Month: October 2019

I’ve recently been looking into how the courts have been dealing with libel claims in which plaintiff alleges that defendant had made false accusations of sexual assault, sexual harassment, and the like. One question that sometimes arises is whether accusations of sexual impropriety are treated as speech on a matter of “public concern” or merely on a matter of “private concern.” In particular,

1. In some states, a defendant in a public-concern libel case gets extra procedural protections under the state’s “anti-SLAPP” statutes: For instance, the defendant may be able to (A) move to dismiss the case very early in the process, and prevail unless the plaintiff can show some real potential merit to the case, and (B) get attorney fees paid if the motion to dismiss is granted.
2. A defendant in a public-concern case can’t be held liable for presumed or punitive damages unless the plaintiff can prove the defendant knew his statement was false or at least was likely false (that’s the misnamed “actual malice” standard).
3. A defendant in a public-concern case can’t be held liable at all, even for proven compensatory damages, if he simply made a reasonable (nonnegligent) mistake. (In most states, that’s so even for private-concern cases, but some states may allow strict liability for libels on matters of purely private concern.)
4. If the statement is true, and plaintiff is suing for disclosure of private facts rather than libel, the plaintiff can only prevail if the statement is viewed as being on a matter of purely private concern.

Unfortunately, courts are all over the map in deciding whether speech is on a matter of public or private concern. That’s true when it comes to consumer complaints, to allegations of drug or alcohol abuse, and allegations of crime, including sex crimes. The Ninth Circuit, for instance, has held that, “[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern,” in a case where a solo blogger accused a court-appointed trustee of tax fraud in a bankruptcy reorganization of a company. Obsidian Fin. Grp., LLC v. Cox (9th Cir. 2014) (a case I litigated). The California Court of Appeal likewise held that including a plaintiff’s name in a leaflet containing a list of alleged rapists was speech on a matter of public concern. Carney v. Santa Cruz Women Against Rape (Cal. Ct. App. 1990).

The New Jersey Supreme Court, on the other hand, held that a person’s online allegation that his uncle had molested him when the person was a child was a matter of purely “private concern” for libel law purposes. W.J.A. v. D.A. (N.J. 2012). The Iowa Supreme Court held likewise in a similar case. Bierman v. Weier (Iowa 2013).

A Texas Court of Appeals decision handed down yesterday (written by Chief Justice Dori Contreras and joined by Justice Nora Longoria and Gregory T. Perkes) thus struck me as especially interesting, and sound. Here are some key excerpts (the briefs are available here):

In this interlocutory appeal, appellants Blaine Crews and Hannah Crews (the Crewses) appeal the trial court’s denial of their motion to dismiss a defamation per se claim brought by appellees Richard Galvan and Sonia Galvan (the Galvans)….

The Texas Legislature enacted the TCPA, “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” It protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern, i.e., “Strategic Lawsuits Against Public Participation,” commonly known as SLAPP suits, by providing a mechanism for summary disposition of such suits.

The TCPA provides a two-step procedure for early dismissal of claims brought to intimidate or to silence a defendant’s exercise of First Amendment rights. Under the first step, the movant seeking dismissal under the TCPA has the burden to show by a preponderance of the evidence that the nonmovant’s legal action is based on, relates to, or is in response to the movant’s exercise of the right of free speech, the right to petition, or the right of association. If the movant makes this showing, the burden shifts to the nonmovant to establish by “clear and specific evidence a prima facie case” for each essential element of the claim in question….

Here, [Blaine’s alleged libel] that: Richard had sex with Hannah when she was seventeen years old and prior to her senior year of high school; Richard was her youth minister and pastor; Richard sexually seduced Hannah under the pretense of spiritual healing; Richard offered Hannah help to heal spiritually and emotionally after her break up with her high school boyfriend; and Richard told Hannah she was entrusting him to help her heal by giving him her virginity. Under the Texas Penal Code, a sexual assault occurs if “the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser.” In such a scenario a person is legally unable to consent to sex.

