Legal Studies | 2020 Chapter Showcase

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LEGAL STUDIES | 2020 CHAPTER SHOWCASE

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Lexington Books is committed to publishing high-quality legal studies scholarship across the many topics and subdisciplines of the field. Our books transcend disciplinary divides and use a variety of viewpoints to address topics related to law and justice across international borders, communities, cultures, races, identities, and political lines. We offer the most current and premium academic thought in the field for scholars, researchers, and students. The chapters included here highlight compelling and constructive research from some of our recently published titles, ranging from books that examine the impact of social media on not only our legal systems but also our society as a whole to volumes analyzing freedom of speech and the often ignored weight of language. Our legal studies publications are written by diverse and innovative thinkers exploring areas like international law, legal writing, tax law, constitutional law, and Supreme Court jurisprudence. In the spirit of expanding the practice and pursuit of law I am actively working to broaden our focus to include titles on environmental law, socio-legal issues, medical law, immigration and refugee reform, LGBTQ+ rights, and AI in our criminal justice systems. I invite you to publish your next scholarly book with Lexington Books. We publish monographs, edited collections, and revised dissertations by emerging and established scholars, including interdisciplinary and multidisciplinary works. Lexington Books offers an expedited decision-making process, peer review, and a rapid production process to ensure that your research is published quickly. We publish high-quality books with full-color covers and we market our new titles aggressively around the globe. Our titles are regularly reviewed in scholarly journals and have received significant awards and honors for academic scholarship. To submit a proposal for a book project, please review our submission guidelines and email a full prospectus to me at [email protected]. Or, if you prefer to discuss your project with me first, please email me to set up a time for a phone call. I look forward to hearing from you.

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contents

4-23 Francine Tremblay, “The Trouble with Sex in Sex Work” in

Organizing for Sex Workers’ Rights in Montréal: Resistance

and Advocacy

24-71 Anthony Gray, “European Case Law” in Freedom of Speech

in the Western World: Comparison and Critique

72-149 Mark W. Klingensmith, “Rock Music,” in Lyrics in the Law:

Music’s Influence on America’s Courts

150-177 Francine Banner, “Reckoning: People v. Weinstein,” in

Crowdsourcing the Law: Trying Sexual Assault on Social Media

178-219 Pauline Collins, “The Australian Military Experience:

Discipline and Morality” in The Military as a Separate Society:

Consequences for Discipline in the United States and Australia

The pagination of the original chapters has been preserved to enable accurate citations of these chapters. These chapters are provided for personal use only and may not be reproduced in any form or by any electronic or mechanical means without permission of the publisher. All rights reserved. Francine Tremblay, “The Trouble with Sex in Sex Work” in Organizing for Sex Workers’ Rights in Montréal: Resistance and Advocacy (Lanham, MD: Lexington Books, 2020), 147-66 All rights reserved.

Instructions for inserting chapter pages:

1. Go to File / Paste or command +D 2. Select the PDF 3. Check show import options at the bottom 4. Under place PDF select All pages under pages Chapter Six 5. OK Final Reflections: The Trouble with Sex in Sex Work

At the beginning of my reflection I maintained that three concerns were responsible for the Protection of Communities and Exploited Persons Act (PCEPA): trafficking, sexuality, and sex work as labor. In this final chapter I wish to address the last two. And in order to build my case I must first explain how an image, a symbol, becomes a stereotype, and for this I will refer to Durkheim’s concept of collective representations, which are forms of knowledge born during rituals (Durkheim [1912] 1991). Collective representations (CR) transmit ideas and values to a particular group about themselves, such as the middle class described in the introduction. CRs are “symbols and myths about a group,” they give meaning to their everyday rituals and practices (Mallory and Cormack 2018, 5–12). There is a sense of identity attached to CR; members recognize each other by the language they use, their diction, education, and religion, just to give a few examples. “Categories presuppose the existence of boundaries, or lines of division that enable the ‘lumping’ or ‘grouping’ of practices, actors, and spaces into recognizable groups” (Mayrl and Sarak 2016). The sex worker category has become “real” through the birth of middle-class and bourgeois symbols of sexuality and femininity. The sex worker is incompatible with the middle-class notion of the mother/wife and thus she became the other—the unchaste. Or as a Durkheimian would say, a collective representation of all that is threatening of the stable bourgeois social order. The following chapter is about sexuality, its place in sex work, and examining the fear or malaise which this elicits in the general public. I argue that it is this fear, often linked to the fear of trafficking, which drives the prohibition movement. Perhaps no better example of the fear of sexuality can be found than in the following website discussion offered by an extremely conservative media

4 Lexington Books Legal Studies Chapter Showcase Chapter 6 outlet which nevertheless appears to have its own adherence. Let us briefly examine their main ideas.

The Love and Fidelity Network believes that the flourishing of society depends on healthy family lives and stable marriages to provide the next generation with sound moral instruction and character development [. . .]. These values are often either forgotten or attacked at today’s universities, where casual, “anything goes” attitudes about sexuality and relationships reign. It is crucial that young men and women in college—our next generation of parents and leaders—learn the realities of the sexual culture around them and how they can embrace a healthier and more responsible way of living out their sexuality and preparing for their own future marriages and families. (The Love and Fidelity Network 2017)

As I have indicated, the position elaborated above is clearly very conservative and therefore may not express the views of the majority of the population. Nevertheless, the fact that the Love and Fidelity Network exists at all is a manifestation of a deep-seated fear of sexuality which must find an object to justify such fear. Clearly the whore stigma is ideally suited for this purpose, and while this may not be the only target of the wrath of the Love and Fidelity Network, it is certainly a collective representation which would be at the forefront of the right-wing collective conscience. In 2002, amid the trafficking rhetoric in Montréal, Stella’s board members and employees intensified the internal discussion about human rights, and the general perception that sex workers are incapable of making sense of their own lives. Stella was systematically confronted with the prohibitionist portrayal of sex workers as symbols of patriarchal oppression and as quintes- sential victims. Stella instead argued that these stereotypes contribute to the schism within women’s movements, and denounced the impertinence of certain feminists who accuse sex workers of being responsible for all wrongs committed toward women. This is an accusation which was often leveled against Stella. A challenge facing Stella revolved around notions of sexuality and the part they play in sex workers’ struggle for recognition. So once again, I must take the reader back in time when during the white slavery discourse and the ensuing agitation, something else entered the construct of a middle class: “sexology” (Hall 2004, 37). Indeed, the 1880s marked the beginning of interest in the sexuality of children (Foucault 1976, 142), working-class girls, and women in general (Foucault 1976, 211; Walkowitz 1980; Hall 2004), giving rise to the Social Purity Movement. Foucault (1976) and Walkowitz (1980) both demonstrate how in the 1800s, public authorities seemed to be increasingly preoccupied with the behavior of members of the working class and those living in poverty—their sexual habits, and their lifestyles. Later, Howell (1999) states how race became a concern for public authorities—the fear of “pollution” a concern with

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race. It was the sexual habits of the working class, or the residuum as they were often referred to that, according to Walkowitz, contributed to the emergence of the moral reform campaigns in England. This crusade was “oriented to a male audience [and] more hostile to working-class culture” (Walkowitz 1980, 246). Although never openly stated, the assumption was that the working-class male’s sexuality was uncontrollable (Jochelson and Kramar 2011) and that working-class woman needed the money (Hall 2004, 39). Their alleged mutual weaknesses made them prone to “immoral” behavior, which collided with middle-class values; hence, the creation of different laws aimed at protecting certain sensibilities. In “Hauling Down the Double Standard,” Hall (2004, 37) underlines the emergence of gendered forms of sexuality. Scientia sexualis perceived women’s sexuality differently from that of males. Female sexuality was deemed superior to male sexuality, hence, worthy of leading the way to higher moral realms. The new and supposedly “higher” form of sexuality was to be enjoyed in deep communal, monogamous relationships, and the “pure” woman came to symbolize this ideal. However, while this ideal of monogamy was being introduced, industrialization was triggering still more social changes, and two of these changes are important to constructing the “prostitute” as a threat to the sacredness of sexuality. According to Corbin (1990), in order to find work, working-class men had to leave their neighborhoods or villages, resulting in delayed marriages (Gilfoyle 1999, 35); and second, “the blos- soming of male’s sexuality” in the bourgeois milieu was paired with the cult of purity among bourgeois women, making them inaccessible (Wilkerson 2013; Corbin 1990, 194). As a result, men began to patronize “prostitutes” in exceptional numbers” (Gilfoyle 1999, 35). Intersecting with middle-class ideals of the “higher development of sexual life” were economic transforma- tions of sexual desire, which in turn led to the distinction between “types of women”: the idyllic woman, the one who elevated her newfound sexuality to higher realms, and the whore who required money to survive. As Corbin reports, “[p]leasure in sexual intercourse could not in such circumstances be sought with [wives], who were dedicated to motherhood” (1990, 194)— sexuality was now closely linked to the notion of maternity as a duty. Sexual desire has long been perceived by many religious authorities and moral entrepreneurs as the most dangerous of forces, one that needs to be controlled. Undisciplined sexuality in general and prostitution were a threat to the rise of the middle-class family. “A ‘fit’ family, it was reasoned, produced ‘fit’ citizens of a healthy nation able to compete with other nations” (Knowles 1996, 38; Berkowitz 2013, 2–3). The health of the family was therefore viewed as the key to collective wealth. For the Ladies Association, matters regarding the sanctity of marriage, gender differences, and their accompanying roles were at the heart of the Social Purity Movement. The home ideal offered shelter from the harsh realities and deceptions of the

6 Lexington Books Legal Studies Chapter Showcase Chapter 6 business world. Gradually, the differentiation between public and private established itself and slowly specific sex roles emerged inside the family home. Ultimately, the home was where the woman stayed pure—it was her place of salvation. No matter how the 1960s shook up North American rules about sexuality, not much has changed for a large segment of the population (Halperin 2017). Some may argue that social class has disappeared, but I disagree, and the remnant of the bourgeois middle class and its accompanying distinct standards for sexual behavior are still in existence. Although the following quote from Marian Burchardt refers to his research in South Africa, it substantiates my position.

Social class is central for understanding the relationships between religion and sexual ideologies and practices of intimacy and dating. Social class status not only prefigures the entire set of choices regarding conjugal life and practices linked to sexual health, these influences are also reinforced by and expressed through an evangelical idiom of life and sexuality as gifts from God. [. . .] My point of departure is what can be construed as the conceptual triangle of social class, religion, and sexuality and the ways in which they are mutually shaped. (Burchardt 2014, 128; emphasis in original)

There are many ways to express sexuality, and some make people uncomfortable for they are contrary to the marriage vows (Moore 1994, 15–19). For example, the idea that bondage can be a fantasy and become a source of desire is offensive to prohibitionists such as MacKinnon and Barry and yet for many it does create desire. Sex workers transact all sorts of demands; some make people uncomfortable, such as domination and some types of role playing. This uneasiness and, yes, at times, disgust prevents a genuine dialogue between prohibitionists and sex workers, which brings us to the heart of Stella’s demand for the legitimization of their revenue-generating activity.

Yes, we question these [prohibitionist] approaches to sexuality through the prism of violence against women that lays beneath a “natural” a universal vision of the brutal, unstoppable male sexuality. As for female sexuality, we refuse the sanctimonious and misogynistic postulate that it is basically impossible to conceive that sexual services could be sold, bought and commercial- ized. As if selling sexual services always meant alienation of what is most precious and intimate for a woman. We denounce the unique and universal discourse which defined sexuality as a link to the highest form of consensual rapport, intimacy and identity. (Stella 2002, 3)

Once again, the passage challenges middle-class recommendations, which state that sexuality is a higher form of expression and should not be used outside of the intimate relationship and certainly not be involved in a monetary transaction. The assertion might be dated, but it is one that remains

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unchallenged by many, including Canadian and Montréal prohibitionists. The fear of being marked with the stigma keeps some women from trans- gressing the rules that govern their behavior and prevents sex workers from acknowledging their work. But more importantly, the stigma exposes women to violence and reinforces the idea that sex workers are deserving of violence. By positioning sex workers outside of the legal structure, they are denied fundamental human rights, and the stigma becomes a license to violate. The whore symbol evokes, in many women within the sex industry and in the general population, the same contempt. The word, as it is used, recalls the image of shame, immorality, and illegitimacy, as being unworthy of protection and consideration. Therefore, I, as Parazelli (2000) did before me, refer to this as a form of symbolic violence. The whore stigma is still alive and remains one of the main barriers to mobilization and recognition. The whore transgresses the rules of sexuality—she is “the radical and different ‘Other’: morally depraved, crazy, mentally deficient, sexually abnormal, legally deviant or criminal, medically a vector of contagion, infantilized, socially traumatized by violence and poverty, and a threat to public order” (Stella 2002, 4). Assigned an identity—the whore identity—a sex worker cannot be anything other than the antithesis of the feminine symbol, the good woman, and the mother. Although the word “whore” is not generally used, except by sex workers reclaiming the insult, the word “prostitute” remains common (Henry and Farvid 2017, 114). In 2002, directly confronting Geadah’s argument that conceptualizes women in the sex industry as the exploited, as victims, as children to be saved (Le Devoir, 2002), Stella entered the politics of signifi- cation at its core. Sex workers challenge the bedrock of the nation—the family and its symbols. By doing so, sex workers are left without legitimate recourse. While recognizing that we live in times when there are increasing demands for law and order, I agree with Colette Parent that the increased forms of restriction are really directed at women’s sexuality; the target is women’s sexual freedom. Indeed, once everything has been decanted, what we are left with is women’s sexuality (Parent 2001, 176). Foucault in the History of Sexuality posits that the relationship between symbol and symbolized is not only a reference point or a description, it is also productive, it creates knowledge. The result: a constant, historically changing deployment of discourses on sexuality. The expansive growth of this discourse is part of an ever-expanding management of sexuality. Howev- er, this explosion of discourses is not a unitary strategy across the social environment. These discursive creations do not “control” through prohibition, but through definition, imposing a grid of definitions on the possibilities of the body—what is normal. These definitions penetrate the body and sexuality is power’s point of entry. The “prostitute” became this category and is

8 Lexington Books Legal Studies Chapter Showcase Chapter 6 defined as dangerous and immoral. To stray from proper sexuality was to become that unchaste, abnormal character named “prostitute.” The whore makes visible these hidden “perversions” which, as Foucault (1978, 19) points out, bourgeois morality demands must be confessed and repented. It is those “sick” transactions that must remain criminalized; women must be protected from these male “perversions.” To prohibitionists, commercial sex is sexual violence, which brings us to the cornerstone of criminal law: the concept of harm.

The Concept of Harm

[F]eminists have uncovered a vast amount of sexual abuse of women by men. Rape, battery, sexual harassment, sexual abuse of children, prostitution, and pornography, seen for the first time in their true scope and interconnectedness, form of distinctive pattern: the power of men over women in society. (MacK- innon 1987, 5)

Since 1979, harm and the sex industry has been tackled by seasoned feminists such as Kathleen Barry and later Andrea Dworkin (1974, 1981), and law professor Catharine Mackinnon (1987, 1989, 2005). The inability to distinguish prostitution from violence is one of the most stubborn and socially rigid arguments that sex worker rights groups have had to face. Articulated through legal discourse, MacKinnon’s arguments are refined and convincing, proving to be the most difficult to challenge, and one blatant result is the Protection of Communities and Exploited Persons Act (PCEPA) that was ushered into Canadian law in 2014. In 1985, Catharine MacKinnon and Andrea Dworkin co-authored the Pornography Ordinance (Indianapolis 1985), a new statutory definition of pornography. Even though in the United States the ordinance was rejected, MacKinnon and Dworkin’s argument played a major role in Canada’s jurisprudence (Gauvreault-DesBiens 2001). In fact, on February 27, 1992, the Supreme Court of Canada handed down its decision in R. v Butler,1 a decision based on MacKinnon and Dworkin’s argument. Although their argument addresses pornography, it had an immense influence on the prohibitionists’ position on sex work in general and on the Canadian debate in particular. Their position fits the radical feminist paradigm of women’s subordination and domination for which MacKinnon is the main legal theorist. In 1979, MacKinnon published Sexual Harassment of Working Women, which marked the beginning of her campaign against what she considers women’s exploitation: pornography and prostitution. A self-declared post- Marxist, MacKinnon distances herself from liberal feminism, which demands equality of rights (MacKinnon 1987, 9). This demand, she claims, is not enough. She writes: “A theory of sexuality becomes feminist methodo- logically, meaning feminist in the post-Marxist sense, to the extent it treats

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sexuality as a social construct of male power: defined by men, forced on women, and constitutive of the meaning of gender” (1989, 128). MacKinnon has a very narrow definition of power, she approaches power as something that belongs to someone, and that cannot be negotiated. If I take a Foucauldian approach, power is experienced between two people and it is situated within that relation. Moreover, power relations can change any minute especially around sexuality and these relations require more extensive explanations. Once again, prohibitionists such as MacKinnon have the tendency to imagine women as a homogenous group and she fails to recognize the nuances among women and differential power among women. Further, MacKinnon seems to mix power with subjugation; however, these are two different issues. According to MacKinnon, the feminist movement has not changed women’s social and legal status: men still dominate women through sex (MacKin- non 1987, 2; 1989, 127; 2005). Sexuality permeates social life and women must constantly deal with sex and defend themselves against it. Except on rare occasions, sex is not sexy; it is violence, and it is objectification. Pornog- raphy sexualizes rape and presents battery, prostitution, and child sexual abuse as a form of amusement. It turns dominance and submission into a game and makes hierarchy sexy (MacKinnon 1989, 138). MacKinnon’s theories of sexuality and gender address one of prostitution’s main issues—consent. MacKinnon’s argument is that sex, aside from rare occasions, cannot be consensual. Sex is endured; sex is imposed on women (MacKinnon 1987, 15; 1989, 135). Consent is given between equals, and women, under men’s laws, are not equal; hence, the impossibility of women to have consensual sex and for those who argue that it is possible, MacKinnon has this to say:

The price of this equal access to sex, which means equal access to those with less power without regard to gender, the price of this so-called abstract equality is loyalty to and defense of the substantive system that delivers up all women as a class to all men. Women who defend this system are, in effect, procuring women for men. (MacKinnon 1987, 14)

In Women’s Lives, Men’s Law (Albertini and Blake 2005), MacKinnon claimed that women are not protected by civil rights. For Catharine MacKin- non, sex workers’ rights groups err by placing the issues of prostitution and civil rights side by side. Sometimes, as Stuart Cunningham (2016) reports, it pays to address the court with the highly contested linkage between sex work and dignity in his research on sex work and stigma. The passage in Cunning- ham’s text is important enough to quote in its longer version:

In justifying the award for loss of dignity, the Tribunal [New Zealand] referred to the Canadian Supreme Court case of Law v Canada where Justice Iacobucci stated that human dignity “means that an individual or group feels self-respect

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and self-worth,” that it is “concerned with empowerment” and that it “is harmed when individuals and groups are marginalized, ignored, or devalued.” So, in the [Aaron] Montgomery case, the Tribunal situates the “loss of dignity” not in the sex worker’s involvement in commercial sex per se but in the harmful experiences that occurred while she was selling sex. The focus shifts from a concern with how sex workers’ actions impact on their dignity, [. . .] to how their dignity is affected by their treatment at the hands of others. If the Tribunal had adopted the view that the complainant’s human dignity was already diminished by her involvement in commercial sex, as the other courts chose to do, then this precludes a complete recognition of the harm caused by [brothel owner] Mr Montgomery’s actions. After all, how can a subject whose dignity is already diminished by selling sex maintain a sufﬁcient sense of self- worth such that sexual harassment or other wrongs can be recognised? And how can a subject that is already stigmatised as degraded and undigniﬁed be any further marginalised, ignored or devalued? The Tribunal in the Montgom- ery case resists any stigmatising discourse and constructs a humanised sex working subject, concertedly asserting the rightful place of sex workers as equal human beings who “have the same human rights as other workers.” (Cunningham 2016, 61)

There is one category of harm that should remain indisputable, that is, a sex act obtained by force, threat, or deception. If sex work can always be associated with violence of this sort then it can be said that in that instance sex work is prejudicial. Although an in-depth discussion on the concept of harm would take us well beyond the scope of the present work, it is important to underline once again the fact that prejudice is not that easily defined when it comes to commercial sex. What constitutes harm must be clarified and I would argue that Cunningham in the above citation makes a powerful point. However briefly, a central issue can be discussed, and that is the argument around objectification presented by Martha Nussbaum (1995). A Kantian analysis is central to MacKinnon’s and Dworkin’s argument (Nussbaum 1995). According to Kant, sexual desire is a powerful force that prompts people to treat each other as “tools for the satisfaction of one’s own desire” (266). Instrumentality, denial of autonomy, and denial of subjectivity, which were Kant’s concerns, are according to MacKinnon intrinsic to pornography and prostitution. Thus, it is not difficult for Nussbaum to imagine that for the two prohibitionists, instrumentality could lead to the four other conditions, which are inertness, fungibility, ownership, and violability. At variance with MacKinnon’s thesis, Nussbaum argues that context is important, and objectification is not always problematic. One can objectify his sexual partner, and as a matter of fact, under certain circumstances, it can be a “wonderful feature of sexual life” (Nadine Sunstein in Nussbaum 1995, 250). What is damaging, and there she agrees with MacKinnon and Dworkin, is to treat someone primarily or merely as an instrument (1995, 265), and that is exactly what a medium such as Playboy does (283). However, her critique

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of prostitution does not reach the same conclusion and highlights those prohibitionists’ allegations about sex work and sex worker rights groups are unfounded. Since 1973, inspired by diverse movements such as the gay and feminist movements, contemporary sex workers have organized collectives, participated in acts of resistance, and articulated claims. The most important one is the recognition of commercial sex as work. Over fifty years of struggle have led to some successes. For example, in recent years, governments of the Netherlands, New Zealand, Britain, and Germany have granted sex work some form of recognition. However, Colette Parent (2001, 169) has noted that in North America the recognition of commercial sex as work is far from being a fait accompli. Although COYOTE has been able to alter public opinion to some extent, the quest is, thirty years later, still viewed by many as “immoral” (Parent 2001, 170). Sex is also important for the social sphere (Phoenix and Oerton 2005), and as sexual experiences become detached from stable sexual partnerships (Jordan 2004, 37), the fear arises that the exchange of sex for money will threaten not only the integrity of self but also that of the social. Individuals may be free to experience sex as never before, but that freedom transgresses “the rules of engagement” (Phoenix and Oerton 2005, 20) and threatens to dismember society. In this highly individualistic life and in a time when individuals must strive for freedom (Rose 1998, 79), sex may very well be the glue that makes people “stick together” (Phoenix and Oerton 2005, 20). Thus, sex workers transgress the codes of sexual intimacy and disturb “the rules of engagement” that (should) keep people together. Sex workers’ rights groups have challenged some of the most enduring Western symbols (Bartley 1998, 45; Parent 2001). However, family, sexuality, love, and intimacy are not matters of implicit agreement, as structural functionalists argue, but are the outcome of hegemonic discourses (Hewitt 1989, 73). Attached to these symbols are beliefs, and one of the most enduring ones is that sex workers are essentially different from other women, that is, the whore identity. Prohi- bitionists deny sex workers recognition and treat sex workers who fight for their rights as a separate class of sex workers. As King did (2006), I wish to argue that in order for researchers to penetrate the divergence, the emotional and self-reflexive dimension must be addressed, and this begins with genuine dialogue. Sexuality is not an easy topic for feminists. In the 1970s, questions per- taining to sexual freedom and reproduction were at the forefront of the feminist movement. The discussions have shifted over the years, but these issues give rise to intense debates and create schisms within the movement—slogans such as “hands off my body” and “my body my choice” meant totally different things to some feminists than they did to the first US sex workers group COYOTE. Colette Parent (2001) highlights that the role of the Social

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Purity Movement in sex work research has been overlooked, and PCEPA clearly demonstrates that the whore stigma is very much alive. The exchange of sexual services for remuneration remains a difficult reality for some, and I suspect that many of us, academics and sex workers included, have underestimated the unease or fear that comes with this exchange. The symbols and emotions attached to sexuality by religion, medicine, and middle-class/bourgeois attitudes are vital to understanding the successes or challenges of the sex workers’ rights movement.

