Skip to content

Posts tagged ‘free speech’

Free speech victory for enviro bloggers

Featured

February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day  by demonstrating its love for free speech.

The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.

In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The  lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.

The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”

Today’s decision represents a very welcome victory for freedom of speech.

cropped-img_70311.jpg

Peter Vickery, Esq.

OK to exclude gay men, says MCAD

Featured

Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.

The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.

In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”

Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:

“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”

For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”

This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public.  The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.

And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.

IMG_7031

Peter Vickery, Esq.

Free speech for public employees?

Featured

October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

Happy birthday, Massachusetts Constitution

Featured

June 16, 2016:-  It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

Another campaign finance rule. KA CHING!

Featured

As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.

The latest state regulation aimed at controlling the funding of political speech  means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.

Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.

Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.

Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?

Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.

Peter Vickery_2012_focus

Peter Vickery, Esq.

Free speech wins (four years after judge banned candidate from mentioning opponent’s name)

Featured

March 31, 2016:- Yesterday the Supreme Judicial Court issued its decision in Van Liew v. Stansfield, a case I wrote about here involving two Chelmsford politicians. What a relief that the Court ruled that politicians should not use the anti-harassment laws to shut up their critics, and what a disgrace that the question even came up in Massachusetts in the Twenty-first Century.

By way of a reminder: When one politician (Van Liew) referred to the other (Stansfield) as corrupt and a liar, called her uneducated and stupid during a phone conversation, and allegedly said during the course of a meet-and-greet event at the local library “I’m coming after you,” Ms. Stansfield sought a civil harassment-prevention order. The judge not only granted the order, but even prohibited Mr. Van Liew from using Ms. Stansfield’s name online and in print, an order that brings to mind the 1982 Zimbabwean law that forbade jokes about the name of the president, Canaan Banana.

After the election, Mr. Van Liew sued Ms. Stansfield for malicious prosecution and abuse of process, and Ms. Stansfield brought a special motion to dismiss the case under the anti-SLAPP statute. Yesterday’s decision from the Supreme Judicial Court means that Mr. Van Liew’s case can go forward (four years after a judge banned him from uttering his opponent’s name during a political campaign). A welcome vindication of the rights of the citizen, to be sure, but how unfortunate that a candidate for public office would ask a judge for a gag order and how much more unfortunate that a judge would issue one.

Justin Sargent 6

Peter Vickery, Esq.

Court to rule on freedom of political speech in Massachusetts

October 12, 2015

petervickery

Should politicians be allowed to use the harassment-prevention laws to silence their opponents? That is one way to frame the question that the Supreme Judicial Court (SJC) will consider in December. Here is the way the SJC frames the political-speech question presented by Van Liew v. Stansfield:

Whether statements made by the plaintiff, allegedly in the context of “political discourse,” could have qualified as acts of harassment for purposes of G. L. c. 258E; whether a request by the defendant, an elected official, for a harassment prevention order under c. 258E “was devoid of any reasonable factual support or any arguable basis in law” for purposes of the anti-SLAPP statute, G. L. c. 231, § 59H, where the plaintiff’s statements on which the request was based allegedly were “political speech” and made to express the plaintiff’s “version of what was happening in the town.”

In a nutshell, during a municipal election campaign in Chelmsford one local politician (Stansfield) obtained a court order banning another local politician (Van Liew) from using Stansfield’s name “in any email, blog, twitter, or any document through the internet, television show, ad, or otherwise.” In an ex parte hearing (i.e. without the opposing party) Stansfield alleged that Van Liew’s conduct amounted to harassment under M.G.L. c. 258E. The court later decided not to extend the order. Van Liew then sued Stansfield for malicious prosecution and abuse of process. After the district court dismissed his complaint and the appellate division re-instated it, the matter ended up on docket of the commonwealth’s high court.

Given the case’s implications for freedom of speech, it is not surprising that the SJC has requested amicus briefs. But with oral arguments scheduled for December, there is very little time for interested parties to weigh in.

