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

Thursday, November 8, 2012

Crying Hurricane in a Crowded Metropolis


During Superstorm Sandy, someone falsely tweeted that the New York stock exchange was flooded under more than three feet of water and that Governor Andrew Cuomo was trapped in Manhattan and had been rushed to safety.  These tweets were picked up and retweeted by various mainstream news sources. 

It was later discovered that the source of the false tweets was the campaign manager for a Republican candidate for congress.  The tweeter immediately resigned fromt the campaign--which may have saved him the trouble of worrying about whether he'd be fired, but probably did not save him the trouble of worrying about whether he'd be indicted.

As a recent Wall Street Journal article reports, under New York law it is a crime to initiate or circulate "a false report or warning of [a] ... catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result."  The article goes on to note that, while some First Amendment scholars have questioned whether such laws pass constitutional muster, others have compared these tweets to the famous example of unprotected speech offered by Justice Holmes: crying "Fire!" in a crowded theater.

For present purposes, I don't want to undertake the ambitious project of trying to assess the constitutionality of such laws.  Instead, I want only to offer an observation about social media that I think might figure into the calculus. 

For most of human history, our communications fell into two categories.

Some of our communications were impetuous.  We shouted or cried out or muttered in a moment of anger or zeal or folly, often saying things that we would not have said if we had thought more carefully.  Still, there was one consolation: such impulsive communications were not rendered in a permanent medium. 

On the other hand, some of our communications had more permanence to them.  We committed some of our statements to writing or recording and, because that was a more serious (or at least more time consuming) enterprise, we acted with a higher level of deliberation.  Of course, sometimes the stuff we wrote or recorded was irresponsible gibberish.  But a little more thoughtfulness made it a little less likely that this would be the case. 

Social media, however, mix these two characteristics together into a potentially troublesome potion.  They allow us (in many contexts, encourage us) to be dazzlingly impetuous.  At the same time, they enshrine our recklessness in a kind of permanence.  And, to magnify the concerns, with the push of a button we can launch these communications into the universe--so that they go virtually everywhere to virtually everyone, forever.

I am not implying that these considerations provide an answer to the constitutional question.  I am merely suggesting that our traditional ways of framing First Amendment problems may not have kept up with the technology.

Were these tweets like crying "Fire!" in a crowded theater?

I'm not so sure.

Is a written message that appears on your phone more--or less--alarming than a cry?  At a minimum, can we at least agree that it is different?

And, while we're at it, can we agree that a tweet that is recirculated by the Wall Street Journal--as these tweets were--will reach vastly more people than you could ever fit into any theater ... no matter how crowded?

Monday, October 22, 2012

Matters of Character


We usually do not admit evidence of a criminal defendant's character at trial.  We want the defendant to be judged based on what the facts show about how he or she behaved on a particular occasion.  We worry about evidence that might prompt the jury to convict someone of a crime on the theory that he or she is a generally bad person who deserves to be behind bars--regardless of guilt with respect to this particular offense.

Still, evidence of character can find its way into criminal cases.  For example, a defendant who claims to have acted in self-defense can offer evidence showing that the victim had a tendency toward violent behavior.  Indeed, just last week the judge in the George Zimmerman case indicated that he would allow Zimmerman's attorney to seek Trayvon Martin's Twitter, Facebook, and school records to troll for evidence that Martin was a violent person.  You can read about the ruling here.

Of course, at this point we don't know whether Zimmerman's lawyer will succeed in obtaining the records, what he will find, or whether what he finds (if anything) will be admissible into evidence.  So, many things remain unclear.  But this much is fairly clear: if Zimmerman puts Martin's character at issue, this will probably open the door for the prosecution to do the same with respect to Zimmerman's character as well. 

Perhaps Zimmerman's lawyer is on to a brilliant strategy.

Or perhaps he is playing one-move chess.