Everyday Life and the Burden of Choices

Until you get women to have an economic power base [. . .] where [they are] able to walk out of an uncomfortable situation [Until] people see themselves as having their own power base, it becomes imaginable that you could turn some- body [or something] down and still survive. —Susan Sarandon2

Charles Taylor in Sources of the Self (1989) claims that the life of the contemporary person is dissociated from Aristotle’s double concept—the con- templative and the politicized citizen—and replaced by a new consideration for everyday life. Now dignity, our value as a human being, is found inside our daily activities, such as making a living, that is, “going to work” and becoming self-sufficient. One can be conscious of this fact, but the chance to become self-sufficient depends on one’s age, and cultural, social, and economic capital. As far as I can recall being financially independent was always important to me. As an adolescent in the 60s, I remember that having my own money made me independent of my parents. At that time of course, my social capital was relatively low, but I had my personality and a strong drive to become independent. Was this a choice, conscious and well thought out? Probably not, but making “choices” is part of becoming self-sufficient. In fact, making choices is expected of all of us, regardless of our financial or emotional capacity to do so (Giddens 1991, 5). It is with this notion of choice that recognition takes its full meaning; for some women, choices about their means to become self-sufficient are criminalized and shamed, that is, not recognized. The term choice is itself contentious because for far too many women, options are limited; therefore, as mentioned in chapter 3 I have replaced the concept of choice with the notion of decision and following Jenn Clamen’s lead; I conclude the present work with ideas that will steer the debate away from the sex in sex work and in the direction of labor. Any discussion of sex work is likely to be polarizing and even incendiary because it elicits such profound and visceral reactions. Even women who are considered to be “feminists” and “activists” have difficulty reaching a consensus on this issue, since it appears to demand a reconciliation of opposites.

Lexington Books Legal Studies Chapter Showcase 13 Final Reflections: The Trouble with Sex in Sex Work

One group of activists—the prohibitionist faction—calls for the criminalization of clients and ideally the complete abolition of the sex service industry. Their argument assumes that sex workers are “victims” who must be “saved,” rather than rational agents capable of making economic decisions. My argument, in contrast, follows Jenn Clamen’s position and pursues the belief that sex workers, like the rest of us, do possess some degree of agency. But most importantly I want to focus on the work aspect; sex work is about earning a living and should be understood as a labor issue. Hence, I wish to move away from moral arguments, and the force/voluntary dichotomy and move into the domain of labor. But the work frame does not seem to work, to attract people to the fight, so I will join Clamen and ask, “what about the right to work? Why are occupational rights not a protected ground for discrimination in Canada? Why is there a deep reluctance to look at sex work and the rights that come with work?” Since 1973, sex workers have demanded the recognition of sexual services as work (Leigh 2004). Because work is linked to social integration, self-worth, self-esteem, and dignity (Forrester 2000), preventing someone from working could be perceived as irresponsible. Therefore, sex workers must not be infantilized and denied the right to engage in work but allowed a legitimate revenue generating activity that is necessary for their survival and closely linked to citizenship. Again, the labor issue brings me back to the agency discussion and how to best earn a living. So, while I am sitting here cogitating on what should be my next sentence, thousands of women struggle to pay the rent, feed their children, pay school tuition, and whatever else they need to live a decent life. And my contention and my sense of outrage remains the same today: when the state successfully challenged the Supreme Court decision, they prevented sex workers from earning a living and do so under state protection. I do not want to argue from a moral position because my position right now is safety first. I understand how important women’s autonomy is, but as Anne Wilson writes in Fix: A Tale of An Addicted City (2002), to attain that independence one needs to stay alive! And live without fear of arrest and violence. As this present work concludes, I am thinking about the very beginning of COYOTE (1973) and Stella (1992) and how founding members of these two groups insisted on improved working conditions. Returning to chapter 2 and following my interview with Jenn Clamen, I feel confident in my claim that the first and most important demand by sex workers remains their working conditions. With the adoption of PCEPA the Canadian government responded, as Clamen said, with “something that completely defied the principles and ethos of Bedford, and they did so based on their party politics of ‘prostitution as exploitation,’ a position that is very much supported by a strong lobby of prohibitionists.” With the PCEPA and its focus on morals

14 Lexington Books Legal Studies Chapter Showcase Chapter 6 and the demonization of men, the state has eliminated any space to examine labor laws in general. Individuals are born into a cultural environment which is shot through with symbols and shared meanings. This environment depends for its continuation on our acceptance of prevailing norms and the symbols we use to reify them. The word “whore” brings out feelings such as anger, pity, disgust, or admiration and pride that predispose persons to act or react in various ways. The symbol is indeed an enduring one, making sex workers’ major claim— sexual services as legitimate employment—a difficult “sell.” Social symbols such as intimacy, love, and sexuality may play a more important role in the sex workers’ debate then previously implied. Thus, it is not farfetched to perceive the current controversy over sex work as a debate over the meaning of family, sexuality, and gender roles. Clamen is quite right when she men- tions that sex workers are “challenging the codes” of sexual conduct. The perception is that sex workers are upsetting the meaning of sexuality, its function—to express love. Reacting to the prohibitionists’ constant onslaught has forced many of us to develop counter-arguments relating to sexuality, the right to be different, and to reaffirm our enjoyment of the job. It is on this terrain that many of us have spent time defending our position; according to Heather Berg (2014), we spend too much of our time in that kind of argument. Although I do not identify as a Marxist I do battle with exploitive work arrangements; hence, my attraction to the work of Marxist scholars Heather Berg (2014) and Holly Lewis (2016). Bypassing the sexual debate completely, Heather Berg argues that “[c]ommercial sex exchange is not exploitative because of anything unique to sex; it is exploitative because it is labor under capitalism” (2014, 694). The same argument is made later by Holly Lewis concerning human trafficking: “[. . .]—sexual or not—is a problem of political economy, that is the distribution of wealth, not a question of evil or patriarchy” (2016, 101). Both authors are demanding that our focus should be on labor issues and even if Berg claims that for many women sex work is a better way to earn a living, the fact remains that it is still labor under capitalism. Berg claims that work is exploitive; in contrast, I say it is potentially exploitive. In “Working for Love, Loving for Work: Discourses of Labor in Feminist Sex-Work Activism” (2014), Berg presents an evaluation of sex workers who defend their position vis-à-vis prohibitionists “but often do so by constructing versions of agency that are dependent on social privilege, reinforc- ing the dominant notion of intimate labor as unmediated performance of the self and ignoring the violence inherent in wage work” (Berg 2014, 720). I do not need to peruse Berg’s references to know that many of us have somewhat overestimated our freedom, our choices, especially when we have entered the business at a young age. Of course, this brings me to controversial conversations around the “glamour of sex work,” how “natural it feels to be in the

Lexington Books Legal Studies Chapter Showcase 15 Final Reflections: The Trouble with Sex in Sex Work

industry,” and other narratives, but to make work, any kind of work, glamor- ous, Berg states that it can discourage workers “from making demands for improved labor conditions” (706). Stella is not taking the bait and as Clamen said, “[understanding] sex work as work does not translate as everyone is really happy and bouncy in their work” (See Getting Past ‘The Pimp’ [2018] and Durisin et al. [2018] for labor issue discussion). Sex work is in many ways just like any other job and some workers do have a lot more control; this depends on their capacity to walk away from situations they find unacceptable. I would say that economic capital is the most important dimension here—the capacity to say no. When prohibitionists insist on describing sex workers as victims, or as minors without the legal right to make decisions on their own, they sustain a moral argument versus one that could lead to changes in the economic structure. Catharine MacKin- non, a self-declared Marxist, should pay more attention to all forms of labor—her powerful influential voice should be there to guide all women, not just the ones who agree with her. Women’s safety and autonomy should be paramount. Even though the distinction between free and forced prostitution has been acknowledged and debated at great length by Doezema (1998), the voices advocating for sex workers’ rights are still challenged, and working conditions ignored. In Canada, public policy has become fixated on the notion of the sex worker as a victim as exemplified by the adoption of the PCEPA in 2014. The outrage surrounding trafficking and child prostitution diminishes concern for sex workers’ rights by diverting the issue and bringing up other imagery and cultural meaning. The worst division, however, is the voluntary/ guilty and the forced/innocent dichotomy that incorporates the belief that women who transgress sexual norms deserve to be punished (Doezema 1998, 42). This forced versus voluntary split reinforces the argument that prostitution is not work and that choosing to make it such is suspect, and only innocence (virtue) and helplessness deserve to be protected (43). As I mentioned in chapter 3, the innocence of the victim seems to be of primary importance. Doezema also argues that focusing on forced prostitution means that governments are not challenged about the poor treatment of voluntary “prostitutes.” For instance, sex workers are protected solely if they are victims, but have no human rights if they are sex workers of their own volition. In other words, the victim is not responsible for sexual wrongdoing, but the whore deserves what she gets. Comparing prostitution to other forms of work, Martha Nussbaum (1998) maintained that instead of criminalizing women in prostitution, states and organizations should work on improving sex workers’ working conditions. Nussbaum acknowledges the fact that prostitution is problematic because it is often practiced by women with restricted choices, but adds that the freedom to choose our work is a luxury that non-affluent people do not possess, so

16 Lexington Books Legal Studies Chapter Showcase Chapter 6 despite the concerns that Nussbaum has regarding the exchange of money for sex, she concludes that:

The correct response to this problem seems to be to work to enhance economic autonomy and the personal dignity of members of that class, not to rule off limits an option that may be the only livelihood for many poor women and to further stigmatize women who already make their living this way. (Nussbaum 1998, 723)

We all work; some do so to make a living; some, as in the case of the independently wealthy, do so for other reasons. Some jobs are defamed, and some are regarded as prestigious. Arguably, “feminine” jobs, for the most part, are not regarded as prestigious—necessary yes, respected no. Highly stigmatized and in many places criminalized, sex work is too often practiced in dangerous surroundings without the protection of state agencies. Since for many women sexual services are the best way to earn a decent living, it may be time to move away from the merry-go-round of force, choices, and morals and let people decide their best path to attain self-sufficiency. On this subject this is what an escort has to say:

Within a capitalist economy we all must choose how we will labor in order to survive. For some they choose to take the traditional route that our capitalist society has provided them by slowly and painstakingly working their way up the ladder. So one might start as a sandwich maker at Subway, slowly move up to assistant manager and maybe if they take a management course eventually run the chain. For others they choose to take a more innovative route and enter into the sex industry. Now the sex industry isn’t all easy and filled with rose petals (partially as a result of its criminalization and its resulting stigma), but with a lot of hard work one can make enough to graduate from university debt free and live quite comfortably in comparison to their peers living on loans and bursaries. Others might enter into the industry and save up enough to start a business, pay for a messy divorce while caring simultaneously for the roof over their children’s heads. Some might enjoy the freedom of a flexible sched- ule while others actually need that flexibility of not having to report to a boss since they may have to negotiate dealing with a mental illness or chronic pain. Whatever the case might be the majority of individuals working within the sex/entertainment industry have made an autonomous, strategic decision to exercise they’re agency and enter into the field. Some might enter for a short time to fulfill a monetary goal, while others find a career that fulfills them and allows them the opportunity at upward mobility they thought they’d never have. (Miss B 2019)

To date, what most prohibitionists have done appears like the parlor room socialists of the nineteenth century—formulating prescriptions for the good life that seem to be out of touch with many women’s reality. Again in Miss B’s words,

Lexington Books Legal Studies Chapter Showcase 17 Final Reflections: The Trouble with Sex in Sex Work

Many street based workers are out on our streets, because they don’t have the ability to labor indoors. Either because of funds or because many of the web- sites they used for advertising were taken down post fosta/sesta, systematically forcing them back onto the streets or into the hands of a local pimp. Whatever the reason might be they are deserving of the same dignity and respect as any other individual. We all labor however we can for whatever reason we choose too. Life puts us in different circumstances, but at least these individuals are trying to make a living to pay for whatever they need however they can.

And when questioned about her victim status this is what a former sex worker had to say:

Yes, absolutely I am a victim of life circumstances my environment, being unqualified, being too old, inexperienced—having kids. Sex work adopted out of despair? Totally! It flows better, [the victim role] sounds better than being a prostitute or stripper. I am in the sex industry. Bad enough we must do it—I was not born for this, but it was my best option in order to feed five mouths! (Miss M 2018)

Some who chose to be in the industry must deal with racism and having to work harder to earn their money:

A class I took a few years ago really allowed me to reconcile with the internalized sense of shame that I had felt from being a sex worker myself. It confirmed the ideas that were in my head revolving around the fact that white privilege is prominent within the sex work industry. As a mixed-race woman of colour dancing in a strip club, I had always noticed that a white woman would make more than me, and my black and Hispanic colleagues. I thought that maybe I was crazy for thinking that way, and for seeing that I was either completely ignored or completely fetishized. The two extremes that women of colour often tend to face in the sex industry. The fact that women of colour need to work ten times harder than a white woman to make the same amount of money, or even less. It highlights the idea that women of colour and women who have suffered the aftermaths of colonialism use sex work as a means of survival, and even steady income. And that victimizing women of colour in the sex industry is not the solution to the issues that they face. (Kaya 2018)

I support the decriminalization of prostitution and its peripheral activities and even though sex work is not for everyone, and as my interviewee makes clear, it was clearly not her first choice, I conceptualize sexual services as legitimate work.

When it comes down to it, we all exercise our bodily autonomy to labor how we see fit. Entering into the sex industry isn’t for everyone, but for those who enjoy it or feel like it is providing them with what they need at this time. (Miss B 2019)

18 Lexington Books Legal Studies Chapter Showcase Chapter 6

Give women choices; give them the means to attain their own goals. And although recognizing the downside of the industry Kaya recognizes the up- side:

Such as being able to spend more time devoted to school, having a higher wage, and not getting mentally drained for no pay at a retail job. It really makes us wonder who is more exploited: a person working in retail for twelve dollars an hour while dealing with constant abuse from customers, or a person taking charge of their sexual autonomy, escaping the normative ways of earning income, and making potentially ten times the amount of someone working a minimum wage job? All in all, the course I took really did a good job and removing the victim narrative that many people associate to sex work, and bring out the empowerment aspect of it.

Following Kaya’s comment I must wonder how different other places of employment are when it comes to race and social class. As Sewell (1992) claims, people have “a capacity for agency for desiring, for forming intentions, and for acting creatively is inherent in all humans” (1992, 19). Women are a lot more resourceful than is usually imagined and this became clear to me during the Forum XXX. Many of our beliefs are based on our Western definition of comfort and success. Hewell states,

[. . .] agency is formed by a specific range of cultural schemas and resources available in a person’s particular social milieu. The specific forms that agency will take consequently vary enormously and are culturally and historically determined. But a capacity for agency is as much a given for humans as the capacity for respiration. That all humans actually exercise agency. (Hewell 1992, 21)

As introduced in the historical retrospective, the “whore symbol,” constructed in the late 1800s, has been an enduring symbol of social decay and sexual deviance, as well as psychological immaturity. Sex workers’ rights groups’ fights have been geared toward the recognition of their revenue- generating activity and their transformation from pariahs to citizens with legal and social rights. Sex workers want “to be affirmed as full participants in humanity” (Dubet and Thaler 2004, 561), and this struggle is about the legitimacy of their claim that the sale of sexual services is legitimate work. As Paola Tabet (1987) argued, depending on the society, women may receive gifts and lodging in exchange for sex, but they cannot specifically ask for a fee. Sex workers violate norms and values and in doing so their claims attract and/or offend. People gather around certain symbols while rejecting others— such is the situation with the expression sex workers and sex work. It became clear in November 2017 during a panel titled “Speaking Publically about Violence against Indigenous Women” in the Sociology/Anthropology De- partment at Concordia involving prohibitionists that dialogue is still impos-

Lexington Books Legal Studies Chapter Showcase 19 Final Reflections: The Trouble with Sex in Sex Work

sible in Canada. As I mentioned during my interview with Jenn Clamen, I tried to open the discussion, to acknowledge the hurt and the fear experienced by both sides of the debate, but to no avail. The conference at Concor- dia was emotionally charged as I sustained heavy accusations regarding sex workers’ organizations ignoring trafficking victims and in part being responsible for the death of Indigenous women. In its final report, the Canadian Solicitation Subcommittee ignored the claims of sex workers and their allies and stated that the government could not endorse “the commodification and invasive exploitation of a woman’s body” (House of Commons 2006, 90). Therefore, after Canadian sex workers’ victory—the Bedford decision—on December 20, 2013, prohibitionists mobilized and demanded the decriminalization of “prostituted women,” cou- pled with tougher sanctions against clients or pimps and they won via the PCEPA born as Bill C-36, which amended the Criminal Code after the Bed- ford decision. The PCEPA makes “prostitution between adults a de facto illegal activity for the first time in Canada’s history” (Publication No. 41-2- C-36-E: 1). Prohibitionists do not consider decriminalization as a solution and believe it reinforces women’s subordination. The only way to reach political equality and full recognition of women’s rights, according to Kat Banyard (2016), is through the abolition of prostitution. According to Ban- yard, there is no redeeming quality in sex work; there is no such a thing as “‘a safe place’ for people to be abused in” (2016, 208). One is always a victim notwithstanding the social or economic capital of women. Working in the sex industry always jeopardizes one’s physical and emotional integrity— it is always a form of violence (Smith 2014, 8). In 1995, Radhiha Coormaraswany of the UN, responsible for a special committee on violence against women, concluded that the only common denominator shared by all prostitution rights movements was of an economic nature, recognizing prostitution as an income-generating activity. Besides this common language, prostitution remains a difficult phenomenon to conceptualize since it is a construction constantly produced and reproduced by social and sexual relationships. The concept of sex work allows the debate to get away from the legal discourse, the public health discourse, and the issue of social order. Further, it situates sex workers in the domain of work, where they should be protected, and away from the domain of medicine where they should be rescued and rehabilitated. Framing sexual services as work allows us to “fight the social construction that sees us as a class of outcasts, to stop moralizing or perceiving women who exercise these professions as sick. Sex work is not, in fact, an identity, a social defect, moral, legal, psychological or even necessarily the central aspect of the practitioners’ lives” (Stella 2002, 7). As I have noted, symbols, and our relationship to them, have important consequences for sex workers and for sex workers’ rights groups. For the

20 Lexington Books Legal Studies Chapter Showcase Chapter 6

most part, our shared understanding of the meaning of culturally specific symbols motivates us to engage in the behavior and actions that are expected of us. Yet, an important activity of sex workers’ groups is to constantly challenge the validity of accepted cultural symbols. For law enforcement officials, who for the most part subscribe to these enduring symbols of deca- dence and victimization, the solicitation law is still perceived as the only way to control prostitution, protect “prostitutes,” curb their addictions, and possibly convince them to leave the trade. The term whore has become a significant symbol and until the emergence of sex workers’ groups, the whore signified the fallen woman, to be feared or pitied. Part of the struggle for sex workers’ groups is to decide what to do with the word. Carol Leigh, in her book Unrepentant Whore (2004), certainly uses it to claim her right to be a whore. This kind of decision is linked with mobilization strategies.

FINAL WORDS

Stella was formed on the advice of public health researchers studying the needs of downtown street prostitutes in terms of HIV/STI prevention (Stella 1998, 1). Although Stella was created as a project within an HIV program, local sex workers were involved every step of the way. Stella was and remains by-and-for sex workers. In Montréal, Stella endeavors to be unique and innovative. Stella also wants to create links and alliances with other health resources and community and social services. Stella is part of an international community, one that never asked its members to stop sex work and always respected sex workers’ choices. Stella, whose main battles relate to issues of freedom, safety, and human rights, denounces strategies such as targeting “johns.” In fact, Stella has a publication called “Dear Client” that addresses clients in the industry, as a way of creating safer working conditions with clients and because the laws force sex workers and their clients to move further underground, which increases the risk of violence. On this issue Stella joins the international sex workers’ movement. Since 1975, sex workers have indeed claimed that their criminal status pushes them underground. Just as COYOTE and French sex workers did before them, Stella reframes their issue as one of safety and security. Consistent with the principle of framing, Stella, as with other sex workers’ groups, became a claim-maker and offers a new way of looking at the causes of violence against sex workers. Violence is not intrinsic to sex work; violence is in part due to the criminalization of prostitution and the maintenance of symbols. What constitutes violence and its source remains another area of contention between sex workers and prohibitionists. Both discuss violence, but cannot agree on the source, or the cause of violence often attached to sex work. Sex workers and prohibitionists remain deeply divided on this issue.

Lexington Books Legal Studies Chapter Showcase 21 Final Reflections: The Trouble with Sex in Sex Work

For the latter, violence is intrinsic to sex work. Regarding commercial sex as work, prohibitionists’ position is clear. They condemn the contemporary discourse that articulates prostitution as work (CLES, 2017). I will not deny that some women do not belong in the sex industry and should be helped to leave, but the prohibitionists’ position opens the door to the following question: what is detrimental to women? Is it sex work or the stigma attached to the nature of the work; in other words, the lack of social recognition and its criminalized status? What is hurtful for us is the constant disavowing of our agency and to be perceived as lacking in judgment—of not knowing when and how exploitation occurs—the so-called “false consciousness.” The prohibitionist denouncing of the role of sex workers’ organizations remains a violent act toward sex workers—attempts to remove the services, the support, and the community that sex workers have is no less than an attempt at eradicating members of our community. Pornography and prostitution are not benign subjects and can be used by people to cause harm, but not more than can most words and images (Sumner 2004, 141). No one can deny that the expansion of sexual economic ex- changes has permitted certain countries to profit from the sex trade (Gilfoyle 1999); it has also facilitated the growth of sex workers’ organizations. Worldwide, sex workers’ rights groups are finding ways to bring their realities onto the global stage by organizing themselves and mobilizing around their needs. When I began this reflection twenty years ago, I claimed that taking money from the government meant more paperwork than activism and I held that argument until recently (Beers and Tremblay 2014). The success of Stella demonstrates that, at times, more paperwork might be worth the risk. Winning at the Supreme Court level changed my position regarding the collaboration of state funding and activism. Entering the discursive universe that was until recently the reserve of the political, academic, and medical professions, sex workers are transforming themselves into actors. By standing up to experts who claim to know what sex workers need, they have taken their rightful place. Sex workers have earned the right to decide when and how to resist exploitation; women working in the sex trade are rewriting their biographies. As I stated at the beginning of this work, it was my anger that led me to write this book. The idea that some lives are “grievable,” as Judith Butler expresses it, and therefore worthy of protection, while others are disposable has always been profoundly disturbing to me. Here I have focused my attention on sex workers, but my research also applies to the lives of other marginalized groups, such as Indigenous people, people living in homelessness, and people with mental health challenges, those who are often ignored, pitied, or reviled, but who are seldom seen as fully human. Our government must recognize the worth of all people, acknowledge its responsibility to

22 Lexington Books Legal Studies Chapter Showcase Chapter 6 provide us with equal protection under the law, and act accordingly. This work has been, first and foremost, a call for such action.

NOTES

1. The accused owned a shop selling and renting “hard core” videotapes and magazines as well as sexual paraphernalia. He was charged with various counts of selling obscene material, possessing obscene material for the purpose of distribution or sale, and exposing obscene material to public view, contrary to s. 159 (now s. 163) of the Criminal Code: https://scc-csc. lexum.com/scc-csc/scc-csc/en/item/844/index.do. 2. https://www.theguardian.com/film/2017/nov/26/susan-sarandon-i-thought-hillary-was- very-dangerous-if-shed-won-wed-be-at-war, accessed September 13, 2018.

Lexington Books Legal Studies Chapter Showcase 23 Anthony Gray, “European Case Law” in Freedom of Speech in the Western World: Comparison and Critique (Lanham, MD: Lexington Books, 2019), 205–252. All rights reserved.

