Wednesday, November 17, 2021

Mistaking Inferences for Penalties

by Sherry F. Colb

Earlier this week, I listened to a debate on Intelligence Squared about whether Cancel Culture is toxic. As I knew would happen before the debate even began, the participants soon started arguing about whether Cancel Culture exists. Two believed that it does and two that it doesn't. If you think that Cancel Culture is a myth, then you are likely ignoring a lot of undisputed facts on the horizon (sorry). And if you believe that free expression means that no one should be able to draw inferences about you from what you say, then you are at war with the rules of logic. 

Of course there is such a thing as Cancel Culture. What do I mean by that? I mean that people who have said things that were either unpopular or insensitive or even offensive have faced consequences that were grossly disproportionate to what--if anything--they deserved. An atmosphere in which people of good faith routinely feel the need to say "I would never state this publicly, but...." is a Cancel Culture, and one cost of living in a Cancel Culture is that the apparently prevailing normative view of things might in fact bear little resemblance to the actual prevailing normative view of things. 

I will not specify examples of it here  because no matter what example I choose (and there are quite a few of them), I know that some readers will loudly condemn me for disagreeing with them about whether a particular person who voiced an unpopular/insensitive/offensive idea deserved to be treated like the second coming of Josef Goebbels or David Duke. Suffice it to say that disproportionate responses to relatively innocuous expression is easy to identify, and I'm happy to be more specific (and I have been more specific) with the small number of people I completely trust. Michael Dorf is one of the people in this trusted group, so he can confirm for skeptical readers that I am right and that trying to self-censor to avoid clear threats of demonization is exhausting and wastes energy that could be directed at trying to solve society's problems.

At the same time, however, when people say things, their statements give rise to logical inferences, and it is neither realistic nor fair to demand that nobody draw any inferences as a condition of free speech. Say John Doe makes the following statement to his friend Jason Roe: "You know women today are so demanding. It used to be that they cleaned the house, did the shopping, satisfied you sexually, and shut the fuck up.  Now everyone 'believes women,' and we have to apologize for having a dick. I really miss the good old days." Imagine that John Doe is a law professor and that some students overhear his comments.

No one is under an obligation to think that what John said is consistent with John being something other than a complete asshole. Was he free to say what he said? Sure. But people who heard it are also free to think he is a creep and a misogynist. Women are free to decide that despite his good looks, they will not be dating him any time soon. He is not entitled to people's good opinion. There is regrettably a shrinking space for permissible chit chat, but I would locate what Doe said as falling outside even a very capacious and generous space, one that we might have encountered ten years ago.

A case decided by the Eastern District of Pennsylvania, Bey-Cousin v. Powell, brings to mind the clash between penalizing expression in a Cancel Culture sort of way, on the one hand, and drawing rational and normatively proportionate inferences from what people say to factual and normative conclusions, on the other.

The case involves a man who had some trouble with the law and whose criminal conviction was reversed on appeal. The man brought a civil rights lawsuit claiming, among other things, that police planted a firearm on him. In defending the lawsuit, police wish to introduce into evidence the lyrics of some songs that the plaintiff wrote. Police believe the lyrics undermine the plaintiff's version of events and support the defendants' narrative.

The district court in the case ruled that the song lyrics would be excluded. I have no opinion on whether the particular lyrics should come into evidence or were properly excluded. In so ruling, however, the court invoked the First Amendment right to free expression in the arts. The court said that if an artist's lyrics were freely admissible against him in court, then that admissibility would have a chilling effect on artistic expression. In response to this constitutional concern, the court ruled that before being able to introduce an opponent's lyrics into evidence, the proponent must overcome a presumption that artistic expression is not factual. Furthermore, the court held, it is not enough to show a resemblance between events in the real world and the statements of the artist in his music or other artistic expression.