Monday, August 6, 2012

The Asymmetries of Relevance

An interesting article in today's Detroit News reports that prosecutors hope to introduce into evidence at the corruption trial of former mayor Kwame Kilpatrick the fact that he received a C+ in a tax class that he took at the Detroit College of Law.  Several of the charges pending against Kilpatrick relate to his taxes, and prosecutors argue that his C+ is relevant to show that he was aware of his legal duty to report income for the years 2003-2008.

The argument raises a number of questions.  Does one need to go to law school and take a tax class in order to understand that income must be reported?  It seems like the sort of thing everyone knows without such training.  And, if this information is, for some reason, more arcane than it appears, then does a C+ really reflect much mastery of the material?  We can almost imagine the defendant saying "Well, I only got a C+.  That part about reporting income must be one of the things I missed."

But, for those of us who teach Evidence in law school, the most interesting question may sound something like this:  What if Kilpatrick had failed the course?  Would prosecutors concede that evidence of that fact should be admitted to show that the mayor was unaware of his legal obligations--indeed, demonstrably incapable of learning them?  In fact, would they conclude that in light of such compelling evidence they needed to drop the tax charges against him?

My guess is that many lawyers who would conclude that Kilpatrick's C+ passes the extremely forgiving standard for relevance would be reluctant to reach the same conclusion with respect to a failing grade.  In a sense, that is unremarkable.  Evidence that Kilpatrick took and passed a tax  course simply confirms what we would otherwise expect--that he knew about his duty to report income.  On the other hand, evidence that he failed the course would do little, if anything, to persuade us that this obligation came as news to him.

In this sense, Kilpatrick's law school grade may be an example of how relevance can behave asymmetrically in our analysis of evidence.  Evidence students often study another intriguing example of this in class: many courts hold that evidence of flight from arrest is relevant to show guilt; but few courts have shown any sympathy toward the argument that absence of flight is relevant to show innocence.  Why?  Because we don't expect people to try to escape when they're being arrested: when they do, it tells us something; when they don't, it tells us nothing.

These asymmetries are not just oddities within the discipline.  Rather, they highlight a fundamental truth about the law of evidence: much of it rests upon expectations about what people know, how they think, and how they behave.  And there's the rub, because those expectations can be over-valued, can become outmoded, or can be shown to have rested on faulty premises all along.

Will Kilpatrick raise any of these points at trial?  I'm not sure.  I don't know what grade he received in his Evidence class.     

Tuesday, July 17, 2012

Corporate People


In a recent op-ed in the Wall Street Journal, Jack and Suzy Welch responded to comments by Elizabeth Warren in which she declared that corporations obviously are not people because, for instance, they do not have hearts or get sick.  Jack and Suzy Welch replied, with equal zeal, that “Of course corporations are people.  What else would they be?”

What they would be, and in fact are, is clear.  Corporations are entities created by law; they exist to fulfill certain permitted purposes; and they are separate and distinct from their officers and employees.  Indeed, assuming that the interests of officers and employees are coextensive with those of the entity has led to no end of mischief, and more than a few indictments.

The real question is therefore not whether corporations lack passions, sorrows, and the capacity to dance (as Elizabeth Warren says) or whether they bond with their customers, mentor inner-city kids, and shout, laugh, and drink coffee (as Jack and Suzy Welch say).  The real question is whether legal entities like corporations should have certain rights that we normally assign to human beings.

As to some matters, this question would not make any sense.  No one argues that corporations should have the right to marry who they like, use contraception, or choose to get an abortion.  But, as to other matters, the question is not only sensible, but critical.  One such issue is whether speech engaged in by legal entities—including corporations—should receive the protections of the First Amendment.

Many, probably most, First Amendment scholars agree that the answer to this question is “yes.”  The Supreme Court answered this question that way long before Citizens United and its attendant rhetorical flurry.  Still, important issues remain.

