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.

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.

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.

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.

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.

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.

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.