Tinker, Viewpoint Discrimination and a Flag

“…We must forevermore do honor to our heroic dead. We must forevermore cherish the sacred memories of those four terrible but glorious years of unequal strife. We must forevermore consecrate in our hearts our old battle flag of the Southern Cross – not now as a political symbol, but as the consecrated emblem of an heroic epoch. The people that forgets its heroic dead is already dying at the heart, and we believe we shall be truer and better citizens of the United States if we are true to our past.”

Confederate Veteran Rev. Randolph Harrison McKim

Not all Confederate soldiers fought under the blue St. Andrew’s cross (more accurately, the saltire).  And apart from its use during veterans events, the flag’s visibility was minimal during the decades following the war. [. . .]

However, the flag’s most lasting legacy — and the source of much of the controversy today — can be traced to its use as a symbol of “Massive Resistance” by the Dixiecrats beginning in 1948 and continuing through the Civil Rights movement of the 1950s and 60s. During that period, the flag became the standard for those committed to defending classrooms, bus depots, and other public spaces (now battlefields themselves) from black encroachment.

In fact, the flag’s use throughout the 20th century covered a time span significantly longer than its presence on Civil War battlefields. Its placement atop southern statehouses like South Carolina ultimately reinforced the flag’s connection to segregation and racism.

Kevin M. Levin, America’s Simple-Minded Obsession with the Confederate Flag, The Atlantic, Aug. 16, 2012

Candice Hardwick wore shirts bearing various images of the Confederate flag to her elementary and middle schools in Latta, South Carolina on several occasions and was made to change her clothes or, on one occasion, disciplined.  Latta, South Carolina was formerly a part of the Jim Crow South, and in fact was holding segregated school proms until the 1980’s.  Significant racial tensions remain.  The Latta School District enforces a dress code policy that forbids clothing that would “distract others, interfere with the instructional programs, or otherwise cause disruption.”  Examples would include “clothing that displays profane language, drugs, tobacco, or alcohol advertisements. sexual innuendos or anything else deemed to be offensive.”

I’ll cut to the chase here and tell you that the Fourth Circuit, in Hardwick v. Heywood, 711 F.3d 426 (Mar. 25, 2013), held that the First Amendment did not require the school district to allow Hardwick to wear the shirts, and that the dress code was not unconstitutionally overbroad or vague.  The Court also held that Hardwick’s equal protection rights were not violated based upon evidence that the school district has also prohibited students from wearing Malcolm X and similar apparel.  Relying on Tinker v. Des Moines Independent Community School District, a Supreme Court opinion that law students recall as the “black armband case” because a group of students wore armbands in protest of the Vietnam war, the Fourth Circuit simply concluded that the Confederate Flag could be reasonably expected to cause disruption at the school.  (And there was some evidence that it in fact had caused disruptions, although the school’s evidence involved racial tension generally.)  Therefore, the Court held, the school district was justified in banning its display.  Many other circuits have so held.  See, e.g. Defoe ex. rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v. School Bd. of Alachua Co., 324 F.2d 1246 (11th Cir. 2003); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972).

I suppose that what bothers me about the Court’s reasoning in Hardwick, though, is that there was evidence that Hardwick wore shirts with the flag on several occasions at school (i.e., before she “got caught”), and that not only were there no disturbances, but there was apparently some positive reaction. Some of the examples of racial disturbances offered by the school district, on the other hand, were more than thirty years old.

Please understand, this is not an argument for display of the Confederate flag. If you’ve read this blog, you know where I fall on the political spectrum; as to the assertion that the flag represents positive or neutral “heritage,” I am skeptical at best.

But I am also skeptical whenever one form of speech is subjected to a different standard than others. I wonder if that’s going on here, between the lines.

According to the Court in Tinker:

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09, 89 S. Ct. 733, 737-38, 21 L. Ed. 2d 731 (1969).

The students in Tinker wore armbands to protest a war, the politics of which were also extraordinarily divisive. The Supreme Court was satisfied that no disruption resulted in the classrooms, although “hostile remarks” were made outside the classroom. That was enough.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.

Id. at 509, 89 S. Ct. at 738, 21 L. Ed. 2d 731.

Was there really evidence that the flag shirts worn by Hardwick would “materially and substantially interfere with the requirements of appropriate discipline” at her schools? I’m not sure; perhaps something has been lost along the way from trial transcript to reported opinion. I do know, though, that there can be a good deal of flexibility in determining when an “apprehension of disturbance” is reasonable, and that we must be cautious of exercising that flexibility in favor of the viewpoints that we prefer.