Smart and informed people—like Elizabeth Warren and Jack and Suzy Welch—can reasonably disagree about those issues.  They can argue over the effects of concluding that corporations have First Amendment rights.  They can debate whether those effects are so destructive to the democratic process that our First Amendment jurisprudence leaves room for government regulation.

But I respectfully suggest that everyone should stop arguing over whether corporations smile or tango or take their kids to Little League or get misty-eyed during Hallmark commercials.  They don’t, and it would be creepy if they did, and none of that really has anything to do with the actual and serious issue at hand.

Monday, July 16, 2012

Diversity's Evidences

Today, Inside Higher Ed ran a short piece that I wrote musing on the benefits of having students from diverse backgrounds (and therefore with diverse perspectives) in the classroom.  If you are interested, you can find it here.  My comments drew some of the usual criticisms, from some of the usual critics, including this one: my argument indulges in stereotyping because it assumes that, for example, African Americans have a particular and unitary perspective on things.  This criticism, however, rests upon a profound misunderstanding of my argument.  The point is not that the educational experience is enriched by the presence of women, African Americans, Hispanics, Native Americans, Asian Americans,  those with diabilities, members of the LGBT community, and countless other categories of human beings because there is a specific perspective or viewpoint that we can attribute to the members of each of those groups.  That is, in my judgment, ridiculous.  Rather, the point is that these characteristics are highly self-definitional for most of us; that the world interacts with us differently because of those characteristics; and that this shapes the experiences we have, and, therefore, the perspectives we acquire along the way.  Far from stereotyping, this argument assumes a rich array of possibilities; but it also assumes--because it is true--that things like gender, race, ethnicity, and sexual orientation matter.  I believe that the logic, social reality, and psychological truth of this argument is irrefutable.  Perhaps that is why its critics so often choose to refute a different argument--one that I have never made and that has nothing to do with the Supreme Court's reasoning in Grutter.    

Tuesday, May 8, 2012

Who is the Audience?

In a recent New York Times article, Adam Liptak discussed the competing views of Solicitor General Donald Verrilli's performance before the United States Supreme Court in defending the constitutionality of the health care law. It is a fair and even-handed description of the debate. But the existence--and sometimes overheated nature--of the debate is a source of concern for at least two reasons. First, justices who oppose the televising of Supreme Court arguments--an issue that was revisited ad nauseum in connection with the health care law hearings--often express the concern that the practice would feed the popular media's tendency to reduce important issues to decontextualized snippets. They worry that this would prove, at best, trivializing and, at worst, misleading. Unfortunately, the firestorm over the number of times that General Verrilli cleared his throat will reassure those justices that their anxiety is warranted. Second, the comments of many of General Verrilli's critics (who have never argued before any court, let alone the Supreme Court) reveal their misunderstanding of the role that lawyers play when they argue a case. The lawyer's job is not to be "dazzling" (a word often used to describe Clement's abilities, and with which I would heartily agree). Rather, the lawyer's job is to help a judge or justice do theirs. An argument filled with zingy one-liners and dramatic pauses may play well to the press but do little or nothing to assist a judicial officer in thinking about how to decide a case, describe their reasoning, or frame their holding. When I was a very new lawyer, a senior partner in the firm and I happened to be in court when a lawyer gave a very flashy argument to a judge. It kept everyone in the courtroom highly entertained, but I noticed the judge had a sour look on his face. My colleague observed it as well, and I asked what that was about. "This lawyer's problem," he responded, "is that he's arguing to the benches ... rather than arguing to the bench." To borrow a phrase from Shakespeare, oral arguments that are "full of sound and fury" are fun to watch--but they may signify nothing.

Sunday, February 12, 2012

The Anxiety of Unknown Knowns

I just returned from a three-day-long conference sponsored by the American Bar Association Forum on Communications Law. I am honored to serve on the Forum's governing board and always look forward to getting together with this group of extraordinarily bright, well-informed, hard-working, genial lawyers. The discussions are consistently excellent and thought provoking.

