Bodywork

'The sex trade in Northern Ireland: the creation of a moral panic' (Institute of Criminology & Criminal Justice School of Law Queen’s University, Belfast Working Paper, December 2012) by Graham Ellison concisely questions the moral panic about 'body work' in Northern Ireland.

Ellison comments that

Sex work or prostitution – the term varies depending on one’s ideological leaning – has once again been thrust into the spotlight in Northern Ireland in the aftermath of Lord Morrow’s Human Trafficking Bill that has attracted intense publicity, including a recent BBC documentary. This Bill includes a raft of provisions to support victims of human trafficking, but the main focus of attention is Clause 4, which for the first time makes it a criminal offence to pay for sex using the services of a sex worker. The rationale here is that this will reduce ‘demand’ and sex workers will simply have to down tools and find something else to do with their time. However, Northern Ireland already has fairly robust penalties in place to deal with sexual trafficking: Since 2009 it is already an offence (punishable by a jail term) to knowingly procure sexual services from a trafficked victim, while existing law (rightfully) prohibits sexual activity with someone who is underage or otherwise vulnerable.

He argues, persuasively and concisely, that the law

is not required, conflates two very different issues (prostitution and trafficking), is premised on a particular abolitionist view of sex work that does not address the complexity of the issues; and is out of line with policy developments occurring elsewhere in the United Kingdom. Does Northern Ireland need this law? My answer is ‘No’ for the simple reason that the PSNI have enough powers to deal with trafficking and those who have been coerced into prostitution.

Ellison comments that

A similar proposal has already been rejected across the water by the Scottish Parliament (though a private members bill there is trying to slip it in by the back door) and also by the Westminster Parliament who felt that it was unworkable and ultimately counter-productive. In spite of all the fantasy stories about sexual trafficking into Northern Ireland there have been two prosecutions in the past decade, though it is debatable to what degree coercion or forced movement was involved in one of these cases (the technical definition of trafficking according to the Palermo Protocol). Lord Morrow’s Bill conflates (and confuses) prostitution with trafficking on the grounds that by removing one you also remove the other: In other words demand will fall. This is another conjecture.

There is not the slightest scrap of evidence that this law will have any effect on demand for the simple reason that prostitution and trafficking are different activities. Only a small minority of victims are trafficked globally for sexual exploitation; the biggest single arena for forced trafficking concerns seasonal agricultural labour. Would anyone seriously recommend ‘abolishing’ the agriculture industry in order to get rid of trafficking into the sector? Many immigrants to the UK (from recent EU accession states) have restrictions placed on where they can work, and at what. Ultimately debates about trafficking into the UK are ultimately debates about immigration; they have little if anything to do with sexual exploitation. In any case, there is strong evidence that for the determined trafficker tougher penalties increase the rewards: The higher the risk the more lucrative in financial terms the endeavour can be.

He goes on to argue that the proposed law

reflects a particular abolitionist perspective that draws on a strand of radical feminism and far-right Christian fundamentalism(that also adopts a particular stance on creationism, homosexuality, faith schools etc.). These have become joined in a rather unholy alliance. Abolitionists want to eradicate the entire sex industry (including pornography and what they perceive as other vices) and argue that all commercial sex equates to ‘rape’ pure and simple. They hold this to be the case for even consensual sexual commerce encounters. This is a position held by the PSNI who also adhere to this abolitionist perspective, with a number of senior officers also linking prostitution and rape.

He offers the mordant comment that

For abolitionists there can be no debate about this: Sex work should be made illegal with some even suggesting that men who pay for sex should be placed on the sex offenders register for life. However, at the extreme end of the scale a number of abolitionists go further and argue that ALL sexual activity that involves penetration – including consensual sex between husband and wife, boyfriend and girlfriend – can be characterised as rape and extreme violence against women. This of course is an ideological argument grounded in a particular view of patriarchal relations that I cannot address here, but it also suggests a rather narrow reading of sex work and in particular the ability of women (and men) to make choices. Speaking of men, where do male sex workers– either as providers to other men, or providers to women – feature in this abolitionist analysis? The short answer is that they don’t. More generally, however, this abolitionist perspective homogenises all sex work as involving the same characteristics and focuses almost exclusively street prostitution – but this represents only an estimated 10-15% of the total. It is, however, the aspect of sex work that can cause major problems, in terms of residents’ complaints, the issue of pimping, violence and drug abuse not to mention the spread of sexually transmitted diseases.  ...

In fact, many sex workers and many feminists and sex workers rights organisations who support them argue that they engage in sex work through ‘choice’ and deeply resent intrusions by men and abolitionist groups into how they choose to live their lives. Female sex workers interviewed for one major study felt that the activities of those groups and individuals who tried to ‘rescue’ them made their lives a misery. 

Moreover

The issue of trafficking and sexual exploitation has been talked up by a powerful constellation of lobbying and advocacy groups for their own perhaps well-meaning, but at times, dubious ends. There are too many groups with an financial and job security interest in perpetuating outlandish claims about the nature of the sex trade in Northern Ireland. These fantastical claims have been bolstered by highly inaccurate and misleading data from the PSNI and the NI Department of Justice as well as uncritical and sensationalist reporting in the local media (though in fairness the Belfast Telegraph, has attempted to introduce some sense of reason into this debate). The PSNI for example, have quoted statistics suggesting that prostitution is Northern Ireland’s largest commercial enterprise – this is just a nonsense claim, and is based on a series of unreliable estimates that are impossible to substantiate. Yet it was repeated unproblematically in a recent BBC Spotlight documentary. Why not just pull a figure out of a hat? Likewise, the force has claimed that Northern Ireland is the now THE biggest sex trafficking hub, with the highest demand for commercial sexual services in all of Europe and the UK! Yes that’s right, even bigger than Prague, London, Moscow, Budapest, Berlin, Paris, Amsterdam or any city you could care to mention. I am not sure on what ‘evidence’ this ridiculous claim is based, but the PSNI really need to get out and travel more.

