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Freedom of Speech vs. People's Supposed Right To Hide Their Past:

In 1979 and 1980, Barry Treash -- then a vice-president at Beneficial Standard Life Insurance Company -- was involved in a kickback scheme that essentially defrauded his employer out of hundreds of thousands of dollars. In 1984, Treash was convicted of mail fraud and income tax evasion stemming from this scheme.

Would you do business today with someone who had been convicted of fraud twenty years before? I might; twenty years is a long time. But I'd be extra cautious, and I'd consider it valuable to know about the man's past history.

In any case, Barry Treash is indeed in business now; he runs Readylink Healthcare, "a staffing company linking nurses to hospitals." Treash got into a tiff with lawyer David Lynch (details here), and Lynch put up a note on his Web site soliciting clients who might be interested in suing Readylink. After further legal skirmishing, Lynch added extra pages that revealed Treash's history.

So Treash turns around and sues Lynch for, among other things, invasion of privacy, specifically the disclosure of privacy facts. Lynch, the legal theory goes, is legally barred from publishing even truthful accounts of Treash's past criminal convictions.

That, I think, would make for a very bad legal rule. Some people may take a forgive-and-forget attitude towards past crimes. But others may not. We should be entitled to decide for ourselves how much weight to give to such information, without the legal system forbidding others from speaking to us about these matters.

Unfortunately, for several decades, California courts did indeed take the view that accurately discussing people's crimes from a decade or more ago could lead to legal liability. Such speech, a discussion in a 1971 California Supreme Court said, serves no "public purpose" and is not "of legitimate public interest"; there is no "reason whatsoever" for it, when (in the court's view) the plaintiff has been "rehabilitated" and has "paid his debt to society."

"[W]e, as right-thinking members of society" -- yes, the court did say "right-thinking," and not, I think, ironically -- "should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime" by revealing his past. "Ideally, [the convicted criminal's] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life." And to assist plaintiffs in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with the convicted criminals' plans -- even when the speakers and the listeners take a somewhat different view of what's "right-thinking" than the court does.

Fortunately, in 2004, the California Supreme Court realized that under modern First Amendment law, this view is unsound, and "a media defendant may [not] be held liable" for publishing "facts obtained from public official court records." And, the court held, this was true regardless of whether a judge or jury decided that the facts were "newsworthy" (an unpredictable and subjective standard).

But, back to unfortunately, this still leaves open the question that the Treash v. Lynch litigation -- now called Readylink Healthcare v. Lynch -- raises: Is this right to speak applicable to all speakers, or does it indeed distinguish "media defendant[s]" from nonmedia speakers who are "motivated by malice or intent to gain commercial advantage"? The federal court of appeals for the Ninth Circuit just certified this question as a matter of state law to the California Supreme Court; if the California court concludes that California law categorically protects such nonmedia speakers, the matter will be settled; if the court concludes that such speakers may indeed be held liable for such true speech, then the Ninth Circuit will have to decide whether the First Amendment allows such liability.

I expect that the courts will ultimately rule in favor of the speakers -- and I think that's exactly right. First Amendment principles should apply to all speakers, whether or not they are parts of the institutional media; and this is of course even more clear now that the media / nonmedia line is blurrier than ever. Newspapers can clearly write about Treash's past. Presumably I can do the same, since it's hard to see why I should have fewer First Amendment rights than a small-town newspaper that may have no more readers than this blog does. I take it that Lynch could do the same on a blog that Lynch runs. How can the law sensibly distinguish Lynch's site from his blog, Lynch's blog from my blog, or my blog from the Siskiyou Daily News (circulation 6000)?

Nor should it matter that Lynch is "motivated by malice or intent to gain commercial advantage." Newspapers and other media outlets are of course often motivated by an intent to gain commercial advantage. (Our economy generally and copyright law in particular rests on the notion that a desire to gain commercial advantage is generally good, and the law should harness it as a means of producing valuable goods and important speech, rather than condemning it.) And investigative newspaper reporters are often motivated at least in part by hostility to the bad guys they're covering. Larry Flynt, who published the scurrilous (but constitutionally protected) attack on Jerry Falwell in Hustler Magazine v. Falwell, was likely largely motivated by malice against Falwell. Free speech protection that can be lost simply because a jury finds that you spoke out of "malice" is not much of a protection.