I have written about the difference between protecting the freedom of speech, on the one hand, and refusing to admit that speech as evidence of other wrongdoing in a court of law, on the other, here. An artist is free to write songs about his encounters with the law and with other people and to fictionalize those songs to his heart's content. But that freedom does not entail a right to suppress relevant evidence of wrongdoing in a lawsuit. He can, of course, argue that a particular piece of evidence, a song, is far more likely to prejudice the jury against him than it is to shed light on what he actually did. The district court did say that such a balance would favor exclusion in this case. But the court appeared to go further than that, asserting that in many cases, relevant evidence that could illuminate the facts for the jury would not come in, asserting that "starting with a presumption that artistic expression is not a factual admission might in some cases lead to the exclusion of admissible evidence. But the First Amendment requires no less."

The Supreme Court has had occasion to consider the question whether the First Amendment freedom of speech and expression ought to inform our understanding of other areas of law, even when no one is trying to chill or penalize speech or expression. In Zurcher v. Stanford Daily, the police searched a student newspaper office on the basis of a warrant and probable cause, and the newspaper claimed that because of the importance of freedom of the press, police should need more than the usual probable cause and a warrant that they must have to conduct searches of people's homes. The Supreme Court roundly rejected this claim and said that all searches (other than extraordinary ones like surgery to find a bullet as evidence) undergo the same analysis. So long as no one is deliberately interfering with the freedom of speech or the press, probable cause and a warrant are enough.

Many people (including me) are critical of the Court's Zurcher decision because allowing the sort of rummaging in a newsroom that police typically do when they search could really interfere with the freedom of the press, particularly at a time when everything was on paper that police could see during a search. A more demanding standard for searching a newspaper would therefore have made a lot of sense. But the Court said no. The First Amendment freedom of speech and expression does not change the operation of other legal regimes like the law of search and seizure.

In the context of free expression and the admissibility of evidence, there is even less reason to allow the first to alter the second than there was in Zurcher. Almost everything that goes into evidence in a court case consists of words or expression of one kind or another. If we were to take seriously the idea that the admissibility of speech imposes a presumptively impermissible chilling effect on free expression, then our generally liberal admissibility approach under the Federal Rules of Evidence would morph into a system in which all evidence would be presumptively inadmissible. This regime would completely undermine the principle that the law has a right to "everyman's [sic] evidence."

The court gives a few examples of fictional works of art that have no bearing on reality. One is "I Shot the Sheriff," written by Bob Marley and performed by Marley and later by anti-vaxxer extraordinaire Eric Clapton (who won't play to "discriminated [read "vaccinated"] audiences"). Neither Marley nor Clapton shot the sheriff, though Clapton may be responsible for more deaths for his COVID-promoting pontificating. Another example is Bohemian Rhapsody by Freddie Mercury and Queen, who were not confessing to mama that they killed a man. Of course, no one ever thought that these works of art corresponded to events in the real world, and their authors were probably not afraid that the songs might become evidence against them. 

Statements that people make outside of the artistic area are far more likely to become evidence against them than are song lyrics and therefore much more vulnerable to the chilling effect that the district court discusses. The district court, however, seems to focus exclusively on artistic expression rather than on all speech protected by the First Amendment, perhaps because it correctly understands that a system in which evidence comes in to prove facts requires access to speech and words as proof, regardless of how free that speech might be and how protected from punishment. Artistic expression is, of course, part of the freedom of speech, but the First Amendment does not single it out for special protection and indeed does not say anything about it at all. I am not an originalist, so I am not especially interested in whether people at the time of the framing and ratification of the Constitution or of the Fourteenth Amendment believed that art enjoyed the same sort of protection as other speech (though I suspect they did not). But art does not receive extra protection either.

The truth is that most art will never become evidence in court. If you write a novel about how much you hate some fictional person and how much you would like to kill him, it seems very unlikely that you will come to be accused of murder and then have your novel used in evidence against you. And even if that improbable event takes place, you can explain to the jury that fiction is often different from reality. The problem with unduly prejudicial evidence is that juries fail to understand why the evidence is not really all that relevant. But juries are pretty good at understanding that novels and songs are not the same thing as reality except when they are. On occasion, a song's lyrics may track what happened in a particular case quite well and therefore have a place in the jury's determinations about what happened. If John Doe of our earlier example is suddenly widowed by the murder of his wife, and he has, coincidentally, also written a song called "I Killed The Bitch," it does not burden the freedom of speech and expression unduly to allow the jury to take a look at his art.