The Convicium Approach to Defamation

Earlier, I blogged about a Yankee fan, Andrew Rector, who is suing ESPN and several announcers for defamation after they made remarks about him sleeping during a game. In that post, I argued that Rector's complaint was doomed on the merits, in part because the defamatory statements he described in his complaint were statements of opinion rather than false statements of fact.

Looking back, I may have been too harsh to argue that Rector's lawsuit was meritless. Instead, Rector seems to have simply filed his lawsuit in an untimely manner, and in the wrong court. R.H. Helmholz explains further, in his book, Roman Canon Law in Reformation England:

The sixteenth and seventeenth-century ecclesiastical courts carried further a change that had begun at the same time their jurisdiction over imputations of secular crimes were beginning to be attacked in the last quarter of the fifteenth century. That was to permit actions to be brought for convicium. Convicium meant abusive and hurtful language which did not, however, necessarily impute the commission of a crime. Post-Reformation practice built upon and expanded this change. Thus one finds imputations that were in truth no more than insults -- words like "whore of thy tongue" -- appearing in the act book records. It became possible to invoke ecclesiastical jurisdiction when one had been called merely "a hypocrite", "a false knave", "a cozener", or "a scurvy drunken baggage". To say that a man had "no more conscience than a dog", or even that he "went to church to pray for his dog", could amount to actionable convicium. None of these abusive but unincriminating phrases would have been actionable under the Provincial Constitution of 1222 that had dominated medieval practice. That Constitution required the imputation of a crime and the requirement had had the effect of limiting the number of defamation causes the Church courts heard. This development removed that limit. 

Behind the new remedy lay the theory that any words uttered out of malice and against "fraternal charity" should subject the speaker to ecclesiastical jurisdiction and discipline just as surely as those which expressly imputed a crime. In the act books, these causes were sometimes expressly styled as being undertaken "for the reformation of manners". . . . Defining what words might be said to offend "fraternal charity" is not an easy thing to do, and contemporary civilians did not offer precise definition. (58-59) (footnotes omitted)

Rector complained that he had been called words like "stupor, fatty, unintelligent, [and] stupid," by commentators. These terms would almost certainly be characterized as statements of opinion. While statements of opinion like these are not actionable under modern defamation law, it would appear that Rector would have a pretty good claim for convicium. While I did not hear any announcers call Rector "a false knave," or "a scurvy drunken baggage," the insults he is claiming are in the same vein as these examples of actionable convicium.

Admittedly, Rector filed his lawsuit a little bit too late. He would have been best off filing this lawsuit in the 16th or 17th century when convicium actions were more commonly accepted. Also, Rector filed his lawsuit in a New York trial court, where his convicium claim would probably fail. Rector would be better off filing his complaint in an English ecclesiastical court.

But in light of my discovery of the strategy Rector may have intended to pursue, I may have been overly hasty to claim that his lawsuit was meritless. On paper, Rector raises a decent convicium claim -- he's simply filed the lawsuit in the wrong court and in an untimely manner.

North Carolina Students Use 26th Amendment to Challenge Voter ID Law

I recently heard about this story in the New York Times detailing a lawsuit challenging North Carolina's statute requiring people to provide photo identification when voting. The Times describes North Carolina's law:

Under the North Carolina law passed last year, the period for early voting was shortened and same-day registration was eliminated. Beginning in 2016, voters will need to show photo identification, and student ID cards, including those issued by state universities, will not be acceptable. In most instances, neither will an out-of-state driver’s license. 

The law also eliminated a program in which teenagers filled out their voter-registration forms early and were automatically registered when they turned 18.

The link to the story contained the words in the subtitle: "College Students Claim Voter ID Laws Discriminate Based on Age." I was initially skeptical, since age is not a suspect classification and laws that discriminate based on age are not likely to be overturned for being discriminatory.

But my skepticism was based on doctrine that stems from the Fourteenth Amendment's Equal Protection Clause. While the plaintiffs challenging North Carolina's Voter ID law are arguing that the law violates the Equal Protection Clause, they are also taking a novel approach based on the 26th Amendment. From the Times:

[L]awyers for seven college students and three voter-registration advocates are making the novel constitutional argument that the law violates the 26th Amendment, which lowered the voting age to 18 from 21. The amendment also declares that the right to vote “shall not be denied or abridged by the United States or any state on account of age.” 