If you would like to see and hear the litigants, click here for Ms. Stansfield (from minute 12:25) and here for Mr. Van Liew (from minute 19:40).

chelmsford PB with caption

Colleen Stansfield: seated, left

roland van liew

Roland Van Liew

The question before the court is whether the statements that Mr. Van Liew made to Ms. Stansfield could constitute harassment, which the statute (chapter 258E) defines as “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”  I shall write more on that question in a later post. In the meantime, an equally important question is one that the SJC has not articulated in its request for amicus briefs, namely whether  a judge issuing a harassment-prevention order should engage in such sweeping prior restraint as the judge in this case.

At Ms. Stansfield’s request, the judge prohibited Mr. Van Liew from using Ms. Stansfield’s name in any TV appearance, advertisement, email, blog, or tweet. Because of this, according to his brief, Mr. Van Liew cancelled a Meet the Candidate show that had been going to run online and on TV.  By way of the anti-harassment law Ms. Stansfield achieved a result that she probably could not have obtained via defamation law.

If Ms. Stansfield had been suing Mr. Van Liew for libel, and sought a preliminary injunction to prevent Mr. Van Liew from publishing further defamatory statements about her, I suspect the judge would have looked at her request through First Amendment lenses and denied the request.

So I have a question, particularly for any of my Legislative Drafting students who are reading this: Is this something best left to the discretion of a trial judge, or should the Legislature amend chapter 258E to make clear that it must not be used to chill freedom of speech? If you think a legislative fix is necessary, what would your proposed amendment say?

Will Massachusetts Ban Employers from Googling?

January 7, 2015

petervickery

In my online column for Business West last month, I wondered whether Massachusetts lawmakers might enact a law in 2015 that would prohibit employers from perusing a job applicant’s online writings unless those writings are in the public domain (i.e. not subject to copyright). If the proposed bill became law an employer could not lawfully look at an applicant’s blog without the applicant’s express prior permission.  To find out why this is even a possibility, scroll down to the third item, titled “State Level Developments.”

With the next session of the Legislature poised for kick-off, it is time to do more than wonder. After reviewing the newly-filed bills I shall post an update, so stay tuned.

If you are curious about when, if ever, a social-media diatribe can serve as the basis for terminating employment, you might want to read the rest of the article.

Justin Sargent 1

Peter Vickery, Esq.

 

New Political Disclosure Law

September 3, 2014

petervickery

A new report describes some of the changes that the Massachusetts Legislature made to our commonwealth’s campaign finance laws after the decisions in SpeechNow.org v. FEC and Citizens United v. FEC. Most of the changes will come into force next January, but some are already in effect.

The report highlights some of the “remedies,” as the Office of Campaign and Political Finance (OCPF) calls them,  including the new requirement that some people who help pay for certain political advertisements must reveal their names. By way of an Act Relative to Campaign Finance Disclosure and Transparency, the Legislature amended General Laws Chapter 55, Section 18G so that any entity that makes an independent expenditure* in a political campaign (including a ballot-question campaign) has to publicly list the people who contributed $5,000.00 or more. This is one of the changes that has immediate effect, so it applies to the current state election campaign.

Compulsory-disclosure advocates such as Common Cause say that the goal is to help voters make “informed decisions,” prevent wealthy individuals from “secretly influencing” elections, and “hold corporations accountable.” It is no secret that people like Tom Steyer, Michael Bloomberg, George Soros, and the Koch brothers, spend large amounts of money on political campaigns; nor is it a secret that these big-dollar interventions are themselves subject of political debate and non-profit advocacy.

Prior to the new law, Massachusetts voters could already learn which organizations were making independent expenditures. For example, OCPF’s winter 2013 newsletter (page 2) explained that in the 2012 state elections the biggest independent-spender was none of the afore-mentioned billionaires, but rather the Massachusetts Teachers Association, closely followed by another union, SEIU 1199. One result of revised compulsory-disclosure law is that Massachusetts voters will promptly know the identities of some of the individuals — the ones who spend ≥$5,000 — behind the independently-funded political ads that precede Election Day.