Chapter Five

European Case Law

This chapter is structured as follows. Firstly it provides an introduction to the protection of free speech in “Europe.” As presently advised, this is taken to include the United Kingdom. Secondly, the general principles applied to the relevant provision of the European Convention on Human Rights are discussed. Thirdly, the approach of the United Kingdom courts to interpretation of the provision is considered. Fourthly, the approach of the Strasbourg court to interpretation of the provision is considered. This bifurcated treatment is justified by the differences in approach (and sometimes, result). Finally a critique of some of the European principles is offered.

INTRODUCTION TO FREE SPEECH IN EUROPE

The lengthy history of freedom of expression in Great Britain was discussed in Chapter 1. It was noted there that systems of prior restraint existed until 1694, and prosecutions were brought both before and after that time for seditious libels, treason, Scandalum Magnatum, and blasphemy. Sir William Blackstone denied that freedom of speech existed as a general principle of British law, apart from prohibiting prior restraint, in the late 18th century. A different attitude towards freedom of speech, caused by larger changes in how society viewed the relationship between the government and the gov- erned, and a broad switch from a Hobbesian view to a Lockean view, led to a different approach, and by 1832 prosecutions for seditious libel had largely ceased. Courts began to laud the general importance of freedom of speech by the latter part of the 19th century. From that time freedom of speech was largely protected by the common law, as opposed to a specific statute or bill of rights document. It must also be emphasized that the United Kingdom applies/has applied the doctrine of parliamentary supremacy, under which all

205

24 Lexington Books Legal Studies Chapter Showcase 206 Chapter 5 statutes passed by parliament are valid. A court under such a system does not possess the power to strike down legislation as being invalid because it removes or abrogates fundamental principles such as freedom of speech. They are not enshrined rights, in the way of the United States Bill of Rights, and specifically the First Amendment. While the Bill of Rights 1688 (Eng) does refer to a right to freedom of speech, this is limited to parliament, and the English Bill of Rights is not equivalent to the United States Bill of Rights in that in the event that legislation is inconsistent with the former, it is not for that reason valid. So to hold would undermine the principle of parliamentary supremacy or sovereignty which is axiomatic in the United Kingdom legal system. Freedom of speech was effectively a negative right, in that it existed only so far as parliament did not take it away or abrogate it with legislation. 1 This is consistent with a parliamentary supremacy or parliamentary sovereignty model. Under such a model, parliament, and not the people, is sovereign. This system naturally limits the extent to which the law protects freedom of expression, as opposed to a system of popular sovereignty that is evident in the United States, and to some extent Australia and Canada. 2 Nevertheless, some judges have referred to freedom of expression as a constitutional right in the United Kingdom.3 There is also a longstanding practice of interpreting statutes in a way that is minimally invasive of rights, and a related presumption that parliament did not intend to alter or remove fundamental legal rights, of which freedom of speech is one, unless their intention to do so is very clear. 4 These are often called the principle of legality. This way of thinking about freedom of speech naturally spread to the countries which were based on United Kingdom common law, including Australia and Canada. In relation to judicial review of an administrative decision which impacted human rights such as freedom of speech, the United Kingdom Courts settled on the Wednesbury unreasonableness approach in 1948.5 Under this approach, an administrative decision could only be overturned if it was so unreasonable that no decision maker acting reasonably could have made it. Of course, this greatly limited the extent to which an aggrieved person could challenge the decision on this ground. Matters changed with the implementation by the United Kingdom of the European Convention on Human Rights, which occurred with the passage of the Human Rights Act 1998 (UK). As we will see presently, that Convention expressly protects freedom of expression and related rights, though not without exception. Courts will interpret legislation compatibly with the Conven- tion where it is possible to do so, and can declare legislation to be incompatible with the Convention. There is debate as to the precise extent of change to United Kingdom law relating to freedom of expression heralded by the Hu- man Rights Act 1998 (UK). One view is that freedom of expression in the

Lexington Books Legal Studies Chapter Showcase 25 European Case Law 207

United Kingdom has changed “radically” as a result.6 Another is that the actual change is relatively minimal, on the basis that United Kingdom common law robustly protected freedom of expression prior to the 1998 legislation.7 On any view, the kind of proportionality analysis undertaken in terms of whether a prima facie breach of convention rights is necessary in a democratic society reflects a significantly broader scope of review of a decision than was applied to review of administrative decisions in the Wednesbury case.8 It was always going to be a challenge for Europe to establish something of a common position on fundamental human rights, including freedom of expression, given the range of different nations with long histories and established cultures. As indicated in Chapter 1 and above, the United Kingdom had come from a system of prior restraint, as well as prosecutions for seditious libel, treason, Scandalum Magnatum, blasphemy, obscenity, etc., but by the mid-19th century had in broad terms settled on recognition of the fundamental nature of freedom of speech, even if it was not expressly enshrined in a legally protected manner. The United Kingdom had also adopted principles of democracy, extending the franchise to a broad range of individuals, adopting relatively fair electoral boundaries, etc. There is some contrast here with mainland Europe. Free expression is enshrined in Articles 10 and 11 of the Declaration of the Rights of the Man and of the Citizen of 1789 (France), though this is constrained by an express contemplation of legal regulation of “abuses” of this liberty. Mainland Euro- pean nations were typically very concerned with attacks on the nobility, so they created laws which protected against “insult.”9 This was extended in some nations to insults of police officers and other public officials. There was expressed concern that public criticism of the government and its officials could undermine public confidence in these institutions. 10 Some Euro- pean countries continue to criminalize insult towards public officials and public servants, as well as the government, royal family (if any), and the armed forces. This attitude has persisted to some extent in the legal systems of mainland European nations, which often continue to outlaw “insult” at a more general level. In other words, European systems have transferred the idea of “insult” and “honor” as a source of legal rights and obligations from the aristocratic class to all members of society.11 Respect is at the heart of such concepts. 12 Further, they often view it as a criminal matter, rather than a civil matter, as the common law tradition would. Truth was not always a defense in relation to such matters. One current example is s185 of the German Criminal Code, which criminalizes insult, and makes it punishable by one year in jail or fine. Another is s130, dealing with “inciting the public to hatred,” punishable by imprisonment from three months to five years. 13 That jurisdiction also recognizes a crime of “sexual insult” and of “collective insult,” which finds its

26 Lexington Books Legal Studies Chapter Showcase 208 Chapter 5 most controversial application in areas such as Holocaust denial and so- called hate speech. Further, mainland European states did not traditionally embrace the kind of democratic culture of which freedom of expression would form a pivotal part. Heinze points out that in the Weimar Republic, the pre-cursor to Nazi Germany, democratic institutions existed, but they were of recent origin. He notes that the German people “had never been raised in generations-old habits and traditions of open and candid dissent, debate and political participation”14; rather autocratic leaders who commanded unquestioning assent were more the norm. This underlying popular culture provided fertile ground for a demagogue who promises a return to imperial greatness and who ruth- lessly cut down dissenters. Heinze reminds us that although today we are infused with the commitment to human rights enshrined in the European Convention on Human Rights, we should not forget that this culture was largely forged in the shadows of World War II, and did not precede it. 15 Obviously, notions of freedom of speech would also be anathema to totalitarian regimes. Lenin thought that freedom of the press was dangerous, because it could overthrow the post-1917 government. The other important principle of mainland Europe is that of proportionality. This concept apparently originated in German administrative law, applied to curtail broad discretion that had been given to police officers, in order to protect the liberties of individuals. The means adopted by the police officer in a particular case had to relate to the object of the law. If a less invasive way to meet the object of the law was available, this should be taken, in preference to a more invasive way. The court was asked to balance the intrusiveness of the law on human rights with its legitimate objective. 16 At this time, the doctrine operated in a society which lacked formal human rights protections. The doctrine seemed to morph into a constitutional law concept in the German legal system after the passage of the Basic Law in 1949, a document which does embrace formal human rights protections. A strong focus on human rights in the Basic Law was understandable, given then recent events in Europe. In this respect the German system differed significantly from the United Kingdom system, based on a system of parliamentary sovereignty. As indicated above, that system limited review of the exercise of administrative power to a Wednesbury-unreasonableness analysis. Similarly, the French and Italian civil law systems adopted standards of review much more limited than the kind of proportionality analysis undertaken in German courts.17 It was an important decision as to which of the disparate approaches the European Court of Human Rights would take to the question of human rights. It accepted the proportionality approach applied in Germany. Under that approach, the court considers whether the legislature is consti- tutionally empowered to enact the law that it has. Assuming it is, the court

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next considers the suitability of the law, in terms of the connection between the law and the legitimate objective the government claims it is designed to serve. It considers the necessity of the law, in terms of its impact on rights. A law will pass a necessity test if it is minimally invasive of the human right impacted. Finally, the court undertakes balancing, to determine whether the challenged measure is justified in terms of its legitimate objective, having regard to its impact on human rights. This proportionality approach, originat- ing in Germany, was adopted for the European Convention on Human Rights.18 It was then subsequently adopted in other nations that are the focus of this book, including Canadian19 and Australian20 constitutional law. It has not generally been adopted in the United States, though for a time that country seemed to adopt an “ad hoc balancing” approach. This contrast will be considered further in the final chapter of this book. Some have continued to practice prior restraint, at least with regard to some categories of publication. 21 Obviously the content of the European Convention on Human Rights represents a compromise of these different legal systems. It certainly provides for a greater recognition of the value of freedom of expression than was apparent in the approach of the national law of most of the nations comprising Europe. The European flavor of the Convention is evident in terms of its focus on equality and egalitarianism. 22 Clearly, this reflects that the Convention was written in the aftermath of World War II, when the world had witnessed racial and religion-motivated violence of the very worst kind. It is not surprising that this sharpened the participants’ focus on regulating in such a way as would reduce, so far as regulation could, the chances of this happening again within a member state or states. 23 This philosophy has facilitated subsequent state regulation of hate speech including Holocaust denial, such regulation being generally supported by institutions such as the Council of Eu- rope.24 Obviously, the background of criminalizing notions of “insult” feeds into this, in the way that hate speech and Holocaust denial can be seen as insulting speech of a kind worthy of legal censure. 25 Recent controversy has involved the publication of cartoons as satire in respect of the Prophet Mo- hammed.26 These cartoons were extremely offensive to Muslims. Merely drawing Mohammed in a physical form is considered highly offensive, let alone the content of some of the cartoons at issue. This provides a marked contrast with the position in other jurisdictions studied, particularly the United States, 27 where the only case in which limits on race-based speech were upheld against First Amendment challenge28 is now widely regarded as bad law. There is debate over whether such restrictions are “democratic.” The European Convention on Human Rights reflects a fundamental commitment to democracy. The constitutions of many member states also enshrine democratic principles into their governance. 29 Clearly, most European states be-

28 Lexington Books Legal Studies Chapter Showcase 210 Chapter 5 lieve that restrictions on race-based or racist speech are consistent with democracy. In contrast, the United States, which would see itself as the prime example of democracy, believes that free speech with few limits is fundamental to democracy, and would not for that reason countenance restrictions on racist speech. In fact, that nation believed so strongly about this matter that it specifically derogated from provisions in the discrimination convention which required signatory states to prohibit hate speech. 30 How can this divergence be explained? Two jurisdictions which laud themselves as exem- plars which take fundamentally opposed views to a matter such as hate speech? It may be that they conceive of democracy in different terms; some have suggested that the Europeans favor what is termed substantive democracy, while the American model reflects procedural democracy. 31 It may also be that the experience of World War II seared into the consciousness of Europeans how ideology can subvert democracy, with the rise of Hitler, and the relatively easy destruction of institutions that might have otherwise been thought to contain features that would prevent what occurred from occurring.32 As indicated above, it must also be acknowledged that European states had a long history of regulating “insult” not matched in the United States.

SUMMARY OF PRINCIPLES APPLICABLE TO FREE SPEECH IN THE EUROPEAN CONVENTION

Article 10 of the European Convention on Human Rights states that individuals have the right to freedom of expression, including the right to hold opinions and to receive and impart information and ideas without interference by government authorities. Article 10(2) states that with the right to freedom of expression comes duties and responsibilities. As such, it is subject to limits prescribed by law and necessary in a democratic society. It gives examples of contexts in which limits may be imposed, including the interests of national security or public safety, prevention of “disorder” or crime, protection of health or morals, protection of reputation, maintenance of confidentiality, and maintenance of the authority and impartiality of the judiciary. As many decisions of the European Court of Human Rights express themselves in very similar terms, it is possible to state how Article 10 has been interpreted very succinctly. In essence, the Court has consistently observed that freedom of expression is one of the essential foundations of a democratic society, and a basic condition for the progress of society and for an individual’s self-fulfilment.33 Article 10 applies to a broad range of expression, including ideas that shock, offend, or disturb. 34 While freedom of expression is not absolute, exceptions must be construed strictly and justified thorough- ly.35 The mere fact that the expression is in a particular form, for example,

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emotive or extreme words, does not preclude it having Article 10 protection.36 Courts are not arbiters of how particular opinions should be expressed.37 Contributions to debates on matters of public interest are entitled to strong freedom of expression protection.38 Most especially this protects expression which conveys ideas which “offend, shock or challenge the established order.”39 Although it has emphasized that the form of the expression is protected, it has also taken into account the fact that a media organization chose to run a story on the front page of its largest circulation outlet in applying proportionality analysis. 40 The Court also noted in that case that the circumstances in which the media outlet came to acquire confidential information was also relevant in proportionality analysis. 41 The Court does not accord protection to the expression of violent intentions, or those which deny the foundation of a democratic society. Occasionally it suggests that right may be positive in nature, rather than just a negative protection from interference.42 The Court has given specific meaning to various concepts within Article 10(2), including whether a limit is “prescribed by law,” whether it has been passed for legitimate reasons, and whether it is “necessary,” which has been held to engage a proportionality analysis. In terms of whether a limit is prescribed by law, the Court will consider whether the law (whether it be statute or the common law) is specific enough, so that individuals reasonably could be aware of their obligations under the law, and whether the law and its application to a particular situation is accessible and reasonably knowable by individuals.43 In other words, a person must be able to reasonably foresee the consequences that a given action will entail. 44 This will depend on the identity of the person expressing the relevant view. So, for instance, where they are a professional or media organization, they might be generally considered to better be able to foresee the application of the law to them and to obtain legal advice.45 This requirement has usually, if not always, been satisfied. In one rare case, the court found that the exercise of a magistrate’s discretion to bind a person over to be of good behavior and not breach the peace was not “prescribed by law.”46 It would not have been clear to those affected by the order what the behavior was that was being prohibited. 47 The measure was pros- pective in nature there, applying to possible future acts, rather than past acts.48 This gave it the essence of a “prior restraint” on freedom of expression, requiring even more justification in proportionality analysis. 49 The government could not meet this proportionality requirement on the facts. In another case, the court found that someone reading the defendant public authority’s advertising policy could not reasonably foresee that it might reject advertising on the basis that it referred to a region that was not officially recognized as a separate jurisdiction from the rest of the nation. 50

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The Court will also consider whether the relevant provision was “necessary.” Here, the Court considers whether the legislation is targeted to a pressing social need.51 The Court’s role here has been carefully delineated. It is not to take the place of the national authority, and determine whether it would have legislated as the national authority did. 52 It accords the relevant legislature a “margin of appreciation” in terms of its legislative choices. The extent of this margin of appreciation is context-specific, 53 so that the court might accord a legislature a greater margin of appreciation in some contexts than in others. For example, the Court has accorded special significance to speech in the political context, such that it will be very difficult for a legislature to justify curbs on political speech,54 or criticism of a politician who is acting in a public capacity.55 On the other hand, a legislature might be more able to curb freedom of speech in a non-political context, for example, defamation, or criticism of court decisions (if these are not seen as political). It has been noted that the concept of what is speech in the political context has been stretched to include matters of general public debate and interest, 56 and including commercial communication. Discussion of matters of general concern is given very strong protection. 57 Article 10 protects both the substance of the expression and its form. This means that the person communicating enjoys wide latitude in terms of how they express themselves, as well as the content. A person may choose to express themselves in a sarcastic, exaggerated, or provocative way. 58 The fact speech is one-sided in nature and/or virulent does not deny it Article 10 protection.59 Article 10 protects the expression regardless of the form chosen by the one communicating.60 This can include non-verbal communication, for example, flags or other symbols which convey meaning. 61 However, many jurisdictions prohibit the showing of Nazi symbols such as the swasti- ka. These bans have been upheld against freedom of expression challenges. 62 The Court engages in proportionality analysis in terms of the goals of the legislation and the extent to which it interferes with freedom of expression. This is broader than simply enquiring as to whether the legislature exercised its judgment reasonably, carefully and in good faith. 63 The Court considers the legislature’s justification for the legislation, whether it is legitimate, and whether the legislation is carefully tailored and proportionate to meeting this objective.64 The reasons given by the state for the legislation must be “relevant and sufficient.”65 It is not a positive obligation on the state to provide information.66 The extent of the penalty imposed on the alleged wrongdoer is an important part of proportionality analysis. 67 It is very unlikely that any jail term for mere expression which does not involve violence or a call to violence will survive proportionality analysis. 68 The fairness of the proceeding, including the extent of procedural fairness accorded, is relevant. 69 So is the reach of the expression; the more far-reaching it is, the more the government may be able to justify its regulation. 70 Similarly, the identity of the speaker is

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important. It might view differently speech by a low-profile person which is unlikely to make much impact than speech by a high-profile, influential person.71 The extent to which the banned expression which is the focus of the current dispute could be articulated in other channels is also relevant in the court’s proportionality analysis.72 The Court has played special regard to restrictions which impact freedom of the press, in recognition of the fundamental role that the press play in maintaining a democratic system of government, and holding governments accountable to the electorate.73 Such measures are approached with the ut- most caution. The court is conscious that even the possibility of sanctions, including jail terms, for journalism could have a significant chilling effect on the exercise of journalistic freedom of expression.74 It will be very rare that imposing a jail term on a journalist for exercising their freedom of expression will be consistent with Article 10. 75 One possible example would be where the expression at issue infringed other convention rights, for example, hate speech or incitement to violence. Similarly, it is very unlikely that a “prior restraint” on a journalist, in the form of banning them from working for one year, will be consistent with convention rights. 76 The extent of protection of journalists will depend to a large extent on the nature of their topic. While significant protection will be accorded a journalist’s investigation and reporting of significant political and social issues, much less protection will be given in relation to coverage of a non-politician’s private life.77 The court has expressed itself more generally also about the danger that punishment of someone because of something they said will create a chilling effect beyond the impact on the particular person involved in the case at hand.78 This is relevant in proportionality analysis. The Court also routinely observes that the government enjoys a dominant position within legal systems of a country, and has special power to curb freedom of expression of individuals living within the country. The court notes this in observing that this requires governments to exercise restraint in curbing freedom of expression, particularly with criminal sanctions, and particularly when alternatives are available to meet the objectives said to justify the curbs on speech.79 However, the Court also typically accepts the right of legislatures to limit speech, even through criminal sanctions, that poses a legitimate threat to public order. Criminal sanctions for defamation are not, for that reason alone, prohibited.80 The federal nature of Europe is important in how the Court conducts proportionality analysis. In applying proportionality analysis, the Court faces a delicate balance between enforcing the rights in the Convention but also paying due regard to the sovereignty of member nations, and their approaches to a range of public policy issues. Member states have many historical, cultural, and political differences. 81 It is a delicate balance to respect this,

32 Lexington Books Legal Studies Chapter Showcase 214 Chapter 5 while remaining faithful to the ambitious intent of the European Convention on Human Rights. It seeks to pay heed to the sovereignty of member nations through its “margin of appreciation” in applying the terms of the Convention to their legislation.82 Further, it is also relevant in applying this margin of appreciation the extent to which there is, or is not, relative consensus in European nations as to a particular issue. So, for instance, the Court is likely to provide a greater margin of appreciation for a measure that is broadly mirrored across European states,83 and a lesser margin of appreciation for a measure that is unusual and more invasive of a particular convention right than is typically seen across Europe. It also pays regard to the federal nature of Europe in its repeated observations that there is no concept of general morality in Eu- rope.84 A lack of consensus across Europe about a particular issue will typically in practice mean the margin of appreciation is greater for member states to regulate as they see fit.85 This is a specific example of the Court’s attempt to pay due deference to the sovereignty of nation states, and a greater margin of appreciation in areas of significant policy difference across the continent. Further, the Court will take into account a particular state’s political history and development in the proportionality analysis. Measures that might be justified as proportionate in one state given its political history and circumstances are not necessarily proportionate in another. 86 A greater margin of appreciation is also given in circumstances where there is a clash of competing convention rights. Here the court will consider whether it believes a fair balance has been achieved, in accordance with past guidance given in the case law.87 It considers national authorities to usually be in the best position to balance the competing interests, including threats to national security and continued risks. 88 The timing of comments in relation to events to which they are connected is relevant in proportionality analysis. Consider a case where, for example, a conflict is ongoing, where an ex-politician expresses support for a revolutionary group at the precise time that the group is engaged in guerrilla war- fare with government forces. The Court found the applicant’s comments were likely to exacerbate existing tensions. A jail term of about two months for the person uttering the statements was upheld. 89 In contrast, comments about events of 40 years ago were not likely to stir up violence, so punishment for the maker of such statements could not be justified given Article 10.90 Timing is relevant in another way, for instance, if speech is made during the course of an election campaign, it will be accorded even greater protection than it might enjoy during other times. 91 The existence of Article 17 must be noted. It provides that nothing in the Convention implies the right to do anything aimed at the destruction of other rights in the Convention. This has particular application to controversial areas of speech such as Holocaust denial or so-called hate speech. In effect,

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the Court has said that denial of historical truths and hate speech is, or may be, incompatible with other parts of the Convention, for example, non-discrimination rights under Article 14, or respect for private and family life under Article 8. As such, the Article 10 right to freedom of expression has been held not to extend to speech such as Holocaust denial 92 or hate speech93 against groups in society. This has been explained on the basis that the Convention contemplates a democratic society which tolerates and respects the dignity of all human beings.94 To the extent that the previous two categories do not catch it, nor are statements in favor of Nazi or neo-Nazi policy or practice. 95 In relation to hate speech, in December 2015 the Council of Europe Commission Against Racism and Intolerance adopted recommendations on combating hate speech. It recommended that member states take appropriate actions against the public use of hate speech intended or reasonably likely to incite acts of violence, intimidation, hostility, or discrimination through the criminal law, provided no other less restrictive measure would be effective. 96 In determining whether such risk is likely to materialize, various factors must be considered. These include (a) the context in which the hate speech concerned is occurring, and whether it is linked to existing serious tensions within the community; (b) the capacity of the person using the hate speech to influence others (e.g., that they are a community or political leader); (c) the nature and strength of the language used (e.g., whether it is provocative, direct, involved use of misinformation, negative stereotyping, stigmatization, or otherwise capable of inciting acts of violence, intimidation, hostility, or discrimination); (d) context of the remarks, including whether they were isolated in nature or recurrent, and whether or not they are balanced by other speech uttered by the relevant person or someone else, for example, in the course of a debate; (e) the medium used, in particular the resulting ability of the speech to bring about an immediate response from an audience (e.g., the contrast between speaking at a live event, and part of a book); and (f) the nature of the audience, particularly bearing on the likelihood that the speech would likely incite violence, intimidation, hostility, or discrimination. 97 Some suggest that sentiment against hate speech, including on racial or religious grounds, has now become part of international customary law, so that even nations which have not acceded to the relevant Conventions would be required to act.98 Holocaust denial is not accorded freedom of expression protection, because the Court has determined there is a category of “historical facts” about which denial may be criminalized. Of course, this does not mean that everything about World War II or everything about Nazism is forbidden. For instance, it was permissible to express an opinion regarding matters of the French resistance, and to speculate as to who might have informed the Nazis about details of the resistance. This remained a topic of legitimate public

34 Lexington Books Legal Studies Chapter Showcase 216 Chapter 5 debate that had continued since the war. 99 Hate speech is also prohibited by other international human rights instruments. 100 Other forms of speech may also be denied protection under Article 10 due to Article 17, including the expression of violent intentions, or denying the foundations of a democratic society, 101 glorification of war crimes, crimes against humanity, genocide, or contempt to victims of totalitarianism. 102 The Court has explained that this latter restriction is necessary because the convention is based on notions that democracy is fundamental and essential in order to secure the liberties specifically expressed in the document, so that someone who denies or seeks to undermine the democratic basis of government falls within the kind of behavior dealt with in Article 17. 103 By this type of reasoning, a ban on active members of the Communist Party running for government office was justified in Latvia, because the Communist Party had attempted to overthrow the newly established democratic regime in that country in the early 1990s after the disintegration of the USSR and its former annexation of Latvia to that nation. The person concerned was a senior member of the Communist Party and had not expressly disavowed that party’s policy platform.104 We will consider now how these principles have been applied in various specific contexts. I will consider firstly how freedom of expression has been interpreted in the United Kingdom courts, and then how it has been interpreted by the European Court of Human Rights.