He concludes that

Prostitution and sexual trafficking have assumed the status of a moral panic in Northern Ireland. Fantastical and unsubstantiated stories abound about the involvement of Russian, Chinese and Albanian mafia gangs in running vice rings (where are the prosecutions?); that local paramilitary groups are up to their eyes in sexual exploitation and trafficking (again where are the prosecutions?); and bizarrely the claim that men here spend over £500,000 per week on commercial sex (how was this figure compiled?). Official data about the scale or scope of the ‘problem’ are ambiguous and in any case difficult to come by. PSNI data are incomplete – strangely soliciting offences have never been recorded here until a clerical error was rectified in early 2011 – but in any case there have been no prosecutions for soliciting in almost two years. Both anecdotal and official data suggest that street prostitution is not a significant issue in Northern Ireland (for historic reasons to do with the conflict and the dangers of using public space, particularly at night) with sex work largely having been displaced into indoor establishments. Nevertheless, even the size of the indoor sector is comparatively small as far as can be ascertained. In spite of the hyperbole about Northern Ireland as a ‘high demand’ venue for sexual commerce, PSNI estimates (and I use the word cautiously) about the size of the commercial sex sector put the number of female sex workers operating across Northern Ireland at any one time at between 80 and 100.  ...

I fully accept that where trafficking for sexual exploitation occurs it should be dealt with – firmly. I have no doubt about that. However, as a social scientist I need evidence and surveying the terrain of sexual commerce in Northern Ireland this is sorely lacking. Moral panics and media frenzies do not make good legislation. We need a rational debate, without exaggerated and self-­serving claims from politicians, advocacy groups and the PSNI. I have made the point before and I will make it again: For all the talk about women involved in the sex industry as ‘victims’, there is no apparent appetite for actually speaking with them in order to assess what the real issues are and how these might be addressed.

Personality Rights

'The Laws of Image' by Samantha Barbas in New England Law Review (forthcoming) 1-65, comments that

We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others.

The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution of an area of law that I describe as the tort law of personal image. By the 1950s, a body of tort law – principally the privacy, publicity, and emotional distress torts, and a modernized defamation tort – had developed to protect a right to control one’s image and to be compensated for emotional and dignitary harms caused by interference with one’s public image. This law of image produced the phenomenon of the personal image lawsuit, in which individuals sued to vindicate or redress their images. The rise of personal image litigation over the course of the 20th century was driven by Americans’ increasing sense of protectiveness and possessiveness towards their public images and reputations.

This article offers an overview of the development of the image torts and personal image litigation in the United States. It offers a novel, alternative account of the history of tort law by linking it to developments in American culture. It explains how the law became a stage for, and participant in, the modern preoccupation with personal image, and how legal models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self-presentation.

Barbas states that

This article offers a broad overview of the development of the modern “image torts” and the phenomenon of personal image litigation. An intertwined history of the law, culture, and the self, it explores how the law became a stage for, and participant in, the modern preoccupation with personal image, and how tort law’s models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self-presentation.

Throughout the article, I refer to the concept of image – public image or personal image. Although the term “reputation” is familiar in the law, it is inadequate to describe the nature of the interests at stake in many legal disputes over invasion of privacy, unwanted publicity, and defamation. Reputation, a mode of social evaluation historically associated with stable and enduring communities, is based on appraisals and judgments accrued over time. Image, by contrast, is the representation of self that one constructs and presents in a world defined by mobility and relatively transient social relations: the fleeting contacts of the city, the momentary connections of the world wide web. When a person is depicted in the media in an embarrassing manner, she may be worried about her reputation among her peers, but she is also likely concerned with her image: the undesirable impression she has made on a mass audience, albeit faceless and unknown to her. She may resent not only that she has been portrayed negatively, but even more, the fact that she has lost control of her public image. The mass media have been regarded as one of the primary threats to personal image in modern times, and this article focuses on cases brought against media defendants. In these cases, the principle that one has a right to control one’s own image -- to be the primary author of one’s image -- was written, albeit with qualifications, into tort law.

The story of the modern tort law of image begins in the late 1800s, when new technologies of visual representation and the fragmented and unstable nature of interpersonal relations in the city generated new anxieties around image, identity, and self-presentation in public. In an environment characterized by fleeting encounters with strangers, where the mass media was beginning to assume a central place in social life, appearances, first impressions and images became matters of great individual and collective significance. It was in this milieu that courts and legal theorists began to discuss the possibility of a legal right to privacy. Although the right to privacy is often described as a “right to be let alone,” privacy was primarily understood, in the legal and popular discourse of the time, as a right to control one’s public image and to be compensated for the dignitary harms caused by unwanted and undesirable publicity. As Part One explains, the privacy tort was the legal manifestation of a nascent appearance-conscious, image-conscious culture.

The further development of the visual mass media, the rise of a consumer culture in the early 20th century, and the transitory nature of modern social relations heightened the cultural emphasis on personal image and the act of image-making. As individuals were unmoored from social institutions that had traditionally anchored personal identity, they conceived of themselves increasingly in terms of images and manufactured appearances. One’s identity came to be seen as congruent with the impressions and images one projected to the world, and the ability to control these surface representations regarded as essential to personal autonomy and self-definition. The 1930s and 40s saw the doctrinal expansion of the image torts and the rise of the personal image lawsuit -- a legal action, typically for invasion of privacy or defamation, often brought against the mass media. The harm alleged was that one’s feelings and dignity were injured when the media interfered with her perceived right to fashion her own public persona. As Part Two explains, by the 1950s, tort law had come to be regarded by many as a tool in the all-important project of image management.