Voters may well find it helpful to know who is paying for a particular piece of political propaganda. After all, show me who a man’s friends are, and I will tell you who he is, as Ralph Waldo Emerson said (I think). But compulsory-disclosure laws have come in for criticism not only because they arguably favor incumbents but also because of the way some organizations use the information to target and intimidate individuals who disagree with them, individuals such as Scott Eckern and Marjorie Christoffersen. Indeed, as this article in The Nation makes clear, the very purpose of “outing” donors is to apply public pressure so as to “shame them and hurt business” until they “stay on the sidelines” at election time. Given this explicit objective of chilling speech, it seems likely that opponents will challenge the constitutionality of the latest version of the compulsory-disclosure law in court.

*An independent expenditure is where people promote or oppose a candidate or cause independently, i.e. not by making a campaign contribution to a candidate or ballot-question committee.

Justin Sargent 1

Peter Vickery, Esq.

Climate Control

February 7, 2014

petervickery

defamation_mudslingingAs an ongoing case in the District of Columbia demonstrates, what other people think about us really does matter, whatever our parents may have said to the contrary when we were schoolchildren. Because each individual’s pursuit of happiness and a livelihood depends, to varying degrees, on the opinion of neighbors and colleagues, our reputations have value, which is why the law protects them against some forms of attack.

What degree of protection? The case I discuss below might surprise you. But first some background:

The First Amendment covers many forms of expression – such as parody, protest, and pornography – but not statements that are false and damaging. Intentionally saying something untruthful and damaging about another person orally (slander) or in permanent form (libel) constitutes defamation.

Most of us understand that there is a permanent, uncomfortable tension between free speech and freedom from harmful speech. We also appreciate that conversing in the public sphere is a civic virtue, even when the conversation turns critical or crude. But we are not always sure about where, exactly, speech slips across the boundary from civil to slanderous, from lawful to libelous. What is the precise location of that line? It shifts, according to the status of the plaintiff and the state of mind of the speaker.

One factor is whether the plaintiff is a public figure as opposed to an ordinary citizen who has not actively sought the spotlight. Public figures suing for defamation carry a heavy burden. They have to prove that the speaker knew that the statements were false or showed reckless disregard for their truth or falsity, a standard known as “actual malice.” Hyperbole and harsh opinions are endemic to meaningful discussion, and in this self-governing republic we prefer our debate heated, not chilled. If public figures do not like the heat they know where to find the kitchen door.

Using lawsuits to go after political opponents for what they have said deters people from participating in public discussion. Strategic lawsuits against public participation (the source of the acronym SLAPP) tend to chill speech so, to prevent such lawsuits, state legislatures across the country have enacted anti-SLAPP statutes. Among those jurisdictions is the District of Columbia, whose anti-SLAPP law requires a court to dismiss any claim that arises from “an act in furtherance of the right of advocacy on issues of public interest” unless the plaintiff “demonstrates that the claim is likely to succeed on the merits.” D.C. Code §16-5502.

Together, the “actual malice” requirement and anti-SLAPP statutes place significant hurdles in the path of public figures seeking to silence their critics. So if a public figure – a famous scientist, for example, who had joined the public debate around a controversial policy – came to my office after suffering harsh criticism impugning his integrity and competence and asked whether to sue for defamation, I would probably demur.

On the other hand, if he showed me a stack of published statements describing him as a careless, irresponsible, hypocritical, paranoid conspiracy theorist with a cavalier attitude to data analysis, guilty of planting crimes on other scientists, and whose employers should conduct an investigation of him, I would think again.

Those are the exact terms – including the phrase “planting crimes on others” – various critics have employed to describe Richard Lindzen, the atmospheric physicist who taught at MIT until his retirement last year. As a scientist, albeit retired, Richard Lindzen might wonder whether some of those statements were actionable.

But Richard Lindzen is not the scientist who is suing for defamation. That scientist is Michael E. Mann.

As readers may recall, back in 2009 somebody misappropriated emails from the University of East Anglia’s Climate Research Unit occasioning a scandal of sorts.  One of the emails mentioned Michael Mann and referred to one aspect of his work, rather ambiguously, as a “trick.” Professor Mann’s employer, Penn State University, investigated Mann (or, at least, interviewed him) and cleared him of three out of four charges. But a later investigation by the National Science Foundation criticized Penn State for “not adequately review[ing] the allegation” against Mann and for failing to interview critics of his work.