UNITED KINGDOM COURT DECISIONS

We may pride ourselves on the fact that freedom of speech has existed in this country (England) perhaps as long as, if not longer than, it has existed in any other country in the world.105

As indicated above, the first bone of contention is the extent to which the United Kingdom common law of freedom of expression is in fact congruent with Article 10. Here we have statements by several courts that the principles are effectively the same.106 On the other hand, we have skepticism by learned commentators that this was/is in fact the case, or whether courts have been guilty of some kind of retrofitting of the common law principle in order to make it congruent with the Convention right, without wishing to appear to be doing so.107 And clearly there have been cases decided differently under the common law of the United Kingdom and the Convention.108 It is considered important to discuss the United Kingdom court decisions separately from the Strasbourg decisions for at least three reasons. Firstly, their approach is, though similar, in some ways different, as the following discussion will tease out. Secondly, with the so-called Brexit decision of 2016, and subsequent ongoing legal machinations in terms of separating the

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United Kingdom from Europe, it is not at this time precisely clear how the United Kingdom courts will take account of Strasbourg decisions going forward. In addition, the current United Kingdom government has a policy to change the existing arrangements in terms of the Human Rights Act 1998 (UK) and that jurisdiction’s accession to the European Convention on Hu- man Rights, though at the time of writing, just what this change will involve is not precisely clear. The highest United Kingdom courts has in modern times emphasized the fundamental place of freedom of expression in a democracy. It has discussed the intrinsic importance of freedom of expression, and instrumental justifications for it in terms of self-fulfilment of individuals, the search for truth, and its contribution to democracy. 109 It has noted that individuals are more likely to accept decisions with which they do not agree if they have had the opportunity for input. It helps protect against abuse of power by public officials, and assists in correcting errors. The context was a case in which prison authorities sought to prevent journalists from talking with prisoners, unless they agreed not to use information garnered. The court heard evidence that in the past through this channel, many wrongful convictions had been overturned.110 Elsewhere, it has emphasized that attempts to place limits on freedom of speech are likely to founder due to the inherent difficulty in framing them appropriately.111 The English court has noted that Article 10 enshrines both a right to speak, and a right to hear.112 As with the United States, British law frowns upon content-based restrictions. 113 The mere fact that speech is offensive is not sufficient, of itself, to justify an abrogation of Article 10 rights,114 although expression that causes an “affront to human dignity” may be considered differently.115 There is apparently broad similarity, and some divergence, in how United Kingdom courts and the European Court on Human Rights apply proportionality analysis.116 Specifically, in both cases the court will consider whether the legislation is designed to meet a pressing social need. In the European court, proportionality analysis will then involve consideration of whether the legislation is carefully tailored to that need, and will balance this with the infringement of freedom of expression. In contrast, the United Kingdom courts have considered whether the limits on freedom of expression chosen by the legislature are “rational, fair and not arbitrary.”117 This phrase does not appear in the Strasbourg jurisprudence. It has identified a four-stage approach, asking the following: (a) whether the objective of the interference with freedom of expression is sufficiently important to justify limiting a fundamental right; (b) whether the means used to achieve that objective are rationally connected to it; (c) whether the means used to impair the right or freedom are no more than necessary to achieve that objective 118; and (d) there is a fair balance between the rights of individuals or groups and the interests of the community.119 This approach to proportionality was substan-

36 Lexington Books Legal Studies Chapter Showcase 218 Chapter 5 tially derived from the classic judgment of Dickson CJC in the Canadian decision of R v Oakes.120 The United Kingdom Court generally prefers not to use the phrase “margin of appreciation” which appears throughout the Strasbourg jurisprudence, as will be seen below; instead it prefers concepts such as “appropriate weight” to decisions of the legislature or executive. 121 This decision will be appropriately sensitive to “national traditions and institutional culture.”122 Some have been critical that United Kingdom’s highest court has been overly deferential, or accorded too much weight, to parliament’s decisions about the balancing of various rights.123 This may be related to the strong tradition of parliamentary supremacy in that jurisdiction. The courts’ answer to the question of whether different categories of speech warrant different protection by the law has been inconsistent. So, for example, in Reynolds v Times Newspapers Ltd there are indications that no special rules should be applied to different categories of speech, all of it being subject to the Article 10 proportionality analysis. That was in the context of a suggestion in that case that political speech should be subject to special consideration in terms of the law of defamation. 124 On the other hand, there is evidence that speech will be categorized in determining the extent to which it should be accorded Convention protection: “it can be appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect . . . political and economic views are at the top end of the scale, and pornography and vapid tittle-tattle is towards the bottom.”125 The House of Lords was quite accommodating to parliament’s attempts to strictly limit political advertising. It rejected a challenge to a ban on political advertising on the basis of a suggested infringement of Article 10. 126 The appellant wished to show an anti-animal cruelty advertisement. The Euro- pean Court of Human Rights had found an equivalent ban to be contrary to Article 10, and not justifiable as being necessary in a democratic society. 127 The United Kingdom court had a different view, upholding a ban on political advertising because:

It is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated . . . it is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor it is achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false . . . the risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights

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of others which a restriction on the exercise of the right to free expression may properly be designed to protect must . . . include the right to be protected against the potential mischief of partial political advertising. 128

Somewhat surprisingly, the European Court dismissed a challenge to this decision.129 The Court rejected a freedom of expression challenge to a decision of a television broadcaster to refuse to show ads prepared by an anti-abortion political organization.130 The ads included images of fetuses. The broadcaster refused to run the ads during an election campaign, based on relevant guidelines which required them to take into account whether proposed advertisements would be “offensive to public feeling.” It decided they were, and refused to broadcast them. The political organization argued that this decision infringed its Article 10 rights. A majority of the House of Lords found in favor of the broadcaster. The majority emphasized the negative nature of the right,131 emphasizing there was “no human right to use a television channel.”132 The broadcaster had not prevented the political association from communicating its message through other means, merely through the broadcast medium. The court merely required that access not be denied on discriminatory or arbitrary grounds, and this had not occurred on the facts. Lord Scott wrote a spirited dissent, stating that the United Kingdom was a mature democracy, and this meant political organizations were entitled to communicate their opinions to the public.133 Elsewhere it has elaborated upon the important role played by media in a democracy, and the need to minimize restrictions on the ability of media to facilitate and contribute to important public debates.134 The Court upheld the refusal of a public transit authority to run controversial advertisements on its buses. 135 The authority had an advertising policy which said that advertising would not be accepted if it condoned or provoked anti-social behavior or contained images or messages relating to matters of public controversy and sensitivity. The authority was bound by relevant provisions of the Equality Act 2010 (UK) which stated that public authorities were required in exercising their functions to have due regard to the need to eliminate discrimination, harassment and victimization, advance equality of opportunity, foster good relations among individuals, tackle prejudice and promote understanding. The public transport authority had previously run advertising on its buses stating “Some people are gay, get over it.” An organization wished to respond to those ads with ads of their own stating “Not gay! Ex-Gay, Post-Gay and Proud. Get Over It!” The organization’s statement of belief stated that Christ supported those who struggled with “sexual broken- ness, including homosexuality.” Its Change Statement included the following:

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There is a growing body of research evidence indicating that sexual preference is neither immutable, innate nor chosen. As a consequence of our basic sinful- ness we all have desires that we do not choose to have but we do have choices with respect to what we do about them. As a consequence our sexual identity can be reinforced or altered by either gender-affirming or gay-affirming lifestyles or therapies. CORE works with people who voluntarily seek to change from a ‘gay’ lifestyle to a gender-affirming one. This is sometimes referred to as a ‘sexual re-orientation process.’

The case refers to a Guardian newspaper report of the incident. The ads had been requested by both Core Issues Trust and Anglican Mainstream. The Guardian reported that in a statement, Core Issues Trust and Anglican Main- stream claimed the first ad represented an attempt to shut down critical debate about being gay, and those who authored it were dismissive of those who sought to “move out of homosexuality.” The judgment quotes the statement from Core Issues Trust and Anglican Mainstream directly to the effect that both organizations believe that those who were “unhappy with their homosexuality should be supported in developing their heterosexual potential where this is the appropriate life choice for them. Current scientific research says there is no gay gene.” The public transport authority declined to run the proposed ad by Core Issues Trust. The Trust brought legal action, arguing the authority’s refusal to do so breached their freedom of expression rights under Article 10. The court rejected the argument. The decision related to a pressing social need. Its policy required it to avoid advertising likely to cause widespread and serious offense. The ads would have been in a highly visible place and could not be avoided by those who did not want to hear it. Core Issues Trust could express their views via different channels other than advertising on buses.136 There had been a large number of complaints about the proposed advertising.137 It contained a “confrontational assertion, not a reasoned, informed contribution to a debate . . . it is liable to encourage homophobic views.”138 The public authority would be acting in breach of its obligations under the Equality Act 2010 (UK) if it ran the ads.139 The court claimed that “the case law of the ECHR shows that reasoned debate is likely to be more deserving of protection under Article 10 than slogans and abusive messages.”140 The Court has significantly deferred to executive will in other contexts relating to freedom of speech. So it rejected a challenge to a determination of the Secretary of State denying entry to the United Kingdom to Louis Farrak- han.141 Mr. Farrakhan had wished to visit the country to conduct a speaking tour. He had controversial views. Those which appear in the judgment, which appear to be the basis of the decision, are Mr. Farrakhan’s accusations “in extreme language” that wealthy Jews had exploited African-American people. In his talks he also emphasized the need for African-American people to

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build self-esteem, dignity and self-discipline. 142 The Secretary of State personally decided to exclude Mr. Farrakhan from the United Kingdom, on the basis that his presence would pose a significant threat to community relations, including relations between Jewish and Muslim people, that his presence would be “deeply offensive to large sections of the population,” and a potential threat to public order. The Court found that five factors combined led to the conclusion that a wide margin of appreciation ought to be given to the executive here—it involved an immigration decision, it was a decision made personally by the Minister involving detailed consultation and consideration, and that the Minister was better able to assess the likely consequences of Mr. Farrakhan’s presence in the United Kingdom than the court. Further, the Minister was democratically accountable for the decision. Final- ly, Mr. Farrakhan’s freedom of expression was only marginally restricted. He could communicate his opinions in the United Kingdom by means other than doing so in person.143 Similar deference to the will of the executive is clear in R v Secretary of State for the Home Department, where a majority of the Supreme Court upheld a decision refusing entry to the United Kingdom of a dissident Iranian politician living in France. The Home Secretary had decided that the politician’s entry to the United Kingdom to speak with a number of United King- dom politicians could jeopardize the United Kingdom’s economic interests and diplomatic relationship with Iran, and create possible violence in Iran, including against British residents living there. A majority of the Court said that in a case such as this, the executive was in the better position to make a reasoned assessment of the extent of this likely risk. It would be very difficult for a court to do so. A court’s interference would only be justified in exceptional circumstances, and this was not the case here. This did not mean that the court simply “franked” the decision of the executive. Here, there were many other ways in which British politicians could engage with the Iranian dissident.144 In dissent, Lord Kerr stated emphatically that it was the duty of the court to assess whether the interference with the Article 10 right was necessary, justified, and proportionate, and that courts should not genuflect to the executive on such matters. 145 The Court has to some extent adopted the kind of categories approach to speech, in finding that Article 10 has differential application in terms of different categories of speech.146 For example, it has found that pornography might engage Article 10 issues, but only at a “low level.”147 This presumably has the impact that regulation of it is less likely to infringe freedom of expression. This result could be achieved by various paths, by finding that regulation of pornography is likely to reflect a “pressing social need” and by weighting the value of the free speech involved at a lesser level in the proportionality and balancing stage. Another way of expressing it is to say that in such an area of regulation, states should be given a broader margin of appre-

40 Lexington Books Legal Studies Chapter Showcase 222 Chapter 5 ciation to make appropriate decisions, than they would in areas involving other kinds of expression.148 In contrast, political speech is “top of the list” in terms of importance.149 The Court has also recognized the importance of speech that is not political in nature, in terms of goals of freedom of expression more generally.150 Commercial speech, though expressed as being of “lesser value,” is also protected.151 Other points about the United Kingdom approach to interpretation of Article 10 may be noted:

• it has suggested that where there is a wide divergence of legislative approaches to a particular public policy issue, the Court should adopt a wider margin of appreciation to the ability of states to legislate on the matter as they see fit, in contrast with a situation where there was reasonable con- sensus152; • it has been suggested that states be given a wider margin of appreciation in immigration cases, giving due respect to the right of a state to control its borders153; • the court has shaped principles of the common law so as to accord with Article 10154; • substantial importance has been placed on the freedom of the press to report court proceedings, in terms of transparency and accountability. 155 • the government has a clear and legitimate interest in restricting expression connected with possible terrorism.156

In terms of protest, the English courts have taken into account numerous factors in determining whether it is protected expression within Article 10. Firstly, they have drawn a distinction between a protest which is merely asking a government to reconsider a particular decision, and a protest which is actively preventing the government from implementing a decision taken.157 The former will be given more protection. The court has distinguished between short-term and long-term protests.158 The fact that a protest in- fringes the law will be relevant, as will the extent to which the protest disrupts the lawful activities of others, and the extent to which the precise location of the protest is important in terms of its communicative value. 159 The ability of protesters to conduct their protest in another way will also be important.160 In another cases the courts have been surprisingly unprepared to protect the right to (peaceful) protest. 161 The delicate balance of freedom of expression with freedom of religion and equality rights was considered in the recent decision of R (Ngole) v University of Sheffield.162 Ngole was a mature student enrolled in the Univer- sity’s master’s program in social work. Completion of this qualification would lead to registration and practice as a qualified social worker. The profession of social work was regulated by a Health and Care Professions

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Council. The Council produced a document entitled Standards of Conduct, Performance and Ethics which set out the duties of registered social workers. This included a requirement that a registered person’s behavior not damage public confidence in the profession. It also had a social media policy, which advised about how to use such an outlet in a way that would comply with professional obligations. It stated that individuals should think before they posted, and should not use offensive or inappropriate language. It gave specific examples of the use of racist or sexist language, pointing out that the body may need to take action if individuals did this. The University’s handbook for social work students reiterated the expectation that students were expected to act in a professional manner both at University and in their personal life, including social media. It indicated that students had in the past been the subject of disciplinary proceedings because of things they posted. At the time of admission, students, including Mr. Ngole, signed a document indicating they would uphold the above standards, not compromise trust in the profession, not allow views about a person’s lifestyle, culture, beliefs, race, ethnicity, color, gender, sexuality, age, social status, or perceived economic status prejudice their interaction with service users, university staff or colleagues. Mr. Ngole acknowledged that his conduct outside of the program of study may compromise his ability to remain in the program of study. There was a news story about the release from prison in the United States of a registrar who refused to provide same-sex marriages. The news feeds permitted readers to comment. Mr. Ngole made several posts in response. He said that same-sex marriage was a sin. When challenged by another user, he provided Biblical references. These included claims that homosexuality was detestable to God, that homosexuality was a sin, and a claim that the devil had hijacked the Constitution of the United States, a country built on Chris- tianity. He claimed the United States was now worse than a country worship- ping idols. He cited the book Leviticus for the claim that homosexuality was an abomination, that homosexual acts were wicked and that God hated the acts, and that God would judge all those who had participated in wicked acts like homosexuality. After complaints, the University launched an internal investigation and invited him to various meetings. At each meeting he reiterated the views he expressed in the posts, and did not resale from them or apologies for them. He did not appreciate the possible impact of such views on others, including homosexuals. The University decided to exclude him from the program. He appealed on the basis that his Article 10 rights had been breached. The original court found the restrictions pursued a legitimate aim. It was legitimate for a professional body to impose behavioral standards on members or would-be members of that profession. Though Ngole did not identify himself as a social worker in the posts, the posts were freely available and

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anyone could see them and, if they knew Ngole, connect him with them. The court noted a reasonable observer might wonder how someone with such hardline views could behave appropriately in the area of social work, a profession involving vulnerable individuals, and the need for a high degree of trust between worker and client. The objective of the regulations was important, in terms of public trust in the profession and the interests of users. There was a rational connection between the objective and the regulation. The measure taken, excluding him from the program, was not overly invasive. The University was justifiably concerned not only with the comments, but Mr. Ngole’s failure to apologies for or resale from the comments, and continued lack of insight as to why his posts were being questioned by the University given his enrolment in a social work program. The Court concluded that the University’s decision to disenrol him was entitled to significant deference, since they had the expertise in terms of what was required for a social worker to be able to function adequately in their position. Fur- ther, the decision was overall a fair one. The University was entitled to take steps to ensure that only students committed to the ethos of the profession continued in this professional degree. It was entitled to be concerned with the perception that these comments would create. There was no inherent inconsistency between social work and religious views; many excellent social workers had strong religious views. However, in this case the University was entitled to take the position that Ngole’s views, in conjunction with his lack of insight and remorse, made him an unsuitable candidate for registration as a social worker. This decision was successfully appealed. The Court of Ap- peal163 found that the University had a legitimate interest in maintaining confidence in the profession in which graduates would work. However,

It must equally be the case that the obligation to maintain confidence cannot extend to prohibiting any statement that could be thought controversial or even to have political or moral overtones . . . the expression of such views in offensive language, however, might well damage confidence . . . (arguments about preservation of confidence) cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as the “heckler’s veto.”164

One difficulty for the University is that they had taken inconsistent positions in relation to Mr. Ngole. At some points it was suggested that the University did not welcome any negative expression about homosexuality, at other points it was apparently not the content, but the manner and language used by Mr. Ngole. At other points, the concern was apparently with Mr. Ngole’s lack of insight into how his comments could affected others, and that his views were “entrenched.”

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The Court was concerned about the implications for religious freedom and free speech, if the original decision were upheld:

The implication of the University’s submission is that such religious views as these, held by Christians in professional occupations, who hold to the literal truth of the Bible, can never be expressed in circumstances where they might be traced back to the professional concerned. In practice, this would seem to mean expressed other than the professional concerned. And if that proposition holds true for Christians with traditional beliefs about the literal truth of the Bible, it must arise also in respect of many Muslims, Hindus, Buddhists and members of other faiths with similar teachings. In practice, if such were a proper interpretation of professional regulation supported by law, no such believing Christian would be secure in such a profession, unless they resolved never to express their views on this issue other than in private . . . in our view, such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate.165

The United Kingdom courts have jealously guarded the public nature of court proceedings, stating that it is a general principle of that jurisdiction’s constitutional law that courts are to operate in public, allowing scrutiny of its decisions and processes.166 This as inherent characteristic of the dispensation of justice in a modern democratic state. 167 Exceptions must be tightly contained. The right of the media to report on court proceedings was an aspect of this.168 Exceptionally in A the Court dismissed an Article 10 challenge to a court order preventing disclosure of the name of a convicted sex offender. The government was in the process of deporting the offender to their country of origin. The offender had been resisting on the basis that disclosure of his identity would lead to a very dangerous situation for him in his country of origin. The court was satisfied that in those circumstances the Article 10 infringement was justified, proportionate, and minimally invasive of the media’s right to freedom of expression.169

EUROPEAN COURT OF HUMAN RIGHTS DECISIONS

In an early case the Court considered a prosecution under the Incitement to Disaffection Act 1934 (UK).170 The Act created an offense for someone to attempt to seduce a member of the armed forces from their duty or alle- giance. An offense was punishable by a jail term. The accused was a pacifist who sought to discourage British soldiers from travelling to Northern Ire- land. She distributed flyers at an army barracks which contained statements of ex-soldiers who had deserted army ranks due to their objections to army policy. The flyer contained details of countries to which deserters from the army might travel safely, where they could obtain legal advice and social help. The flyer expressly stated that the hope of the authors of the flyer was

44 Lexington Books Legal Studies Chapter Showcase 226 Chapter 5 that soldiers would avoid participating in the conflict in Northern Ireland. The accused refused a police request to stop distributing the flyers, and she was then arrested and charged with a breach of the legislation. She was convicted and sentenced to 18 months’ jail, reduced to 7 months’ jail on appeal. She argued the legislation breached her Article 10 freedom of expression rights. The Court accepted that the Article 10 rights of the accused had been breached, but that the government succeeded in showing the limitation on freedom of expression was a proportional response to a legitimate interest. It accepted that expression of the kind at issue could weaken national security, specifically mentioned in Article 10 as a context in which limits might be justified, and the ability of the nation to defend itself from external threats. The flyers were directly targeted at soldiers soon to be posted to Northern Ireland. It went beyond mere comment about the politics of the conflict, and involved a direct incitement to soldiers to desert their positions. The Court found there was no breach of Article 10 rights on the facts. The European Court has considered on many occasions freedom of expression in the context of media reporting. It has generally been sensitive to the important role played by the media in acting as a conduit for information about important matters of public interest. So, for instance, it lifted an injunction against a newspaper which sought to publish material on an upcoming case against a drug manufacturer involving the thalidomide case. The Court emphasized that the article was written in such a way as to make it unlikely to affect the outcome of the upcoming trial. It was reasonably balanced, did not prejudge or suggest outcomes, and was on a matter of very strong public interest.171 Similarly it found that a prosecution of a journalist for writing stories about thuggish behavior within the ranks of Icelandic police was protected by Article 10, and a provision of the Criminal Code which made it an offense to insult a public servant or make defamatory comments about them infringed the freedom of expression rights of the accused. 172 The Court concluded that the provisions were not necessary in a democratic society. A conviction in such circumstances could discourage open discussion on legitimate topics of public debate. It was unreasonable to expect the accused to prove their allegations; the articles complained of consisted mainly of reports of what others had told him. In other ways, the court has been sensitive to the special role of the media in relation to discussion of matters of public concern. The Court has also protected the confidentiality of journalists’ sources.173 The Court has also acknowledged the importance of topicality in media reporting, so that it will require very strong justification for attempts to delay media reporting of ongoing issues.174 On the other hand, the Court found that the relevant law did not infringe a journalist’s freedom of expression in Prager and Oberschlick v Austria.175