Part Three describes the flourishing of the image society in the latter twentieth century, and the near-obsession with personal image that has been a defining feature of the recent American social experience. It tracks the rise of what of sociologists and critics have described an “other-directed” self – a modal personality type, ubiquitous in the affluent culture of postwar America, that was consumed with personal image and the act of constructing a pleasing public facade. In a highly individualistic society, one influenced by the ideals of psychotherapy and consumerism, the ability to freely shape one’s own public persona, to “express oneself” through one’s public appearance, and to maximize one’s success by transforming one’s image were bound up with prevailing ideals of self-fulfillment, self-enhancement, and freedom of choice. Personal image litigation increased in the last quarter of the twentieth century, as did the variety of legal pathways available to vindicate harms to one’s image, including a family of privacy torts, a “right of publicity,” and an independent tort action for emotional distress. The deeper Americans’ investment in their images, and the greater the perceived threats to personal image, the more instinctive the resort to the law to protect them. Freedom of speech notwithstanding, we remain committed to the idea that interference with one’s public image can, under many circumstances, violate important rights of personhood.

In describing this body of law as image torts, I do not want to suggest that the parties who made use of them were concerned only with their images. Many of the kinds of mass media misrepresentations that we will see produced feelings of shock, hurt and outrage that can be rightly understood as more than merely an interest in how one appeared to others. Yet in many cases, it is clear that what drove these feelings of personal insult and violation was a sense of image-consciousness. Defamations, embarrassing publications of private facts, and false representations before the public can and often do produce serious emotional and psychic injuries; they do so, in part, because we have put so much weight on our public images and freighted them with intense personal meaning and import.

I realize that some may take issue with my characterization of American law as especially solicitous of personal image. As many have pointed out, American privacy and defamation laws, limited by the First Amendment, do not protect the right to one’s image as extensively as in other parts of the world, particularly continental Europe. It is true that image laws in the United States have been substantially constrained by freedom of speech. These limitations represent another dimension, perhaps the flip side, of modern image consciousness. In a culture where images have been the currency of social exchange, where politics and social life have been mediated by images, the ability to freely disseminate images of individuals and public affairs has been linked to the “free and robust” public discussion said to be at the core of the First Amendment’s domain. The ideal of modern expressive freedom has cut both ways: it is the prerogative to express oneself through one’s image, and at the same time, the freedom to image others. The history of American image law is thus a saga of simultaneous expansion and contraction – the greater recognition of personal image rights and at the same time, their restriction. Much of the legal scholarship in this area has focused on the latter. This piece investigates the expansionary trend and suggests why we have a law of image in the first place.

Great Books and other fictions

Given that some undergrad students have trouble differentiating between a literary ilk, a literary elk and - damn you, Peter Jackson - a literary elf, we are in for fun.

I've been reading the author's promo for Jasper Jones, a 'young adult' novel that is apparently going to be mandatory reading at UC in the domestic version of Maynard Hutchins' 'Great Books' program at Chicago.

Author Craig Silvey will even be visiting the campus. Bryce Courtenay PhD (UC, 2012) is unavailable, having belatedly shuffled off to join Ethel M Dell, Owen Wister, Karl May, Ruby M Ayres and other literary giants.

Silvey informs us that

I had this insistent story buzzing with energy, but I was married to a sluggish behemoth that was burgeoning out of my grasp and gradually becoming more oblique in its scope and purpose. I had a decision to make: impulsively follow Jasper Jones down to his glade in the dead of night, or see this thing through which I instinctively knew wasn’t working. For a fastidious little man who stubbornly needs to shepherd things to their bitter end, the decision was a difficult one. But Jasper Jones was beckoning me all too urgently, and, like Charlie Bucktin, I followed Jasper through the town of Corrigan with trepidation. Fuelled by the guilt of shelving what was my second book, I embarked upon The-Year-Of-Getting-It-Done, a foetid haze of twelve hour days when I rarely saw sunlight, and sought every excuse to remain burrowed in my Quasimodo hovel of self-indulgence. Until eighteen months later, after Jasper Jones had gripped me so tightly in the beginning, I was finally prepared to let him go. I’ve always been attracted to Southern Gothic fiction. There’s something very warm and generous about those regional American writers like Twain and Lee and Capote, and it seemed to be a literary ilk that would lend itself well to the Australian condition. So I finished up with this strange little amalgam: a coming-of-age, regional mystery novel, stuffed inside a nervous little love story, garnished with family drama and adolescent escapism and anguish.

To adopt Dorothy Parker's tart dismissal of Winnie The Pooh, this ungenerous reader thwowed up. The promo's perhaps parodying Capote on one of his more deliquescent days -

• this insistent story buzzing with energy 

• I was married to a sluggish behemoth

• burgeoning out of my grasp and gradually becoming more oblique in its scope and purpose

• stubbornly needs to shepherd things to their bitter end, the decision was a difficult one 

• Jasper Jones was beckoning me all too urgently 

• Fuelled by the guilt of shelving what was my second book 

• a foetid haze of twelve hour days when I rarely saw sunlight [can't have too much foetid haze, especially if you're channelling William Faulkner]

•  remain burrowed in my Quasimodo hovel of self-indulgence  [crusty old buffer that I am, wasn't Quasimodo famous for skylarking at Notre Dame - "the bells, the bells" - rather than consorting with wombats and rabbits in their burrows, foetid or otherwise?]

• after Jasper Jones had gripped me so tightly in the beginning, I was finally prepared to let him go. [Somewhere in the burrow Jasper's stopped gripping the author and the author's started gripping him, apparently. Sounds very Francis Bacon] 

• it seemed to be a literary ilk that would lend itself well to the Australian condition

• I finished up with this strange little amalgam: a coming-of-age, regional mystery novel, stuffed inside a nervous little love story, garnished with family drama and adolescent escapism and anguish. [then doused in balsamic vinegar, and with a fries and salad on the side?]

UC indicates that

The book is required reading for all commencing students at the University of Canberra. A free copy of Jasper Jones will be provided to every commencing student regardless of their course, as well as all academic and professional staff at the university. The book will be available as a paperback or as an eBook. ...

[S]taff and students will love it. The book is required reading for all commencing students, and the themes and characters of the book will work their way into subjects, activities and campus life throughout 2013. We’ll even get a visit by the author, Craig Silvey, to hear about how he created this enthralling tale.

