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.

Tuesday, September 6, 2011

So Sue Me

My Civil Procedure students sometimes struggle, for understandable reasons, with the idea that some individuals and entities go out of their way to participate in lawsuits--as defendants. A clear and concise NPR story this morning describes how this is playing out in connection with the challenge to the constitutionality of California's Prop 8. The case raises an intriguing question: if the Governor thinks a law is unconstitutional, and the Attorney General agrees, then who, if anyone, has standing to defend the law?

Monday, March 14, 2011

On First Amendment Standards

Garrett Epps, a former Washington Post reporter who teaches constitutional law at the University of Baltimore, has written an interesting comment that is published in today's Atlantic on the persistence of First Amendment principles through the Warren, Rehnquist, and now Roberts courts. You can read the article here.

I agree with much of what Epps has to say, although I puzzle over his observation that this pattern can be explained (at least in part) by the fact that the Court's major free speech decisions are, at their base, "well-crafted and easy to apply."

Enthusiasts of the Court's First Amendment jurisprudence often cite New York Times v. Sullivan or Hustler v. Falwell as models (Epps cites both). While I agree with the results in those cases, I am not alone in believing that the majority opinions are not as coherent and "well-crafted" as we might hope. Nor are these precedents so easily applied. For example, my own view is that in Snyder the Fourth Circuit opinion reflects a misunderstanding and misapplication of some of the First Amendment precedents on which it relied. Indeed, this may explain why the Supreme Court took the case and affirmed the result but adopted precious little of the lower court's reasoning.

I agree with Epps that there is much to admire in the Court's First Amendment jurisprudence. But I would not count among its primary virtues those of craftsmanship and ease of application.

Thursday, March 10, 2011

United States v. James

In my Evidence class we discuss an interesting case called United States v. James. Every year, I tell my students that I think the facts of the case would make a great country western song and I invite them to take a crack at composing one. This year, my students exceeded all my expectations. You can learn about the case and hear their wonderful songs here.

Sunday, March 6, 2011

Sociopathic Media

Years ago, I read an article in which the author pointed out that drivers often behave in their cars as though other drivers cannot see them. Drivers frequently treat their vehicles like isolated spaces rather than what they are: boxes framed in glass moving down public roads. One of the less offensive examples is the driver who gyrates and sings at the top of their lungs with a zeal they would never display in a karaoke bar.

We see some of the same behavior in social media. People often act as though social media spaces on the Internet are the contemporary equivalent of what comedian Flip Wilson called "the booth in the back in the corner in the dark." But an indiscretion on social media is a very public event. Indeed, a recent New York Times article describes how law enforcement agencies are mining social media for statements that help make their case. You can find the article here.

To the extent that people who make these mistakes are thinking at all, I suppose it is possible that they are thinking "well, no one could ever prove that I'm the one who actually wrote this." And, yes, sometimes reasons exist to doubt whether a post belongs to the person to whom it is attributed.

But the law does not require certainty for a statement made through social media to come into evidence. To the contrary, the authentication rules--typified by Federal Rule of Evidence 901--require only that there be evidence "sufficient to support a finding" that the posting belongs to the alleged author. This is a very forgiving standard. Just ask any of the people who were convicted of crimes or who lost lawsuits because they thought otherwise.

Friday, March 4, 2011

Virtual Jurisprudence

Earlier this week, the United States Supreme Court decided Snyder v. Phelps. The Court's opinion can be found on the excellent SCOTUSblog site here.

In that case, members of the infamous Westboro Baptist Church conducted a protest near the funeral service held for Matthew Snyder, an American serviceman killed in Iraq. His father sued the Church members, claiming that their extreme and outrageous statements had caused him severe emotional distress. A jury found for Mr. Snyder and awarded him more than $10 million in compensatory and punitive damages. The United States Supreme Court held that the First Amendment protected the speech and barred the claim.

In the interest of full disclosure, I should note that I was counsel of record for amicus curiae the Anti-Defamation League in this case. We filed a brief on behalf of neither party, arguing that the case offered "an extremely poor vehicle for rendering the type of expansive ruling the petition for a writ of certiorari and the certified questions appear[ed] to invite." Our brief can be found here as well. The Court apparently agreed, stating "Our holding today is narrow .... [T]he reach of our opinion here is limited by the particular facts before us."

In many respects, the Court's opinion is unremarkable. The result follows logically from existing precedent, including the Court's decision in Hustler Magazine v. Falwell, which can be found here. Justice Roberts' majority opinion has a terse, businesslike, almost surgical quality to it.

Further, it is unremarkable that this unremarkable case has received a remarkable amount of attention. This drama features the kind of players who draw the spotlight: on one hand, we have the suffering and sympathetic father of a slain war hero; on the other, we have the wild-eyed merchants of homophobic hate speech. Of course, the star of the show turns out to be the First Amendment, which, as countless editorials have reiterated in the past few days, protects even speech that outrages us and that we find morally obnoxious.

But one of the most interesting aspects of the case is a player that is waiting in the wings and that the Court hints might change the plot line.

The Church had posted some material regarding the funeral and the Snyders on its Web site (a posting that the parties called the "epic"). Because Mr. Snyder did not raise the epic in his petition for certiorari it was not before the Court. The Court observed that in light of this--and in light of "the fact that an Internet posting may raise distinct legal issues in this context"--it would not consider the epic in deciding the case. In a similar vein, Justice Breyer's concurring opinion emphasized, in its first paragraph, that the Court's ruling does not "say anything about Internet postings."

I find this puzzling and intriguing.