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Here a journalist wrote a 13 page article heavily critical of the Austrian judiciary. He claimed that they started with a presumption of guilt, acquitted accused individuals only as a last resort, bullied and harassed the accused, extended remand detention for longer than was permitted, and who disre- garded the verdict of a jury when they disagreed with it. He said they were unaccountable and arrogant. The journalist was charged under the Austrian criminal code with accusing another of having a contemptible character or attitude contrary to honor or morality. This offense could attract a jail term or fine, subject to a defense of truth or fair comment. The court again emphasized the critical role of media in a democracy, in terms of providing information about matters in the public interest. As part of this, questions about the functioning of the system of justice were important in a democracy. Judges had to be accountable to the people for decisions made, and the media could play an important role in that regard. 176 On the other hand, it was imperative that courts enjoy public confidence in order to do their job properly.177 It was legitimate for a government to protect the judiciary against destructive attacks that were essentially unfounded, particularly when the ability of judges to respond to allegations was severely circumscribed.178 Here the journalist had made very broad allegations of wrongdoing among the judiciary, with little factual basis or semblance of credibility. He had not attended any hearing of a judge who he personally denigrated and criticized, and did not afford any judge an opportunity to respond.179 As a result, there was no breach of Article 10. On the other hand, a five day jail term for a lawyer for contempt was held to breach Article 10. The Court found that it would only be in exceptional circumstances that a jail term, albeit short, for a lawyer because of something they said in court would survive proportionality analysis.180 The right to freedom of expression extends to the commercial realm. In one case, a prosecution against a veterinarian for speaking with a journalist about his night clinic, on the basis that it was advertising contrary to the professional standards of that field, was overturned. The Court found that the regulations impacted on an individual’s freedom of expression and could not be justified. The journalist’s animal had been treated by the vet. He was interviewed about the fact he offered a night service, and had unsuccessfully sought to convince other vets to do the same. If he could be prosecuted for saying such things, the ability of professionals such as him to participate in community debates and discussions would be severely curtailed. This would in turn impact the ability of the press to provide information to the public. 181 On the other hand, an Article 10 challenge to restrictions on the ability of a professional to advertise was dismissed, on the basis that a national authority was better placed to weigh up the various interests involved in the question of regulation in such a space.182 States have a greater margin of appreciation to regulate in the commercial sphere.183

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The right to freedom of expression also extends to the artistic realm. The Court has noted that those who create works of art contribute to the exchange of ideas and opinions that forms an essential part of democratic society. However, the Court has sometimes not been prepared to overturn a judgment of a national body that a particular form of expression is so offensive to the morals of a society that it should be banned. The Court has taken the position that the national decision maker is in a better position to judge what a particular society’s moral standards might require, and reiterated that there is no uniform European conception of morality.184 This philosophy is apparent in the context of art185 and books.186 Here the form of the expression can be relevant. So, for instance, where a poem on one view contained some statements supportive of a Kurdish rebellion against Turkish rulers, the court took into account it was in the form of a poem, greatly restricting its audience, and not being likely to cause dissidents to take up arms. 187 Elsewhere the court has defended caricature in art, on the basis it is deliberately exaggerated, with a natural aim to provoke and agitate. 188 It is also apparent in cases where freedom of expression might be thought to interfere with religious freedoms of others. The court has said in such cases that a wider margin of appreciation might be given to national legisla- tors to properly balance these important freedoms. 189 So, for example, the Court rejected a challenge to United Kingdom blasphemy laws, applied to an individual who made a semi-pornographic movie depicting Jesus Christ and a nun involved in low-level intimate contact. The court dismissed an application seeking to declare the United Kingdom blasphemy law as being offensive to Article 10. The Court said the position had not yet been reached in member states where it could be said that laws forbidding blasphemy were unnecessary and incompatible with the Convention. 190 A greater margin of appreciation is applied to cases general questions of morality. 191 Several cases have involved the question of the right of public servants to hold and express political views, and to participate in politics. One such case was Kosiek v Germany.192 Relevant legislation stated that all candidates for public service posts were expected to uphold the free democratic system within the meaning of the Basic Law. Mr. Kosiek was a member of a political party which rejected the democratic order, wished to abolish parliamentary government and the multi-party system, and had an extreme nationalist and racist ideology. He was dismissed from a public service position when the government became aware of his views. The Court rejected his claim, finding there had been no breach of his Article 10 rights. The government had made a legitimate decision that Mr. Kosiek was not able to meet one of the requirements of the position. Similarly in Rekvenyi v Hungary it upheld a state requirement that members of the armed forces, police, and security services were prohibited from joining any political party and engaging in political activity.193

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The Court had a different view in Vogt v Germany.194 Vogt was a teacher employed by the state. Relevant legislation required Vogt, as a public servant, to uphold the free democratic constitutional system enshrined in the country’s Basic Law. At the time she was employed by the state, she was a member of the German Communist Party. This party’s policies included an adoption of the governance structures of the former East Germany, as opposed to the democratic structures of the former West Germany. Vogt held various positions within the Communist Party, and ran for office as one of its candidates. She was dismissed by the authorities due to her political activities, on the basis she did not meet the duty of loyalty towards German democratic governance. The European Court of Human Rights found that a breach of Article 10 had occurred. The Court noted that states were entitled to enforce duties of loyalty on their employees. In particular, Germany’s history explained and justified its insistence that employees be loyal to a democratic system of government. 195 However, here the duty of loyalty was owed by every public servant, regardless of rank.196 It made no distinction between work and private life. 197 Other member states had not imposed similar duties of loyalty upon their employees.198 There was no evidence that Vogt had made any anti-democratic statements or personally adopted an anti-democratic stance, or that she had sought to indoctrinate any students in these views. 199 The political party of which she was a member had not been banned by the government. 200 The Court concluded it was not necessary in a democratic society to dismiss her. Article 10 had been breached. Similarly in Grigoriades v Greece,201 the Court considered a provision of the Greek military criminal code which made it an offense for a member of the armed forces to insult the flag or the armed forces. This was punishable by a maximum six month jail term. The accused, while a member of the army reserve, sent a letter to his commanding officer suggesting the army was a criminal and terrorist apparatus with an intimidatory environment, which sought to transform people into instruments of oppression and fear. He was charged with a breach of the military criminal code provision. The Court found that the state had a legitimate interest in maintaining a system of military discipline, and to restrict speech that might threaten such a system. However, the speech concerned here was not likely to do so. It was not widely distributed. It did not directly insult individuals. As a result, it was not necessary in a democratic society to prohibit such speech. The Court has accorded special deference to what it considers to be “value judgments.” It has rejected national regimes which have sought to require those making value judgments to prove the veracity of their claims. So, for example, it dismissed an attempt to prosecute a journalist who had published facts about a charge against a sitting politician for allegedly inciting hatred and advocating doctrines espoused by Nazism. After the journalist published

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the fact of the charge, he went on to express an opinion that the politician’s activities were probably in breach of the relevant prohibitions. The politician brought an action against the journalist for defamation. The Court rejected a suggestion from the national courts that the journalist should have to prove the truth of the implications he had drawn from the politician’s public comments. They were in the realm of value judgments, which were of such a nature as could not be proven. A requirement that a person making a value judgment do so was itself a breach of the person’s freedom of expression rights, in the opinion of the European Court.202 In cases of value judgments, it will typically be sufficient for the person accused of wrongdoing to show their comments were fair in the sense that some evidence supported them. 203 Even if a matter is categorized as a “fact” rather than a “value judgment,” it will be sufficient if the author can show that their statements were made in good faith, rather than having to prove their truth, in order to avoid prosecution.204 A national law requiring the maker of a statement to prove its truth in order to avoid conviction is not compatible with the Convention. 205 Similarly it has not supported a state provision which removed the truth defense with respect to events that occurred more than ten years before the comments were made.206 In terms of criticism of the government, the Court has said that the limits of permissible criticism are wider than in the case of a private citizen or politician.207 Democracy required close scrutiny of government. Government enjoyed a powerful position, and must not abuse this powerful position to silence critical or dissenting voices. The Court noted this was particularly the case where there were other means available for government response to what had been said, other than punishment of the speaker. 208 In so saying, the Court apparently conceded the possible legitimacy of criminal laws against government criticism.209 The facts involved an attempt to prosecute a politician who had commented on the deaths of Basque separatists, the apparent lack of government will to investigate the deaths, and suggestions that the government had been complicit in them. The politician was charged with a breach of the Criminal Code, which provided for long-term jail terms for those who “seriously insulted, falsely accused or threatened the government.” The European Court found the national courts had not given the accused an opportunity to demonstrate that what he said either was true or was done in good faith, and there had been a breach of Article 10. Similarly in Turkey, a national law criminalizing propaganda, meetings, and demonstrations aimed at undermining the territorial integrity of the state were challenged in Baskaya and Okcuoglu v Turkey.210 There one of the applicants wrote a book about the Turkish government, published by the other applicant. The book criticized what it called the annexation and coloni- zation of what it called “Kurdistan” by Turkish rulers. He was charged by the Turkish government with disseminating propaganda which undermined the

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territorial integrity of Turkey, by effectively suggesting some of the territory belonged to the Kurds. The penalty for such an offense was between two and five years’ jail time. The accused were convicted and sentenced to jail terms of almost two years, and five months. They appealed, arguing the legislation infringed their freedom of expression. The Court agreed. The realm of speech implicated here was political in nature. Democracy required the closest scrutiny of political actors and government. Government had to be careful in resorting to criminal sanctions against disfavored speech in such a realm, particularly where there were other avenues to respond to unjustified attacks and criticisms by oppo- nents.211 A greater margin of appreciation would be applied where the speech involved was likely to incite violence, including terrorism. 212 Here, although the political situation in the region remained volatile, it was unlikely that publication of this book would materially increase the likelihood of hostil- ities within the region. That risk did not outweigh the value of having different voices about a topic heard, unpalatable though it may be for the government and its supporters to hear.213 The court was also influenced by the jail terms imposed on the author and publisher, concluding the punishments given were disproportionate to the government’s legitimate aims and objectives. A similar result occurred in Ceylan v Turkey.214 There Ceylan was a trade union leader who wrote an article claiming that the Turkish government was involved in massacres and terrorism. He called for Turkish people to unite and oppose such government measures. He was charged with a breach of the Criminal Code which prohibited a person from inciting people to hatred or hostility on the basis of a distinction between social classes, races, religions, or regions, punishable by a jail term of between one and three years. Ceylan was convicted and sentenced to a jail term of one year and eight months and fined 100,000 Turkish liras. The European Court quashed the conviction, finding that the government had not met the high evidentiary bar required to justify limitation on political speech. It was true that the matter was highly politically charged, and the article appeared shortly after the Gulf War, but the material did not incite violence, armed resistance, or insurrection, in which case the government would have enjoyed a wider margin of appreciation for its legislation.215 The court took into account the very serious penalty imposed on the applicant, the fact it cost him his position in the union, and had other consequences for his civil and political rights. 216 The Court considered a case of a journalist insulting public servants in Janowski v Poland.217 There a journalist came across public servant guards who were telling a street vendor they were not permitted to conduct trade in that area. In the course of telling the guards that they were incorrect, the journalist used insulting words to the guards, calling them ignorant oafs. The journalist was charged with an offense in the Polish criminal code concerning insulting a public servant in the course of carrying out their official

50 Lexington Books Legal Studies Chapter Showcase 232 Chapter 5 duties. This offense was punishable by a maximum two year jail term. He was convicted, and sentenced to a suspended jail term and ordered to pay a fine of 1.5 million zlotys. He appealed, arguing his right to freedom of expression in Article 10 had been infringed. The Court rejected this argument. Janowski got involved in the dispute as a private citizen, rather than as a journalist. Thus, the case did not concern the freedom of the press. He was not participating in an open discussion about matters of public concern.218 The Court heard arguments that speech directed to public servants was entitled to more latitude than other kinds of speech; however the court distinguished between politicians, who should legitimately expect very close scrutiny and public debate and discussion about them, and public servants.219 The Court accepted the legitimacy of laws protecting public servants from abuse while they were carrying out official duties. The Court concluded the actions of the guards “did not warrant resort to offensive and abusive personal attacks.”220 In subsequent decisions the Court has apparently given more scope for individuals to criticize public servants. It has accepted broader freedom to criticize public servants than would apply to private citizens. 221 It has acknowledged the importance of public confidence in the public service, but indicated that this confidence must be earned, rather than absolutely as- cribed.222 Criticism of a public servant might be protected although it is expressed in an exaggerated, provocative, or sarcastic manner. 223 The Court considered strict restrictions on political expenditure in Bow- man v United Kingdom.224 There legislation precluded any person or organization other than a candidate from spending more than five pounds to promote the election of a candidate. The maximum punishment for breach of the provision was one year jail time and/or a fine of five thousand pounds. Bowman was an anti-abortion campaigner who distributed pamphlets which highlighted the attitude of particular candidates to abortion issues. She was charged with a breach of the legislation. The government claimed its legitimate aim with the legislation was to promote fairness between competing electoral candidates by preventing wealthy third parties from influencing the outcomes of elections. The Court accepted this as a legitimate aim. On the other hand, free elections and freedom of expression, particularly freedom of political debate, was the bedrock of any democratic system. 225 This meant that, most critically during a pre-election period, there be a free flow of information. The Court noted that the threshold at which political expenditure by a third party became unlawful was very low. 226 While it only applied to the weeks leading up to an election, and the third party could lawfully spend money prior to that time, that would tend to defeat the third party’s purpose in incurring the expenditure. Effectively, Bowman was precluded from publishing any information that might influence voters at the election. This went above and beyond what was necessary to secure the kind of equal-

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ity the government claimed to be their legitimate objective. The legislation did not affect the ability of the press to support or not support any particular candidate. Nor did it preclude advertising, provided it was not intended to indicate support or otherwise for a particular candidate. 227 Thus, the legislation was disproportionate to the end sought, in the court’s view. In that light, and in the light of the earlier decision in VgT v Switzerland upholding a complaint about bans on political advertising, it was somewhat surprising that in Animal Defenders International v United Kingdom the European Court dismissed a challenge to United Kingdom legislation that banned political advertising. The decision accorded great deference to the considered decision of the jurisdiction to implement the ban in order to avoid effectively favoring wealthy individuals or organizations that wished to communicate a political message over those who similarly wanted to do so, but could not afford to run paid advertising.228 A major case involving freedom of expression is Perincek v Switzer- land.229 That case involved a Turkish political leader who made public comments in Switzerland denying that the Armenian genocide of 1915 by the Turks had occurred. He was charged with an offense under Article 261 of the Swiss Criminal Code. That section made it an offense for a person to:

• publicly stir up hatred or discrimination against a person or group of persons on the grounds of their race, ethnicity or religion; • publicly disseminate an ideology aimed at systematic denigration or defamation of the members of a race, ethnic group or religion; • encourage or participate in a propaganda campaign with the above aims; or • publicly denigrate or discriminate against a person or group on the basis of their race, ethnic origin or religion in a manner which violates human dignity.

A breach of any of these provisions attracted a possible three year jail term. The Court noted the provisions were prescribed by law and did impact freedom of expression. It noted that in terms of exceptions, Article 10(2) specifically permitted interferences with freedom of expression on the basis of preventing disorder. However, there was little evidence that the likely effect of the accused’s speech was disorder.230 The Court found this rationale did not apply, meaning the government would have to show the interference with freedom of expression here was necessary in a democratic society. The Court noted that where freedom of expression was raised in the context of so-called hate speech or incitement to violence or intolerance, several factors were relevant in determining whether the legislation passed the proportionality requirement:

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• whether the statements had been made against a tense political or social background; whether the statements could fairly be seen as a direct or indirect call for violence, or justification for violence, hatred or intolerance; • the manner in which the comments had been made and their capacity, directly or indirectly, to lead to harmful consequences 231; and • where the statements dealt with historical matters, the likely impact of the statements and the length of time between the events and the statements would be relevant.

The Court noted that the current case also involved the Article 8 right to privacy. The Court recognized that the negative stereotyping of a particular ethnic group was capable, at a certain level, of impacting their sense of identity and members’ feelings of self-worth and confidence. This could implicate their “private life” within the meaning of Article 8.232 The Court distinguished between expression on matters of public interest, and expression that promotes or justifies violence, hatred, xenophobia, or intolerance.233 The former was entitled to protection; the latter typically would not. The Court found that the relevant speech here was of the former type. The Court did not interpret the accused’s statements as a form of incitement to hatred or intolerance. He did not express contempt or hatred for the victims of the 1915 events. He did not call the Armenians liars or attempt to stereotype them. 234 There was a lack of evidence that the accused had a racist agenda.235 The Court sought to distinguish decisions in which they had validated laws prohibiting Holocaust-denial, and the present situation. They said that Holocaust-denial “even if dressed up as impartial historical research, must invariably be seen as connoting an antidemocratic ideology and anti-Semi- tism.”236 Holocaust-denial was doubly dangerous in the court’s view, particularly in states directly impacted by Nazism in the past. It was justified that governments in such states would take the position they had a special moral responsibility to distance themselves from the atrocities of the past by outlawing their denial. This was in contrast to the situation before the court in this case, where Switzerland had not enjoyed a special status in relation to the events surrounding Armenia in World War I. In terms of the likely impact of the accused’s comments, the Court concluded it was unlikely that it would cause serious friction in Switzerland between Turks and Armenians, or cause hatred between them. 237 This was partly because the speech related to events of a century ago. This weakened the argument of the state that bans on such speech were necessary to preserve the dignity of those who suffered harm as a result of the events of 1915, or their descendants.238 Nor would the accused’s comments likely have a sub-

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stantial impact on the identity of Armenians as a group. It was also relevant to note that the reach of the accused’s statements was relatively small, being confined to statements at three public events, as opposed to mass distribution of leaflets.239 Limits to the courts’ tolerance of controversial race-based speech have been established. In Balsyte-Lideikiene v Lithuania240 the Court considered the case of the accused, who distributed a Lithuanian nationalist calendar. Calendar entries claimed that the Polish had brutally murdered many Lithua- nians during World War II. The calendar claimed that Jewish people were in control of the Lithuanian government, and that banquets were being held for Jews while Lithuanian beggars were ignored. She claimed execution of Lith- uanians was caused by pro-Jewish politics, and concluded the only way that Lithuania could survive was by adopting nationalism. She had distributed the calendar for six years and was living largely from the proceeds of the book. She was alleged to have breached Article 214 of the Code on Administrative Law Offenses, in distributing information promoting ethnic, racial, or religious hatred. Her books were confiscated and she was fined. She claimed that such a proceeding infringed her Article 10 rights. The Court found that Article 214, as applied to the accused, met a legitimate objective. Experts testified that one-sided portrayals of relations between nations could hinder the consolidation of civil society and promote racial hatred. Governments had a legitimate objective in seeking to stamp out such communication. The Court took into account the relatively light sanction on the accused, which did not include any jail time, in concluding that the legislature’s response was legitimate and proportionate, so there was no breach of Article 10. In Hizb Ut—Tahrir and Ors v Germany241 the Court considered sanctions against those in German society who were preaching the need for jihad. The relevant individuals and organizations advocated the violent overthrow of Islamic governments around the world in order to establish a caliphate. The published statements of the individuals and organizations involved included that the Jewish state did not have a right to exist, and called for its destruction, and the killing of Jews. The authorities banned the relevant organization and ordered that its assets be confiscated. Affected individuals appealed on various human rights grounds. The court did not specifically deal with an Article 10 claim, but considered briefly a claim that the claimants’ association rights under Article 11 were being infringed. It rejected such an argument on the basis of Article 17, which provides that an individual or organization cannot claim the human rights contained in the Convention where its evident purpose is the very destruction of those rights in others. Another kind of hate speech was at issue in Vejdeland and Others v Sweden.242 A Swedish criminal statute made it an offense to threaten or express contempt for a national, ethnic, or other group of persons with allu-

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sion to race, color, national or ethnic origin, religious beliefs, or sexual orientation. The offense was punishable by a maximum two year jail term. The alleged offenders had unlawfully entered school premises and distributed approximately 100 pamphlets entitled “Homosexual Propaganda.” The pamphlet stated that society had now embraced “this deviant sexual procliv- ity.” The pamphlet claimed that Swedish teachers knew that homosexuality had a morally destructive impact on the substance of society, but nevertheless would promote it as “normal and good.” It blamed homosexuals for the spread of HIV/AIDS, and claimed that homosexual activists were trying to play down the evil of pedophilia and seek its legalization. They were charged with an offense against the Swedish statute. They argued Article 10 in their defense. The Court stated that in order to commit an offense of inciting racial hatred, it was not necessary to show that the conduct incited or would tend to incite violence or other criminality. 243 Insult, ridicule or slander of particular groups was sufficient.244 The court took into account that the offenders circulated their material to underage students, had trespassed upon premises to do so, and had been fined rather than jailed. 245 It found the government response proportionate in the circumstances, thus there was no Article 10 breach. The Court has had to juggle in several cases the clash between religious freedom and freedom of expression. One leading example was Otto-Pre- minger-Institut v Austria.246 The case involved an Austrian blasphemy law, criminalizing the insult of a religious figure or object of veneration within a religious community, or lawful custom or institution of such religious community. The offense was punishable by a maximum six month jail term. The appellant’s manager was charged after the appellant screened a film which depicted God, Jesus Christ, and Mary in a negative light. Only those at least 17 years of age, and who paid an admission fee, could see the film. The film had attracted significant publicity, such that it was likely that only those who had some knowledge of the nature of the film would actually see it. The Court found that although the applicant’s freedom of expression rights had been breached, it was justified as being necessary in a democratic society. The Court held that the right to freedom of expression came with responsibilities, including avoiding expression that was gratuitously offensive to others, which infringed their rights, and which did not form part of public debate capable of advancing human affairs. 247 As there was no standard set of agreed morality in Europe, practically this meant states should be accorded significant freedom in determining the appropriate balance between freedom of expression and freedom of religion. 248 It could not be said that the measures here were disproportionate in seeking to achieve a legitimate objective. At times, this judgment seems inconsistent with statements elsewhere in the European case law to the effect that the Court is not a regulator of the manner in which individuals exercise their freedom of expression. 249

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The court shows a real tolerance for decisions that contracting states might make in relation to religion. The margin of appreciation in such a context is significantly broader. 250 This is typically on the basis that national authorities are said to be in a better position to judge the necessity or otherwise for the restriction, and the lack of a consistent standard about such matters across contracting states. Application of these principles resulted in the upholding of a provision of broadcasting legislation prohibiting radio and television broadcasters from carrying advertising directed towards, among other things, religious ends. The regulating authority banned the running of an advertisement for the running of a religious-themed documentary. The government argued that the regulation was necessary because of ongoing religious tensions in the country, such that advertising for one religion may offend or insult adherents of another religion. It claimed public order and safety as the justification for its regulation. The Court accepted these arguments, on the basis of the broader margin of appreciation in such cases, and that the ban related only to radio and television broadcasting, leaving the church group free to use other media to convey its message. In relation to the Internet, a company recently unsuccessfully sought to avoid liability for posts on one of its discussion fora by reference to Article 10.251 The applicant owned a news portal which featured large numbers of articles. The applicant encouraged readers to post their comments about featured stories. The site attracted large numbers of posts (about 10,000) each day. The site warned those who wished to post material that it would be monitored, and comments deleted if they contained threats or insults, incited hostility and violence, encouraged illegal activity, or contained vulgarity or obscenity. It employed software which automatically deleted posts which contained various offensive words. The company posted an article in which it accused the owner of a ferry company of scuttling plans to build an “ice road” between the mainland and various islands, forcing would-be commut- ers to use its ferries at a price. Many readers posted comments about the article in the online forum, abusing the owners of the ferry business with general abuse, including anti-religious abuse, and threats of or apparent in- citements towards violence. The company’s filtering system did not prevent these comments from being posted. Six weeks passed before the company removed the offensive posts. The company was charged with defamation. It denied it was responsible for the posts, and claimed the prosecution breached its right to freedom of expression. The Court noted the company exercised substantial control over the posts. It provided a forum for them to be posted. There was an economic interest for the company in getting as many individuals to their forum as possible, in terms of advertising. In determining whether or not an online service provider could be liable for posts made, relevant factors included the context of the comments, the measures the provider took to prevent or remove defamatory

56 Lexington Books Legal Studies Chapter Showcase 238 Chapter 5 material, whether the actual makers of the statements could be held to account, and consequences for the company of the proceedings. 252 Here potential victims could not do anything to prevent publication of the comments; in contrast the company was in a strong position to do so quite easily 253; the company had taken far too long to respond to complaints 254; and their business model would not need to change substantially to meet obligations regarding the content of posts.255 As a result, an Article 10 challenge to the proceedings against the company failed. Most recently the Court considered Article 10 rights in terms of an agita- tor for Chechnyan separatism against Russia. The applicant was both a journalist and civil activist. He published a newspaper entitled “Radical Politics.” His articles contained several allegations:

• that its rulers had perpetuated an attack on a sovereign state and were killing innocent civilians there aimed at the physical extermination of the Chechnyan ethnic group; • Russia’s occupying forces were “maniacs, bloodthirsty sadists, murderers and degenerates”; • Russian “invaders” were intent on the “total genocide of the Chechnyan people.”

