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.

Wednesday, May 14, 2014

The Optimistic Experiment

We occasionally gain special insight into an issue when we look at two stories in combination.

Two different cases decided by two different courts on Tuesday of this week give us a powerful lens into competing conceptions of freedom of expression--indeed, into competing conceptions of who human beings are and of how we think and behave.

On Tuesday, Europe's highest court--the European Court of Justice--issued an important ruling in a case brought by one Mario Costeja, a Spanish lawyer. Costeja was upset because a Google search of his name disclosed legal notices published in the online version of a Spanish newspaper that detailed debt problems he had encountered in 1998. Costeja argued that the debt issues had been resolved long ago and were no longer relevant to anything. He contended that Google had an obligation to remove--at his request--the link between his name and these notices.

The European Court of Justice agreed with Costeja and ruled that his privacy interests prevailed, even though Google had done nothing but connect two otherwise publicly available pieces of information--his name and the notices. The breadth and implications of the decision, which has engendered considerable eye rolling and head scratching, are unclear. A New York Times article asked: "Should a businessman be able to expunge a link to his bankruptcy a decade ago? Could a would-be politician get a drunken-driving arrest removed by calling it a youthful folly?"

On that same day, New York State's highest court--its Court of Appeals--struck down a state statute making it a felony to communicate with someone "in a manner likely to cause annoyance or harm." That case involved the conviction of one Raphael Golb, a real estate lawyer with a Ph.D. in comparative literature from Harvard who is the son of Norman Golb, a noted scholar of the Dead Sea Scrolls. In essence, the younger Golb had engaged in an extended campaign of harassment against his father's academic rivals that included accusations of plagiarism.

The Court of Appeals upheld Golb's misdemeanor convictions for criminal impersonation and identity theft (he had opened e-mail accounts in the names of some of his father's rivals and had sent messages confessing wrongdoing that appeared to come from them). But the court struck down his convictions under the "annoyance" statute, finding the law unconstitutionally vague and overly broad. As a New York Times article summarized: "Mere annoying speech, the lingua franca of many New Yorkers, was not enough."

These two rulings obviously reflect different conceptions of free speech, of its importance in the order of things, and of how it fares when it conflicts with claimed privacy interests--or, as Warren and Brandeis put it in a seminal law review article, the "right to be let alone."

But I think that the most interesting aspect of these cases is that they reflect fundamentally different views about the fortitude of human beings and about our ability to process information thoughtfully.

The European Court of Justice takes the pessimistic view.

Having people know about a sixteen-year-old debt problem doesn't seem like any great burden in the grand scheme of things. Nevertheless, the Court of Justice evidently sees us as such frail creatures that it's too much for us to bear. Perhaps the court was influenced by the fact that the complaining party was a lawyer, a species notorious for its delicacy.

Furthermore, it would seem as though most people who learned about the sixteen-year-old debt issue would see it for what it is: a matter of little or no continuing relevance. The assumption that people will make too much of facts is a dark commentary on human nature. It is as though the European Court of Justice declared, in that famous line of Jack Nicholson's, "You can't handle the truth!"

The New York Court of Appeals takes the optimistic view.

The court obviously acknowledged that the conduct in question was annoying. Indeed, compared with Costeja's case, this was Olympic-level annoying. But under our First Amendment jurisprudence that's the beginning--not the end--of the analysis.

Our First Amendment jurisprudence embodies a collection of assumptions: being annoyed goes with living in the world as we find it; we're actually pretty tough and resilient; we can take it; we're better off deciding for ourselves what's relevant and what isn't. The First Amendment has considerable confidence in the proposition that we can handle the truth--indeed, that we can even handle some untruth--and rejects the cynicism of the censor.

Will our experiences always validate the optimistic view? Of course not.

Will we be keenly disappointed from time to time? You can count on it.

Will this approach always yield the best results? Not a chance.

As Justice Holmes declared in his famous dissent in the Abrams case, this "is an experiment, as all life is an experiment." And, as experiments go, it can be loud, unsettling, and annoying.

But, very often, that's how we know the experiment was a success.


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