My ungenerous comments about Great Books Lite has resulted in a sharp intake of breath on the part of one reader and a pointer by another to some tart comments on Mr Courtenay.

Earlier this year the SMH profiled Mr C, with Jane Cadzow commenting

Flicking through the newspaper files, my eye is caught by a snippet about Courtenay competing in the 1996 Boston marathon. According to the report, he realised 35 kilometres into the race that he wasn't as fit as he should have been. Deciding the best tactic was to hook up with another runner, he fell into step with someone nearby and discovered that he, too, was a writer. The pair chatted intermittently until crossing the finish line, at which point Courtenay asked his new friend's name. "Stephen King," the guy replied.

I contact the office of the master of the chiller-thriller to check the details of the story. The email from King's executive assistant, Marsha De Filippo, is short and surprising: "Stephen has never run in the Boston marathon."

Oh dear. Let's move on. Cadzow continues -

it is still in my mind when I come across an account by Courtenay of how he came to migrate to Australia. "I was in a bar in Earls Court in London," he is quoted as saying, "and there was this unbelievably beautiful woman with a man you just knew was going to end up fat and bald. They were talking to each other about how Australia was a cultural desert that didn't appreciate their talent, which is why they'd come to the UK, and I was thinking, 'I don't have much talent, maybe that'd be okay for me.' Of course, it turned out they were Clive James and Germaine Greer."

The trouble is that Courtenay moved to Australia in 1958, several years before James and Greer went to England and became celebrated expatriates. Again, it could be an inconsequential error. Or it could be part of a pattern. ...

And

As a late-summer storm brews outside his living-room window, Courtenay tells me a well-polished anecdote about the time the manufacturers of Mortein threatened to dump McCann Erickson, the agency that then employed him, because their insect spray wasn't selling. Summoned to the office for an emergency meeting, he spent the 20-minute taxi ride jotting the outline of a new campaign on the back of an envelope: "I said to the cab driver, 'What's your name?' He said, 'Louie.' And I wrote this thing about a fly."

Visitors to the Mortein website can view a TV ad starring a fly called Louie that dates from 1957, before Courtenay got his start in the industry. He cannot have invented the character, as he has long claimed, but he did play a significant part in the creation of the singing Louie that first appeared on our screens in 1962 and was still there, spreading disease with the greatest of ease, some five decades later. ...

And

In the book, he says advertising industry heavyweight Sim Rubinsohn persuaded Gough Whitlam's government to introduce legislation that would permit parents to give their children transfusions at home, rather than having to rush back and forth to hospital. But talking to me, Courtenay takes credit for lobbying Whitlam himself: "One day I said to him, 'Gough, if ever you are prime minister, and I'm sure you are going to be, can you make sure that they allow home transfusions? He said, 'Bryce, I promise you.'"

In fact, home transfusions started in the 1970s at the instigation of doctors, says Henry Ekert, who at the time was director of clinical haematology at Melbourne's Royal Children's Hospital and head of Victoria's haemophilia treatment program. "We started home treatment without checking with Gough Whitlam or anybody else because it was not necessary to have legislation," Ekert says.

And

... [H]e says he graduated as "one of the most applied and academically gifted children the school has seen". David Williams, the school's foundation director, looks up old college magazines and sends puzzling news: "The 1952 magazine lists the matriculants in the Transvaal Secondary School Certificate examination for the previous year - his name does not appear in that list."

After the email from Williams and my conversation with Anderson, I phone Courtenay. "Of course I won a scholarship," he says indignantly. His sister is wrong about other things, too: ... "My sister is a deeply religious, Pentecostal person," he says. "She gives her version of the truth. You have to decide."

When I mention his name's absence from the King Edward VII School matriculation list, there is a brief silence on the line. "I am astonished," Courtenay says. "But I can't say more than that." A couple of minutes later, he winds up the call.

"I don't want to say any more. Honestly, this is getting absurd. I mean, my life is an open book."

He wasn't on oath, of course, but fiction is best left for the potboiler rather than the bio.

Westboro

'To Drink the Cup of Fury: Funeral Picketing, Public Discourse and the First Amendment' by Steven Heyman in 45 Connecticut Law Review (2012) 101-176 comments that

In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence—the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive First Amendment protection, for the picketing is intended to condemn the deceased and to inflict severe distress on the mourners in violation of their rights to privacy, dignity, emotional well-being, and religious liberty. Finally, the Article shows that although Westboro prevailed in Snyder, this may prove to be a Pyrrhic victory, for the Court also suggested that states can protect mourners through carefully drawn buffer-zone laws. ...

How far does the First Amendment’s protection for freedom of speech extend? May the law ever restrict speech because it causes emotional or dignitary injury to others? These were the central questions in the Supreme Court’s recent decision in Snyder v. Phelps. On March 3, 2006, a young Marine named Matthew Snyder was killed in the line of duty in Iraq. One week later, Pastor Fred Phelps Sr. and several of his followers from the Westboro Baptist Church (“Westboro”) picketed Matthew’s funeral in Westminster, Maryland. The demonstrators held up signs emblazoned with slogans like “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “America is Doomed.” These signs reflected Westboro’s belief that God was killing American soldiers to punish the nation for tolerating homosexuality and other conduct that the church regarded as sinful.

Matthew’s father, Albert Snyder, brought suit against Westboro and its members for the anguish that he suffered from their picketing of the funeral. A federal jury held the defendants liable for the torts of intentional infliction of emotional distress (“IIED”) and invasion of privacy and awarded Snyder five million dollars in compensatory and punitive damages. In March 2011, however, the Supreme Court overturned this award on First Amendment grounds. Writing for the majority, Chief Justice John G. Roberts Jr. acknowledged that Westboro’s picketing had “inflict[ed] great pain” on Matthew’s father and that “its contribution to public discourse may [have been] negligible.”

Nevertheless, Chief Justice Roberts maintained that the protesters had addressed the public as a whole on matters of public concern while standing on public property that was located a considerable distance from the funeral. Under these circumstances, he held that the picketing was entitled to the “special protection” that the First Amendment affords to speech on matters of public concern.