He also referred to Russia’s “colonial expansion” into Chechnya, referred to a President of the Chechnyan region, referred to Russia as a “scary black noisome abyss,” referred to the immeasurable “scoundrelism and perfidy of Russia, the pathological falsity and criminality of Russia as a State” and claimed Russia had to be destroyed forever due to its “bloody cannibalistic atrocity” towards the tiny and helpless Chechnyan people. He called for retribution against Russia for the genocide it had committed, and suggested that Chechnyans take up arms against the Russians. Referring to apparent terrorism in the Moscow underground, he called such acts natural, lawful, and justified given what the Russians had done to Chechnyans. He referred to the Russian President as a terrorist. The applicant was charged with offenses against the Russian Criminal Code on the basis that he had publicly appealed for extremist activities and had taken actions aimed at inciting hatred on the basis of race and ethnicity. He was convicted, and appealed on the basis his Article 10 rights had been infringed. The Court found that many of his statements involved the incitement of hatred against Russian forces. He labeled all Russian soldiers as maniacs and murderers, and called for terrorism against them. He praised terrorist acts against the Russian state. Worse, these statements were uttered not long after the attacks, when the victims and their families were going through a griev- ing process. He rejected democratic principles and called for a violent uprising against an established government. The Court found these aspects of the

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accused’s speech could be punished by the state. The laws were necessary to meet a pressing social need, and the reasons for it were relevant and sufficient. However other parts of the accused’s speech, particularly his claims that Russia had committed genocide against Chechnyans could not be the subject of prosecution. Article 10 protected this speech, because it was part of an important debate about the cause of particular war crimes.

Reflections on the European Case Law

The first reflection is the fragility of democracy, inextricably connected with free speech rights, in Europe. While of course Europe has much older legal traditions than the other jurisdictions studied, it has a much more recent tradition of democracy. Many of its past governments involved unelected monarchies and reflected strictly hierarchical societies. Democracy as we know it today is of quite recent origins in Europe, with the obvious exception of the United Kingdom where the supremacy of the (elected) parliament over the monarchy was established in the Glorious Revolution of 1688, although parliament was hardly “democratic” in its representation until much later. It was only in the European Convention on Human Rights in 1950 that freedom of expression was formally enshrined as a human right, in sharp contrast to its appearance in the United States Bill of Rights in 1791. As part of this fragility, the European Court accepts the validity of legislation prohibiting criticism of existing democratic structures, in a way that no other jurisdiction studied would. Other countries would typically take the position that democracy is so strongly entrenched and embedded in the culture that there is no need to prohibit criticism of it. It is a confidence not (yet) apparent in the European experience. There are other ways in which history continues to weigh on the free speech situation in Europe. Another is that European aristocracy were particularly sensitive to criticism from non-aristocrats, so that “insult” has traditionally been prohibited in Europe. While these systems have moved to extend their defamation laws to protect all citizens, there is a residual intolerance of speech that is “offensive” or “insulting.” Laws that prohibit such speech are regularly upheld in Europe, in a way that is unlikely to occur in the United States, and which may not occur in Canada or Australia. This is also partly cultural. European culture seems more willing to suppress individual rights for a supposed greater good than American culture would tolerate. Notions of “equality” and “egalitarianism” pervade European legal culture. This provides support for laws outlawing speech seen to threaten these ideals, such as offensive speech. Where notions of “equality” and “egalitarianism” are threatened by free speech, European courts seem willing to readily cede the latter.

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Further, the dark shadow of the events leading up to and during World War II remain over the European approach to free speech. There is understandable anxiety and consternation over so-called hate speech, particularly targeted against particular religions, but also at a more general level. Prohibi- tions on denial of “historical facts,” including the Holocaust, have been upheld against challenge. The European Convention was clearly drafted as a response to World War II, and some of the relevant national constitutions were as well. As usual, the lessons of history may be ambivalent in this regard. Some might point to the role of oratory in the 1930s in whipping up hysteria against Jews and “others,” using this example to justify suppression of hate speech. Others might say that anti-vilification laws existed in Germa- ny in the 1930s, yet clearly did nothing to counter the dangerous rise of xenophobia. This will be discussed further in a subsequent book: Freedom of Speech in Practice: Controversial Applications of Law and Theory. The point here is that the European Court has readily accepted restrictions on hate speech. This may reflect an uneasiness that racial or other tensions are just below the surface and may re-surface at any time, thus justifying restrictions on speech that may precipitate this. It may reflect a lack of confidence that existing democratic or social structures can adequately deal with anti-social sentiment such as hate speech. The second reflection is the somewhat fragile position of the European Court of Human Rights. That Court is acutely aware of the limits of its position. It is presiding over Europe, a continent with a vast array of different legal cultures and different legal histories, and different societies. The great difficulty in holding such an alliance together is fully acknowledged. This means that the European Court takes a somewhat deferential role at times in considering the law of a country, as being an expression of that country’s culture, though without ignoring the requirements of the Convention. An example of this is the Court’s preparedness to accept laws that depart from freedom of expression based on the judgment of a legislature in Europe as to the proper balance between, on the one hand, freedom of speech, and, on the other, rights such as religious freedom, or broader questions of morality. The Court is prepared to pay significant deference to the judgment of a sub- European legislature in these fields, in a way, and for reasons, that a court in any of the other jurisdictions studied would not. It is no doubt aware that a nation which has very serious reservations about decisions made by the Court about its laws might re-consider its recognition of the European Con- vention, and its place in the European Union. This is reflected in the attitude of deference and margin of appreciation accorded to national legislatures within Europe. The third reflection is Article 17 of the European Convention, which specifically contemplates that free speech rights might have to yield in a situation where they conflict with other convention rights. The Court has

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used Article 17 regularly to validate laws which infringe free speech rights, because they do so for other legitimate ends within the Convention, such as anti-discrimination or equality, privacy, etc. While free speech is not absolute in any jurisdiction, and exceptions are recognized, no other jurisdiction has an express equivalent to Article 17. The existence of this article has broadened the scope of exceptional cases, where free speech has been required to yield to a broad range of other rights.

NOTES

1. Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 207 (Lord Steyn). 2. James Weinstein, “Extreme Speech, Public Order and Democracy: Lessons from The Masses,” in Ivan Hare and James Weinstein Extreme Speech and Democracy (Oxford Univer- sity Press, New York, 2009), 26: “The commitment to popular sovereignty alone arguably creates a narrow but very powerful right of free speech. If the people are the ultimate source of political authority, they must be able to speak to each other about all matters within the scope of this authority; that is, on all matters of public concern. If, to the contrary, the government were able to prohibit speech on the ground that it will persuade the populace to formulate erroneous public policy, then the government, not the people, would be the ultimate sovereign. As James Madison argued over two centuries ago, a logical consequence of a commitment to popular sovereignty is that ‘the censorial power is in the people over the Government, and not in the Government over the people.’” 3. Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 207 (Lord Steyn), quoting Broome v Cassell and Co Ltd [1972] AC 1027, 1133 (Lord Kilbrandon). 4. R v Secretary of State for the Home Department; Ex Parte Simms [2000] 2 AC 115, 130 (Lord Steyn) (with whom Lord Browne-Wilkinson agreed), 131 (Lord Hoffmann); Bank Mellat v HM Treasury (No2)[2014] AC 700, 740 (Lord Neuberger, for Baroness Hale, Lord Clarke, Lord Sumption and Lord Carnwath). 5. Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223. 6. Eric Barendt, “Freedom of Expression in the United Kingdom Under the Human Rights Act 1998,” Indiana Law Journal 84 (2009): 851. 7. R v Secretary of State for the Home Department [2000] 2 AC 115 (Lord Steyn); similar comments were made by Lord Keith for the House in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 551: “in the field of freedom of speech there (is) no difference in principle between English law on the subject and Article 10 of the Convention”; and Attor- ney-General v Guardian Newspapers Ltd (No2)[1990] 1 AC 109, 283–284 (Lord Goff). Ba- rendt suggests these views of Lord Steyn may have been “claiming for the common law an attachment to freedom of speech that earlier decisions did not strictly warrant,” suggesting that the judges had sought to underplay the extent of change, and exaggerate the extent to which the prior United Kingdom had effectively protected speech rights: “Freedom of Expression in the United Kingdom Under the Human Rights Act 1998,” Indiana Law Journal 84 (2009): 854. Elsewhere he said that “it is doubtful whether the change has so far been much more than cosmetic”: Freedom of Speech (Clarendon Press, Oxford, Second Edition, 2005), 39. 8. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 547 (Lord Steyn, with whom Lord Cooke agreed). Lord Steyn there cited at least three important differences: proportionality required the reviewing court to assess the balance struck by the decision maker, not merely whether it was within a range of reasonable or rational decisions, proportionality analysis might invite review of the relative weight accorded to particular interests and considerations, and generally the intensity of the review would be greater; R (Aguilar Quila) v Home Secretary [2012] 1 AC 621, 643 (Lord Wilson, with whom Lord Phillips and Lord Clarke agreed); see Jeffrey Jowell, “Beyond the Rule of Law: Towards Constitutional Judicial Review” [2000] Public Law [2000]: 679.

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9. Elena Yanchukova, “Criminal Defamation and Insult Laws: An Infringement on the Freedom of Expression in European and Post-Communist Jurisdictions,” Columbia Journal of Transnational Law 41 (2003): 869. Whitman traces the European acceptance of the actionabil- ity of “insult” as being based on a desire to avoid self-help measures such as duelling. Regula- tors were trying to move the resolution of disputes from the individual one-on-one level to a more sophisticated plane where an independent third party would render a decision on the dispute: “Enforcing Civility and Respect: Three Societies,” Yale Law Journal 109 (2000): 1315. This has parallels with early development of civil law, which by recognizing an early form of strict liability, sought to avoid resort to the “blood feud”: Anthony Gray, Vicarious Liability: Critique and Reform (Hart Publishing, Oxford, 2018), 104. 10. Elena Yanchukova, “Criminal Defamation and Insult Laws: An Infringement on the Freedom of Expression in European and Post-Communist Jurisdictions,” Columbia Journal of Transnational Law 41 (2003): 870. 11. Somewhat perversely, given their unspeakable evil and reign of terror, the Nazi regime is sometimes said to have ushered in the spread of rights against “insult” from the aristocracy to ordinary members of society, given their egalitarian view of society (at least, among those of the preferred race and religion): James Whitman, “Enforcing Civility and Respect: Three Societies,” Yale Law Journal 109 (2000): 1328: “Nazi doctrinal analysis at last accepted the proposition that Germans of all social statuses participated in German honor . . . this ‘nationalisation’ of honor nicely paralleled a ‘nationalisation’ of honor that took place during the French Revolution.” 12. James Whitman, “Enforcing Civility and Respect: Three Societies,” Yale Law Journal 109 (2000): 1279. 13. The section states that a person who attacks the human dignity of others in a manner that disturbs the public peace by (a) goading to hatred against segments of the population; (b) demanding that violent or capricious measures be taken against them; or (c) verballing abusing them, maliciously exposing them to contempt, or slandering them, is punishable by said jail term. 14. Eric Heinze, “Viewpoint Absolutism and Hate Speech,” Modern Law Review 69 (2006): 548. 15. 49. 16. Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence,” University of Toronto Law Journal 57 (2007): 385. 17. Alec Stone Sweet and Jud Matthews, “Proportionality Balancing and Global Constitu- tionalism,” Columbia Journal of Transnational Law 47 (2008): 78. 18. The logistics of this have been more difficult than the line suggests. It has been observed that the British courts were somewhat slow to adapt their approach away from a Wednesbury- style standard of review in favour of a proportionality review. The European Court criticized British courts for this sluggishness in moving to proportionality analysis in applying Conven- tion principles: Smith and Grady v United Kingdom [1999] ECHR 72, [138]; Peck v United Kingdom [2003] ECHR 44, [106]; Hirst v United Kingdom No 2 [2005] ECHR 681, [80]; see for discussion Alec Stone Sweet and Jud Mathews, “Proportionality Balancing and Global Constitutionalism,” Columbia Journal of Transnational Law 47 (2008): 147–151. 19. R v Oakes [1986] 1 S.C.R. 103. 20. McCloy v New South Wales (2015) 257 CLR 178. 21. Case of Association Ekin v France [2001](Application No.39288/88), [56]. 22. Article 14 precludes interference with Convention rights without discrimination on the basis of sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status. 23. Robert Kahn, “Flemming Rose, the Danish Cartoon Controversy and the New European Freedom of Speech,” California Western International Law Journal 40 (2010): 255: “hate speech threatened the political order of unstable democracies and at worst opened the door to a Nazi resurgence.” 24. See, for example, the Framework Decision on Combating Certain Forms and Expres- sions of Racism and Xenophobia By Means of Criminal Law (2008) stating that hate speech and Holocaust denial should be dealt with by proportionate penalties, whether criminal or civil.

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Criminal penalties should carry a maximum jail term of at least one years’ imprisonment. Civil penalties can include the denial of government benefits, refusal of permission to carry out a particular trade or business, being placed under “judicial supervision,” or subject to a winding up order. The Framework Decision says that the fact that criminal activity was motivated by racism should be considered as a circumstance of aggravation. 25. Eva Brems, “State Regulation of Xenophobia Versus Individual Freedoms: The Euro- pean View,” Journal of Human Rights (2002): 495. 26. Robert Kahn, “Flemming Rose, the Danish Cartoon Controversy and the New European Freedom of Speech,” California Western International Law Journal 40 (2010): 253. 27. Karen Bird, “Racist Speech or Free Speech? A Comparison of the Law in France and the United States,” Comparative Politics 32(4) (2002): 399. 28. Beauharnais v Illinois 343 US 250 (1952). 29. For instance, the German Federal Constitutional Court has found that the nation’s Con- stitution reflects notions of “Streitbare Demokratie” or militant democracy. This includes commitment to shared values, loyalty to the nation, and defense readiness. This allows Germany to ban political parties which have as part of their policy platform the destruction of German democracy, which has occurred. It is suggested that some current political parties are liable to be banned under this provision due to their far-right, nationalistic and xenophobic platforms: Eva Brems, “State Regulation of Xenophobia Versus Individual Freedoms: The European View,” Journal of Human Rights 1(4) (2002): 487. 30. The United States derogated from Article 20 of the International Covenant on Civil and Political Rights, requiring signatory states to prohibit advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, and Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, requiring states to declare an offense punishable by law dissemination of all ideas based on racial superiority or hatred, incitement to racial discrimination, and acts of violence or incitement to such acts against any race or group of persons of another color or ethnic origin, as well as provision of assistance to racist activities. Signatory states are also required to declare illegal and prohibit organizations, and organized or other propaganda activities, which promote and incite racial discrimination, and recognize participation in such organizations or activities as an offense. The United States derogated from these articles, not accepting any obligation to restrict freedom of speech, assembly, or association in such space: Eva Brems, “State Regulation of Xenophobia Versus Individual Freedoms: The European View,” Journal of Human Rights 1(4) (2002): 484. 31. 482–483: “under a model of substantive democracy, racist actions (discrimination in practice) are undemocratic because they deny the fundamental principle of equality. Racist views and proposals propagating discrimination or otherwise denying the fundamental rights of part of the population are liberticidal and therefore anti-democratic . . . to act or not to act? To take the risk of democracy leading to self-destruction or to take the risk of damaging it by protecting it too tightly? Europe is following the second road.” 32. As Brems put it, “Hitler and his regime demonstrated the direct link between racist ideology and the destruction of democracy. In the USA, which experienced this regime only indirectly, racism is seen as a serious problem but not as something that could threaten the fundaments of democracy”: 495. 33. Perincek v Switzerland [2015] ECHR 907, [196](Grand Chamber); Faber v Hungary [2012] ECHR 1648, [34]. 34. [196]. 35. [196]. 36. De Haes and Gijsels v Belgium [1997] ECHR 7, [48]. On the other hand, the Court did take account of the form of the speech (poetry) in determining that material which on one view called for insurrection and rebellion by Kurds against Turkey could not be punished as criminal. The Court took into account that the material was in the form of poetry, in determining that they were unlikely to incite any uprising. 37. Murat Vural v Turkey [2014] ECHR 1113, [53]. 38. Annen v Germany [2015] ECHR 1043, [64]; Animal Defenders International v United Kingdom [2013] ECHR 362, [102](Grand Chamber).

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39. Mondragon v Spain [2011] ECHR 2426, [56]. 40. Stoll v Switzerland [2007] ECHR 1060, [151]. 41. Stoll v Switzerland [2007] ECHR 1060, [141]. 42. Appleby v United Kingdom [2003] ECHR 222, [39]: “genuine effective exercise of this freedom (of expression) does not depend merely on the state’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals.” 43. The Sunday Times v United Kingdom [1979] ECHR 1, [49]. 44. Rekvenyi v Hungary [1999] ECHR 31, [34]. The concept of foreseeability will depend on matters such as the content of the text, its intended field, and the number and status of those to whom it is targeted: Chauvy and Others v France [2004] ECHR 295, [44]. 45. Chauvy and Others v France [2004] ECHR 295, [45]–[48]. 46. Hashman and Harrup v United Kingdom [1999] ECHR 133. 47. [40]. 48. [35]. 49. [32]. Prior restraints are not per se invalid under the Convention, but require careful scrutiny: Case of Ekin v France [2001](Application No.39288/88); Chauvy and Others v France [2004] ECHR 295, [66]. 50. North Cyprus Tourism Centre Ltd and Paradise Found Travel Company Ltd v Transport for London [2005] EWHC 1698 (Admin). 51. Perincek v Switzerland [2015] ECHR 907, [196](Grand Chamber). 52. [196]. 53. [208]. 54. [197]. 55. Oberschlick v Austria [1991] ECHR 30, [59]. 56. Jean-Francois Flauss, “The European Court of Human Rights and the Freedom of Ex- pression,” Indiana Law Journal 84 (2009): 815: “the existence of a general interest debate leads ipso facto to a strengthening of European control . . . political controversy contributes by its very nature to general interest debates . . . (the Court) places general debates at the heart of democratic society (and has recognised that) general debate has the capacity to favour the progress of democratic society. The evolution of European jurisprudence is characterised by a manifest tendency to stretch the notion of what constitutes a general interest debate.” 57. Mamere v France [2011] ECHR 2424, [20]; Dupuis and Others v France [2007] ECHR 5563, [40]: “Article 10(2) of the Convention leaves little scope for restrictions on freedom of expression in the area of political speech or in matters of public interest . . . very strong reasons are required to justify restrictions on political speech.” 58. “ill feelings or even outrage, in the absence of intimidation, cannot represent a pressing social need for the purposes of Article 10(2)”: Faber v Hungary [2012] ECHR 1648, [56]. 59. Stomakhin v Russia [2018] ECHR 390, [113]. 60. Hrico v Slovakia [2004] ECHR 365, [40]; Stoll v Switzerland [2007] ECHR 1060, [106]: “the most careful scrutiny on the part of the Court is called for when . . . the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern.” 61. Faber v Hungary [2012] ECHR 1648 (carrying a flag); Vajnai v Hungary [2014] ECHR 997 (red star); Murat Vural v Turkey [2014] ECHR 1113 (pouring paint over statues commemorating the founder of the nation). 62. Nix v Germany [2018] ECHR 298. 63. Grigoriades v Greece [1997] ECHR 93. 64. [196]; Perincek v Switzerland [2015] ECHR 907, [246], referring to a need to demonstrate “a rational connection between the measures taken by the authorities and the aim that they sought to realise through these measures, in the sense that the measures were reasonably capable of producing the desired result.” 65. Klein v Slovakia [2006] ECHR 909, [47]. 66. Guerra and Others v Italy [1998] ECHR 7, [53]. 67. Scharsach and Newes Verlagsgesellschaft v Austria [2003] ECHR 596, [29]; in Vereini- gung Bildender Kunstler v Austria [2007] ECHR 79 the Court was concerned with the very broad scope of an injunction against the alleged wrongdoer, not limited in time or space.

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68. Murat Vural v Turkey [2014] ECHR 1113, [66](imposition of sentence of more than twenty-two years for repeatedly defacing statues commemorating the founder of the nation held to be grossly disproportionate to any legitimate objective and not necessary in a democratic society). In Mondragon v Spain [2011] ECHR 2426 the Court said that such measures could be justified if the speech impaired other fundamental legal rights: [59]. 69. Kyprianou v Cyprus [2005] ECHR 873, [171]. 70. Stomakhin v Russia [2018] ECHR 390, [131]; in contrast, a novel has relatively narrow reach, making it harder to justify restrictions on its content: Lindon and Others v France [2007] ECHR 836, [47]. 71. Stomakhin v Russia [2018] ECHR 390, [131]. 72. Animal Defenders International v United Kingdom [2013] ECHR 362, [124]: “access to alternative media is key to the proportionality of a restriction on access to other potentially useful media”; Appleby and Others v United Kingdom [2003] ECHR 222, [48]. 73. Lingens v Austria [1986] ECHR 7, [42]: “freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.” 74. Cumpana and Mazare v Romania [2004] ECHR 692, [114]. 75. Cumpana and Mazare v Romania [2004] ECHR 692, [115]. 76. Cumpana and Mazare v Romania [2004] ECHR 692, [118]. 77. Von Hannover v Germany [2004] ECHR 294, [65]–[66]. 78. In Kyprianou v Cyprus [2005] ECHR 873 the Court was concerned with the chilling effect on speech by lawyers if a legal representative could be imprisoned due to remarks they had made in court directed at the judges, rude though the comments may have been: [175]. 79. Balsyte-Lideikiene v Lithuania [2008] ECHR 1195, [81]. 80. Lindon and Others v France [2007] ECHR 836, [59]. 81. Animal Defenders International v United Kingdom [2013] ECHR 362, [111](Grand Chamber). 82. “By reason of their direct and continuous contact with the vital forces of their countries, their societies and their needs, the legislative and judicial authorities are best placed to assess the particular difficulties in safeguarding the democratic order in their state . . . the state must therefore be accorded some discretion as regards with country-specific and complex assessment”: Animal Defenders International v United Kingdom [2013] ECHR 362, [111](Grand Chamber). 83. Stoll v Switzerland [2007] ECHR 1060, [155]. 84. Muller and Others v Switzerland [1988] ECHR 5. 85. Animal Defenders International v United Kingdom [2013] ECHR 362, [123](Grand Chamber). 86. Zdanoka v Latvia [2006] ECHR 994, [115]: “the court has stressed the need to assess any electoral legislation in light of the political evolution of the country concerned, with the result that features unacceptable in the context of one system may be justified in the context of another.” 87. Faber v Hungary [2012] ECHR 1648, [28]. 88. Faber v Hungary [2012] ECHR 1648, [42]. 89. Zana v Turkey [1997] ECHR 94 (speaker expressing support for the PKK national liberation movement in southeast Turkey, but expressly not condoning violence, but at a time when the PKK was engaged in active combat with Turkish forces). 90. Lehideux and Isorni v France [1998] ECHR 90, [55]. 91. Stomakhin v Russia [2018] ECHR 390. 92. Garaudy v France [2003](Application No.65831/01). Various European jurisdictions have criminalized Holocaust denial: see, for example, the Gayssot Act 1990 (France); Article 130 Criminal Code (Germany) which prohibits “agitation of the people,” incitement to hatred and violence, attacking human dignity, publication of materials inciting to national, racial, religious, or ethnic hatred, or statements approving, denying, or minimizing the Holocaust. Alternatively, s185 enshrines an offense of insult, and s189 punishes defamation of the memory of the dead. See Robert Kahn, Holocaust Denial and the Law: A Comparative Study (Palgrave Macmillan, New York, 2004).