Should this disclosure-of-private-facts tort exist? I think the answer should generally be "no," for reasons I've discussed at much greater length here. Perhaps there ought to be a narrow and well-defined exception for speech that reveals private facts and yet genuinely has virtually no plausible value other than tittilation -- I have in mind, for instance, a tort that would be limited to the unauthorized publication of nude photographs or sex videos (a matter that has been in the news in recent years). I'm not enthusiastic about even such a clear and narrow exception, because of the risk that the narrow exception would be used as a justification for much broader ones; but at least if the exception is kept clear and narrow, relatively little of value would be lost.

But whatever you think about the disclosure tort in other contexts, here we're dealing with our ability to speak about public events -- a trial and a conviction -- which may still be quite relevant to people's behavior today. Our freedom to speak about such matters shouldn't hinge on ad hoc decisions by judges and juries about what's "newsworthy," or for that matter who's a member of the "media" and who isn't.

[TECHNICAL NOTE FOR LAW GEEKS: Howard Bashman (How Appealing) asks a good question about the terms of the Ninth Circuit's certification to the California Supreme Court; I'd guess that the Ninth Circuit meant to ask the California Supreme Court about the nature of the California disclosure tort, which the California Supreme Court has been developing (albeit in light of the First Amendment), but I agree that literally the questions also ask the California Supreme Court's view on a purely federal constitutional issue, which is an odd thing for a federal court to do; see also this follow-up from a How Appealing reader.]

Kovarsky (mail):
The geeks issue:

That is truly bizarre. I can only offer this possible distinction - the 11th circuit (in the case the bashman commentator cites) declined to certify the federal constitutional on PREEMPTION. Don't get me wrong - I don't buy this distinction, but you might hang your hat on the idea that a federal court would have more reason to distrust a state court adjudicating a preemption issue than you would have to distrust a state court adjudicating a 1st amendment issue. To the extent that the rule that federal courts don't ordinarily certify questions to state courts is a prudential one, perhaps comity could be doing some work to counteract that here. That being said, I have no idea what the 9th Circuit was thinking.
3.15.2006 3:05am
MikeWDC (mail):

Free speech protection that can be lost simply because a jury finds that you spoke out of "malice" is not much of a protection.


On the contrary, a jury finding of "malice" is a cornerstone of libel law--but first, the statement must be found to be false (among other things). Generally, if writers or media outlets are sued for libel, then they can first try to argue the statement is true, in which case they are protected. If that can't be argued successfully, then--in the cases of "public figures"--the question becomes if they published with "actual malice" or "reckless disregard for the truth." (If the individual is not a public figure, then the standard is "negligence.")

Incidentally, my understanding is that for purposes of guilt, libel law makes no distinction between media and lay speakers, although the reach of a speaker is key when it comes to damages. (My experience with this is, fortunately, only that I have been frivolously charged with libel, though throughout in my writing and editing career I have given a couple people valid claims under the negligence standard. But some people can be forgiving and not litigious.) Nevertheless, the truth is an absolute defense to libel claims.

Regarding true information, the only exception I would make is when "crimes" do not lead to a conviction. Writing someone was arrested for something may be relevant, and should enjoy a wide degree of protection, but people can be arrested for crimes of which they are not guilty. (And not strictly on a technicality.) This probably could be relevant in some contexts, but should there be a a tort claim if someone, with malice and for no public purpose, publicizes a long-ago arrest as if the person is guilty? Probably only if it's reported that someone "committed X crime"; to say "X was arrested for Y," which implies the crime was committed to virtually everyone not experienced with the police and courts, would be factually correct and protected. But this is no change from current law.
3.15.2006 3:10am
Kovarsky (mail):
Mike WDC,

The "actual malice" standard in NYT v. Sullivan doesn't really refer to "malice" in the sense of how much you want to damage the other person's reputation. It is purely a scienter issue involving the truth of the statement and how reckless the speaker was with respect to it. It doesn't really speak to motive as the term's lay meaning would suggest.