The Chief Justice was careful to note that the decision was a “narrow” one that was “limited by the particular facts before [the Court].” But the significance of the case goes far beyond that. Funeral picketing inflicts greater pain and distress on its targets than virtually any other form of expression. Thus, Snyder is likely to be regarded as a leading authority for the view that the First Amendment generally bars the state from restricting the content of speech on public issues in order to protect individuals from emotional or dignitary injury. Of course, there is nothing novel about this view - in recent decades, it has become the dominant position in First Amendment jurisprudence. As the Snyder case shows, however, this position is deeply problematic, for it requires the Court to protect speech even when it causes great harm and makes little or no “contribution to public discourse.”

In this Article, I criticize the Snyder decision and the conception of free speech on which it is based. After summarizing the decision in Part II, I argue in Part III that the majority fundamentally misunderstood the nature of Westboro’s funeral picketing. As the group’s own statements make clear, the message of God’s hatred is not simply addressed to the public in general; it is also directed toward the mourners in particular. As Shirley Phelps-Roper has explained, Westboro’s goal is to “put [] the cup of the fury and wrath of God to your lips and [to make] you drink it.” The real issue in cases like Snyder is whether there is a First Amendment right to address speech of this sort to the mourners at a funeral and thereby cause them profound emotional distress.

The majority did not directly confront this issue because it failed to appreciate the fact that Westboro’s speech was directed to the mourners as well as to the public at large. However, the Court did articulate a view of the First Amendment that generally would preclude the state from regulating public-concern speech in order to protect individual dignity and personality. In Part IV, I argue that this view not only gives short shrift to those values, but also tends to undermine the sphere of public discourse itself by negating the practical and normative conditions on which it depends.

In Part V, I outline an alternative theory of the First Amendment that seeks to overcome these problems. According to this view, which I shall call the liberal humanist approach, public discourse should not be understood as a realm in which all standards of civility and respect have been suspended, or as a marketplace that is capable of operating on its own and neutralizing harmful expression. Instead, we should understand public discourse as discussion among persons who recognize one another as free and equal members of a self-governing community. On this view, the right to free speech carries with it a duty to respect the personality and rights of others. In more general terms, the liberal humanist view holds that freedom of speech exists within a broader framework of rights, all of which are rooted in respect for human freedom and dignity and are intended to promote the full development and flourishing of human nature. The First Amendment should not be interpreted to protect speech that violates the rights of other people, except in situations where the value of the speech outweighs the value of the other rights with which it conflicts.

The Article then applies this theory to funeral picketing. In the interest of clarity, I begin in Part VI with the paradigmatic case of funeral picketing - a situation in which the protesters stand so close to the funeral that they are able to communicate with the mourners in a direct and immediate way. I argue that such picketing causes serious injury to the mourners and violates their rights to emotional well-being, privacy, dignity, and religious or spiritual liberty. The value of the speech does not warrant the injuries that it causes, because the protesters are not justified in communicating directly with the mourners and there is no need to stand so close to a funeral to communicate with the public at large. For these reasons, the First Amendment should not protect funeral picketing in its paradigmatic form.

In Part VII, I consider whether, under the liberal humanist approach, we should reach the same conclusion on the facts of Snyder itself. This is a much more difficult case because the protesters could not be seen or heard from the church where the service took place. However, Westboro’s members regarded themselves as picketing the funeral; they could be seen from the procession; they sought to convey an intensely hateful message to the mourners; they succeeded in communicating this message, albeit in an indirect way; and their conduct resulted in severe emotional and dignitary injury. Once again, they lacked sufficient justification for acting as they did. On these grounds, I would hold that their actions were not protected by the First Amendment. At the same time, I agree with the majority that one of the requirements for IIED liability - a jury determination that the defendants’ conduct was “outrageous” - is simply too vague a standard to govern cases involving speech that to a substantial extent involves matters of public concern. Thus, although I believe that a state could restrict the defendants’ conduct in Snyder without running afoul of the First Amendment, I agree that this conduct should not give rise to tort liability for IIED.

Finally, in Part VIII, I argue that the Court was right to suggest that the First Amendment allows the state and federal governments to enact bufferzone laws that require protesters to stand a certain distance away from funerals, and I contend that this position should be interpreted broadly to uphold laws that require the protesters to stand out of the mourners’ sight and hearing, as the Court found that they did in Snyder itself.

Heyman concludes that

Snyder v. Phelps appears to strike an important blow for the First Amendment freedom of speech by making clear that it encompasses even the most unpopular and offensive kinds of expression. As I have tried to show, however, the decision is deeply problematic for several reasons. To begin with, the Court fundamentally misunderstands the nature of Westboro’s expression. The majority maintains that “Westboro’s choice to conduct its picketing [near Matthew Snyder’s funeral] did not alter the nature of its speech,” which was primarily intended to communicate with the public on matters of public concern. But Westboro’s members did not regard themselves as merely holding a demonstration that was “planned to coincide” with the funeral. Instead, they announced that they would “picket [the] funeral” in order to proclaim that Matthew was “[n]ow in Hell” and to convey a message of God’s hatred not only to the public in general but also to his family, friends, and religious community And as the record shows, Matthew’s father received this message loud and clear.

In this way, the Court fails to recognize the human meaning of Westboro’s picketing—the meaning that it had for those who engaged in it as well as for those who were targeted by it. The Court also fails to appreciate the human impact of the speech. Although the majority acknowledges that the picketing caused great distress, it attributes that distress to offense at Westboro’s ideology, rather than to the profound personal attack that the group leveled against Matthew Snyder and his family.

The deepest problem with Snyder is that it reinforces a theme that has become increasingly prevalent in our jurisprudence—the notion that the First Amendment requires us to protect public speech regardless of how insulting, abusive, or degrading it may be. According to the Court, we must take this position in order to avoid any “potential interference with a meaningful dialogue of ideas.” As the case of funeral picketing makes clear, however, this view is ultimately self-defeating, for a meaningful dialogue is possible only when the participants show one another at least a minimal level of respect. In this way, the Court’s approach not only negates the law’s protections for individual personality, but also undermines the practical and normative conditions for public discourse itself.