Over the weekend, we pondered numerous questions. What are the cutting edge developments in libel, privacy, newsgathering, Internet law, advertising law, and e-discovery? What actions (if any) can the government take with respect to Wikileaks' sharing of confidential government documents--consistent with the protections of the First Amendment? What lessons can we take from the historic lawsuit that Food Lion brought against ABC over its reporting of questionable food handling practices? How can newspapers like the New York Times survive in a digital news environment?

The pace and significance of technological change shaped and informed every conversation. So, for example, our discussion of FTC enforcement actions with respect to social media privacy policies quickly revealed that conventional notions borrowed from contract law and consumer protection law seemed inadequate. Those policies invite consideration, perhaps even radical reconsideration, of the normative dimensions of privacy, self-definition, and community. For those who study, and hope to influence, the development of the law in these areas the challenges are overwhelming. Indeed, trying to craft legal principles sufficient to the current communications environment is rather like trying to bail water out of Niagara Falls: you can't keep up, and almost feel silly trying.

I opened today's New York Times only to discover another example. In an article published today, Adam Liptak conducted a characteristically thoughtful analysis of the government effort to identify and prosecute those who leak secret information. Over the years, such efforts have given rise to struggles between the media, who wish to protect their confidential sources, and the government, who wants to know who broke confidence. Adam recounts an eerie conversation between Lucy Daglish, of the Reporter's Committee for Freedom of the Press, and an unnamed national security representative. In essence, the representative assured Lucy that she would no longer have to worry about government subpoenas issued to reporters to find out who their sources are.

We already know, he told her.

Monday, January 23, 2012

Citizens Disunited

Late last year, I had the privilege of speaking to an audience of several hundred patient souls who were attending a lecture series offered by the Osher Lifelong Learning Institute. The theme of this particular series: political issues that divide us. My topic: the Supreme Court's decision in the Citizens United case. I love speaking to these Osher audiences, but in light of the fact that so far they've invited me to address such hot-button topics as Bush v. Gore, civil liberties during wartime, and Citizen United, I'm starting to wonder whether they love me back.

All joking aside, it was a characteristically welcoming crowd that remained so even after I told them that I would probably foil their expectations. I told them that I had not come to join all of those pundits who have happily piled on the Supreme Court as if it had just fumbled on its own one yard line. Instead, I told them that I hoped to persuade them that things were more complicated than they might have been led to believe. And, more specifically, I told them that I wanted to try to disabuse them of some of the criticisms of Citizens United that I believe to be unfair--for example, that in Citizen United the Supreme Court broke startling new ground by treating corporations, unions, and other legal entities as "persons" for purposes of First Amendment analysis.

Alas, my insights did not spread across the nation like brushfire and so the debate continues. Just recently, the Wall Street Journal printed an editorial on the subject that I think well done and worth reading (you may need a subscription to access the entire piece). Indeed, a rich--if occasionally misleading--literature has quickly grown up around the case.

In any event, I was reminded of the risks of oversimplified thinking about these issues just this past weekend when I happened to drive by a collection of protesters on a street corner, one of whom was holding a sign that said "Honk if you think corporations are not people." Now, I am enthusiastically supportive of just about anyone who wishes to express their views through such a peaceful, lawful demonstration of their convictions. Indeed, a few years ago I brought hot chocolate to some people who were protesting on a dangerously frigid day.

Still, I couldn't help but wince at the irony. It is far from self-evident that the text of the First Amendment reaches so far as an invitation to honk a horn. To get to such a result, one must read the text of that Amendment expansively--indeed, I would say in all of its expansive glory. It is the same sort of reading that leads one to conclude that the First Amendment also protects expression by legal entities. Indeed, if it does not, then a long and impressive history of expression through mobilization, unification, and incorporation is at peril.

It is a nice point to make to a room full of people whose presence was achieved through the efforts of an organization.