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93. Jersild v Denmark [1994] ECHR 33, [35], though on the facts the prosecution of the journalist who interviewed those who expressed abhorrently racist views was struck out. This was because the journalistic program “could not objectively have appeared to have as its purpose the propagation of racist views and ideas”: [33]; Norwood v United Kingdom [2004] ECHR 730 (prosecution for breach of the Public Order Act 1986 (UK) upheld for displaying a poster on his premises with a photograph of the Twin Towers, an epithet “Islam out of Brit- ain—Protect the British People,” and a symbol of a crescent and star in a prohibition sign. The Court found it was a “public attack on all Muslims in the United Kingdom. Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, namely tolerance, social peace and non-discrimination”); Delfi As v Estonia [2015] ECHR 586. The Committee of Ministers of the Council of Europe defines hate speech as “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants, and people of immigrant origin” (1997). In 2008 the Council of the European Union resolved that all member states must punish incitement to racial hatred. Some possible selectivity is noted here, with Jean-Francois Flauss, “The European Court of Human Rights and the Freedom of Expression,” Indiana Law Journal 84 (2009): 849 concluding that “whether for historical reasons or in order to conform to current trends, the court endeavours above all to combat far-right extremism, which it correctly views as presenting the biggest threat to values protected by the Convention. Nevertheless, bad-intentioned or disgruntled minds might be tempted to link the court’s relative moderation with respect to far-left extremism to old political sympathies of some judges.” 94. Stomakhin v Russia [2018] ECHR 390, [92]. 95. Lehideux and Isornia v France [1998] ECHR 90, [53]. 96. Specifically, it recommended that member states: (a) ensure the offenses are clearly defined and take due account of the need for criminal sanction to be applied; (b) ensure the offenses are defined in such a way as to allow them to develop in line with changes in technology; (c) ensure prosecutions for such offenses are brought on a non-discriminatory basis and are not used as cover to suppress criticism of government policy, political opposition, or political beliefs; (d) ensure the effective participation of targets of hate speech in the proceedings; (e) provide penalties for hate speech that take account of the serious consequences of such speech and the need for a proportionate response; (f) monitor how effective the investigation and prosecution of complaints is; and (g) ensure effective co-operation between police and prosecuting authorities. 97. Explanatory Memorandum accompanying General Policy Recommendation No.15, Council of Europe European Commission Against Racism and Intolerance. These materials were cited by the European Court of Human Rights in Stomakhin v Russia [2018] ECHR 390, [71]–[72]. 98. Eric Heinze, “Viewpoint Absolutism and Hate Speech,” Modern Law Review 69 (2006): 544. 99. Lehideux and Isorni v France [1998] ECHR 90, [47]. 100. Article 20(2) of the International Covenant on Civil and Political Rights: “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”; Article 4 of the International Convention on the Elimina- tion of All Forms of Racial Discrimination (1965), which requires signatory nations to condemn all propaganda and all organizations based on ideas or theories of the superiority of one race over another or which attempt to justify or promote racial hatred or discrimination; various offenses in the Racial and Religious Hatred Act 2006 (UK) in relation to actions intended to stir up racial hatred, and s26 of the Equality Act 2010 (UK) regarding harassment in relation to, among other things, a person’s race, religion, or belief which has the purpose or effect of violating the person’s dignity. 101. Faber v Hungary [2012] ECHR 1648, [37]. 102. Faber v Hungary [2012] ECHR 1648, [58]. 103. “Democracy constitutes a fundamental element of the European public order . . . the Preamble to the Convention . . . establishes a very clear connection between the Convention

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and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights. The Preamble . . . affirm(s) that European countries have a common heritage of political traditions, ideals, freedom and the rule of law . . . the Convention was . . . designed to maintain and promote the ideals and values of a democratic society . . . democracy is the only political model contemplated by the Convention and . . . the only one compatible with it . . . in order to guarantee the stability and effectiveness of a democratic system, the state may be required to take specific measures to protect itself”: Zdanoka v Latvia [2006] ECHR 994, [98]–[100]. 104. Zdanoka v Latvia [2006] ECHR 994; see similarly Van Wambeke v Belgium (No.16692/ 90, 12 April 1991); Volkmer and Petersen v Germany (Nos.39799/98 and 39793/92, 22 No- vember 2001) and Sidabras and Dziautas v Lithuania (No.55480/00 and 59330/00). 105. Attorney-General v Observer and Times Newspapers Ltd [1990] 1 AC 109, 283 (Lord Goff). 106. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 551 (Lord Keith for the Court); Attorney-General v Guardian Newspapers Ltd (No2)[1990] 1 AC 109, 283–284 (Lord Goff). 107. Eric Barendt, “Freedom of Expression in the United Kingdom Under the Human Rights Act 1998,” Indiana Law Journal 84 (2009): 851. 108. Compare the decision in Attorney-General v Guardian Newspapers Ltd and Others [1987] 1 W.L.R. 1248 with the result on appeal in Strasbourg: The Sunday Times v United Kingdom (No2)[1991] ECHR 26. 109. R v Secretary of State for the Home Department; Ex Parte Simms [2000] 2 AC 115, 126 (Lord Steyn, with whom Lord Browne-Wilkinson and Lord Hoffmann agreed); R (Animal Defenders) v Culture Secretary [2008] 1 AC 1312, 1346 (Lord Bingham). 110. For similar reasons the High Court overturned a decision of the Secretary of State which had prevented the BBC from conducting an interview with a person who had been detained without charge in a British jail for seven years. The Court found the Secretary’s refusal was an unjustified interference with the claimant’s right to freedom of expression: R (BBC) v Justice Secretary [2013] 1 WLR 964. 111. R v Central Independent Television PLC [1994] 3 W.L.R. 20, 30: “a freedom which is restricted to what judges think to be responsible or in the public interest is not freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible” (Hoffmann LJ, as he then was). 112. R (BBC) v Justice Secretary [2013] 1 WLR 964, 972 (Singh J for the Court) (QBD). 113. R (BBC) v Justice Secretary [2013] 1 WLR 964, 973 (Singh J for the Court) (QBD). 114. R (BBC) v Justice Secretary [2013] 1 WLR 964, 983 (Singh J for the Court) (QBD). 115. R (BBC) v Justice Secretary [2013] 1 WLR 964, 984 (Singh J for the Court) (QBD). 116. “The approach to proportionality adopted in our domestic case law under the Human Rights Act 1998 (UK) has not generally mirrored that of the Strasbourg court. In accordance with the analytical approach to legal reasoning characteristic of the common law, a more clearly structured approach has generally been adopted, derived from case law under Common- wealth Constitutions and Bills of Rights, including in particular the Canadian Charter of Rights and Freedoms”: Bank Mellat v HM Treasury (No2)[2014] AC 700, 790 (Lord Reed, dissenting in the result). He then acknowledged the criteria used by the United Kingdom courts had an “affinity” with those formulated by the Strasbourg court in relation to Articles 8–11 (Article 10 being protection for freedom of expression): 790. 117. De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 (Lord Clyde), adopted in R v Shayler [2003] 1 AC 247, 281. 118. Lord Reed in Bank Mellat v HM Treasury (No2)[2014] AC 700, 791 observed a margin of appreciation was to be applied here. It was not for the judge to substitute their decision as to where the line should be drawn for that of the decision maker. A court could often find a less drastic or less restrictive way in which the legislature might have crafted its legislation. Further, he noted that in federal structures, a margin of appreciation was clearly appropriate, since the existence of different legislation on the same topic in different jurisdictions within the federa-

66 Lexington Books Legal Studies Chapter Showcase 248 Chapter 5 tion would often demonstrate the possibility of many feasible alternatives in drafting legislative solutions to an identified issue. 119. Huang v Secretary of State for the Home Department [2007] 2 AC 167, [19](Lord Bingham for the House); R (Aguilar Quila) v Home Secretary [2012] 1 AC 621, 643 (Lord Wilson, with whom Lord Phillips and Lord Clarke agreed). Bank Mellat v HM Treasury (No2)[2014] AC 700, 771 (Lord Sumption, with whom Baroness Hale, Lord Kerr, and Lord Clarke agreed). 120. [1986] 1 SCR 103; this point was made by Lord Bingham for the House in Huang v Secretary of State for the Home Department [2007] 2 AC 167, 187. 121. R (BBC) v Justice Secretary [2013] 1 WLR 964, 975 (Singh J for the Court) (QBD). 122. Bank Mellat v HM Treasury (No2)[2014] AC 700, 790 (Lord Reed). 123. T R S Allan, “Human Rights and Judicial Review: A Critique of Due Deference,” Cambridge Law Journal 65 (2006): 671; Jeffrey Jowell, “Judicial Deference and Human Rights: A Question of Competence,” in Paul Craig and Richard Rawlings ed Law and Adminis- tration in Europe (Oxford University Press, Oxford, 2003); “Judicial Deference: Servility, Civility or Institutional Capacity,” Public Law [2003}: 592; R v Secretary of State for the Home Department [2015] AC 945, 1007–1009 (Lord Kerr, dissenting). 124. [2001] 2 AC 127, 210–211: “a test expressed in terms of a category of cases, such as political speech, is at variance with the jurisprudence of the European Court of Human Rights which in cases of competing rights and interests requires a balancing exercise in the light of the concrete facts . . . (I am) sceptical of the value of a rule dependent on general categorisation, with the attendant sacrifice of individual justice in particular cases.” 125. Mayor Commonalty and Citizens of London v Tammy Samede [2012] EWCA Civ 160, [41](Sir Terence Etherton MR, for Stanley Burnton and McFarlane LJJ). 126. R (Animal Defenders) v Culture Secretary [2008] 1 AC 1312. A challenge to the Euro- pean Court was dismissed: Animal Defenders International v United Kingdom [2013] ECHR 362. 127. VgT Vereingegen Tierfabriken v Switzerland [2001] ECHR 412. 128. 1346. 129. Animal Defenders International v United Kingdom [2013] ECHR 362. 130. Regina (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185. 131. “The primary right protected by Article 10 is the right of every citizen not to be prevented from expressing his opinions. (They have) the right to receive and impart information and ideas without interference by public authority” (Lord Hoffmann, 236). 132. 236. 133. 244–245: “We are fortunate enough to live in . . . a mature democracy. In a mature democracy political parties are entitled, and expected, to place their policies before the public so that the public can express its opinion on them at the polls. The constitutional importance of this entitlement and expectation is enhanced at election time. If . . . a political party’s desired election broadcast is factually accurate . . . and relevant to a lawful policy on which its candidates are standing for election, I find it difficult to understand on what possible basis it could properly be rejected as being offensive to public feeling. Voters in a mature democracy may strongly disagree with a policy being promoted by a televised party political broadcast but ought not to be offended by the fact that the policy is being promoted . . . indeed . . . the public in a mature democracy are not entitled to be offender by the broadcasting of such a programme . . . refusal to transmit such a program based upon the belief that the programme would be offensive . . . (is not) necessary in a democratic society . . . such a refusal would, on the contrary be positively inimical to the values of a democratic society, to which values it must be assumed that the public adhere . . . (the rejection of the ads) denigrates the voting public, treats them like children who need to be protected from the unpleasant realities of life, seriously undervalues their political maturity and can only promote voter apathy.” Julian Rivers also criticises the decision: “Proportionality and Variable Intensity of Review,” Cambridge Law Journal 65 (2006): 206. 134. A v British Broadcasting Corporation [2015] AC 588, 607 (Lord Reed, for the Court). 135. Core Issues Trust v Transport for London [2013] EWHC 651 (Admin). 136. [131].

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137. [140]–[141]. 138. [142]. 139. [144]. 140. [132]. 141. [2002] QB 1391. 142. 1401 (Lord Phillips, for the Court). These are the only express references to Mr. Farrak- han’s expressed views that appear in the judgment. 143. 1418 (Lord Phillips, for the Court). 144. 994. 145. 1007–1009. 146. Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420. 147. 1442 (Lord Neuberger), 1426 (Lord Hoffmann) and 1433 (Lord Mance). 148. 1442: “when it comes to restrictions on the dissemination of pornographic material, the margin of appreciation afforded to member states must, it appears to me, be wide” (Lord Neuberger, with whom Lord Mance agreed). 149. Campbell v MGN Ltd [2004] 2 AC 457, 499: “there are undoubtedly different types of speech . . . some of which are more deserving of protection in a democratic society than others. Top of the list is political speech” (Baroness Hale). 150. Campbell v MGN Ltd [2004] 2 AC 457, 499: “Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals’ potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value” (Baroness Hale). 151. R (British American Tobacco UK Ltd and Others) v Secretary of State for Health [2004] EWHC 2493, [37](McCombe J); Boehringer Ingelheim Ltd and Others v VetPlus Ltd [2007] Bus LR 1456. 152. R (Animal Defenders) v Culture Secretary [2008] 1 AC 1312, 1348 (Lord Bingham, with whom Lords Carswell and Neuberger agreed). 153. R (Farrakhan) v Home Secretary [2002] QB 1391, 1418 (Lord Phillips, for the Court). 154. For example, the action for breach of confidence: Campbell v MGN Ltd [2004] 2 AC 457, 465 (Lord Nicholls) 155. In Re S (A Child)[2005] 1 AC 593. 156. Regina v Humza Ali [2018] EWCA Crim 547, [17](Treacy LJ, for Calvert-Smith and Munro J). 157. Sheffield City Council v Fairhall and Others [2017] EWHC 2121, [88](Males J). 158. City of London Corporation v Samede [2012] EWCA Civ 160, [39](Lord Neuberger). 159. City of London Corporation v Samede [2012] EWCA Civ 160, [39](Lord Neuberger). 160. Sheffield City Council v Fairhall and Others [2017] EWHC 2121, [89](Males J). 161. Examples here include Hammond v DPP where the Court upheld the prosecution of a preacher who held up placards with the messages “stop immorality” and “stop homosexuality.” Hammond was successfully prosecuted for a breach of then s5 of the Public Order Act 1986, which made it an offense to use “threatening, abusive or insulting words or behaviour or display any sign which is threatening, abusive or insulting.” His challenge to his conviction was dismissed: [2004] EWHC 69 (Admin). Similarly in Norwood [2003] EWHC 1564 (Admin) the offender was successfully prosecuted under the same provision for posting signs in his flat in the aftermath of 9/11 to the effect “Islam out of Britain” and “Protect the British People.” An appeal to the European Court of Human Rights was unsuccessful: Norwood v United Kingdom [2004] ECHR 730. For criticism see James Weinstein, “Extreme Speech, Public Order and Democracy: Lessons from The Masses,” in Ivan Hare and James Weinstein Extreme Speech and Democracy (Oxford University Press, New York, 2009), 37–40, 46–47; Andrew Geddis, “Free Speech Martyrs or Unreasonable Threats to Social Peace—‘Insulting’ Expression and Section 5 of the Public Order Act 1986,” Public Law [2004]: 867. 162. [2017] EWHC 2669 (Admin). 163. [2019] EWCA Civ 1127. 164. [105](Irwin and Haddon-Cave LLJ, Sir Jack Beatson). 165. [127].

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166. A v British Broadcasting Corporation [2015] AC 588, 600 (Lord Reed, for the Court). 167. Bank Mellat v HM Treasury (No2)[2014] AC 700, 730 (Lord Neuberger, with whom Baroness Hale, Lord Clarke, Lord Sumption and Lord Carnwath agreed). 168. A v British Broadcasting Corporation [2015] AC 588, 607 (Lord Reed, for the Court). 169. [2015] AC 588, 614–615 (Lord Reed, for the Court). 170. Arrowsmith v United Kingdom [1978] ECHR 7. 171. The Sunday Times v United Kingdom [1979] ECHR 1. On the other hand, in Worm v Austria [1997] ECHR 52 where the journalist wrote about pending legal proceedings, where there was evidence that the journalist intended to influence the outcome of a pending trial, potentially compromising the right of an accused to a fair trial, the Court found that the interference with the journalist’s freedom of speech was justified. 172. Thorgeir Thorgeirson v Iceland [1992] ECHR 51. 173. Roemen v Luxembourg [2003] ECHR 102; Goodwin v United Kingdom [1996] ECHR 16, [45]; Cumpana and Mazare v Romania [2004] ECHR 692, [106]; Tillack v Belgium [2008] ECHR 1901, [53]. 174. Stoll v Switzerland [2007] ECHR 1060, [131]. 175. [1995] ECHR 12. 176. [34]. 177. [34]. 178. A similar view is evident in De Haes and Gijsels v Belgium [1997] ECHR 7, where the Court emphasized the limited extent to which members of the judiciary could respond to attacks, justifying protection of them from unfounded attacks: [37]. There the Court found Article 10 had been breached. There was some factual basis for the statements made; similarly Hrico v Slovakia [2004] ECHR 365. 179. [37]. 180. Kyprianou v Cyprus [2005] ECHR 873, [174]. 181. Barthold v Germany [1985] ECHR 3; Markt Intern Verlag GmbH and Klaus Beermann v Germany [1989] ECHR 21. 182. Casado Coca v Spain [1994] ECHR 8. 183. Case of Sekmadienis Ltd v Lithuania [2018] ECHR 112, [73]. 184. Muller and Others v Switzerland [1988] ECHR 5. There has been criticism. David Pannick, citing the Handyside and Muller decisions, concludes that “these decisions indicate a fundamental failure to understand that freedom of expression in relation to art and literature cannot properly be impeded because the contents of the material may offend others”: “Article 10 of the European Convention on Human Rights’ King’s College Law Journal 4 (1994): 49. 185. Muller and Others v Switzerland [1988] ECHR 5. 186. Handyside v United Kingdom [1990] ECHR 32. 187. Karatas v Turkey [1999] ECHR 47. Presumably, the same sentiments expressed at a large public rally, through mass produced flyers, or online to a large audience could have legitimately attracted government sanction. 188. Vereinigung Bildender Kunstler v Austria [2007] ECHR 79, [33]. 189. Wingrove v United Kingdom [1996] ECHR 60. 190. [57]; contrast Case of Sekmadienis Ltd v Lithuania [2018] ECHR 112, [81]: “in a pluralist democratic society those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.” 191. Case of Sekmadienis Ltd v Lithuania [2018] ECHR 112, [73]. 192. [1986] ECHR 10. 193. Rekvenyi v Hungary [1999] ECHR 31. 194. [1996] ECHR 106. 195. [59]. 196. [59]. 197. [59]. 198. [59]. 199. [60].

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200. [60]. 201. [1997] ECHR 93. 202. Oberschlick v Austria [1991] ECHR 30, [63]; similarly Lingens v Austria [1986] ECHR 7, [46]. 203. Scharsach and News Verlagsgesellschaft v Austria [2003] ECHR 596, [39]; “sufficient factual basis”: Shabanov and Tren v Russia [2006] ECHR 1093, [41]. 204. Schwabe v Austria [1992] ECHR 56, [34]; Jean-Francois Flauss, “The European Court of Human Rights and the Freedom of Expression,” Indiana Law Journal 84 (2009): 817. 205. Colombani et al v France [2002] ECHR 521, [66]; cf Mamere v France [2011] ECHR 2424, [23]: “people prosecuted as a result of comments they make about a topic of general interest must have an opportunity to absolve themselves of liability by establishing that they acted in good faith and, in the case of factual allegations, by proving they are true.” 206. Mamere v France [2011] ECHR 2424, [24]. 207. Castells v Spain [1992] ECHR 48; Oberschlick v Austria (No2)[1997] ECHR 38, [29]. 208. [46]. 209. “it remains open to the competent state authorities to adopt, in their capacity as guaran- tors of public order, measures, even of a criminal law nature, intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith”: [46]. 210. [1999] ECHR 42. 211. [62]. 212. [62]–[63]. 213. [65]. 214. [1999] ECHR 44. 215. [36]. 216. [37]. 217. [1999] ECHR 3. 218. [32]. 219. [33]. 220. [34]. 221. Case of Mamere v France [2011] ECHR 2424, [27]. 222. [28]. 223. [25]. 224. [1998] ECHR 4. 225. [42]. 226. [45]. 227. [47]. 228. [2013] ECHR 362, [115]–[119]. 229. [2015] ECHR 907. 230. [154]. 231. [204]–[207]. 232. [200]. 233. [230]. 234. [233]. 235. [238]. 236. [243]. 237. [244]. 238. [252]. 239. [254]. 240. [2008] ECHR 1195. 241. [2012] ECHR 1045. 242. [2012] ECHR 242. 243. [55]. 244. [55]. 245. [56]–[59].

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246. [1994] ECHR 26. See for discussion Robert Kahn, “A Margin of Appreciation for Muslims—Viewing the Defamation of Religions Debate through Otto-Preminger Institut v Austria,” Charleston Law Review 5 (2011): 401. 247. [49]; and a claim that the state could regulate “the manner in which religious beliefs . . . are opposed or denied”: [47]. 248. [50]. 249. For example, Hrico v Slovakia [2004] ECHR 365, [40]. 250. Murphy v Ireland [2003] ECHR 352. On one view this is quite ironic, since it was the push for greater religious tolerance in Europe in the Middle Ages that gave birth to freedom of expression in Europe: Kevin Boyle, “The Danish Cartoons,” Netherlands Quarterly of Human Rights 24 (2006): 188. 251. Delfi As v Estonia [2015] ECHR 586. 252. [142]. 253. [158]. 254. [159] 255. [161].

Lexington Books Legal Studies Chapter Showcase 71 Mark W. Klingensmith, “Rock Music,” in Lyrics in the Law: Music’s Influence on America’s Courts (Lanham, MD: Lexington Books, 2019), 49–126. All rights reserved.

Chapter 4

Rock Music

AC/DC

Dirty Deeds Done Dirt Cheap Daniels v. Crocker1 was a breach-of-contract action regarding the extent of disclosures made by the seller. Justice Robert P. Chamberlin (’90) of the Supreme Court of Mississippi stated that “while the [buyers] were not entitled to confidential corporate information, the seller could not avoid all liability where he voluntarily assumed two conflicting duties.” In a footnote to illustrate Crocker’s conflict, Judge Chamberlin added,“ It is well-known that ‘one cannot serve two masters.’” As the pioneering rock group AC/DC recognized, “He’s double dealing with your best friend / That’s when the tear drops start.”2

ADRENALINE MOB

Judgment Day Protracted divorce proceedings can be very expensive. Often, they are litigated based on the adage, “it’s not the money, it’s the principle.” Judge Charles D. Wood (’94) began his opinion in Antizzo v. Cannizzaro3 with these lyrics about parties that overextended themselves and incurred significant attorneys’ fees during the litigation: You better listen up, What I say You went and lived it up Now ya pay...

The court went on to add, “[w]hile they rarely agree, they jointly made the decision to squander the assets they had on attorneys and to go into significant 49

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debt. It is only appropriate that each of them have ‘skin in the game’ and share the cost of this litigation.” In other words, they were reaping what they had sowed.

. . . Collection on your judgment day.—Adrenaline Mob, “Judgment Day”

Music and lyrics by Russell Allen and Mike Orlando (2014)4

THE B-52S

The Love Shack An adult entertainment business using the name “Zibtluda” (“adult biz” spelled backwards), operated several establishments under the name “The Love Shack.” Describing the challenged licensing ordinance under review, and the type of businesses being regulated, Judge William H. Pryor Jr. (’87) in Zibtluda, LLC v. Gwinnett County, Ga. ex rel. Bd. of Com’rs of Gwinnett County5 commented that “The 2001 Ordinance, in other words, regulates commercial entertainment akin to the “Huggin’ and a kissin’, dancin’ and a lovin’, wearin’ next to nothing” that the B-52s famously described as occurring in a “funky old shack.”6

THE BARENAKED LADIES

Take It Back Playing on the concept of Monday-morning quarterbacking, Judge Jonathan Goodman looked to the Barenaked Ladies for lyrical support in Martins v. Royal Caribbean Cruises, Ltd.:7

In retrospect, it might have been more prudent for RCCL’s counsel to have specifically mentioned the release and confidentiality and time of payment in his initial oral outline of the settlement proposal to Mr. Brill and to have at least briefly noted those topics in a responsive email to Mr. Brill’s email confirming acceptance of the settlement proposal. But, as noted in the Barenaked Ladies song “Take It Back,” this would be a review conducted with “the perfect 20/20 hindsight/ That our fate enjoys.”8

CHUCK BERRY

Nadine The legendary Chuck Berry rode classics like “Maybellene,” “Sweet Little Six- teen,” and “Johnny B. Goode” into the Rock ‘and Roll Hall of Fame.9 However

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it was another one of his songs that flagged down the court’s attention in Yellow Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc.10 There, the “Yellow Cab” taxicab company sued a competitor for trademark infringement. Judge Sidney R. Thomas (’78) referred to the company’s previously exclusive use of the name, and said, “Perhaps the Yellow Cab Company of Sacramento didn’t know what it had until it was gone.”11 But when it did, it hailed the defendant into court. Judge Thomas observed that Yellow Cab of Sacramento had filed this action against Yellow Cab of Elk Grove and was“ [d]etermined to ‘catch that yellow cab’12 . . . [by] alleging trademark violation . . . .”