This Article has offered an alternative theory of the First Amendment. That theory holds that the same values that support freedom of speech also give rise to other fundamental rights, including privacy, dignity, emotional well-being, and other facets of what Justice Brandeis called the right to “an inviolate personality.” Westboro’s funeral picketing invades those rights in the most blatant manner by intentionally interfering with the mourners’ ability to bury a loved one in peace. Although Snyder largely precludes the use of tort law to protect these rights, it does suggest that buffer-zone laws may be enacted for this purpose. Imposing reasonable restrictions on funeral picketing would not undermine our constitutional commitment to freedom of expression, but instead would reaffirm the values of human freedom and dignity on which it is based.

Process and Polygraph

There are times when you wonder what people thought they were doing.

An esteemed colleague has pointed me to the judgment by Kanne J in United States of America v Dominick Pelletier (US Court of Appeal, 7th Circuit, 12-1274; Posner, Kanne & Sykes JJ), an exemplary piece of legal writing.

Kanne states that

Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort - chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all - the right witness never comes forward, the right lead never pans out, or the right clue never turns up.

This is not one of those cases. The defendant, Dominick Pelletier, admitted during a job interview with the FBI that he had pornographic pictures of children on his home computer. Instead of joining the FBI’s vaunted ranks, Pelletier was indicted for one count of possession of child pornography. After the district court denied two of his motions to suppress, Pelletier entered a conditional guilty plea and reserved the right to appeal the denial of the suppression motions. Finding no error, we affirm.

Kanne goes on ...

Dominick Pelletier applied for a job with the FBI. As part of the application process, the FBI requires applicants to undergo a personnel security interview and to take a polygraph examination. Pelletier scheduled his examination for August 29, 2008, his birthday. Pelletier arrived at the FBI office, presented his identification, passed through a metal detector, and checked his cell phone at the front desk. At about 9:45 a.m., Special Agent Jay Cherry met Pelletier and escorted him to a ten-foot-by-ten-foot polygraph suite. Agent Cherry was unarmed and left the door to the room unlocked. At 9:49 a.m., Pelletier read and signed a “Consent to Interview with Polygraph” form that provided, in part: “I understand that I am not in custody, that my participation in the polygraph examination is voluntary, and that I may leave at any time.” Agent Cherry explained that the polygraph would proceed in three parts: the “pre-test” (when they would discuss the sorts of questions that would appear during the test); the “in-test” (the actual administration of the polygraph); and the “post-test” interview.

During the pre-test, Agent Cherry gave Pelletier a list of questions. Pelletier read them over and said that he was concerned about the section on sexual crimes. Pelletier explained that he had done “research” in Indonesia on child pornography and sexual abuse and was worried that it might lead him to fail the test. Agent Cherry assured Pelletier that everything would be fine so long as the research did not involve actual possession or distribution of child pornography. Pelletier assured Agent Cherry that it did not. Agent Cherry then administered the polygraph examination. Pelletier failed.

During the post-test interview, Agent Cherry asked Pelletier how he thought he did, and Pelletier replied that he had “some trouble with one of the questions” because of a set of files on his home computer. Pelletier explained that he had looked at images of young females as part of his “research.” As the interview progressed, Pelletier admitted that he had images of naked children on his home computer. Agent Cherry asked Pelletier to write a statement summarizing their discussion, and Pelletier complied. The statement said that Pelletier believed he had failed because (1) he had used pirated software as a student; and (2) he had downloaded and stored child pornography and erotica as part of his research for a graduate school project. Pelletier and Agent Cherry both signed the statement at the bottom, and Pelletier remained friendly, cooperative, and interested in the job. Agent Cherry then told Pelletier that he wanted to invite a second agent who knew more about the subject matter to join the interview. Pelletier agreed, and Agent Cherry contacted Agent Brent Dempsey of the FBI’s Cyber Squad.

Agent Dempsey got the call sometime in the early afternoon and walked over to the interview room. He was wearing his badge and sidearm. Agent Cherry explained (apparently outside of Pelletier’s hearing) that Pelletier had admitted to possessing child pornography. Agent Dempsey decided to take a low-key, conversational approach when interviewing Pelletier, rather than aggressively interrogating him, to make Pelletier believe that their conversation was still part of the job interview. Agent Dempsey did not read Pelletier his Miranda rights, although he did begin the interview by telling Pelletier that “you don’t have to answer any questions with us, but any questions you do answer you have to tell the truth. You can’t lie.”

The situation got worse step by step ...

Pelletier told Agent Dempsey about his research project and explained that it included searching for and downloading child pornography from the internet. Pelletier also said that his computer crashed after he completed his research, which Agent Dempsey took to mean that there was no longer any child pornography on Pelletier’s computer. Accordingly, Agent Dempsey asked Pelletier if he could search his computer to make sure it did not contain child pornography.

Pelletier refused, saying he was concerned that there was “child erotica” on his computer, including photos from the “LS Models” series. Agent Dempsey explained that parts of the LS Models series are child pornography and pressed Pelletier on his distinction between child erotica and child pornography. Agent Dempsey read Pelletier the definition of child pornography, and Pelletier admitted that parts of the LS Models series were pornographic. Agent Dempsey again asked for permission to search Pelletier’s home computer so Agent Dempsey could recover the contraband, and again Pelletier refused, explaining that he was afraid that he had “hardcore” child pornography on the computer. Pelletier also thought that his girlfriend might be planning a surprise birthday party for him later that evening, and Pelletier did not want his friends to see the FBI searching his house. At some point near the end of the interview, Pelletier also admitted to “inadvertently” creating child pornography by recording himself having sex with a girl he later learned was under the age of eighteen. It is unclear, however, whether he made this admission before or after Agent Dempsey asked for consent to search Pelletier’s computer.

