Is that an oxymoron,
restricting something that should be free?
If you're not
an absolutist on free speech, where should we draw the line, or
lines?
Should Conlawprofs
be any greater believers in free speech than others, because we teach the
leading cases?
All the normative
questions, about which more below.
Years ago I
read an anecdote that came out of the Pentagon Papers case where the
government tried to prevent the NY Times from publishing these heretofore secret
purloined papers that either cast doubt on or gave the lie to our reasons
justifying sending boys to die in Vietnam. After the lawyer for the NYT
perhaps conceded something, maybe the argument that sufficient 'national
security' would justify a prior restraint, one justice is said to have remarked
to another that it was too bad the Times couldn't have hired a lawyer who
believed in free speech.
That stuck with me
and made me think you had to somehow 'believe' in free speech in order to
understand or teach the law on it. Having finished my first year
teaching Conlaw after a lifetime of general practice (I was admitted in 1967,
CA), I realized I was having trouble getting my head around First Amendment
law. There was too much of it. It was kaleidoscopic. No matter
what restriction existed, or was proposed, on free speech, it seemed there were
always sixteen other considerations for and against, when there weren't
thirty-two. The ability of free speech concepts to morph into one another
when they weren't colliding is amazing.
I asked a leading
thinker on the topic what he thought of this idea of 'believing' in free
speech. "That's not the way I think about it," he replied, leaving me to
fend for myself. Okay, I'm used to doing that.
So then Eugene asked
us here what we thought about Katy suing Max for disparaging her on his website
and linking to hers. She's a former girlfriend of his, and a Miss Vermont
to boot. A local Florida judge restrained him from writing about her any
more. He'd allegedly posted an article on his web site purporting to
describe the details of his intimate, as in steamily sexual, encounter with Katy
only five hours after meeting her in a gym, and beginning (the sex) in a
public mall before repairing to a nearby car.
The prior restraint
aspect, which was reported by Adam Liptak in the Times, drew some comment along
the lines of 'thank goodness we have appeals courts.' The ruling was wrong
on its face, in other words, to some, and I agreed, but then thought better of
it. After all, we're conlawprofs, not supposed to take anything at face
value, otherwise we have to turn in our wings.
I decided to take a
shot at listing the arguments I was able to think up favoring the
injunction. Getting into discussions on topics of interest is
something I like to participate in. It's how I learn. On
Eugene's blog I saw a cite to a law review article he wrote on the subject
of restricting free speech and the various implications. I've spent
sizable portions of the past three days reading the thing. 52 Stanford L.
Rev. 1049 (2000). 109 pages. 50 pages of footnotes. 59
pages of analysis and discussion. Pretty amazing, to me, as I haven't read
a law review article in decades. I admire Eugene's approach.
Ask a question, should some restriction be allowed, and follow the
implications. That's why the article is so long, because the subject is so
broad and kaleidoscopic. There are innumerable facets.
In the end, the
argument comes down to whether you believe the proposed restriction, offered for
lo, these many good reasons, is good enough to withstand its potential for
eating up the rule.
Or are we going to
salami-tactic the First Amendment the way we did the Fourth. That's my
analogy, not Eugene's. Some of us in criminal practice feel the guaranty
against unreasonable search and seizure is a pretty tattered cloth as the result
of the war on drugs.
There's one more
argument supporting Katy's TRO against Max that hadn't occurred to me, but is
suggested by Eugene's article. Eugene points out that many proposed
restrictions, which means government tells you what you cannot say, under force
of law, create this problem of the exception to free speech eating up the
rule. However, there is one exception, or restriction, where that
does not seem to be such a big risk, and that is where the parties have agreed
to keep their mouths shut about something. We do this all the time without
having a big problem about it.
For example,
attorneys agree to keep mum about client confidences, as do doctors
and priests. We even have laws enforcing the
silence.
We also have laws
protecting trade secrets. If I'm buying your company and you show me
around your plant and disclose certain secret processes, I'm not supposed to
reveal them, and if I do I can be held liable.
By agreement,
express or implied, I'm restricted in my right to communicate true facts I've
learned by this intimate business relationship I have with
you.
If that is the rule
in the commercial setting, to protect your right to continue to make a living
and to sell your business, why shouldn't there be a similar rule which would
apply in intimate personal settings.
Individuals enter
intimate personal relations in which they reveal details of their lives to their
new partner. Sexual relations are often a part of their association.
These are usually conducted in great privacy. By conducting intimate
aspects of personal relationships in private, both parties signal agreement that
either the fact of the relationship or its details, or both, should be kept
private, not just for the duration of the relationship, but for all time, unless
and until revealed by consent. Publicly going around together, and
marriage, are public expressions, in varying degrees, of acknowledged levels of
intimacy.