There has never been a case like it, and if the students succeed, it will open another front in what has become a highly partisan battle over voting rights.

I'm not sure whether the students will succeed with this argument. Given the lack of established case law or standards governing 26th Amendment lawsuits, I don't think anybody knows how the court will treat this theory. It will be interesting to see how the court handles the argument, and whether similar lawsuits will be filed in other states.

Also, Ann Coulter isn't going to be happy about this.

How Not to Sue for Defamation (And How Not to Draft a Complaint)

From Deadspin, I learned of a delightful new lawsuit from New York. The Deadspin post's title, "Yankees Fan Caught Sleeping in Stands Sues Everyone for Defamation," sums up the lawsuit nicely.

Here is the video that gave rise to the lawsuit, where ESPN Announcers Dan Shulman and John Kruk (or "Kruck" - according to parts of the complaint) discover and comment on the plaintiff, Andrew Rector:



Through the magic of Scribd, a portion of the complaint is available. I say "a portion" because the document does not include a claim for damages nor does it appear to have a space for the plaintiff's attorney to sign. But even though the document purports to be the statement of facts for the lawsuit, the final paragraphs of the document veer into discussions of the plaintiff's legal theory, so at least something can be said about the merits of the claim. Moreover, CBS reports that the plaintiff is seeking 10 million dollars in damages.

How solid is Rector's claim?

Should Judge Posner be Recused from Anti-Abortion Speech Cases?

Gerard Magliocca raises this question over at Concurring Opinions in light of Judge Richard Posner's article at Slate, where he comments on McCullen v. Coakley. In McCullen, the Court struck down a Massachusetts law that prohibited people from standing within 35 feet of the entrance to reproductive health care facilities. The law was enacted in light of protesters who would approach patients seeking abortions and attempt to deter them from undertaking the procedure.

The Court held that the 35-foot buffer zone violated the First Amendment. Even though the law did not regulate the content of speech, the First Amendment required the law to be "narrowly tailored to serve a significant governmental interest." The 35-foot buffer zone was too broad, since the state could have chosen to prosecute those protesters who harassed or intimidated women seeking abortions, or gotten injunctions against specific people or groups who were particularly disruptive.

Magliocca suggests that counsel in any cases involving laws restricting the speech of those protesting abortion should file a motion seeking Judge Richard Posner's critical commentary of the Court's decision. Posner, in his commentary, writes:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

28 U.S.C. § 455(a) states: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Magliocca argues that Posner's remarks in the article raise reasonable questions about whether he can be impartial toward anti-abortion protesters.

What would Posner think about a motion for his recusal based on opinions he's expressed outside the courtroom? In an interview with Posner, published in the American Bar Association Journal, Joel Cohen raises this very question:

[Posner]: I don't have a reputation for being vengeful, do I? 

[Cohen]: I'm not suggesting that. I'm suggesting if I were a litigant before you and you had written articles containing, shall I say, some vitriol about a position that I might want to articulate in your courtroom, I might want to get you off the case. It would be easier for me if I were rarely before your court. It seems to me when you write, as you do so frequently, it could raise an issue that might concern litigants. Whether they make a recusal motion or not, they might wonder if they'll get a fair shake before a judge with so many, many opinions as you have. 

[Posner]: The fallacy, I think, in what you're saying is the concept of the fair shake. I don't think people have the right to a tabula rasa—some total ignoramus who's never thought about any of the issues. And if you've thought about them, you have opinions. Why shouldn't you express them? You have to be ready to change them obviously. But you give people useful information by telling them what you think.

From this answer in the interview, it looks like Posner would not be very receptive to the motion that Magliocca suggests. Posner may argue that his article in Slate does not foreclose the possibility that he will change his opinions, so it is not reasonable to question whether he will be impartial in anti-abortion protest cases. And Posner may also point out that it is better for parties to know what he thinks, since this information may be useful.