After either the first or the second refusal — the record is unclear on precisely when — Agent Dempsey stepped out of the room and directed another FBI agent to go to Pelletier’s home and freeze the premises pending a search warrant or Pelletier’s consent to search. Agent Dempsey also contacted an Assistant United States Attorney about obtaining a federal search warrant and the DeKalb Police Department about obtaining a state search warrant. Agent Dempsey stepped back into the room and told Pelletier that if Pelletier did not consent to a search, he was going to try to get a search warrant.

This time, Pelletier relented and signed a written consent form. The interview ended at approximately 3:20 p.m., and Pelletier left the field office. Pelletier never expressed discomfort, asked to leave, or asked for an attorney. He was offered snacks, sodas, and restroom breaks several times, and he remained amiable and talkative throughout the day. Indeed, it seems that Pelletier left the interview room believing he was still in the running for an FBI job. Pelletier told the agents that his research on child pornography would help him to track down criminals, and, just before leaving to go home, Pelletier asked if “this was going to slow down the application process.”

Obviously, Pelletier did not get the job. Instead, the FBI found more than six hundred images of children on his computer, and Pelletier was indicted for one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). Pelletier moved to suppress, arguing that (1) the statements he made to the agents should be suppressed because he was entitled to Miranda warnings and did not receive them; and (2) the search of his computer should be suppressed because his consent was involuntary. After hearing both FBI agents testify, the district court found their testimony credible and denied both motions, holding that (1) Miranda warnings were unnecessary because Pelletier was never in custody; (2) Pelletier voluntarily consented to the search of his computer; and (3) even if he did not, the contents of the computer inevitably would have been discovered with a search warrant. Pelletier then conditionally pled guilty while reserving the right to appeal the district court’s denial of his suppression motions. He now exercises that right.

Poor Privacy

'The Class Differential in Privacy Law' by Michele Gilman in 77(4) Brooklyn Law Review (2012) 1389-1445 analyzes

how privacy law fails the poor. Due to advanced technologies, all Americans are facing corporate and governmental surveillance. However, privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to be stigmatizing and humiliating, and it thus not only compounds the harmful effects of living in poverty, but also dampens democratic participation by the poor. The poor interact with the government and low-wage employers in ways that are on-going and interpersonal, and as a result, the "right to be left alone" embodied in current privacy law does not protect their interests in dignity and autonomy. This article argues that poor Americans experience privacy differently than persons with greater economic resources and that the law, in its constitutional, statutory and common law dimensions, reinforces this differential. This class differential in privacy law has costs not only for the poor, but for all citizens.

She concludes that -

While most Americans are vaguely aware that they are subject to surveillance, they do not feel its effects concretely, and they are willing to relinquish some privacy for increased security and for the conveniences of technology. Yet for the poor, surveillance is neither vague nor invisible. Rather, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to stigmatize and humiliate, not only compounding the harmful effects of living in poverty, but also dampening democratic participation by the poor.

Yet privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, the poor interact with the government and low-wage employers in ways that are ongoing and interpersonal, and as a result, the “right to be left alone” embodied in current privacy law does not protect their interests in dignity and autonomy. Privacy law, in its constitutional, statutory, and common law dimensions, protects reasonable expectations of privacy, but courts have long held that people give up expectations to privacy when they seek help from the government or go to work. The law thus reinforces the existing class differential in privacy practices. This class differential has costs not only for the poor, but for all citizens. The poor do not need to be left alone; they need to be treated with dignity. Privacy should not be for sale. All Americans would benefit from enhancing the privacy rights of the poor, and united, we can provide a powerful check on expanding surveillance that impacts the poor and rich alike.

Teaching and Litigation

Reading the judgment in Weir v Geelong Grammar School (Civil Claims) [2012] VCAT 1736, a case that's delighted my students this year.

It concerns action by Rose Ashton-Weir and her mother Elizabeth Jane Weir [Jane weir] against Geelong Grammar for that very up-market school's alleged failure to provide sufficient support for 'gifted' Rose to get into Law at Sydney University. The plaintiffs lost the case. The Tribunal considered claims of breach of contract and misleading &  deceptive conduct pursuant to the Fair Trading Act 1999 (Vic), finding that there was no breach of contract and no relevant misleading or deceptive conduct.

It also found that if the plaintiffs had succeeded, there were problems with the damages claims. Ms Weir had argued that the school should pay for her increased rent when she had to move to new larger premises to accommodate Rose after her daughter returned from Geelong Grammar. She also sought damages regarding loss of earnings regarding a proposed chocolate fortune cookie business.

Ms Weir claimed $500 as the removalist costs of Jane moving from country NSW to Sydney in mid 2009 so that Rose could be accommodated at home, $39,000 (the difference between the rent paid by Jane in Sydney from December 2009 to February 2012, and the rent that she'd been paying in country NSW), and $450,000 (loss of potential earnings in a business venture, based on projected net profits from August 2009 to August 2012, and the refund of the Geelong Grammar fees in Terms 1 and 2 of 2008).

Her daughter claims that "the inadequate education supplied by the School" had set her back:

if the School supplied a proper education, Rose would have been studying Law at Sydney University by now. The School’s failures caused Rose to miss out on entrance to Law. She will have to study Law at post graduate level. She will incur additional University fees and see a deferral of her ability to earn income. Rose claims $95,000.

Lulham DP noted

She [the mother] did not prove, for example, that her residence on Copacabana was so small that Rose could not be accommodated there. People who claim damages have an obligation to mitigate their damage, and if Copacabana was inadequate for Jane and Rose to cohabit, that would not explain why Jane had to move to Double Bay at around 2.5 times her Copacabana rent.

The loss of prospective earnings from the chocolate biscuit business was unsurprisingly rejected as being  losses that fell outside the rule in Hadley v Baxendale, ie  not losses that arose naturally (first limb) or were not losses which were in the contemplation of the defendant at the time the contract was made (second limb).

Lulham DP was unimpressed by the claim for Rose’s loss of income as a lawyer, commenting that

Rose’s claim for damages is illusory. The fact that Rose has gained admission into a double degree at Sydney University reflects well on Rose in Year 12, but also reflects poorly on her claim against the School because it shows that Rose did not suffer any damages at law.

