody, continued

In case you're interested, the New York Times published my thoughts on this issue in a letter to the sports editor, which can be found here.

Tuesday, November 16, 2010

From Publicity to Parody

An interesting article in today's New York Times addresses the tension between freedom of speech and an individual's desire to control commercial uses of their identity. The article can be found here.

The article focuses on a lawsuit brought by Sam Keller, a former quarterback at Arizona State, who claims that a video game company used images of him and other NCAA athletes without permission or compensation. The games at issue do not include the athlete's name, but allegedly render the player identifiable through characteristics like number, uniform, position, and playing style.

The article notes that the United States Supreme Court has not opined on these issues since 1977, when it ruled that the First Amendment did not bar a suit brought by human cannonball Hugo Zacchini over a television station's broadcast of his entire fifteen second act.

What the article does not address, however, is the role that First Amendment protection for parody might play in resolving the question. In cases like Cardtoons v. Major League Baseball Players Association, courts have recognized that athletes are public figures and that making fun of them is yet another national passtime--one the First Amendment protects.

So, as a practical matter, this issue may disappear if video game manufacturers simply shift strategies. Perhaps Tim Tebow, the devoutly religious Florida Gator who wore number 15, becomes Tim Bowtie, the Satan worshiper who wears number 666.

If a victory in Keller's case drives video game manufacturers in this direction it may be hard to think of it as much of a victory.

Monday, November 15, 2010

The Censorship Mantra

When Amazon was criticized for selling the self-published e-book "The Pedophile's Guide to Love and Pleasure: A Child-Lover's Code of Conduct," the company responded by declaring: "Amazon believes it is censorship not to sell certain books simply because we or others believe their message is objectionable."

In short order, Amazon reversed course and pulled the book from its virtual shelves.

The statement Amazon issued deserves a close look. This is true not only because the statement is deeply confused. It is true because the statement says something, albeit indirectly, that Amazon cannot possibly want to say.

Let's start with the obvious. The First Amendment forbids censorship by the government, not by private parties like Amazon. Indeed, invoking censorship is particularly puzzling in light of Amazon's status as an online bookstore.

The First Amendment empowers bookstores to decide what they will and will not sell. A suggestion that the First Amendment somehow deprives bookstores of that freedom gets it exactly backwards.

But here's the subtler point. In recent years, some legal scholars (I am not among them) have suggested that we should think about these issues differently. They have argued that the law should treat private media entities with overwhelming market power as if they were the state and should regulate them along the same lines that the First Amendment limits the government.

In other words, for Amazon's statement to make any sense we would have to believe that the company has such vast control over the marketplace that we should think of it as the equivalent of a state actor--and restrict it accordingly.

It is an argument. But, surely, it is an argument that Amazon does not want to advance, let alone win.

Sunday, November 7, 2010

Shoving Bullying Out of the Conversation

An article in today's Washington Post reports on a program being used in some British elementary schools to address bullying. ("Simple Program Wards Off Bullying in Schools," November 7, 2010)

American schools that have tried to tackle this serious problem have often resorted to aggressive anti-bullying codes that include lists of forbidden words. Such an approach can raise troublesome First Amendment issues because, as the Supreme Court has observed, students do not shed their right to freedom of expression at the schoolhouse gate. Also, these days bullying at school is often precipitated by speech that occurs elsewhere, such as through social media generated at home.

Remarkably, the British experiment hardly ever mentions bullying. Instead, it focuses on placing students into rotating teams of two where they can spend a few minutes each week getting to know each other. The rules are simple: listen, don't interrupt, show respect. The program has yielded remarkable results, including dramatic declines in bullying behaviors. Some American schools, specifically in Texas and in the Midwest, have begun to incorporate this approach into their anti-bullying campaigns.

A familiar First Amendment axiom holds that the best remedy for the speech we hate is more speech. It may be that the most effective way to shove bullying out of our schools is to promote discussion between our students--ironically, discussion about things other than bullying.

Friday, November 5, 2010

Ethics and Alzheimer's

An article in the New York Times reports on new research showing that "one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements." You can find the article here.

This raises a serious ethical concern for attorneys.

ABA Model Rule of Professional Conduct 1.14, adopted in most states, requires lawyers to try to maintain a normal professional relationship with a client who is functioning under a disability.

And that Rule provides that a lawyer can seek appointment of a guardian, or take other protecive action, only if the lawyer reasonably believes the client cannot act in their own best interest.

The respect for client autonomy reflected in this approach is admirable and, in many cases, workable. But Alzheimer's appears to pose a unique dilemma: by time the lawyer has enough evidence to conclude intervention is necessary, the assets the lawyer seeks to protect may have vaporized.

The issue deserves close study by those who write and enforce the rules of legal ethics.

Wednesday, November 3, 2010

Arguing Over Video Game Violence

A transcript of the Supreme Court argument over the constitutionality of a California statute that restricts the sale of violent video games to minors can be found here.

It makes for great reading. A few highlights include Justice Scalia asking: "What's a deviant, violent video game? As opposed to what? A normal violent video game?" And, in the midst of a discussion over the history of First Amendment jurisprudence, Justice Alito drew a laugh when he suggested that Justice Scalia was interested in what James Madison thought of video games.

Monday, November 1, 2010

More on the California Video Games Statute

In case you're interested, my National Law Journal op-ed piece on the California video games statute can be found here.

Friday, October 29, 2010

The Physics of Censorship

On November 2, the Supreme Court will hear arguments in Schwarzenegger v. Entertainment Merchants Association. The case asks whether a California statute that restricts the sale of violent video games to minors runs afoul of the First Amendment.

It is a case worth watching, not just because it raises interesting questions but because of the quality of the lawyering. Paul Smith of Jenner & Block, one of the most talented Supreme Court advocates of our generation, will be arguing on behalf of EMA.

I also think the case is intriguing because the California statute is a good example of what I like to call "the physics of censorship."

In my view, there is a quasi-Newtonian principle that describes how a large number of decisions are made within our political process: for every action, there is an unequal and opposite overreaction.

Here’s how the principle plays out.

Congress or a state legislature panics about some new development that supposedly threatens the moral fabric of our nation. Because really big problems call for really big laws, a hopelessly vague and overbroad statute follows. The fact that the statute is grossly overreaching simply shows that our elected officials took the matter very, very seriously.

Another quasi-Newtonian principle then helps drive things along: once this process is set in motion, it tends to stay in motion. It grinds relentlessly toward its illogical conclusion. It does not pause for consideration of such fundamental questions as whether the legislation is within the government’s constitutional authority or whether it is even necessary.

These principles have had a profound influence on the jurisprudence of the First Amendment. Indeed, the introduction of any new art form or medium of communication has consistently triggered them. Motion pictures, radio, television, cable, and the Internet all bred alarm and overreaction. It is perhaps particularly embarrassing that, in 1954, Congress decided to devote significant time and energy to holding hearings on the evils of comic books.

These overheated legislators may not have acted with pernicious motives. But good faith does not transform an overreaction into good law or good policy.

Judges and scholars have described the role of the First Amendment in many different ways. It creates a marketplace where ideas can freely compete for our allegiance. It fosters an institutional media capable of checking the power of the government. It enables individuals to express and govern themselves. It embodies our respect for the value of tolerance—even, as the Supreme Court has said—of the speech we hate.

But it turns out that the First Amendment does something else as well. To borrow a phrase from Kipling, it helps us keep our head when all about us are losing theirs. And it enables us to interrupt the otherwise unstoppable momentum of the physics of censorship.