Hannah and Blaine’s affidavits provide that Richard caused Hannah to submit to his sexual advances by exploiting her emotional dependence on him as her spiritual advisor. Thus, the statements complained of here concern alleged criminal conduct; therefore, the statements were made in connection with a matter of public concern. See Brady, 515 S.W.3d at 884; Campbell, 471 S.W.3d at 624; Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 59 (Tex. App. 2001) (“The possible commission of a crime and the resulting consequences are events of legitimate public concern.”); see also Cummins, 2015 WL 1641144, at *10 (noting that animal cruelty can be a matter of public concern because the penal code makes animal cruelty a criminal offense).

Furthermore, according to Hannah, since the alleged incidents between her and Richard occurred, she learned that Richard had “also been inappropriate with other girls [that Hannah knows], who were also teenagers at the time.” The statements by Blaine that the Galvans complain of relate to the safety, health, and well-being of the community because Richard is around to teenage women at his church and at his children’s school, and the type of coercion, manipulation, and abuse of power alleged by the Crewses could be repeated as a result of his interaction with young women at both institutions…. Clearly, sexual misconduct involving young vulnerable individuals are matters of public concern as they relate to health, safety, and community well-being, all included in the definition of “matters of public concern” under the TCPA….

The Galvans argue that, because the ten-year statute of limitations for the alleged offense had passed at the time of Blaine’s statements, the statements are no longer a matter of public concern. We disagree. The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against criminal charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Thus, the purpose of the statute of limitations is not conclusive on whether certain communications relate to a matter of public concern….

While we do not decide whether all alleged crimes are matters of public concern in perpetuity, we conclude that the alleged crime here continues to be a matter of public concern based on the factual allegations made by the Crewses….

Having determined that Richard’s defamation claim relates to Blaine’s exercise of his right to free speech, we next consider whether the Galvans established “by clear and specific evidence a prima facie case for each essential element” of his claim. To make this determination, we are to consider the pleadings and any supporting and opposing affidavits…. “Clear” has been defined as “unambiguous, sure, or free from doubt,” and “specific” is defined as explicit or relating to a particular named thing. “Prima facie case” refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. It is the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true….

The elements of defamation are: (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases…. As to the third element, … [b]ecause Richard was a private individual, rather than a public figure or official, Richard needed to present clear and specific evidence that Blaine was negligent….

Our review of the record reveals no allegations or assertions by the Galvans that Blaine was negligent. The Galvans never argued before the trial court—nor do they present any argument on appeal—that Blaine was negligent when he communicated the disputed statements. Moreover, the Galvans have never asserted that Blaine knew or should have known his statements were false.

On the contrary, the pleadings and affidavits by both parties indicate the opposite—Blaine learned of the underlying facts from his wife and then contacted Richard and Sonia to ask them about those facts. According to Blaine’s affidavit, Richard admitted to him that the allegations were true.

Hannah’s affidavit states that Richard admitted to Hannah’s mom that they had sex. Nowhere in their petition or in their affidavits do the Galvans state that they informed Blaine that any of the underlying statements were false, or that Blaine knew or should have known they were false. Therefore, Blaine was not negligent. Accordingly, the Galvans have failed to establish a prima facie case as to every element of their defamation action, and the claim must be dismissed under the TCPA….

Section 27.009 of the Texas Civil Practice and Remedies Code mandates that if an action is dismissed under the TCPA, the trial court “shall award to the moving party court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require.” … [We remand the case to the trial court] to determine the amount of court costs, attorney’s fees, and other expenses that should be awarded to the Crewses ….

Note that the Galvans’ brief acknowledges that “In 2007, Richard Galvan and Hannah Crews were in a personal relationship,” but argues that “Appellants’ complained-of communications egregiously misconstrue the 2007 relationship: The ‘gist’ of the 2007 relationship did not amount to ‘manipulation and seduction,’ so the complained-of communication is not substantially true and is thus false.”

It looks like the disclosure of private facts claim will still need to be litigated in trial court, but the holding that the allegations were on a matter of public concern should be fatal to that claim as well. The Galvans also have a civil assault and intentional infliction of emotional distress claim against Blaine Crews:

The Galvans further alleged that Blaine told Richard that: “he would have put a bullet” in Richard’s head “if Defendant Blaine Crews knew Defendant Hannah Crews in 2007”; the “phone call would not be the end”; Richard’s children “would learn as well”; and that Richard will find out what Blaine “is going to do to him.”