Also, although truth is an absolute defense to a defamation action, if I remember correctly the presumptions and burdens of proof shift based on the identity of the speakers and plaintiffs. I can't remember precisely what conditions must be present for the defendant to be saddled with the burden of proving truth, but I'm almost positive there are some.

I agree that the "newsworthiness" an event shouldn't drive constitutional analysis , but I'd also speak up for the possible relevance of the distinction between media and nonmedia defendents. That distinction is not entirely foreign to First Amendment law, as imposing liability on "media entities" based on the same principles that apply to individuals imposes the same truth-auditing costs on each group, even though the individual speaker is in a much better position to audit the truth of his "publications" than is the media entity, which often operates as a subsidiary speaker, publishing the speech of others. In that role, imposing the same culpability rule on media defendents as you would impose on nonmedia ones would impose impossible search and (as I said) auditing costs. I'm not sure that this is the stuff of constitutional differences, but I think it's hard to argue that some of this logic does not underlie Sullivan itself.
3.15.2006 3:25am
Visitor Again:
Re the certification question:

The Ninth Circuit should only have certified the state law question of the scope of the public disclosure of private facts tort. But are the scope of the tort and the scope of first amendment realy distinguishable issues these days? I don't think so. The state court will decide the scope of the tort in light of speech interests.
3.15.2006 3:54am
Kovarsky (mail):
Visitor,

Indeed they are related, and free speech interests should animate the State court's interpretation of the state rule. But its not clear why they should have been certified with the constitutional question. Those principles could guide the resolution of the first issue without the formal posing of the second.
3.15.2006 3:59am
logicnazi (mail) (www):
I don't think this case is as simple as you make it out to be. In particular it seems likely that Lynch is publishing this information in response to actions that Treash took that Lynch didn't like. Yet in this case this treads awfully close to blackmail.

For instance what if Lynch was generally known to try to get even with people by releasing unpleasant facts about their previous lives after he got into tiffs with them. Wouldn't this situation amount to blackmail of everyone who knows that Lynch could reveal disturbing facts about them if they pissed him off?

Also if Lynch has first ammendment protection to release negative information about people who piss him off can he observe this fact is true. For instance could Lynch make a post on his blog that he tends to be the sort of person who publishes negative info when you piss him off? Surely restrictions on speaking a *true* self-realization seem even more extreme that the restrictions being considered here. Also if Lynch can actually publish the damning information surely he has the right to publish the fact that he knows some damning information about certain people. Yet together all of these three statements clearly amount to blackmail.

Or to put it differently when does first ammendment protection end in the following situation.

1) Lynch publishes an entry on his blog talking about how he believes that people who act poorly should get their just desserts and that the right thing to do is to dig through their past and publish negative info about them to get even.

2) Sometime later Lynch publishes a post talking about how so many people are way worse than one might think and as examples lists a bunch of people who have bad things in their past but doesn't say what they are.

3) Someone on that list pisses Lynch off and he then publishes the negative info.

(It isn't even clear 2 is necessery if the person is well aware they have a skeleton in their closet that could easily be found by a lawyer.)
3.15.2006 4:22am
David M. Nieporent (www):
I don't think this case is as simple as you make it out to be. In particular it seems likely that Lynch is publishing this information in response to actions that Treash took that Lynch didn't like. Yet in this case this treads awfully close to blackmail.
Logicnzi: Who is being blackmailed? Certainly not Treash; Lynch simply published the information.

Some hypothetical person who might get involved in a dispute with Lynch in the future? Your argument is logical, but I don't think one can be punished for blackmail in the abstract. One needs an actual victim, not a potential one, no?
3.15.2006 5:46am
Brett Bellmore (mail):
Frankly, I still don't understand how blackmail laws can co-exist with the 1st amendment; The idea that it's constitutionally protected to do something, but only so long as you don't offer to refrain from doing it, just boggles the mind. (Must be one of those exceptions that only become visible when you read the Constitution with special glasses they hand out to law school graduates...) But this case should be even more of a slam dunk, since he apparently didn't make that offer.
3.15.2006 6:19am
Monkberrymoon (mail):
I'm not prepared to defend blackmail laws generally, but it seems the obvious point to a case like this is that the revealed info (or info threatened to be revealed) is already contained in a public record. That, to me, is the egregious thing about a rule that would make merely the reporting of such facts actionable.
3.15.2006 8:54am
Robert Lyman (mail):
The idea that it's constitutionally protected to do something, but only so long as you don't offer to refrain from doing it, just boggles the mind.

The crime isn't saying something, that's protected and you can't be prosecuted for it.

The crime is demanding money not to say it. Unless you count "give me money" as constitutionally protected speech (and maybe it should be) the Constitution needn't come into the analysis.

If you think blackmail is protected by the 1st Amendment, then is bribery of Congressmen protected by the Speech and Debate clause? They have a right to vote for or against any bill they please, so long as they don't take bribes to do it. Or what about commercial kickbacks? Prostitution? Etc.

There are plenty of things you can do (or not do) for free but can't be paid to do.
3.15.2006 9:40am
Hans Bader (mail):
The Ninth Circuit's decision to certify questions to the California Supreme Court, rather than rule for the defendants, reflects poor judgment and judicial overreaching.

The Ninth Circuit's questions suggest to the California Supreme Court that it should consider limiting the public's right to discuss felons' crimes, which it recognized in its 2004 decision throwing out a felon's tort lawsuit, to just newspapers. That is presumptuous and illogical.

The notion that ordinary citizens, the little people, should have less free speech rights than newspapers, is not supported by Supreme Court precedent (see, e.g., Branzburg and Zurcher).

And it is bizarre that the Ninth Circuit shirked its own duty to uphold free speech rights under the federal constitution by certifying a federal constitutional question (whether there is a free speech defense) to a state court.
3.15.2006 10:19am
SenatorX (mail):
I don't get it. I thought if someone claims you are slandering them it is based primarily on the concept that person A is spreading FALSE information about person B. So person B has legal right to sue person A. In court does person A have to prove the "information" issued by person B is true? Or does person B have to prove the information was false?
I would hope the burden of proof would be on the accuser and initiator of the suit. So person B has to determine if they have enough proof of FALSE accusations and if they can do so to the court then they have valid suit.

In this case I don't even get why it went to court in the first place or how it was decided the first way. It seems utterly insane to me. The guy was CONVICTED of FRAUD. He is not contending the information was false that Lynch disclosed. It wasn't even information that only Lynch had, it was public knowledge. Lynch just made it available to those that might have interest in such knowledge(to make important decisions for them) but he did it BECAUSE he wanted to punish Treash. So what? Citizens don't have the right to dislike other people and speak about it? "California Courts" rule in favor of coercive suppressing of factual information by citizens in dispute?

Score 1 for corruption! Can someone explain this to me please? What the hell is going on?

Yeah if I am a fraudulent person(and get busted with so much evidence that I am successfully convicted) of COURSE I would then want to hide that information from future people. God forbid they might think I am capable of dishonesty in my dealings. Track records and disclosure are not important eh? What's important is that in each separate business transaction the investor must be shielded from information that may prevent him from investing? What kind of logic is that? Who ARE these MORONS? If they are not stupid are they corrupt as well? Someone please help me understand this...
3.15.2006 10:22am
Steve:
As a Siskiyou County native, my wife greatly appreciated the shout-out to the Siskiyou Daily News. She reports that they used to go through it with a red pen to find all the typos - another difference from your blog, as I doubt anyone corrects the VC with a red pen.
3.15.2006 10:34am
MikeWDC (mail):

I would hope the burden of proof would be on the accuser and initiator of the suit.


So would everyone. In media, at least. According to the AP Stylebook and Briefing on Media Law, a public figure, public official or private individual involved in public concern has the burden of proof for falsehood in a libel action. (These are legal categories developed in case law too long and torturous to go into here.)

And Kovarsky, you're right, but my standard (which I admittedly confused) says that the claimant must prove that the defendant knew the statement was false or acted with reckless disregard for the truth. As I think is your point, it's of no bearing if the statement is true.

PS. There is some invasion of privacy case law mention by the AP that speaks to Volokh's original point, though the summery for journalists is too vague to use as a source here. Shows you how much I know.
3.15.2006 11:55am
aces:
She reports that they used to go through it with a red pen to find all the typos - another difference from your blog, as I doubt anyone corrects the VC with a red pen.


You could try, but you'd need a new monitor real fast!
3.15.2006 12:09pm
Visitor Again:
The idea that, for lack of a better term, the estabihed press has more rights under the first amendment than the ordinary citizen is a persistent one. And a noxious one, I think.

After the recent FAIR decision, for example, one commenter noted it may have been a missed opportunity for the Court to lend support to the peculiarly impoirtant role institutions like universities and the press play in the exchange of ideas and information. This is a dangerously elitist notion, that there is a hierarchy of first amendment protection based on the pedigree of the source of ideas and information. Any pamphleteer with a pamphlet, any mimeographer with a newssheet and any blogger with a blog are part of the press.

Distinctions have to be made where there is limited access to governmental events, of course. No doubt there is a legitimate interest in ensuring that the press with the greatest audience gets acesss. Not everyone with a blog stands on the same footing as, say, the New York Times when it comes to, say, access to a trial with limited courtroom seating. Even among the mainstream news media, access to some events—like an execution—is given only to one or two reporters, who serve as pool reporters for the rest. But who gets access can be decided without denigrating the first amendment press status of lesser organs of information and ideas.
3.15.2006 12:50pm
Kovarsky (mail):
I don't think the press "owns" rights than the individual as a an instrumental, not inherent, phenomenon. The press has the right not to get nailed for the false or malicious statements of its writers so it doesn't have to audit the hell out of everything it prints. It's a condition that you see over and over again, across many forms of media, and while it may have its problems, its hardly "noxious." The idea certainly isn't to promote a particular substantive agenda the press might have. Yes, dear you.

And I don't understand what this has to do with blackmail, or how the 1st amendment would be in tension with blackmail. Blackmail is like a threat. It's not treated as a first amendment speech, period. I admit that I may not be understanding something.
3.15.2006 1:02pm
Greedy Clerk (mail):
I noticed the same thing Howard noticed and was going to post a comment here on it -- but then I saw your note at the end of this post. I agree this appears odd. Also, I do not believe this question worthy of certification. The California Supreme Court will probably turn it down. The answer is obvious that you cannot distinguish between "media" and "nonmedia" defendants. If the California Supreme Court finds any merit to such a distinction, I imagine they would let this question fester in the "lower courts" (including the 9th Circuit as it is a "lower court" on questions of Cal. law) for a few years.
3.15.2006 1:24pm
jon burrows (mail):
What if Treash was running for public office and it was less than 60 days before the election when Lynch published the information, even if it's none campaign related? What are Lynch's free speach right then?
3.15.2006 1:38pm
twwren:
States regularly publish private facts with the specific purpose of informing the public of an individuals past bad acts.
3.15.2006 2:02pm
Gtywokls (mail):
Have much more research to do on this, and too little time to do it, but it doesn't sound like a "disclosure-of-private-facts tort," but rather a "disclosure-of-public-facts-that-I-wish-were-private" tort. If someone has unusual relations with his wife in the bedroom, those are private facts, and it would be an invasion of privacy for someone to take invasive steps to find out about those relations and publish their depiction. I think most people would be OK with that. On the other hand, if a guy has unusual relations with his wife on the steps of the courthouse in front of a bunch of onlookers, then the guy doesn't/shouldn't have any recourse when someone puts a depiction of the event on their website, even if the guy finds himself the next day saying, "I wish I hadn't done that and its going to ruin me when my customers find out about it." A public fact is a public fact, even if the public fact is damaging. The public nature of his act doesn't diminish in twenty years simply because it takes reminding to get other people to remember it. The fact is within the zone of history, not the zone of privacy.
3.15.2006 2:33pm
David M. Nieporent (www):
The answer is obvious that you cannot distinguish between "media" and "nonmedia" defendants.
You would think so, but tell that to our campaign finance zealots. There's a "media exception" in McCain Feingold.
3.15.2006 3:22pm
MikeWDC (mail):

A public fact is a public fact, even if the public fact is damaging. The public nature of his act doesn't diminish in twenty years simply because it takes reminding to get other people to remember it.

AS a legal doctrine this is shaky. There's the case (the AP doesn't give details) of the former prostitute involved in a lurid murder case (charged, acquitted) suing for invasion of privacy when, 20 years later, a film comes out using her name and the term "based on a true story." Likewise for the photo of a child killed in an accident. A public fact, and newsworthy the next day, but when a newspaper printed it 20 months later the family claimed invasion of privacy. (Sorry, Gtywokls.)

If someone is running for office then their past is undoubtedly fair game. Similarly, it's hard to justify past criminal convictions falling under a right to privacy. Likewise for any public fact reported "the next day" or at least soon after.

However, if something 1) happened in the distant past and 2) has no new relevance, it's more difficult to justify that publicizing notorious facts is legally protected. This is particularly true if the person did not seek out notoriety before, and/or they are not seeking out public attention in the present.
3.15.2006 3:35pm
John Burgess (mail) (www):
In a very much related case, as reported by the Peoria Journal-Star, a person arrested for—but acquitted of—charges that would have labeled him as a sex offender is trying to get his photo removed from a state-operated website identifying him as one arrested for soliciting a prostitute.

He argues that as he was acquitted, his photo does not belong among the perverts. The police argue that as he was (factually) arrested, then his photo can remain on the page until its annual maintenance would scrub him from the page.

So...
3.15.2006 3:45pm
Kovarsky (mail):
David,

I'm not understanding. What's the relevance of the media/nonmedia status of a defendant in a defamation/privacy tort to McCain Feingold. And who are the "campaign finance zealots?"
3.15.2006 3:46pm
Le Messurier (mail):
What strikes me about this thread is that the word "ethics" has not appeared.

I deal with public information every day. There are limitations on my use of (for example) criminal records for employment purposes. This primarily has to do with the "age" of the record. This limitation falls under the Fair Credit Reporting Act.

Having said that I cannot believe that, baring circumstances unknown to us, the use of such information for obviously malicious reasons is something that the ethics of the legal profession would not prohibit.
3.15.2006 5:43pm
Brett Bellmore (mail):
Kovarsky, it's certainly true that blackmail is a threat. It's also true that threats are speech, and as such are presumptively protected by the 1st amendment, unless the character of what you're threatening to do overturns that presumption.

The logical incoherency of blackmail laws being upheld, is that blackmail is a threat to engage in constitutionally protected speech. And therefore there's no way on God's green Earth the character of what you're threatening can overcome the presumption that speech is free.
3.15.2006 6:04pm
Gtywokls (mail):

AS a legal doctrine this is shaky. There's the case (the AP doesn't give details) of the former prostitute involved in a lurid murder case (charged, acquitted) suing for invasion of privacy when, 20 years later, a film comes out using her name and the term "based on a true story." Likewise for the photo of a child killed in an accident. A public fact, and newsworthy the next day, but when a newspaper printed it 20 months later the family claimed invasion of privacy. (Sorry, Gtywokls.)
I don't know if I would call it my pronouncement on the state of the law as much as a statement of my favored doctrine (although infused with my basic-level understanding of privacy torts). As to the cases you refer to, I would be very interested in looking at the cases if you can provide more information. They sound distinguishable from the facts we're discussing, but I'd like to read more (I'd particularly like to read more about the outcomes; they sound like cases that were brought, but the questions as to whether they were successful sounds open). I've found the AP guide that you may have referred to, but they do not give details.

One question to raise is that if a court fashions a doctrine that a once public fact can, through time, become a private fact, then how do they set the timeframe? Does the judge set a limitations period on all public facts as a matter of law, do they do a case-by-case legal analysis, or do they submit each case to the jury and ask them to decide whether the fact should no longer be public (I can imagine the charge including the phrase "community standards of newsworthiness"). I find the idea troubling.

An interesting, freely available little review of some relevant cases can be found at this link, though it is certainly not comprehensive, and illustrates how this has come up primarily in cases against the media. Nonetheless, I think there are a few interesting cites that suggest there is no invasion of privacy here (or should not be an actionable tort).
3.15.2006 6:42pm
David M. Nieporent (www):
I'm not understanding. What's the relevance of the media/nonmedia status of a defendant in a defamation/privacy tort to McCain Feingold.
I'm not sure if you're being flip or not. Obviously there's no specific relationship between McCain-Feingold and defamation. The point is that McCain/Feingold gives members of the media special rights. If they can get special rights in one context, why not in another?

And who are the "campaign finance zealots?"
McCain, and Feingold?
3.15.2006 8:50pm
Jonathan Burdick (www):
I think you misspelled "titillation" in the post, as:

"tittilation" -- or was that intentional? ;-)

i.e. "What wuz y'all THINKING?"
3.15.2006 9:31pm
SenatorX (mail):
Don't Judges make judgments about law? Sure they are SUPPOSED to make judgments through the filter of the Constitution etc... but can you really take every self interest(and extended self interest) out the man/woman?

Or rather is the vetting process of Judges supposed to be such that only the ones that have displayed enough competence at detaching themselves from their personal interests and made judgments based on the most commonly agreed/enforced interpretations of the laws get to BE judges? And then aren't the lawyers just basically there to help the judge, as much as they are able to, about their interpretation of the law that helps their case the best? The judge decides what interpretation is valid and what is not valid. The jury, if any, is supposed to return joined verdict in the context of whatever the Judge has decided is valid.

And then conservative judges are ones that believe in a strict as possible view towards traditional interpretations?
Help an ignorant guy out!
3.15.2006 11:02pm
logicnazi (mail) (www):
My understanding is that blackmail does not only mean a monetary demand. For instance if you said 'don't sue me or I will reveal this information' you are committing blackmail.

Now presumably I can't just circumvent blackmail laws by refusing to make this point explicitly but just making sly comments like "I tend to reveal negative info about people who piss me off"
3.15.2006 11:36pm
logicnazi (mail) (www):
Also I think Mr. Bellmore made a very good point up above about blackmail being a threat to engage in constitutionally protected speech. This is closely related to the point I am trying to raise.

Surely it cannot be a crime for Lynch to make true statements about his inclinations to engage in constitutionally protected speech. Yet it should be perfectly acceptable for him to tell people, "You know I tend to dig up people's pasts and use it against them when they sue me." How does this not constitute blackmail? What if he also reveals his knowledge of the fact in question (surely if revealing the fact is acceptable revealing you know the fact is as well).

Now if you think the above case is blackmail what happens if Lynch just engages in the general practice of releasing bad info about anyone who sues him? This in effect communicates just the same information as above so how is it not also blackmail?
3.15.2006 11:43pm
Walter:
Le Messurier,

I, too, was reminded of the FCRA standards in this area, as Congress recently amended the law to allow the use of criminal convictions of any age to be revealed in background checks. (Prior to the change, only convictions less than 7 years old could be reported unless relevant to the job (law enforcement mostly) or the candidate was being considered for a highly paid position.) I'll dig up the exact cite if anyone is interested. Oddly enough, the law was amended in 2004.

My question is: May Congress preempt state law (under the Commerce Clause), at least with respect to publishing true facts about actual convictions in the context of background investigations? If so, wouldn't that pre-emption extend to the dissemination of that information once gathered?
3.16.2006 1:15am
Robert Lyman (mail):
Brett, you still need to get at my bribery/blackmail point.

Members of Congress have a constitutionally protected right to vote for or aginst ("present," or simply to not be there on the day of the vote) any bill. But pay them to vote your way, and both of you have committed a crime. Make a nudge/wink offer to pay, and you've committed a crime.

Likewise, you apparently have a constitutional right to have sex with whomever you like. But get paid for it, and you can go to jail.

Blackmail seems to fit easily into a similar catagory of "constitutional for free, but illegal for money" acts
3.16.2006 11:35am
Kovarsky (mail):
bribery is like a threat, it is not speech. it is not subject to first amendment protection, nor should be be under the current ontological understanding dominating our acts versus speech discourse.
3.16.2006 1:50pm
NickM (mail) (www):
A client of mine was involved in a real-life example of such a case (it began before he became a client, and I had no involvement in the litigation).

He ran for public office, and lost. He became very dissatisfied with the actions of a campaign consultant he had paid, and did some research into the man's background, only to find that the consultant had been convicted a few years before of child molestation. Not only was this information a matter of public record, it had appeared in numerous newspaper articles at the time of the arrest and conviction, and in one case had become an issue brought up publicly in a political campaign (a mailer discussed that an opposing candidate - who was a police officer - had paid thousands of dollars in campaign funds to a company run by the convicted child molester).

The disgruntled former client published the facts of the consultant's child molestation conviction widely to candidates for office and campaign professionals, and was sued for it. He crossclaimed, and the suit reached a confidential settlement.

Nick
3.16.2006 2:47pm
Peter Wimsey:
I find the blackmail/first amendment overlap interesting, and I think it would benefit from a more concrete analysis. In my state (IN), "blackmail" is included within a larger "Intimidation" statute. The relevant provisions are as follows:

IC 35-45-2-1
Intimidation
Sec. 1. (a) A person who communicates a threat to another person, with the intent:
(1) that the other person engage in conduct against the other person's will;
(2) that the other person be placed in fear of retaliation for a prior lawful act; [...]
commits intimidation, a Class A misdemeanor.

"Threat" is defined in subsection (c)(6) to include "an expression, by words or action, of an intention to [...] expose the person threatened to hatred, contempt, disgrace, or ridicule."

Clearly this statute cannot be read broadly and remain constitutional, as it would otherwise criminalize much of the political process ("If you vote against this gun bill, I'm going to tell your constituents that you're anti-gun.")

Arguably a narrow reading is possible, where the use of the word "expose" is construed as limiting the crime the the disclosure of private information. This would cover "classical" blackmail ("Give me $10,000 or I'll send your wife these picture of you with your mistress...")

But - to get to the heart of the matter - is even classical blackmail protected by the first amendment? Do I have a first amendment right to demand money to withhold disclosure of certain damaging information? I'm not sure that I do. Certainly I can't be prosecuted for disclosing the information - as that would clearly violate the first amendment. But I don't think that there is first amendment protection for this kind of threat. But...just to complicate things...I see in my mind a distinction between a demand that results in pecuniary gain for the holder of the information and a demand that does not. I don't have a problem with driminalizing a demand that a person pay money to avoid disclosure of a marital infidelity. But what if the person were threatened with disclosure of the marital infidelity unless the unfaithful person ended the illicit relationship? Surely that's not illegal.

So I suppose I'm still unsure how this plays out. IN addition, I'm also not sure exactly how "hatred, contempt, disgrace, or ridicule" would be construed, either.

(As a separate note - are there still criminal prosecutions for blackmail? I have more than 10 years of experience in and around the criminal area, and I can't remember a prosecution ever being brought under the "blackmail" prong of the intimidation statute.)

Walter: I don't think that federal law would preempt state law WRT the disclosure of criminal history information. However, as a practical matter, much criminal history information is retained by the DOJ, and the circumstances under which they disclose it is a matter of federal statutes and regs.
3.16.2006 3:40pm