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.

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.