Presumably that claim remains to be litigated.

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This is John Stossel’s full interview with Democratic Presidential candidate Tulsi Gabbard. To watch an excerpted version, click here.

Rep. Tulsi Gabbard (D–Hawaii) will be in the Democratic debate next week. John Stossel says that’s good, because she’s different from the other Democrats. 

One difference is that she served in Iraq, and now pushes for ending wars. “We have to honor our servicemen and women by only sending them on missions that are worthy of their sacrifice,” Gabbard tells Stossel.

Instead, American interventions are often open-ended. “There’s seldom a discussion that I’ve heard about what is our mission,” Stossel says.

“Exactly! That’s exactly the problem…what is the clear, achievable goal?” Gabbard responds. She says her Afghanistan policy would have been: “Go in. Defeat Al-Qaeda. Get out.”

Gabbard also says: talk with our enemies. She met with Syria’s dictator. The media and other Democratic candidates give her grief for that. 

CNN’s Chris Cuomo lectured her: “You need to acknowledge that Bashar al-Assad is a murderous despot.”

Kamala Harris called Gabbard an “Assad apologist.”

“What’s going on with your party?” Stossel asks Gabbard. “Democrats used to the antiwar party.”

Gabbard responds that both parties are “heavily influenced by the foreign policy establishment…whose whole power base is built around continuing this status quo. So much so to the point where when I’m calling for an end to these wasteful wars, they’re saying, ‘well, gosh, Tulsi, why are you such an isolationist.’ As though the only way that we can relate with other countries in the world is by bombing them, or by putting crippling economic sanctions in place.”

Stossel also asks Gabbard about taking down a Democratic front-runner. In the fourth debate, she criticized Kamala Harris for her history of jailing people.

“She put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana,” Gabbard said in the debate.  

That moment changed the race. Harris lead in the betting at ElectionBettingOdds.com, with a 26% chance of winning the nomination. During the debate, she fell seven points. 10 days later, another seven points.  

“You killed her off,” Stossel says.

“I’m for the people, man,” Gabbard replies, laughing. “I was speaking the truth, and speaking for a lot of people.”

Gabbard and Stossel argue, too. Like most democrats, Gabbard would spend billions on expensive new programs. She backs Medicare for All and free college.

“Don’t you think colleges already waste a lot of money?” Stossel asks.

Gabbard agrees, “They do. Absolutely. Why is it costing more and more and more every single year?”

“Look how much more it will cost when it’s free,” says Stossel.

Gabbard responds, “We have to deal with…the root cause of the problem. One of which is…how much administrators of a lot of these colleges are being paid or overpaid.”

Stossel and Gabbard also argue over her proposal for a $15 minimum wage.

“How does that not destroy opportunity for a 17-year-old in his first job who isn’t worth $15 an hour?” Stossel asks.

“I think we’re looking at this as an investment in people,” Gabbard answers. 

In the end, Stossel says, “I’m glad we could have a civil argument about some of these areas where we disagree. Few politicians want to do that anymore.”

She adds: “Look, I love my country. You love our country. Let’s come together as Americans with appreciation for our Constitution, our freedoms, civil liberties and rights, and have this civil discourse and dialogue about how we can move forward together.”

The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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In prior posts I have offered a dismal view on why it will be difficult for the U.S. to shed the “mass incarceration” label.  Nonetheless, even an impossible situation has degrees of badness, and the size of the task is no excuse for not trying to get better.  As noted earlier, some progress has been made in reducing inmate populations; but to continue to make gains will require a sustained and coordinated effort from all actors in the system.

A threshold problem is that the list of actors who need to coordinate their efforts is long.  As James Foreman, Jr., puts it:

The police make arrests, pretrial service agencies recommend bond, prosecutors make charging decisions, defense lawyers defend (sometimes), juries adjudicate (in the rare case that doesn’t plead), legislatures establish the sentence ranges, judges impose sentences within these ranges, corrections departments run prisons, probation and parole officers supervise released offenders, and so on. The result is an almost absurdly disaggregated and uncoordinated criminal justice system.