 

What You Need to Know Before You Diss (and Why You Should Anyway)

Allow me to confess: I post snarky reviews on Yelp.  All the time.  Well, maybe not all the time.  A couple of times.  I try to keep things reasonable.  But if I have a really bad experience at your place of business, expect me to say something about it and to make it funny.  In a not-good-for-your-online-reputation way.  (People who follow me on Twitter seem to think I’m funny, so people are paying attention, I guess.)

I am not the only person doing this, you may have noticed.  There are whole online ecosystems these days.  Gawker, Above the Law, the new Dish.  Right-wing pages I avoid like the plague but nevertheless must grudgingly admit exist.  I’m not much for Reddit but if there’s anything you wish to discuss you’ll find it there.

Violentacrez and similar trolls aside, though, most people post or comment about something because they have an opinion and they want to share it.  The First Amendment is supposed to protect that sort of speech and generally it does.

What folks don’t always understand, though, is that the First Amendment can’t stop someone from suing you.

This seems counter-intuitive.  People assume that if a lawsuit ultimately will not have merit – meaning it’s a loser – that it won’t get filed.  Unfortunately that’s not true.

Businesses targeted for negative reviews on sites like Yelp are more and more frequently filing SLAPP suits against posters.  They do this because they know that the costs of defending a lawsuit are prohibitive.  Retaining a lawyer to defend you against a defamation suit is expensive.  In the United States, parties to litigation pay their own attorneys; so even if you ultimately win, you could end up bankrupting yourself.  The businesses filing these suits want you to be afraid of this so that you’ll end up not commenting at all.

Witness the Casey Movers saga.  Basically, a woman complained about a moving company on Yelp.  In what has to be one of the most spectacularly tone-deaf, idiotic responses to a customer complaint of all time, Matthew Overstreet, sales manager extraordinaire, sent her a letter peppered with poorly-used legalese, the gist of which was a threat to sue her if she didn’t remove the comment.  And not just to sue her, but to make her travel to a distant court to defend the case.

Turns out, of course, that the original poster had a husband who was 1) intelligent; 2) a blogger; and 3) not easily intimidated.  He took to the web with the story, and the big guns at Popehat not only took notice, but offered to locate an attorney to defend the poster, pro bono, if any suit was filed.

The law on these issues – SLAPP suits, defamation, First Amendment defenses in commercial contexts – is evolving on an almost daily basis.  Many of the published decisions, however, deal with complex First Amendment issues like prior restraint, not the nuts-and-bolts of liability and damages.  Which in practical terms means we as lawyers don’t always know how particular courts will deal with these cases.  So there certainly is risk in posting negative reviews online.

It’s easy enough for me to say I’ll continue posting, because I’m probably not going to get sued.  It’s not like “Joe’s Auto Shop” is hiring the best, most experienced counsel to prosecute its lawsuits, so the ambulance chaser it likely does hire is probably going to decide that suing me would be more trouble than it would be worth.  That calculus isn’t necessarily true of you, though.

One response is to blog, like the Casey Movers guy.  Sunlight is the most effective disinfectant, meaning that bringing these kinds of threats, and the suits themselves, before the public can make them go away.  It’s the Streisand effect at its best.

Another, and I hope this will come to pass, is for lawyers to step up to defend these cases pro bono.  Businesses file these cases because they’re counting on them being expensive to defend, not because they really expect to win.  If they’re not going to be expensive to the defendant (but potentially will be for the businesses, who do have to pay their lawyers), they won’t get filed.

But probably my best piece of advice to you is to keep your reviews as factual and true as possible.  Provide concrete examples of what you’re trying to communicate.  Don’t say “the food was crappy;” say, “the omelet was overcooked.”  The line between justifiable statement and slander gets murkier when you’re dealing with statements of opinion.  That doesn’t mean you’re not entitled to your opinion, but it does mean that it’s a lot harder to argue about simple factual statements.  Just my two cents, for whatever it’s worth.

There are statutes in some states designed to curb SLAPP suit abuses.  Maryland has an anti-SLAPP statute, but like many others it’s weak.  A bill that would have reformed the statute to make it more effective at shutting down meritless cases failed to pass the Maryland Senate last year but will likely be reintroduced during this session.