I am not sure that this explanation could overcome concerns raised by Posner's commenting that certain parties are "nuts" and that their contribution to the marketplace of ideas is "negligible." While Posner may hold these opinions, committing them to writing and publishing them on Slate indicates that these opinions are probably more solidly-held than other opinions than ones he would not be willing to argue to the public. And while it may be useful for parties to know what judges think, it is not immediately clear to me how parties can make constructive use of the knowledge that Posner thinks they are "nuts."

Old School Judicial Activism in the Ecclesiastical Courts

I recently got a copy of R.H. Helmholz's Roman Canon Law in Reformation England, and I have been reading in the brief intervals of spare time I have between long stretches of memorizing law and attempting to find a new apartment.

Helmholz points out that statutory interpretation in the medieval ecclesiastical courts was characterized by judges and practitioners taking aggressive liberties with statutory interpretation and often departing from the words of the relevant texts. He describes the law of wills as an example of this chaos:

Instances of the freedom which medieval jurists felt in dealing with the texts abound in the literature, but a particularly instructive example is provided by one of the questions already mentioned, on which English practice diverged from the formal texts. That is the question of how many witnesses must be present at the execution to allow a court to treat a last will and testament as legally valid. The texts of the two papal decretals on the subject seem clear enough. There must have been two trustworthy witnesses plus the parish priest present at the time an ordinary last will and testament was made for it to be probated. If a bequest ad pias causas were at issue, however, then the presence and testimony of "two or three legitimate witnesses" would suffice. 

These two decretals never functioned as modern lawyers expect statutes to. In the hands of medieval commentators, they and the Roman law on the subject led to speculation, distinction, and disagreement. How many witnesses were required became a quaestio dubitabilis, a quaestio perdifficilis. On the one hand, the civil law's rules requiring the solemnity and certainty afforded by several witnesses were evidently "just and for the common utility." Perhaps they were to be preferred. On the other hand, the law's paramount goal was to establish and enforce the testator's last true wishes, and the testimony of two persons or sometimes even fewer ordinarily sufficed to do this. At least in the forum of men's conscience nothing mattered except the intentions of the testator, and this implied a more relaxed standard, perhaps more relaxed than that provided in the two decretals. Antonius de Butrio (d.1408), for instance, held that the testimony of only two unimpeachable witnesses would be enough. He reasoned that the undelrying rationale, "the mind" of the decretal was what counted, and that the mention of the parish priest was a matter of accident, not substance. Hence two witnesses sufficed. Other canonists took a stricter view, some even holding that a higher standard than that found in the decretal should be required. (12-14) (footnotes omitted)

One of the most notable contemporary trends in legal thinking is a shift toward an "originalist" approach to reading law and interpreting cases. Originalism, crudely stated, is the philosophy that laws and cases should be construed in accordance with their plain meaning as understood at the time the laws were drafted and the cases decided. Justice Antonin Scalia is one of the most notable proponents of this approach, and he sets forth a detailed originalist approach in his book, Reading Law: The Interpretation of Legal Texts.

Scalia worries that an alternative approach would lead to judges imposing their own views on what the law means, and that "nine unelected lawyers living in a marble palace" should not be entrusted with this role. In the absence of originalism, Scalia worries that the absence of guiding principles could lead to uncertain and undemocratic results.

Would courts devolve to the level of ecclesiastical courts' divergent treatments of laws in the absence of an originalist philosophy? Probably not. But the confusing network papal decretal interpretations in the ecclesiastical courts shows that modern complaints of judicial activism are somewhat lacking in old school outrageousness.

In any event, I am happy that I am not learning about the ecclesiastical approach to the law of wills. California takes a two-(disinterested)-witness approach -- hold the priest -- and that's all I need to know about that particular part of the law.

Wall Street Journal Law Blog Issue-Spots Potential Federal Courts Exam Question

When I was in law school, one of my hobbies was attempting to predict the content of law school exams. I've been fairly successful in predicting exam questions, and I go into more detail here on how students may go about predicting the content of exams.

Here, I would like to offer a specific prediction about next year's exams: I think that there is a good chance that federal courts classes offered during the upcoming fall semester may include House Speaker John Boehner's plan to sue President Obama as a fact pattern. Boehner has stated that President Obama's use of executive orders is unconstitutional and plans to sue, claiming that the President has "not faithfully executed the law."