In an effort to influence these scattered decisionmakers, reform efforts have targeted legislators, urging them to eliminate mandatory minimum sentences, lower the punishment for drug or property crimes, or soften the impact of three-strikes and truth-in-sentencing laws.  Other proposals target judges, encouraging them to use risk-assessment tools when sentencing or setting bail, or to more closely consider alternative sanctions rather than incarceration.  Still other reforms address probation and parole officers, police, and prison officials, all recommending changes in practice that will reduce the number of people being sent to prison, speed up the release time, or both.

Remarkably, the actor who is least likely to be the target of the reforms is almost surely the most important one—the prosecutor.  The prosecutor has complete discretion to decide who is charged and for what; has near complete control over which cases end in a guilty plea and on what terms; and has a significant role in deciding who is jailed prior to trial and who is released, all of which channel and shape the ultimate punishment a defendant will face.  And yet, as John Pfaff has observed, while prosecutors “have used [their] power to drive up prison populations, ….[t]o date … no state- or federal-level proposal aimed at cutting prison populations has sought to explicitly regulate this power…. [P]rosecutors have remained untouched.”

It’s not hard to figure out why.  Prosecutors have clout, and it is hard to get changes made to the justice system in the face of prosecutorial opposition (particularly if those changes involve greater regulation of prosecutors).  Prosecutors also have a judicially-enforced zone of discretion, within which they are free to act without fear of being overruled, even by the courts themselves.

So if prosecutors want to make frequent use of statutory three-strike provisions, or seek particular sentence enhancements, or file higher charges rather than lower charges, or recommend against probation as a sentence, they can do so regardless of the impact on incarceration rates.  Legislatures can channel this discretion to a degree by changing their sentencing laws or their substantive offenses, but the broad and overlapping reach of most criminal codes allows prosecutors to reach most of the ends they seek, including an appropriately severe sentence, in most criminal cases.

Despite this broad authority, incarceration reform efforts have not attempted to limit the charging power, have mostly maintained the prosecutor’s role in the sentencing process, and have left intact the near-complete power over the plea bargaining process—the straw that stirs the drink in the criminal system.  As a result, prosecutors may, if they wish, take steps to reduce incarceration rates, but they are not compelled to do so.

Of course, even if we leave prosecutors outside the reform efforts this does not mean that they necessarily will exercise their discretion in ways that increases the severity and frequency of incarceration. “Prosecutors” are not monolithic in their actions and attitudes,(recall the recent war of words between the Philadelphia D.A. and the U.S. Attorney for the Eastern District of Pennsylvania), and there are many prosecutors who have expressed their unhappiness with the status quo.

Still, prosecutors suffer the same confirmation bias as everyone else; like most of us, they believe that they do their jobs honorably and properly, and that their professional choices make things better, not worse.  And so the moral basis for sentencing reform—that is “unnecessary” (and therefore unjust) to lock up this many people for this number of years—is likely to be less convincing to prosecutors, especially when they collectively have played such a significant role in creating the current state of affairs.

This is not to argue that prosecutors are the sole or even the dominant cause of high incarceration rates; Jeffrey Bellin, for example, has cogently argued that the “primary culprits” of the incarceration problem are judges and legislatures.  The point is simply that prosecutors play a highly important role, that that states have struggled to find ways to harness the prosecutors’ powers to bring about change, and that unlike other actors in the system, prosecutors are involved in the effort to reduce incarceration levels as a matter of grace, not as a matter of command.

Conclusion

James Forman, Jr., has noted that “[m]ass incarceration wasn’t created overnight; its components were assembled piecemeal over a forty-year period.”  Unwinding the missteps and excesses is likely to take at least that long.  But even assuming societal patience with the task, there is nothing inevitable about a long-term decrease in incarceration.  Extremely hard choices have to be made—are we willing to release those who commit violent crimes earlier than we do now?—and the declining crime rate of the last 20 years that have made reform politically feasible will not last forever.

The recent decrease in incarnation levels is encouraging, but sustained change will surely require a greater engagement by prosecutors.  Formal restrictions on their role are not likely to materialize (and may not, in the long run, even be a good idea), which leaves persuasion and cooperation as the tools of engagement.  If prosecutors are convinced that incarceration is an over-used tool, there is reason to hope that the prison system can become permanently smaller and more effective.  If not, it seems likely that the label of mass incarceration will continue to apply for a very long time to come.

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