 

One Book Called Ulysses

Book lovers everywhere should offer thanks tomorrow to the Honorable John M. Woolsey of the United States District Court for the Southern District of New York. Judge Woolsey ruled on December 6, 1933 that James Joyce’s Ulysses, the subject of a countrywide de facto ban for ten years, was not obscene.

The novel was serialized in the United States beginning in 1922 but, as the story goes, some woman, somewhere, read what we suppose was the Nausicaa scene and complained to a state’s attorney in New York. This attorney, like any good small-minded politician, prosecuted the publishers of the small Chicago-based literary magazine in which the episode had appeared. The court considered only the installment which had appeared in that particular month, with that particular scene (and if you are unfamiliar with the novel, think Judge Reinhold and Phoebe Cates and you’ll be right on board), and called it the work of a “disordered mind.” The publishers were convicted and fined, and the threat of prosecution dissuaded others who might otherwise have released the completed novel.

United States v. One Book Called Ulysses was a classic First Amendment test case.  Bennett Cerf, co-founder of Random House and eventual game show gadfly, wanted to publish the novel but was afraid to make the capital expenditures necessary to print the book without knowing whether it could be legally sold.  He devised a plan to “noisily” import the French edition of the book so it could be seized at the Port of New York.  It almost didn’t work. The customs inspector initially refused to seize the books because, he claimed, “everyone” brought them in. But the inspector relented, and the case made its way to the federal court in Manhattan.

Woolsey was the son of a carpetbagger, one William W. Woolsey, who purchased a plantation in South Carolina in 1870. Judge’s Woolsey’s maternal grandfather was an Ohio Supreme Court judge, and his uncle was Daniel Coit Gilman of Johns Hopkins University. When William Woolsey became a Confederate sympathizer,  Judge Woolsey’s mother left him and moved with her son to Englewood, New Jersey (home of Woolsey’s contemporary, Upton Sinclair).   Woolsey attended Phillips Academy, Yale, and Columbia Law School, where he co-founded the Law Review.   After entering private practice, he was a regular at Delmonico’s where, in 1906, Harry Thaw shot Stanford White.

In 1929, Woolsey was appointed to the District Court for the Southern District of New York by President Herbert Hoover. By all accounts he was an exceptional and hard-working jurist.   (According to lore, he took the Ulysses case because he had just ended a 100 day fraud trial and wanted to read the book while he “rested”).   His opinion in the Ulysses case,which appears at 5 F. Supp. 182 (S.D.N.Y. 1933), was affirmed in an opinion authored by the Honorable Augustus Hand.   Sadly, although Learned Hand was a member of the Second Circuit at the time, he remains outside the reach of my little Six Degrees of Separation game here.

Cerf ensured Judge Woolsey’s celebrity by including a copy of the opinion in every copy of Ulysses sold in the United States. Fitting, since Woolsey’s opinion is as much literary critique as legal analysis:

Ulysses is not an easy book to read or to understand. But there has been much written about it, and in order properly to approach the consideration of it it is advisable to read a number of other books which have now become its satellites. The study of Ulysses is, therefore, a heavy task.

The reputation of Ulysses in the literary world, however, warranted my taking such time as was necessary to enable me to satisfy myself as to the intent with which the book was written, for, of course, in any case where a book is claimed to be obscene it must first be determined, whether the intent with which it was written was what is called, according to the usual phrase, pornographic, that is, written for the purpose of exploiting obscenity.

If the conclusion is that the book is pornographic, that is the end of the inquiry and forfeiture must follow.

But in Ulysses, in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore, that it is not pornographic.

In writing Ulysses, Joyce sought to make a serious experiment in a new, if not wholly novel, literary genre. He takes persons of the lower middle class living in Dublin in 1904 and seeks, not only to describe what they did on a certain day early in June of that year as they went about the city bent on their usual occupation, but also to tell what many of them thought about the while.

Joyce has attempted— it seems to me, with astonishing success— to show how the screen of consciousness with its ever-shifting kaleidoscopic impressions carries, as it were on a plastic palimpsest, not only what is in the focus of each man’s observation of the actual things about him, but also in a penumbral zone residua of past impressions, some recent and some drawn up by association from the domain of the subconscious. He shows how each of these impressions affect the life and behavior of the character which he is describing.

What he seeks to get is not unlike the result of a double or, if that is possible, a multiple exposure on a cinema film, which would give a clear foreground with a background visible but somewhat blurred and out of focus in varying degrees.