In 2012, writing in the conservative National Review Online, Mark Steyn quoted Rand Simberg’s previously published comment about Professor Mann, comparing Penn State’s investigation of Mann to its investigation of Jerry Sandusky:

“Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”

Mann sued Simberg, Steyn, and the two entities that published their statements. The defendants filed a motion to dismiss under the D.C. anti-SLAPP statute. The judge denied the motion. That threshold decision means that the case will go forward, with all parties incurring significant legal fees and the defendants facing the risk of a large damages award. Alternatively, the defendants may choose to pay Professor Mann to settle the matter short of trial.

According to the judge, Mann’s defamation claim is “likely to succeed on the merits.”  In stating that Mann had “molested and tortured data” Simberg and Steyn did more than express an opinion through rhetorical hyperbole, said the judge. Rather, they made “statements based on provably false facts.”  Therefore, the judge reasoned, Professor Mann would likely prevail at trial, meaning the court should deny the writers’ and publishers’ anti-SLAPP motion. The decision is troubling: not because falsely accusing scientists of deceptive practices is right, but because muzzling contrarians is wrong.

When applied to a distinguished scientist and his data, the words “molest” and “torture” may strike some readers as vulgar and others as amusing. Either way, the words are disparaging. Of course, any reasonable reader would understand that Simberg and Steyn were using a metaphor to convey an opinion. Data are not sentient beings, after all. They are capable of being tortured and molested only figuratively, not literally. But clearly the writers meant their statements to denigrate Professor Mann by implying that he had distorted the facts to suit his agenda, an allegation similar to the one Richard Lindzen’s critics throw about.

Does that mean the government, in its role as guarantor of Michael Mann’s reputational interests, should effectively ban them? If Richard Lindzen sued, should the government silence his critics too?

Perhaps climate science is the sole area of study where we already know all there is to know, where we have incontrovertible proof about not only what has already happened but also what will happen. Perhaps, but probably not.

From what I have read, it is beyond reasonable doubt that Earth’s climate is changing and that humans are contributing to that change. Assessments of the climate’s sensitivity and predictions about future global temperatures, however, do not seem quite so clear cut. Still less obvious are the most effective ways to adapt human behavior so as to reduce the risk that the changing climate poses to the species. This aspect of the climate-and-energy policy debate is not an open-and-shut case. Answers will emerge, if at all, through rigorous exchanges in the metaphorical marketplace of ideas.

Free speech begets better policies than censored speech. So when we favor some speech rights at the expense of others, there are trade-offs and real costs. For example, in copyright and trademark law we sacrifice some free speech in exchange for encouraging creativity and preventing consumer confusion. In attempting to strike the right balance courts use use the doctrine of fair use. Similarly, in the realm of reputation, in order to promote robust debate we require that public figures accept a greater degree of uncompensated denigration than private citizens have to endure. In the language of economics, when public figures endure ignominy and absorb its cost, society as a whole acquires a positive externality.

The trade-offs here are considerable. We can hold climate scientists harmless and insulate their reputations even when their predictions serve as the basis for policy decisions that could cause more damage than they prevent. That is the decision the judge made in Professor Mann’s case. We know that Simberg, Steyn, and their publishers are paying a heavy price. But what price will fall on society as a whole?

Simberg and Steyn wrote words that undermined the reputation of a famous scientist. They expressed an opinion that seems to fly in the face of the facts. If the case goes to trial, the central question for the court will be whether their allegations were baseless. But the deeper question for all of us is this: Should the law accord Simberg and Steyn’s speech the same level of protection it gives pornography, or a lower level; as much as flag-burning receives, or not so much; safeguards equal to those it grants the open advocacy of ethnic cleansing, or less than equal?

As we ponder these questions, it is worth bearing in mind whether our answers would be different if the aggrieved scientist was not Michael Mann but Richard LIndzen.

%d bloggers like this: