Libel laws and the non-institutional press

You might imagine that medical journals publish whatever they deem appropriate in the best interests of scientific debate? You’d be wrong. The BMJ and The Lancet have a weekly ritual whereby editors contact libel lawyers to advise on articles that they are about to publish. The editors of these world-renowned journals are conscientious professionals doing their best to publish material of relevance to their readers and improve patient care. You might not always agree with what is published but I wouldn't doubt the motivations behind publication. These journals want to raise issues that matter, and often issues that matter are the most controversial and provocative. Nor do the libel lawyers want to prevent publication, though I guess some of you will take a more cynical view. Yet, too often, publication is prevented or watered-down because of the United Kingdom's libel laws. This doesn't necessarily mean that the intended article is inaccurate or defamatory of an individual or a company. What it does mean is that a judgment has been made by the editors, based on the advice of their libel lawyers, that publication in the intended form will place the publication at risk of litigation. And this is where the issue becomes truly unsatisfactory. Most journal editors, certainly of major UK journals, are not risk-averse people. A good editor or journalist will publish articles that upset some readers and organizations. But the risk of litigation is also a substantial financial risk, and editorial decisions are complicated by the prospect of financial ruin for the publication. The sums involved in fighting a libel action – the UK's costs are 140 times more than the average in the rest of Europe – are simply unbearable, even for publications of the size of the BMJ and The Lancet. The only way a journal can fight such an action is by relying on its insurance policy, but insurers expect that any potential risk identified by the libel lawyers is eliminated. Ultimately, the UK libel laws boil down to a simple calculus: does your adversary have more financial clout than you? Our libel laws don't protect reputations; they protect the status of the rich and the powerful, and indulge the dangerous enthusiasms of mischief-makers. It's too easy to launch a libel action and the burden of proof is on the defendant. Our libel laws are notorious around the world. They encourage libel tourism, whereby overseas companies find imaginative methods to launch a libel action in the UK and oppress their enemies. They suppress the debates on science, medicine, and better patient care. Editors may never commission articles or have to pull others. Medical research and patient care are both affected. The fear of libel is killing scientific debate in medical journals. I was on the receiving end of a libel action by one of the world's largest companies during my time at the BMJ. It isn't a pleasant experience but it does remind you of the importance of free speech. There are times when journals aren't quite able to say what they want to say, and risk patients being harmed, because of our libel laws. At the JRSM, we also run potentially contentious articles past our libel lawyers. This happens less frequently here but the implications for the JRSM are far greater as this is a smaller and poorer journal than the BMJ and The Lancet. We do need libel laws but currently they benefit the powerful and distort the debate on science and medicine. They might even cause harm. The Libel Reform Campaign has launched a national petition to influence parliament to amend our libel laws (http://www.libelreform.org). I urge you to support it.

Reviewed by: In Sullivan's Shadow: The Use and Abuse of Libel Law during the Long Civil Rights Struggle by Aimee Edmondson Fred Carroll In Sullivan's Shadow: The Use and Abuse of Libel Law during the Long Civil Rights Struggle. By Aimee Edmondson. (Amherst: University of Massachusetts Press, 2019. Pp. xviii, 363. Paper, $27.95, ISBN 978-162534-409-0; cloth, $90.00, ISBN 978-1-62534-408-3.) Segregationists sued frequently for libel. They sued black and white people, editors and reporters, ministers and activists, longtime state residents and socalled outside agitators. They sued for articles written, advertisements published, and words spoken. They demanded retractions and compensation for what they characterized as unwarranted damage to their reputations. But in actuality, white government officials wielded libel law to protect white supremacy and waste the time and funds of those individuals and organizations that worked to dismantle segregation and end police brutality. Segregationists pursued these ends when the law was adjudicated in their favor but continued even after the U.S. Supreme Court ruled in 1964 in New York Times Co. v. Sullivan that public officials must show "actual malice" to prove libel (p. 4). In In Sullivan's Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle, Aimee Edmondson recounts one lawsuit after another, mostly in the South but also in the North and the West, to illustrate how "these legal assaults constitute a clear historical pattern showing how white political leaders turned to libel law as a weapon for silencing all critics on the momentous issue of racial justice, not just news coverage by national and local media" (p. 2). Some cases are quite familiar to historians of journalism, First Amendment law, and the long civil rights movement. Others are less so. The strength of Edmondson's monograph, which artfully blends court documents, archival research, and secondary sources, rests in the sheer number of cases reviewed. Her numerous vignettes link local names and actions and consequences to "at least $300 million in libel actions" filed by government officials by 1964 (p. 101). Before the Sullivan decision, white public officials sued often because they usually won. They expected to find sympathetic judges and juries in their state courts. In 1950, John Henry McCray, the editor of a black weekly in South Carolina, dared to raise doubts about the conviction of a black man sentenced to death for raping a white teenage girl. McCray interviewed the man, who said the sex was consensual. He never published the girl's name. Even so, McCray was fined $3,000 and sentenced to three years' probation. Notoriously, he was later accused of violating his probation and sentenced to five weeks on a chain gang. He had pleaded guilty because his lawyers assumed he would not receive a fair trial. In 1955, a Florida state legislator sued a state NAACP official who suggested the politician was advancing the cause of communism by proposing to abolish public schools rather than integrate them. That accusation appeared in a telegram and a letter. The activist was ordered to pay $15,000. In 1961, veteran journalist Howard K. Smith was suspended and then fired by CBS for an hour-long report that took a critical look at how officials in Birmingham, Alabama, responded to civil rights demonstrations. Officials complained the report lacked balance. CBS settled the resulting lawsuit out of court for an undisclosed amount and issued an on-air apology. Even after Sullivan, government officials continued to file strategic lawsuits against public participation (known as SLAPPs). The trials, though, were now in [End Page 754] federal court, where judges applied the new standard. Regardless, libel suits continued to cost defendants time and money. Edmondson examines three suits filed in 1964 and 1965 by police officers in New York and New Jersey involved in shootings. Demonstrators protested with placards that bore the officers' names and badge numbers. Not until 1969 was it "widely understood" that "criticism of a police officer in his official capacity was now protected speech" (p. 263). Edmondson's research suggests that libel lawsuits were a more significant tactic in defending white supremacy, racial segregation, and police brutality than scholars...

Most stories lack balance and in 28% of instances other side of controversy was not contacted. The relationship between formal journalism codes of ethics and liability in libel and other legal actions has been a subject of growing-and usually alarmed-concern recently. The concern is a natural result of the U.S. Supreme Court's command in 1974 in Gertz v. Robert Welch, Inc.1 that plaintiffs in libel suits must prove fault to win against a media defendant. In most states, negligence has become the fault for private figures; actual malice was established as the fault requirement for public figures by the Court itself.2 Proof of fault requires proof of a departure from standards of behavior which either exist or should exist as a matter of duty. In tort actions where a media defendant is involved, the requirement calls for evidence that a reporter or other media staffer departed from some of behavior, referred to in tort law as the standard of care.3 Two opposing positions have developed. One argues that application of journalism codes of ethics as standards is inherently undesirable, either because it confuses the issues of moral duty and legal duty,4 or because it attempts to formalize statements of principle and aspiration.5 The other approach openly advocates application of journalism codes of ethics in libel. Since libel inquires into the behavior of journalists, and since professional standards represented in codes are evidence of standards within the news business, codes provide a partial common ground for assessing media performance.6 The weakness in advocating code application is that codes are inherently philosophical. Only a handful of provisions in the various codes of journalism organizations are specific enough to prove or disprove.7 The weakness of those who oppose code application is that no better source for generally-agreed-upon standards exists. Codes of ethics remain the only available evidence of standards other than potential statements from expert witnesses or from the mouths of defendants themselves. Without some point of reference, the fact question for a jury will essentially be ad hoc in every libel case. That is actually the situation in most states using the ordinary person negligence standard: juries simply substitute their judgment for that of the reporters and editors, resulting in an alarmingly high rate of favorable verdicts for plaintiffs.8 Something better is needed. One of the authors has argued that the application of a journalistic malpractice in libel actions will benefit news media defendants in most cases. Just as likely, it will ensure defeat in others.9 A journalism malpractice assumes that violation of professional standards may result in defeat in libel suits. But libel has many elements a plaintiff must prove. The very first is that an assertion has a defamatory meaning. No matter how negligent a story, lack of defamatory meaning precludes a successful libel suit. This study is a first step in determining the relationship between defamation and adherence or non-adherence to professional norms. Defamatory meaning became the focus of this study because it is primary in libel. It is not only the first building block of libel-it is also the first question typically addressed by a court, resulting in dismissal if defamatory meaning cannot reasonably be found.10 The Supreme Court has made defamatory meaning relevant by stressing that there is an analytic difference if a statement makes substantial danger to reputation apparent.11 It is reasonable to assume assertions harmful to reputation place a reporters on notice to be more careful; the courts agree. The assertions made in scholarly writings on both ethics and libel are overwhelmingly normative, and therefore untested. So long as that is true, advocating application of professional standards remains mere opinion, however much it is shared by courts. …

Journalists were alarmed when, in 2005, the United States Court of Appeals for the Eleventh Circuit denied shield-law protection to Don Yaeger, an investigative reporter for Sports Illustrated, in a libel suit by fired football coach Mike Price. Yaeger is a journalist, and Alabama's shield law offers absolute protection even when a journalist is a party to a case. The court's decision turned on the fact that Alabama's seventy-three-year-old statute does not include the word “magazine.” This article shows that this hole in the “covered medium” language of Alabama's statute is not uncommon among the nation's thirty-six shield laws and that the Eleventh Circuit's strict reading of the statute's text is not at odds with current trends in statutory interpretation. Those two facts, combined with the rise of the Internet as an important vehicle for journalism, suggest the time is ripe to scrutinize and modernize shield laws, some of which have been on the books for more than a century.

law of public employment has come long way since 1892. That's when Oliver Wendell Holmes made his infamous statement, The petitioner may have constitutional right to talk politics, but he has no constitutional right to be policeman. (1) Back then, public employment was seen as privilege, not right. Today, it's clear that public employee does not shed his constitutional rights at the workplace door. While public employees have more rights than they did in the 19th century, their legal protections have been decreasing in the past two decades. Public employees' constitutional rights reached peak during the 1960s and 1970s. Since then, the Supreme Court has been diluting their rights. Some of the most significant court decisions shaping the employment environment for public school teachers have come in the areas of freedom of expression, procedural due process, and search and seizure. FREEDOM OF EXPRESSION landmark case in terms of setting constitutional standards for teacher employment came in 1968 in Pickering v. Board of Education, in which the Supreme Court ruled that a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. (2) In Pickering, the Court ruled that public employer had to show compelling state before firing teacher for speaking about matters of public concern. In such case, the court must balance the rights of the employee against the public employer's right to run an efficient workplace. Pickering represents the closest that the free speech rights of teachers approached those of the general public. In 1983, the Supreme Court clarified public employees' free speech rights in Connick v. Myers. (3) Court ruled that when public employee speaks out on matter of private or personal interest and not as citizen on matters of public concern, the speech is not protected by the First When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. In the school setting, courts assess whether teacher's speech is made mostly in the teacher's role as citizen or as an employee of the school. (4) But even teacher whose speech is matter of public concern can be disciplined if such speech disrupts the school environment. In 2006, the Supreme Court ruled in Garcetti that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (5) Some scholars have argued that this new employer-friendly rule constitutes sharp break from the traditional Pickering test and discourages public employees from speaking out. Subsequent cases involving teachers illustrate how the Garcetti ruling is weakening the First Amendment rights of teachers both inside and outside the classroom. In Michigan case, the court upheld the termination of teacher who wore t-shirt complaining of lack of contract. Citing Garcetti, the court simply ruled that the t-shirt caused disharmony in the workplace. (6) Similarly, the Seventh Circuit ruled in 2007 that an Indiana teacher who was dismissed for sharing her views against the war in Iraq in class discussing current events was unprotected by the First (7) In 2008, school psychologist sued her school district, alleging that the district retaliated against her after she spoke about noncompliance with the Individuals with Disabilities Education Act (IDEA). A federal district court ruled that she was speaking as an employee rather than as citizen. Citing Garcetti, the court concluded, Plaintiff has not alleged that she was speaking as citizen when she voiced her concerns about alleged IDEA violations. …

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory.

Since 1968, the threshold inquiry for determining whether the First Amendment protected public employees from retaliation for their speech was whether the employee spoke as a citizen on a matter of public concern. For almost forty years, courts focused on whether an employee spoke on a “matter of public concern” and paid little attention to whether the employee spoke “as a citizen.” As long as their speech concerned a matter of public concern, public employees were generally protected from retaliation if the employee’s interest in commenting on public issues outweighed the state’s interest in promoting the efficiency of the public services it performed.

The Press and Libel Before New York Times v. Sullivan

Part I: Introduction For close to forty years, fate of journalists wishing to conceal identities of confidential sources from government bodies with subpoena power has depended upon how one heavily divided United States Supreme Court opinion is interpreted. The Court's 5-4 decision in Branzburg v. Hayes1 in 1972 represents its last word - so far2 - on whether journalists have a constitutional right under First Amendment press clause3 to refuse to identify sources of information to grand juries, prosecutors, criminal defendants, civil litigants, legislators, and others. With prospects for a federal journalist's shield law still uncertain at this writing,4 journalists may continue to rely on interpretations of Branzburg for protection for some time. Because Branzburg decision was closely divided, lower court interpretations have focused on a brief concurring opinion by Justice Lewis Powell.5 The Powell concurrence is not necessarily a ringing endorsement of majority opinion, but it also stops short of endorsing either dissent. Lower federal courts and some state courts have resolved resulting confusion through ad hoc decision-making, while other states have created shield statutes that protect journalists to varying degrees. But recently in federal courts, journalists' protection, already uncertain, has been thrown into further disarray by a parade of negative decisions.0 The parade began with a strongly worded United States Court of Appeals decision in 2003 criticizing thirty years of federal appellate precedent that provided limited protection to journalists and sources.7 The Seventh Circuit's 2003 opinion accused other federal courts of badly misreading Branzburg, which three-judge panel said provided no support for any type of constitutional privilege.8 The Seventh Circuit's McKevitt opinion indicated that more than thirty years after Branzburg was decided, lower courts still were unsure what it meant. Although passage of a federal shield law would help clarify journalists' right to conceal confidential sources, it would still leave unresolved two other issues that are associated with Branzburg - extent to which press newsgathering activities are protected by First Amendment and reach of generally applicable laws into newsgathering and publication. Because Branzburg still matters to media, this article will attempt to make sense of it by using a comprehensive approach. All Supreme Court opinions that have cited Branzburg in First Amendment contexts will be examined, as well as a few non-media cases in which Court discussed Branzburg at some length. Also, article will briefly examine federal and state appellate court cases and federal trial court opinions that discussed Branzburg's meaning to some extent. The goal is to gain a complete picture of how this pivotal case in First Amendment law has affected press rights. Part II: Origins of Case The cases consolidated in Branzburg v. Hayes had origins in many years of journalistic practice, centuries of Anglo-American legal tradition, and turbulent 1960s. sl Before examining backgrounds of specific cases, it would be helpful to briefly sketch larger issues at stake. THE PROBLEM OF PRIVILEGE It has long been a maxim of English and American law that privileges excusing people from providing in court are disfavored because they hamper search for truth. Famously, during a debate on whether privileges to excuse witnesses should be curtailed, Lord Hardwicke in 1742 said on floor of Parliament that the public has a right to every man's evidence in courts of law.10 That phrase has survived to this day as a description of Anglo-American law's attitude toward privileges.11 Nevertheless, it also is widely accepted in law that some relationships between persons are irreparably damaged if one party cannot rely on promises of confidentiality from other. …

Utilizing critical race theory, we can better understand the role that the American legal system and newspapers played in their efforts to maintain the racial status quo prior to the civil rights movement of the 1960s. At the intersection of race, journalism, and libel law, we see a rich vein of case law spawned from newspapers erroneously identifying white people as black. Such racial misidentification prompted a series of libel suits from 1900 to 1957 before the US Supreme Court placed libel law under First Amendment protection in New York Times v. Sullivan. Jim Crow had long been secure in southern newspapers and some errors in racial identification were inevitable. Before Sullivan, it could indeed be libelous when newspapers falsely identified white people as black.

The strength of the United States Constitution lies not only in its delegation of powers to separate branches of the government, but also in its creation of a system of checks and balances that protects the citizens from any one branch of government’s ability to intrude on individual rights. However, with regard to the seventh amendment, this hallowed system of checks and balances has been eviscerated by the use of the summary judgment procedure in federal court.The seventh amendment to the United States Constitution requires that the right to a jury trial in civil lawsuits “shall be preserved”. It states:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.Despite the clear and unequivocal language preserving the right to jury trial, this right has been significantly diminished by the summary judgment procedure in federal court.The summary judgment procedure allows a federal trial judge to eliminate a jury trial in a civil lawsuit. Instead of a jury trial, the federal trial judge renders judgment by concluding that a reasonable jury would only rule consistent with the judge’s ruling, and therefore, no jury trial is necessary. This summary judgment process is frequently used in federal court and has been the source of vehement ridicule among legal scholars. Most legal scholars that have addressed this issue take the position that the summary judgment process is an unconstitutional violation of the seventh amendment. The United States Supreme Court, however, has held that the summary judgment procedure is not an unconstitutional violation of the seventh amendment.This article takes the position that the seventh amendment requires an inherent checks and balances system that is eviscerated by the summary judgment procedure. This is due in large part to the fact that the very branch of government that violates the seventh amendment’s checks and balances system is the same branch of government that the seventh amendment was designed to check and balance. Plainly stated, the seventh amendment intended that the requirement of a jury trial would allow members of the local community, jurors, to be a check and balance against the power of federal district judges. It is this nullification of the checks and balances system by the federal district court judges that produces the greatest harm to our constitutional structure.Protecting the checks and balances required by the seventh amendment does not require a decree that the summary judgment process is unconstitutional. But it does require creating a process by which the local community is allowed to fulfill its role as a check and balance against federal district court judges. In order to restore the seventh amendment protections to civil trials, the local community must be allowed to participate in the summary judgment process.The solution is to restore the check and balance by adding a civil jury review of a judge’s order granting summary judgment. The civil jury review of the judge’s summary judgment order could be accomplished in a similar procedure to the grand jury used in criminal cases. It could be called a Summary Jury and it could occur during any criminal or civil jury term. The review process could occur by allowing the plaintiff and defendant attorneys an opportunity to orally argue to the jury their positions as to whether the federal judge’s decision granting summary judgment should be upheld. The summary jury would then render a unanimous verdict in support of the decision, which would uphold the decision. Anything less than a unanimous verdict in support of the decision would be a reversal of the court’s summary judgment decision.If this process were employed, it would restore the checks and balances to the seventh amendment, while allowing for a procedure for the court to single out and address frivolous lawsuits. It would wrest from the judiciary the unfettered right to deny the community the opportunity to not only to serve on a jury, but to attend and participate in the process as members of the community.The only way to protect the seventh amendment is to create in the summary judgment process, the checks and balances required by the seventh amendment. The citizens of the community must be allowed to serve on a jury in some capacity during the summary judgment process, and to perform the constitutional function of acting as a check and balance on the federal district court judges in a civil trial.

This article previews the issues and arguments in the 2010-11 Supreme Court Term case, Smith v. Bayer Corp. In 2001, Keith Smith and Shirley Sperlazza filed a class action lawsuit against Bayer Corporation in West Virginia state court, alleging varying claims arising out of their use of the prescription drug Baycol. In 2008, the Federal District Court for Minnesota, overseeing the massive Baycol products multidistrict litigation, denied class certification under the federal class action Rule 23, to a proposed class of West Virginia consumers alleging economic-loss injury. Shortly after denial of the federal action, the Smith class moved for class certification in state court pursuant to the West Virginia class action rule.In response, the Bayer Corporation sought a permanent injunction enjoining the West Virginia class certification hearing, which the Minnesota federal district court granted. In January 2010, the United States Court of Appeals for the Eighth Circuit upheld this federal injunction of the West Virginia class certification hearing. This appeal involves the issue whether a federal court, consistent with the All Writs Act and the Anti-Injunction Act, could enjoin the West Virginia state court from determining whether to certify a class action after a federal court previously denied class certification in a virtually identical class action.The Court will address two major issues: (1) When a federal court in an MDL proceeding denies class certification of a statewide class action, may the court pursuant to the All Writs Act and the Anti-Injunction Act enjoin putative class members who were represented in the federal hearing from seeking class certification in state court for the same class action?, and (2) When a federal court in an MDL proceeding denies class certification of a statewide class action, is it impermissible for the federal court to issue an injunction restraining absent class member from seeking state class certification, where those absent class members were not afforded the due process protections required if certification had been granted?In deciding the Smith appeal, the Supreme Court will not forge any new ground in interpreting the Anti-Injunction Act or the All Writs Act. The appeal basically presents a fairly straightforward question concerning the appropriate exercise of the relitigation exception, in the context of dual federal-state class action practice. However, the Court’s Smith decision will have important implications for federal and state class action litigation.In the past twenty years, burgeoning of class action litigation in both federal and state court has given rise to problems relating to intersystem adjudication of complex litigation. There are no legal restrictions on litigants from filing parallel actions in both federal and state court, and the Anti-Injunction Act is a relatively weak mechanism for restraining parallel state proceedings.In the past two decades, federal courts have attempted to better manage duplicative class action litigation through increased use of the MDL procedures, which enable consolidation of all similar cases throughout the federal system, for coordinated pre-trial discovery and other proceedings. MDL procedure has proved to be a very effective mechanism for resolving massive litigation. In addition, Congress manifested an interest in channeling class action litigation into federal courts by enactment of CAFA, which created new federal jurisdiction for class actions and provided a vehicle for removal of class actions from state court into the federal system.Notwithstanding these developments, litigants still may pursue class action relief under state class action rules. The Smith appeal confronts the Court with the important question whether state litigants are free to seek a different class certification decision in a state court, once a federal court has determined class certification is not appropriate, and should be denied. As Bayer suggests, such a ruling would provide litigants with an incentive to keep filing state class actions until they find a judge who decides differently than the federal court. For policy reasons alone, Bayer contends this is an untenable conclusion.The Smith plaintiffs, on the other hand, suggest this case tests the very heart of federalism: the notion that state courts are free to determine issues according to their own interpretation of their laws and procedures, even where those laws and procedures are identical to federal rules.In the end, the Court’s opinion is likely to turn on a careful, nuanced analysis of the requirements of preclusion doctrine, with careful attention to the parties, issues, and nature of the class proceedings. We also may expect the Court to supply some further elucidation of what due process requires, in the class action context, to give preclusive effect to a class certification denial to nonparties to a prior litigation.

This chapter starts by asking why benefit sanctions are not a matter of greater public concern. It describes the success of Ken Loach’s film I Daniel Blake but contrasts the generally positive response of critics to the film with the generally negative attitudes of the public towards benefit claimants that have been revealed by the British Social Attitudes Survey. It concludes that, because those who are subject to sanctions in the UK are blamed and regarded as responsible for what has happened to them, and because there is no organisation that has succeeded in drawing attention to the injustice associated with benefit sanctions and to the suffering they cause, there is relatively little public recognition that they constitute a social problem.

This column describes a case in which a psychiatrist employed at a state psychiatric hospital wrote a series of memos to the hospital board, state officials, and a newspaper describing poor-quality care at the hospital. When his contract was not renewed soon thereafter, he filed suit against the state and two state officials alleging violation of his First Amendment rights of free speech. At a trial in 2004 a jury found that the director of the state's Division of Alcoholism, Drug Abuse, and Mental Health had retaliated against the psychiatrist by declining to renew his contract, thus violating his First Amendment rights. Implications of the case for staff in public mental health systems are discussed.

IN AUGUST 1999 the State College Area School District, which in central Pennsylvania, adopted detailed, multi-page anti-harassment policy that prohibited any verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, or personal and which has the purpose or effect of substantially interfering with student's educational performance or creating an intimidating, hostile, or offensive environment. The policy listed various examples not only of the other personal characteristics, such as physical appearance and values, but also of the prohibited conduct, including unsolicited derogatory remarks, jokes, demeaning comments . . . , slurs, . . . name calling, graffiti, . . . bullying, . . . or circulation of written material or pictures that are unwelcome and that are based on the specified characteristics. The policy also specified set of sanctions for any member of the school community who violated the policy, including warning, . . . suspension, expulsion, . . . termination . . . , training, . . . or counseling. By the policy's terms, the school community includes not only students and employees but also unpaid volunteers, contractors, and visitors. David Saxe, an education professor at Penn State University and member of the state board of education, also an unpaid volunteer and former school board member for the district. He the legal guardian of two students in the district. On 4 October 1999, he filed suit in federal court, alleging that he and the two children are Christians . . . [who] believe, and their religion teaches, that homosexuality sin . . . [and who] further believe that they have right to speak out about the sinful nature and harmful effects of homosexuality . . . [and] to speak about . . . [other] moral issues. He claimed that the anti-harassment policy was unconstitutionally overbroad and vague. On 17 December 1999, the federal district court summarily disposed of Saxe's suit, concluding that the district's policy was constitutional. The court first concluded that the policy was not overbroad, reasoning that the harassment prohibited by the policy unlawful under state and federal civil rights laws and not protected by the First Amendment. Second, the court rejected Saxe's vagueness challenge on the basis that a more precise definition of harassment, like Justice Stewart's famous description of 'pornography,' may be virtually impossible. Saxe appealed. On 14 February 2001, the Third Circuit Court of Appeals, in 3-to-0 decision, reversed the trial court's judgment, concluding that the district's anti-harassment policy was overbroad, in violation of First Amendment freedom of expression.1 Having found the policy fatally flawed on this ground, the appellate court did not rule on the issue of vagueness. As preview to its detailed analysis of the issue of overbreadth, the appellate court announced that the trial court's categorical pronouncement exaggerates the current state of the law. The rest of the Third Circuit's relatively thorough opinion may be summarized in two steps. First, while admitting that the Supreme Court has not definitively settled whether - and, if so, in what form - pure, harassing expression beyond First Amendment protection, the Third Circuit explained that long line of precedents makes clear that some forms and degrees of harassing expression are clearly within the First Amendment's core protection against discrimination based on content or viewpoint. The bedrock principle, the appeals court explained, is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable. Second, having acknowledged the tension between the competing, overlapping interests of First Amendment expression and anti-harassment laws, the Third Circuit sifted through the policy to find the elements that were beyond the overlap. …