The Court ruled in favor of the Church primarily because (a) the Church's speech related to a matter of public concern and (b) allowing a jury to hold someone liable for engaging in such speech on the basis that the jury finds it "outrageous" does not afford sufficient protection. I am puzzled as to why the Court would think that this analysis might apply any differently to speech that takes place on the Internet. I don't see why it would, but I am open to suggestions.

And I am intrigued because I think these disclaimers reflect the Court's anxiety about new technologies and new media. In this respect, the Roberts Court is like every Supreme Court that has come before it.

In the twentieth century, the Court worried about the broadcast airwaves--the "intruder," as the Court called it once, that follows us through closed doors into our very homes.

But the latest intruder is even more daunting. We will say its name. But we will not talk about it unless and until we absolutely have to do so.

Tuesday, February 8, 2011

Fishing License

Lawyers who don't want to produce information or documents that the other side has requested often accuse them of engaging in a "fishing expedition."

Indeed, "fishing expedition" is the cliche of choice under these circumstances. Over the years, countless litigants have invoked the phrase and countless judges have adopted it as a metaphor to describe the problem of discovery run amok.

The phrase should be sent off to enjoy its long overdue retirement .... and perhaps enjoy a little angling.

This is so for at least two reasons.

First, the metaphor is inapt. Fishing does not involve an indiscriminate effort to see if there is anything anywhere in the lake. To the contrary, it requires a studied understanding of what one wants to catch, where one might find it, and how one might get it on the line.

Second, the metaphor reflects a misunderstaning of the law. In fact, the modern discovery rules give litigants substantial latitude to test the waters with less than perfect precision.

But don't take my word for it. The United States Supreme Court said as much in Hickman v. Taylor (1947), where it observed this about discovery under the federal rules of civil procedure: "No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case."

That was more than sixty years ago. The news does not appear to have reached many lawyers and judges.

Perhaps they were off fishing when the word came down.

Monday, February 7, 2011

Roger That

Last Sunday, the Los Angeles Times published an intriguing op-ed by Akhil Reed Amar critiquing federal District Judge Roger Vinson's decision holding "Obamacare" unconstitutional. You can find the article here.

Professor Amar concludes by comparing Judge Vinson's misunderstanding of constitutional first principles with that of "another judge named Roger"--Supreme Court Justice Roger Taney, the author of the infamous Dred Scott decision.

I am not persuaded that the curiously undisciplined and bewilderingly confused opinion of an isolated federal district court judge ranks with Dred Scott in whatever scale we use to measure magnitudes of evil. But the article has considerable rhetorical force and is a fun read.

Thursday, February 3, 2011

The Persistence of Ideas

Kevin Kelly of Wired Magazine believes that no human invention ever goes extinct. National Public Radio has recently had some fun with this, challenging its listeners to identify an invention that the world has stopped producing. It turns out that Kelly may well be right; finding something that absolutely no one makes any more is a daunting task. You can learn more about the debate here.

I suspect that Kelly's point is just part of a broader one: no idea ever goes extinct. Justice Holmes's familiar metaphor maintains that ideas compete for allegiance in the marketplace of free expression. Yes, but it is important to remember that this process does not cast the losers into exile. It just relegates them to the darker corners, where they can continue to serve the customers who still patronize them.

So do not feign astonishment when obnoxious doctrines, long thought extinct, reappear. No idea ever goes out of production. No idea, no matter how pernicious, ever falls entirely from use.

Monday, January 31, 2011

Unringing the Bell

Taco Bell has responded to a lawsuit alleging that its beef mixture contains more filler than meat by taking out full page ads declaring "thank you for suing us." A CNNMoney.com report on the campaign can be found here.

A number of commentators have wondered about the wisdom of the strategy. After all, whatever its other virtues, the civil justice system has a poor record as a "name clearing" mechanism.

Just ask the Texas cattlemen who sued Oprah Winfrey over her statements about beef (that unquestionably was beef) and lost. Of course, they didn't just lose; they lost to one of the most popular personalities in America .... who had her own television talk show. It is hard to believe that, in retrospect, they still think this was a good idea.

But matters are even more complicated for Taco Bell. Its problem is being driven by social media, which moves at the speed of light. Litigation, which moves at the pace of your average glacier, will never catch up.

Over many years in practice I encountered numerous businesses and individuals who were excited about being sued because of the opportunity for "vindication" it afforded. It rarely played out that way. In general, they would have done better to take a deep breath and recall the words of the distinguished jurist Learned Hand: "As a litigant, I should dread a lawsuit beyond almost anything short of sickness and death."

Tuesday, January 18, 2011

The Free Market of Ideas

The most recent issue of The Nation published a debate between Floyd Abrams and Burt Neuborne over the Supreme Court decision in Citizens United. The online version of the article can be found here. The exchange is intelligent, lively, and engaging.

Still, I think that the authors miss one of the most interesting aspects of the case: that it serves as a jurisprudential Rorschach test for one's view of political liberty.

Some people believe that the preservation of liberty requires at least some regulation. Advocates for this position believe that the marketplace of ideas cannot survive, let alone flourish, unless it operates within constraints that help foster openness and fair play. This is the view reflected in the campaign restrictions that the Supreme Court held invalid.

Another view holds that regulation is inherently antithetical to the preservation of liberty. Advocates for this position believe that censorship in the cause of freedom is intellectually incoherent. This is the view embraced by those who see Citizens United as a triumph of First Amendment values.

I believe that either position is defensible. But I also believe that consistency matters here. Vacillation between these views suggests a jurisprudence of convenience, where the operative paradigm changes from case to case in order to achieve the outcome desired.

It will be interesting to see whether the Court's future First Amendment decisions are consistent with the expansive free market sensibility reflected in Citizens United. As to that, there can be no debate.