To convey by words an effect which obviously lends itself more appropriately to a graphic technique, accounts, it seems to me, for much of the obscurity which meets a reader of Ulysses. And it also explains another aspect of the book, which I have further to consider, namely, Joyce’s sincerity and his honest effort to show exactly how the minds of his characters operate.

If Joyce did not attempt to be honest in developing the technique which he has adopted in Ulysses, the result would be psychologically misleading and thus unfaithful to his chosen technique. Such an attitude would be artistically inexcusable.

It is because Joyce has been loyal to his technique and has not funked its necessary implications, but has honestly attempted to tell fully what his characters think about, that he has been the subject of so many attacks and that his purpose has been so often misunderstood and misrepresented. For his attempt sincerely and honestly to realize his objective has required him incidentally to use certain words which are generally considered dirty words and has led at times to what many think is a too poignant preoccupation with sex in the thoughts of his characters.

The words which are criticized as dirty are old Saxon words known to almost all men and, I venture, to many women, and are such words as would be naturally and habitually used, I believe, by the types of folk whose life, physical and mental, Joyce is seeking to describe. In respect of the recurrent emergence of the theme of sex in the minds of his characters, it must always be remembered that his locale was Celtic and his season spring.

United States v. One Book Called  Ulysses, 5 F. Supp. 182, 183-84  (S.D.N.Y. 1933).

If no one has yet used that line – “his locale was Celtic and his season spring” – as the title of a chapter of a First Amendment text, or a law review article, or something: somebody please do.

 

Monday Morning Hearsay: Sedition

On May 16, 1918 Congress passed the Sedition Act, making it a crime to make false statements about the United States’ participation in World War I; to insult the Constitution, the government, the flag, or the military; to agitate against the production of war supplies; or to advocate, teach or defend any of these acts.  The Act, which Woodrow Wilson championed, was targeted at pacifists and especially socialists, who were despised for many reasons but not least because the Bolsheviks had recently engineered Russia’s withdrawal from the war.  Germany’s disarmament at Versailles silenced it for the next fifteen years, and without its old sometime enemy to check its growth, the U.S.S.R. became a legitimate military power. 

Socialism had already gained some foothold in Britain, and within the United States as in Europe, it found support among the working class.  The days of robber barons and industrial monopolies were not long past.  Eugene V. Debs, an Indiana Democrat, formed one of the country’s earliest labor unions.  While in prison for striking he became a socialist.  The New York Times called Debs “a law-breaker at large, an enemy of the human race” for his advocacy of labor strikes and unionization.  Wilson hated him.

Debs was arguably the most famous American to be prosecuted under the Sedition Act.  Clarence Darrow, in a move that ought to be appreciated by Paul Clement, dropped  his corporate railroad clients to defend him.  But Darrow called no witnesses, and Debs spoke to the jury on his own behalf.  He reportedly said, in part:

Your honor, I have stated in this court that I am opposed to the form of our present government; that I am opposed to the social system in which we live; that I believe in the change of both but by perfectly peaceable and orderly means….

 

 

I am thinking this morning of the men in the mills and factories; I am thinking of the women who, for a paltry wage, are compelled to work out their lives; of the little children who, in this system, are robbed of their childhood, and in their early, tender years, are seized in the remorseless grasp of Mammon, and forced into the industrial dungeons, there to feed the machines while they themselves are being starved body and soul….

 

 

Your honor, I ask no mercy, I plead for no immunity. I realize that finally the right must prevail. I never more fully comprehended than now the great struggle between the powers of greed on the one hand and upon the other the rising hosts of freedom. I can see the dawn of a better day of humanity. The people are awakening. In due course of time they will come into their own.When the mariner, sailing over tropic seas, looks for relief from his weary watch, he turns his eyes toward the Southern Cross, burning luridly above the tempest-vexed ocean. As the midnight approaches the Southern Cross begins to bend, and the whirling worlds change their places, and with starry finger-points the Almighty marks the passage of Time upon the dial of the universe; and though no bell may beat the glad tidings, the look-out knows that the midnight is passing – that relief and rest are close at hand.

Let the people take heart and hope everywhere, for the cross is bending, midnight is passing, and joy cometh with the morning.