As a matter of
convention, we dishonor those who kiss and tell, but uphold as paragons those
who are discreet, meaning they know how to keep their mouths shut and
do.
If such a social
convention exists, and I say it does, even tho' I also know it is honored in the
breach, as evidenced by the concept of gossip, why should the law not recognize
egregious breaches, such as what Max was writing about Katy? Someone
kindly provided the link here and the writeup was beyond ungentlemanly in its
graphic disclosures.
Max had no privilege
to disclose the steamy details of the sexual aspect of his relationship with
Katy to strangers. He might have been privileged to tell a friend who was
thinking of asking her out, "Watch out for her," but tell the world? On
what theory of justification other than to harass an ex-girlfriend? I
suggest Max broke their unwritten, unspoken agreement not to reveal
intimate details of their relationship, otherwise she wouldn't have entered it,
and others may be deterred from entering intimate associations as well, if
they suspect their new friend is apt to reprise the details on the Web when the
bloom is off the rose.
Suppose Max had
surreptitiously videotaped their sexual encounter and put that on the Web?
Is he privileged to do that? Is Katy, having gotten wind of his tape and
intentions after their sexual encounter entitled to request the protection of a
court by a TRO? If so, then why not prohibit the graphic recounting of the
details verbally as opposed to running the tape? He asked in true
Conlawprof style.
I note in
yesterday's news (I didn't get the cite) the U.S. Attorneys Office in Manhattan
sought to obtain statements of a public relations consulting firm hired either
by an unnamed prominent person under investigation, or his/her attorney,
for assistance in dealing with the press in a high profile case. I note
that Martha Stewart was indicted yesterday for alleged stock market related
activity but don't know whether she is the prominent person, or someone else in
that case, or some other case. As I recall, the U.S. district court upheld
the confidentiality privilege of the PR firm as being essential to help the
lawyer advise the client in how to deal with the media. I see the
protection of confidentiality as being a restriction on communication; even the
government cannot pry it loose, not even with a grand jury subpena. As I
say, the subject of free speech is kaleidoscopic, with no shortage of example
and counter-example, all illustrating some grand rule upholding or denying
communication, generally speaking.
What I've learned
from all this is that there is, or must be, a core belief that probably
exists if one professes to teach about the law of free speech. If you
believe it is important, in maintaining the freedom to communicate broadly, you
must believe it relatively inconsequential that a few people are harmed along
the way, people like Katy at the keyboard of Max. If you believe the law
has room to protect individuals in their feelings, reputations, and reasonable
expectations, or against annoyance, harassment and vendetta, while still
protecting freedom to communicate broadly in general, the idea of restricting
Max, say on an implied contract theory, doesn't seem bad at
all.
Well, as I suggested
earlier, I thought there was more to this picture than seemed apparent at first
glance. I'm grateful to Eugene for all the work he did in surveying the
subject a few years ago; it was the help I needed in trying to get my head
around a broad area of law. Interestingly, I note he refers to a 'slippery
slope' argument in this 2000 article, referring to the idea that once you get
started down a path you run the risk of going further than intended,
i.e the risk of having your valued principle salami-sliced to
perdition. He follows this up with a new law review article, at
Harvard this time as I recall, analyzing what it means to be involved in
slippery slope arguing. I don't have the URLs handy for these right
now; perhaps Eugene wouldn't mind posting them here one of these days.
I've looked at both and what I like about them is his sense of wondering
about something in the law that doesn't often get written about, especially from
an overview standpoint, and then wailing (or maybe waling or whaling) the living
daylights out of every conceivable legal aspect to be found in the cases or the
mind of man, except what we dream up in addition as spurred by his
articles, of course.
Incidentally, Eugene
uses 'normatively' sparingly, thank goodness, and 'cabined' or 'uncabinable'
somewhat less sparingly. Banishing 'to cabin' from the language wouldn't
do violence to any sense of word-justice I have; in fact I'm trying to decide
whether the premeditated use of the term should be an infraction, a
misdemeanor or a felony. I'm convinced that only law professors use
'normatively' (I think it means 'should' as in norm-generating). Anyone
who uses 'normatively' more than twice other than in protesting its overuse may
need to reexamine his outlook on life. Justice O'Connor used 'cabined' in
one of her opinions. Breyer, too. I don't know who's to blame for
that. When we 'cabin' some poor concept, are we talking
Lincoln-log-cabins, boat cabins, cabinets, cigar boxes, or what? I guess
'to cabin' something means to box it in somehow, which is supposed to make it
less unappealing. Cabins have doors, windows, loopholes, chimneys, and burn
down, which may be why there are so few of them around these days. Burn
cabins, I say. A peculiarly Conlaw word, but to each his own, at
least until I get them outlawed.
Yours in free
speech,
Bob
Sheridan
SFLS