Rose asserts that she will complete her degrees, then study Law, then graduate from Law, then gain employment as a lawyer. Assuming that events pan out in that way, the costs and deferral of income arising from them will not have occurred in “the usual course of things”, within the meaning of Hadley v Baxendale. Rose assumes that the School somehow guaranteed that she would gain admission to Law school immediately after Year 12, and there is no basis for that.

As with Jane, Rose must mitigate her damage. Rose conceded that her Year 12 marks were sufficient to gain her entry into a law school other than Sydney University. Her decision not to take that path is contrary to her duty to mitigate.

Heaven forbid, Rose might have even chosen to study law at UC!

It appears that Rose had been pushed by her parents (particularly her mother) to go to Geelong Grammar, where she was unhappy, did not interact well with other students and teachers, and frequently failed to attend meals and class. She frequently failed to do homework and bring books to class.

School end-of-term reports apparently indicated that she had struggled to meet 'basic expectations and routines', 'eventually was able to organise herself to be on time for meals but not for class attendance', 'was not socialising with students or staff', 'had taken Rose some time to understand the purpose and intensity of [Geelong Grammar's Timbertop program]', 'had been unmotivated at times and had struggled to fulfil commitments', had 'not recognised that the curriculum was not negotiable' and needed to improve her 'attitude and effort'. She 'made a poor effort, displayed very poor organisational skills, displayed unsatisfactory behaviour, was disorganised, unmethodical and careless'. She 'had not submitted work and refused to take responsibility', was 'not good at following up missed work, and was easily distracted'. Those comments are perhaps indicative of teenage unhappiness, rather than brilliance.

Her mother had gained a psychological report when Rose was 13 years old that indicated Rose was highly intelligent - useful if you are aiming at a law degree - but lacked organisational skills and needed a structured environment. The plaintiffs apparently interpreted that report as meaning Rose was “gifted” but had a “disability” (ie lack of organisation and ability to apply herself, a disability that alas seems to be experienced by some law students). Their expectation was that Geelong Grammar would reflect that assessment in its dealings with the student.

They sued the school because it did not help Rose reach her potential as a “gifted” student, and she did not get into Law at Sydney University, although her results were sufficient to get into Law at other NSW universities. She instead chose Arts/Science at Sydney University.

Lulham DP commented

 Being “gifted” is a 2-edged sword – you have to apply yourself. The world is full of talented people and talent alone is not enough.

Lulham noted Yee Tak On v Dr Linda Hort (ANU College) [2012] FMCA 391.

In that case Yee sued the Australian National University when he failed a preparatory course and so was unable to enrol for an undergraduate Law degree. Yee claimed that because he was given a lot of homework and was unable to complete assignments, his results did not meet the standards required for him to gain enrolment as an undergraduate. He sued the ANU for misleading conduct and for maladministration of its course.

The Federal Magistrates’ Court summarily dismissed Mr Yee’s application. Neville FM indicated that

It is not uncommon that courses in educational institutions ... are not delivered to the absolute, highest quality. Such is the reality of most human endeavour. However, it is one thing for educational courses, to be, among other things, of varying quality: it is quite another for the delivery of a course to provide a base, in law, for a dissatisfied student to claim the relief sought by Mr Yee. ... I do not see that a legal base has been established, or that it could be established, to support the claims for which he contends ... While Mr Yee obviously has a grievance with the College, in my view, that grievance is insufficient, as a matter of law, to provide any foundation for the claims he has set out in his application.

Last year in Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) Maria Abramova sued the Oxford Institute of Legal Practice (OxILP) for £100,000 for negligence and breach of contract after she failed her Property Law and Practice admission exams. She claimed she found it "psychologically difficult" to take legal exams and that the Institute had been negligent in her preparation. The judgment by Burnett J is uncomfortable reading, stating that

The claimant was a witness who, in my judgement, was ready to blame anyone but herself for her misfortunes. She was inappropriately, and in my view without foundation, willing to make criticisms of those who taught her.  I came away with the clear impression that when the claimant said that it did not occur to her that she might fail, she meant it.  She still finds it difficult to comprehend why she failed.  Furthermore, she continues to labour under the impression that when she was told by various members of staff that her answers were wrong or inadequate, that in fact the answers were right. The evidence from the staff that they gave the claimant every assistance when she asked for it was compelling. ... There were, in addition, times during her evidence where I concluded that the claimant was being less than frank.

Burnett J in concluding stated that

I am unable to accept that the teaching in examination techniques was inadequate, still less negligent ....The success of the overwhelming majority of students at OXILP is itself testimony to the quality of the teaching, reflected also in the overall assessment of outside observers. ...

The question formulated in argument was whether, had the claimant been taught as she suggests that she should have been, there was a realistic chance she might have passed the course, or would it be no more than speculative that she might. In my judgement the answer is that there was no realistic chance of the claimant passing the course. For whatever reason, the claimant did not display aptitude necessary to succeed on the Legal Practice Course. ... The breadth of her difficulties in passing various papers suggests a fundamental problem which the lack of success in the New York bar examinations confirms. Despite her academic ability, which is beyond doubt, the claimant's difficulties in achieving success in the Legal Practice Course were profound, indeed fatal to that success.

 In 2010 Tony Chinedu Wogu as a self-represented litigant failed in his bid to sue the University of Bradford for a mere £5m compensation, alleging that a 2.2 and not a First in Computing Science was the result of discrimination and breach of contract.

The University successfully argued that the matter should be struck out, characterising the £5m claim as "unsustainable and unrealistic" and going on to label the suit as one that was "incoherent and makes no sense", "a waste of the court's and the parties' time and resources". Collender J struck out the case, commenting that "this court has not the power or expertise to simply examine or to determine the proper degree grade to which the claimant would have been entitled from the University of Bradford" and noting that Wogu should lodge an internal appeal with the University before bringing the matter back to court.