 Debs was sentenced to ten years in prison.  He appealed to the Supreme Court, and Chief Justice Holmes wrote a brief opinion incorporating the Court’s previous holding in Schenck v. United States, in which the Court famously delineated its “clear and present danger” test for First Amendment protection of speech.  (Schenck  also concerned socialist speech, prosecuted on that occasion under the Espionage Act of 1917.)   Hatred of socialism in America went on to become a practical patriotic necessity.  In fact, a “Red Scare” during the nineteen twenties led to the transformation of the Ku Klux Klan from a loose confederation of militias enforcing Jim Crow to a national organization united against Jews, Catholics, blacks, homosexuals and communists.  

 Schenck, the apex of Free Speech limitation, was finally eviscerated in Brandenburg v. Ohio, in which the Court reversed the conviction of a man charged with spreading KKK propaganda.  Today a Google search for “socialism and KKK” makes for interesting, and frightening, reading. 

 

Well, Now, This is Very Interestin’

He says, as he hooks his thumbs around his suspenders, leans back, and moves his cigar from one side of his mouth to the other.  At least, that’s how I see the scene playing out, in a back room somewhere, just before the Kentucky Bar Association voted to constrain one lawyer’s free speech rights. 

According to the ABA Journal, United States District Court Judge Danny Reeves has ruled that a bar association may restrict otherwise constitutionally protected speech by an attorney if necessary to “uphold public confidence in the judiciary.”  This follows the decision of the Kentucky Bar to issue a warning to attorney John M. Berry, who wrote letters to Kentucky’s Legislative Ethics Commission alleging violations of fundraising rules. 

This has to be wrong.  I am no First Amendment expert, but this just has to be wrong.  Taken to its logical next step, lawyers can be banned from supporting political candidates, writing editorials for the local newspaper …. writing blogs.  Of course, whether this case gets appellate review depends on whether Berry can afford to continue financing it, or whether the ACLU gets on board (if they’re not already). 

I sincerely hope this gets reversed.  I’m not interested in becoming a mealy-mouthed milquetoast for the sake of my brethren at the bar.  And so long as Orly Taitz continues to represent to the public that she is an attorney, I shouldn’t have to.

 

Look, Dad! No First Amendment!

The Court of Special Appeals, Maryland’s intermediate appellate court, decided a few days ago that a religious order, the Josephite Fathers, owed nothing to the children of one of its priests.

Interestingly, though, at least to me, the First Amendment and its prohibition on interference with matters of religion doesn’t figure in the opinion.  Nope.  The Court raises the possibility, then discards it immediately because it finds that it can rule based on other, non-constitutional, grounds. 

In other words, we are in the realm of torts here, and specifically we are asked whether the Josephite Fathers owed any legal duty to these (now grown) children, who were proven by DNA to be the offspring of Father Francis E. Ryan.  Apparently after Father Ryan impregnated a member of his congregation, the Josephite Order “permitted” the woman to raise one of the children, but forced her to give the other up for adoption.  Neither of the children knew how they had been conceived until they were grown.

And the reason the Order owed no duty to the children?  It wasn’t because the evidence established that it hadn’t forced anyone to do anything.  This case reached the appellate court on a motion to dismiss.  The truth of the facts as pled was assumed, meaning the court accepted as proven that the Church really did abandon these children to their own devices.  Instead, the court concluded, there was no “confidential relationship” between the children, Father Ryan, and the Order sufficient to give rise to a duty.   Accordingly, a priest may father a child on one of his parishioners, and the fact of this may be well-known to the Church; still, unless the mother herself, who’s already been proven malleable enough to sleep with her confessor, complains, the children have no right to any legal relief. 

I’m bothered by this.  I think I would have had an easier time accepting this decision if it had been based on the First Amendment.  But given the Church’s history, coupled with its admitted covering-up of evidence of molestation, I don’t think we should be cutting off the only economic deterrent to this sort of institutional behavior.  Maybe if this case had been tried the facts would have established the innocence of the Josephites.  But it wasn’t.  And I don’t think we should be parsing fiduciary relationships quite so finely.   Not if we can avoid it, anyway. 

I have a sneaking suspicion that this case will make its way to the Court of Appeals, and then, who knows?  Maybe SCOTUS.  But I don’t give it good odds there, either.

In the meantime, I point out with dripping, oozing irony, that the Josephite Fathers are named for a dad.  One who took responsibility even for a child he did not father.

 

The Best Response to Westboro

Absolute silence. 

Stop talking about them.  Stop acknowledging them.  Stop reporting on them and photographing them. 

Their parade of illiterate, uneducated, cheap-dress-wearing douchebags exists only in the sense that it has an audience.  With no one to watch they will shrivel and die. 

That is all.