Going into the potential causes of action Boehner may claim and addressing the merits of the lawsuit is something I don't have the time to do in this post. But I would direct those interested in learning more to the Wall Street Journal Law Blog's informative post on the lawsuit, which concisely outlines many of the potential avenues the lawsuit may take and the obstacles it may face.

Students in particular may want to look over the Journal's post, since its coverage of the various facets of the case provides a good outline for a possible issue-spotting answer to an exam question that asks students to discuss the merits of the lawsuit.

I think that this issue is likely to come up on fall federal courts exams because it is a rare example of media coverage of a lawsuit that primarily revolves around federal courts questions. While issues of standing and political questions are often too technical for mainstream media coverage, this case is being aggressively publicized (probably for political purposes), and the high profile nature of the parties involved has gotten the attention of many national news outlets. There is a possibility that this issue could be tested in the spring, but that may depend on whether this lawsuit continues to attract coverage.

Of course, if this issue continues to draw media attention, it might become so well-known that it would not be a practical item to include on the exam. If most students have heard about the lawsuit and read ongoing, in-depth media coverage, this could end up leading to uniformly thorough answers. As a caveat to this caveat: some media outlets may cover this issue more than others, and continuing coverage by select networks (especially those that are not frequented by most law students or professors) shouldn't count too much against the probability of this issue being tested.

While predicting exams is no science, a newsworthy lawsuit in an under-publicized area of law coupled by a nifty blog post that issue-spots the lawsuit is probably worth a moment of a student's attention.

Some Strange California Bar Examination Administration Rules

In preparation for the California Bar Exam, I looked over the Examination Administration Rules, Policies and Procedures. I noticed that some of the rules seem pointless, oppressive, or quirky, and I have reproduced a list of some of these rules below. All of these rules are taken from the form I link to above, and I've quoted them in the order that they appear in the document.

During the written sessions, you may bring only the following items into the examination room without prior approval; all items are subject to inspection: 

. . . 

2. Silent analog watches, non-digital timers and clocks measuring 4" x 4" or smaller; 

. . . 

4. Paper clips;

. . . 

8. Eyeglasses (no case);

9. Ear plugs or plastic material normally associated with the sport of swimming (must not
be connected); 

. . .

14. Cash, credit/debit cards that might be needed for the lunch break (you are not allowed to bring a wallet into the test center); . . . 

. . .

3. A pillow without a case; 

. . .

PLEASE NOTE: During the MBE sessions, you may not bring pens, rulers, paper clips, highlighters, back supports, pillows, bookstands or foot rests into the examination room. 

. . .

22. At laptop computer test centers, laptop computers may not be disconnected from electrical outlets or removed from the examination hall while the examination is in session, even if the applicant has completed the examination for that session. Applicants must wait until the examination session has concluded and applicants are dismissed before retrieving their machines.

To summarize: the State Bar of California seems very averse to containers of any kind. Wallets, glasses cases, and pillow cases are explicitly banned. This is a shame for those exam takers who have gone through all the trouble of writing outlines on the inside of their pillow cases as part of a plan to inconspicuously remove and consult the inside of the pillow cases on the day of the exam.

Students should not be dependent back supports, foot rests, or pillows since the Multistate Bar Examination (MBE) prohibits those items for no apparent reason. I also note, with some dismay, that paper clips are prohibited during the MBE as well, even though they are allowed on the written portion of the exam.

I must admit that I am excited to see how far students want to take Rule 9's "plastic material normally associated with the sport of swimming," language. On his blog, Luis Villa wonders whether snorkles would be allowed under this rule. I have the same question about inner tubes.

Also, I found this gem buried in the rules:

Applicants must make a good faith attempt to complete each portion of the examination for which they are present.

Remember, the violation of any of the Examination Administration Rules may lead to a finding that an exam-taker has violated the rules of the California State Bar. So in case students aren't already feeling pressure to do well on the exam, this sentence means that it is theoretically possible to do so poorly that you not only fail the bar exam, but violate the rules of the state bar in the process.

Good luck.