Maybellene In Wakefield v. State,13 the case turned in large measure on whether a fatal col- lision was caused by a race—a “speed contest,” in statutory terms—between the two drivers. The appellate court used song lyrics to analyze whether the court properly defined a“ speed contest.” Judge Douglas R. M. Nazarian (’91) found that there was no formal legal definition for the phrase, but to better demonstrate the commonality of understanding in the public eye about racing, he referenced numerous well-known songs on that point, including the Chuck Berry classic:

Car racing on public streets is well understood in popular music, for example, across generations and genres. See, for example, CHUCK BERRY, MAYBEL- LENE (Chess Records 1955) (“. . . A Cadillac a-rollin’ on the open road/ Nothin’ will outrun my V8 Ford . . .”); THE BEACH BOYS, LITTLE DEUCE COUPE (United Western Records 1963) (“…When something comes up to me he don’t even try/Cause if I had a set of wings man I know she could fly.”); DEEP PURPLE, HIGHWAY STAR (Warner Bros. 1972) (“. . . Nobody gonna beat my car/It’s gonna break the speed of sound . . .”); COMMANDER CODY AND HIS LOST PLANET AIRMEN, HOT ROD LINCOLN (Sony/ATV 1975) (“Now the fellas ribbed me for bein’ behind/So I thought I’d make the Lincoln unwind . . . .”); JERRY REED, EASTBOUND AND DOWN (RCA 1977) (“. . . Son, never mind them brakes/Let it all hang out ‘cause we got a run to make . . .”); BRUCE SPRINGSTEEN, RACING IN THE STREET (Columbia 1978) (“I wanna blow ‘em off in my first heat . . . the time is right/For racing in the street”); FOREIGNER, REV ON THE RED LINE (Atlantic 1979) (“. . . everybody knows/at the green light you rev it on the red line”); RUSH, RED BARCHETTA (Mercury Records 1981) (“…I spin around with shrieking tires, to run the deadly race/Go screaming through the valley as another joins the chase”); METALLICA, FUEL (Elektra 1997) (“Take the corner, join the crash… Another junkie lives too fast!”); MYSTIKAL, SMASHING THE GAS (GET FASTER) (2003) (“. . . You hear them horses comin’ what you gon’ do/ Get out the way, move fool!”); PETEY PABLO, NEED FOR SPEED (Jive Records 2003) (“. . . I’m gone. . . I can hold my own/Out here on the dangerous road”).14

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BLUE OYSTER CULT

Godzilla Judge Glenn Harrell (’70) of the Maryland Court of Appeals may have written his opinion in People’s Ins. Counsel Div. v. Allstate Ins. Co.15 with a purposeful grimace to make a point about insurance coverage for catastrophic loss. He discussed a parallel universe called “Alternate Maryland,” where risk and potential losses have to be calculated in the event a prehistoric monster, mutated by radiation, meandered ashore. To set the scene, he began his opinion with the ending verse from Blue Oyster Cult’s “Godzilla”:

History shows again and again how Nature points out the folly of Man. Blue Öyster Cult, Godzilla (1977).16

He continued with his hypothetical:

One Saturday at home, the head of Alternate Allstate’s underwriting department settles-in to watch an all-day fest of Godzilla movies. As he watches Godzilla destroy large portions of Tokyo and other coastal areas of Japan again and again (and concerned that climate change could induce the giant amphibious lizard to migrate to other climes, perhaps along a warming mid-Atlantic coast- line of the Alternate United States), he imagines Alternate Allstate’s financial exposure should Godzilla come ashore in Alternate Maryland.17

After reading Judge Harrell’s opinion, someone probably should have called “Perry Mason.”18

BON JOVI

Blaze of Glory In 2009, singer Jon Bon Jovi was part-owner of an Arena Football League franchise in Philadelphia. Financial problems caused a shortened season for the league. The resulting lawsuit styled AFL Philadelphia LLC v. Krause19 was set before Judge Michael Baylson (’64) of the Eastern District Court of Pennsylvania who ruled that plaintiff had set forth a cause of action, and weaved the titles of several Bon Jovi hits into his order:

In the instant matter, the local arena football team the Philadelphia Soul—partially owned by rock icon Jon Bongiovi (also known as Bon Jovi)—rose in a “Blaze of Glory”20 to win the 2008 national championship Arena Bowl and then was “Shot Through the Heart”21 when its 2009 season was canceled by the

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League due to financial problems. The team and League remain “Living on a Prayer”22 that they will return in the 2010 season and beyond. In the meantime, the Philadelphia Soul and a former employee are trading accusations concerning the fall-out of the season’s cancellation, in which they each experienced a taste of “Bad Medicine.”23 * * * Although continuing to pursue his counterclaims will be no “Bed of Roses,”24 Defendant has adequately pled both Lanham Act and misappropriation of name claims such that this Court will deny Plaintiffs’ Motion to Dismiss Defendant’s Counterclaims.25

JACKSON BROWNE

Lawyers in Love From Judge Ed Carnes of the U.S. Eleventh Circuit in Pensacola Motor Sales, Inc. v. E. Shore Toyota, LLC,26 in a suit between car dealerships: “People who compete against each other in the same business or profession don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.”27 But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will.”28

JIMMY BUFFETT

Volcano Judge James M. Burns (’50) was asked to move the trial of U.S. v. McDon- ald29 away from Fairbanks, Alaska following concerns that an unpredictable Alaskan volcano, Mt. Redoubt, might erupt, and thus disrupt, the trial. Given it was unlikely that the federal courthouse had its own redoubts for protection against hot ash, the court changed the trial’s venue quoting Jimmy Buffett’s song “Volcano”:

As is often true, nature imitates art. About a decade ago, a noted singer named Jimmy Buffett issued a record containing the song “Volcano” that expressed feelings apropos to our present circumstances: …I don’t know where I’m a-gonna go when the volcano blow.

He included the rest of the verses of the song to demonstrate his quandary about choosing alternate locations.30 Though Jimmy Buffett lamented about not knowing where to go, Judge Burns did—Tacoma, Washington.31 I got nothin’ more to say.32

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Margaritaville Jimmy Buffett’s signature song “Margaritaville” became an important part of a court decision in 2015 that overturned a ban on tattoo parlors in Key West, Florida. In Buehrle v. City Of Key West,33 the U.S. Eleventh Circuit considered the City’s attempt to bar Plaintiff from opening a tattoo shop, claiming that allowing such shops would hurt tourism. The City referenced the song to support their argument that inebriated tourists were more likely to get tattoos (and later experience “buyer’s remorse”) if more shops were opened in Key West’s historic district,34 using the verses by the song’s narrator who sings about getting a tattoo of a “Mexican cutie, how it got here I haven’t a clue.” Judge Jill Pryor (’88) said that the city’s passing reference to these few lines of the song was the closest they came to presenting any evidence, even though that reference did not support their position:

Jimmy Buffett’s song “Margaritaville” was referenced twice in the record, once by Mr. Craig in his deposition and once by the City’s attorney in oral argument before the district court, to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo establishments operate in the historic district. But the singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.” Jimmy Buffett, “Margaritaville,” on Songs You Know by Heart (Geffen Records 1985).35

In the end, the plaintiff inked a win against the city, and the tattoo parlors ban was lifted.

If the Phone Doesn’t Ring, It’s Me In a case of “man bites dog,” a debt collection company sought an injunction to keep a debtor from making daily harassing calls—to them. The case of Bayview Loan Servicing v. Forster36 was sparked after Forster fully satisfied his obligation to Bayview, but they failed to clear his credit with the credit reporting bureaus. Judge Richard H. Doyle (’76) observed that when that happened, “Forster, in the antithesis of the refrain from the Jimmy Buffett song, ‘If the phone doesn’t ring, it’s me,’37 began repeatedly calling Bayview.”38

Simply Complicated The case of City of West Liberty v. Employers Casualty Co.39 started when a gray squirrel touched a cable clamp inside an electrical substation, causing an electrical arc that damaged the city’s property and short-circuited the squirrel’s life. The city’s insurance claim was denied and judgment in favor

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of the insurer was affirmed on appeal. Iowa Judge (and Jimmy Buffett fan) Richard H. Doyle dissented, saying that simplicity was for the birds on that day because it certainly was not in the cards for the squirrel. He cited Jimmy Buffett to say that the court-created “efficient-proximate-cause doctrine” used by the majority had left many lawyers—and judges—scratching their heads. “The doctrine adds a virtually impenetrable layer of complexity and confusion to this matter. ‘It’s just simply complicated.’”40

Changes in Latitudes, Changes in Attitudes Another Jimmy Buffett song helped decide Communications and Control, Inc. v. F.C.C.41 The case showed that a geographic change can make all the difference. For CCI, a one-degree change in longitude was denied by the FCC to reflect a transmitter’s true location that would have allowed it to operate from terra firma rather the Pacific Ocean.42 Judge Karen LeCraft Henderson (’69) started her opinion off with verses from another Buffett fan-favorite:

These changes in latitudes, changes in attitudes; Nothing remains quite the same––Jimmy Buffett, CHANGES IN LATITUDES, CHANGES IN ATTITUDES (ABC 1977).43

Judge Henderson also included the lyric “Through all of the islands and all of the highlands, If we couldn’t laugh we would all go insane.”44 But CCI wasn’t laughing, and probably thought it was the FCC going insane. The government had long knew that CCI had built its transmitter and was operating from dry land, not open water. The court essentially ruled that yesterdays were over the FCC’s shoulder (seven years worth),45 so to wait that long to revoke the license was, “politely speaking, unreasonable.”46

CHUMBAWAMBA

Disagreement In Procaps S.A. v. Patheon Inc.,47 Judge Jonathan Goodman (’83) described the acrimonious relationship between the two parties in litigation, using numerous songs to illustrate the various points. He granted Patheon’s motion to enter a cost judgment by opening his order quoting Dave Mason’s song “We Just Disagree.” It was also fitting that in a footnote ending the order, Judge Goodman added, “See generally, the song “Disagreement,” by Chum- bawamba (‘but now we both agree that we disagree’).”48 For in the end, that’s the one thing in common they’ve got, you see.49

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THE CLASH

Should I Stay Or Should I Go In United States v. Jackson,50 the U.S. Fifth Circuit considered the appeal of defendant’s drug conviction based on a search following an alert by a drug- sniffing dog. One day it was fine, but on this day it was black51 for Jackson when the dog alerted to the empty seat on a bus where he had been sitting, as well as to the two bags stowed above it. Officers later found bags of cocaine taped to his waist. As Judge Jerry E. Smith (’72) described it:

Jackson was thus forced to ask himself what The Clash famously asked two decades ago: “Should I stay or should I go now?” Doubtless, Jackson knew that if he stayed on the bus and the dog alerted to him “there would be trouble.” But given the officers’ ultimate discovery of the cocaine strapped to his waist, the trouble turned out to be “double,” notwithstanding his decision to “go.”52

COLDPLAY

The Escapist In Reyes v. Collins & 74th, Inc.,53 Judge Goodman of the Southern District of Florida used Coldplay lyrics to cool the defendant’s desire to get out of discovery obligations:

However, the Understand (sic) recognizes that Defendants may, after reviewing this Order, be inclined to follow the lyrics from the Coldplay song “The Escap- ist”: “. . . we lie awake / And we dream / We’ll make an escape.” If Defendants want to escape from the discovery permitted in this Order, then they will need to remove the good-faith defense issues.54

PHIL COLLINS

Something Happened on the Way to Heaven In MGM Const. Services Corp. v. Travelers Cas. & Sur. Co. of America,55 the question presented was whether an unlicensed subcontractor’s bill could be paid by insurance. Under the express language of the law, the subcontract was unenforceable. Judge Leslie B. Rothenberg (’86) felt differently. The moving party appeared destined for certain victory. “‘But,’ in the immortal words of Phil Collins, ‘something happened on the way to heaven.’”56 The case was sent back to the lower court, no doubt leaving the trial judge feeling that this case “got a hold of him and wouldn’t let go.”57

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ALICE COOPER

School’s Out Judge Robert Luck (’04) on Florida’s Third District Court of Appeal quoted rock’s original shock-master Alice Cooper in J.H. v. State58 in a case involving trespass on school property. To make the point that the statute did not require that school personnel ask a trespasser his reasons for being on campus, Judge Luck used the following hypothetical relying on a lyrical quote and a subtle reference to the artist:

Suppose, for example, a school security officer reviews video footage from the night before and sees Alice on school property, at 2:00 a.m., spray-painting “School’s out for summer. School’s out forever”59 on the school’s front door. Would a properly authenticated copy of the video not be sufficient evidence for a trier of fact to find that Alice was trespassing on school property without authorization or legitimate business? Must the school security officer find Alice and inquire whether she had a legitimate reason to be at the school when it was closed, at 2:00 a.m., spray-painting the door, before Alice can violate the statute?60

No More Mr. Nice Guy Should purchasers get Miranda-type warnings before buying a franchise? Magistrate Judge Jonathan Goodman of the U.S. District Court for the South- ern District of Florida thought so, in Tim Hortons USA v. Singh.61 He cited lyrics from Alice Cooper’s “No More Mr. Nice Guy,”62 in his decision:

In a hit song released on its 1973 Billion Dollar Babies album, the Alice Cooper band, sometimes considered the pioneers of “shock rock,” belted out the following musical anthem: “No more Mister Nice Guy / No more Mister Clean / . . . He said you're sick, you're obscene.”63 The concept of not being a nice guy resonates with Defendants’ perspective about the factual and legal issues generated in this lawsuit filed by a donut restaurant franchisor against one of its franchisees, culminating in a bench trial before the Court.

ROBERT CRAY

Consequences In one dispute in the long-running legal battle of Procaps S.A. v. Patheon Inc.,64 Patheon demanded attorney’s fees incurred in litigating unnecessary discovery motions. Such consequences were at the heart of Judge Goodman’s

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order, which addressed the ramifications of Procap’s and Patheon’s respec- tive positions.

Writers, scholars, musicians, and many others have all commented on the concept of consequences. Robert Louis Stevenson noted that “everybody, sooner or later, sits down to a banquet of consequences.” Stephen R. Covey observed that “while we are free to choose our actions, we are not free to choose the consequences of our actions.” And in a song, blues guitarist Robert Cray advised, “[o]h, listen baby, it’s just common sense, sooner or later we’re going to suffer the consequences.”65

CREEDENCE CLEARWATER REVIVAL (CCR)/JOHN FOGARTY

Bad Moon Rising In Powell v. Metropolitan Entertainment Co., Inc.,66 a fifty-one–year-old attorney who had attended several rock concerts over the years (albeit quite some time before) began noticing ringing in his ears for limited periods of time after attending more recent ones. Apparently not seeing trouble on the way,67 the plaintiff went to a John Fogerty concert. He alleged that Fogerty’s loud playing permanently damaged his hearing. Judge Martin Schoenfeld (’71) began his analysis of the relevant law by including verses taken from the song “Who’ll Stop the Rain” to describe the concert scene: Heard the singers playin’, How we cheered for more. The crowd had rushed together . . . .68

The court held that plaintiff failed to get his things together69 by presenting no evidence (aside from his own testimony and that of his companions) that the concert was unusually loud. As part of the opinion, Judge Schoenfeld quoted the lyrics to CCR’s Bad Moon Rising: I hear hurricanes ablowing. I know the end is coming soon.70

For the plaintiff, the end indeed came soon—to his lawsuit. It was dismissed.

Someday Never Comes Choi v. Asiana Airlines, Inc.71 involved plaintiff’s claim that she suffered injuries when the plane experienced severe turbulence over Japanese airspace during a flight from Honolulu to Korea. She filed her lawsuit in California, saying she had intended to establish residency there. Judge Jon S. Tigar

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(’89) said her future intentions were irrelevant to her ability to bring suit in California. “[W]hile Plaintiff may have had the subjective intent to someday make the United States her ‘principal and permanent residence,’ she never established residency in the United States. Cf. Creedence Clearwater Revival, ‘Someday Never Comes’ on Mardi Gras (Fantasy Records 1972).”72

Bootleg Another one of CCR’s songs was included in Stoner v. eBay, Inc.73 Plaintiff howled after he was sold a bootleg recording on eBay, and sued them asserting that they “knowingly reap massive profits from the sale of bootleg and other unauthorized ‘infringing’ sound recordings.” The case prompted Judge Stuart R. Pollak (’62) to discuss “bootleg” recordings generally, saying that “[w]hile the description of a recording as ‘bootleg’ certainly suggests that the recording is one that may not lawfully be sold, an inspection of the product nonetheless may be necessary to be sure”:

In some cases, falsely describing an article as illicit may add to its value. See, for example, the lyrics to the Credence (sic) Clearwater hit song “Bootleg”: “Take you a glass of water, make it against the law, See how good the water tastes When you can’t have any at all.”74 See also the Eminem hit song, “My Name Is ... (Bootleg Version),” which may be considerably more popular than the alternative version, “My Name Is...”75

CROSBY STILLS & NASH

Our House Considering whether the trial court erroneously suppressed evidence seized pursuant to an “assumptively improper search warrant,” Judge Glenn Harrell opened his opinion in Marshall v. State76 with the lyrics to “Our House,” though slightly altered to reflect the facts of that case:“ Our house is a very, very, very fine house, With two [cops] in the yard; . . . Now everything is [seized] ‘cause of you.”77 Presumably, even flowers in the vase.78

ELVIS COSTELLO

Less than Zero Stockholders filed suit against two officers of Oracle Corporation in In re Oracle,79 accusing them of selling company stock when they possessed material, adverse, nonpublic information about it. Citing to Costello’s song Less than Zero, Vice Chancellor Leo Strine (’88) found:

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There is no rational basis to conclude that Henley or Ellison possessed material, adverse information at any relevant time. If there is something like “less than zero” outside of Elvis Costello’s music, then there is even less reason to infer that [the officers] “knowingly” possessed material, adverse information.80

DEEP PURPLE

Smoke on the Water Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc.81 involved allegations an insurance agent and insurance broker failed to timely notify an excess insurance carrier about a court case. The court denied a motion for sanctions by issuing an order that included a discussion about a well-known metaphor as applied to suspicious activity—“where there’s smoke, there’s fire.” Judge Goodman explained, “[b]ut that is not always the case. Sometimes the existence of smoke means only that smoke is present, without the associated involvement of a problematic fire.”82 He stated that the negative, mistrustful view of the facts urged by the plaintiff, while “not wildly irrational,” did not dominate over the defendants’ proffered explanations:

Therefore, the Undersigned’s ruling will follow a modified version of the key lyrics from Deep Purple’s 1972 heavy metal/hard rock hit song “Smoke on the Water,” from the Machine Head album: “Smoke on the water/ a fire [is not necessarily] in the sky.”83

DEF LEPPARD

Too Late for Love Timing. Promptness. Compliance. All these are recurring themes in court orders, particularly involving discovery disputes. In Frasca v. NCL (Baha- mas) Ltd.,84 a party filed two motions“ near-the-buzzer” seeking permission for its retained expert to supplement his report and include a new opinion. Judge Goodman ruled that the request came too far along into the litigation process:

Iconic musician Carole King explained a simple and straightforward sentiment in her hit song, “It’s Too Late”: “And it’s too late, baby, now it’s too late/ Though we really did try to make it.”85 Otis Redding expressed a similar view in his “It’s Too Late” song: “But it’s too late / It seems like it’s too late.”86 Eighteen years later, British hard rock band Def Leppard sang a similar refrain in “Too Late for Love”: “Is it all too late? / Much too late / Can’t you see it’s all too late.”87

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Framed by these lyrics warning of untimely action, the Court is confronted with two motions arising from the parties’ failure to timely address discovery disputes and their last-minute motions to obtain relief which could have (and should have) been sought far earlier.88

DEPECHE MODE

Everything Counts In Katchmore Luhrs, LLC v. Allianz Glob. Corp. & Specialty,89 the question for the court was whether “Allianz” was a legal entity and, therefore, a party to a contract. Judge Goodman wrote:

In the 1983 song “Everything Counts,” British electronic/new wave band Depeche Mode musically discussed contracts: “The handshake / seals the contract . . . .”90 In the instant case, however, focusing on which party did not enter into an insurance contract seals the deal in the sense that the Court is not turning back from granting a summary judgment motion filed by Defendant Allianz Global Corporate & Specialty (“Allianz”).91

BO DIDDLEY

Before You Accuse Me (Take a Look at Yourself) In Royal Bahamian Ass’n, Inc. v. QBE Ins. Corp.,92 Royal Bahamian took the position that QBE had violated a local rule requiring a good faith effort to resolve issues before filing motions. Judge Goodman acknowledged that QBE had violated the local rule first, but he did not find the“ they-did-it-too” argument to be the least bit persuasive. The judge continued:

For a more contemporary and musically-oriented version of the proverb counsel- ing glass house residents to refrain from stone-throwing activities, see “Before You Accuse Me,” a popular blues song written by Ellas McDaniel, better known as rock and roll icon Bo Diddley. That song, which contains the lyric, “before you accuse me, take a look at yourself,” was also recorded and released by, among others, Eric Clapton, Creedence Clearwater Revival, and Magic Slim.”93

Judge Goodman has given special credit to Diddley several times, using “Before You Accuse Me (Take a Look at Yourself),” in Adelman v. Boy Scouts of Am.,94 and then again in Latele Television, C.A. v. Telemundo Commc’ns Grp.,95 where he said this:

Better known as Bo Diddley, Ellas McDaniel wrote and recorded the classic blues song “Before You Accuse Me” as the B-side to a single released in 1958

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on the Checker label. Also covered and recorded by Eric Clapton, Creedence Clearwater Revival, and others, Diddley’s song provided some classic advice: “Before you accuse me, take a look at yourself.” Diddley’s musical caveat is relevant here because Plaintiff seeks attorney’s fees as sanctions against Defendants for failing to comply with the local rule requirement of a pre-filing conferral before filing a motion in limine-but Plaintiff failed to follow that same pre-filing conferral rule for its own sanctions motion.96

DIRE STRAITS

The Bug In a Delaware case styled Delmarva Health Plan, Inc. v. Aceto,97 a health insurer argued that a medically necessary lung transplant was not covered under a health insurance policy. Vice Chancellor Leo Strine disagreed, and squashed the insurer’s argument by acknowledging the insured gave a reasonable reading of the contract:

[I]f the express language of the policy is unclear, there are two reasonable read- ings, and this case ultimately turns on a battle between the interpretative maxims of “contra preferentem” and “expressio unius est exclusio alterius,” there is a clear winner. In the context of an insurance contract’s construction, contra preferentem “is the windshield” and expressio unius is the “bug.”98

Money for Nothing In United States v. Santisteban,99 the U.S. Fifth Circuit was asked to decide whether the district court properly permitted a paid government informant to testify on behalf of the prosecution. This was alleged to be an improper contingency fee contract that tainted the informant’s testimony. In the part of the opinion discussing that issue in greater detail, Judge John Robert Brown (’32) titled one section header as “Money for Nothin?”100

THOMAS DOLBY101

She Blinded Me with Science Judge Paul Grimm (’76) wrote an opinion in United States v. Horn102 where he discussed the reliability of certain standard field sobriety tests (SFSTs). Judge Grimm’s opinion was poetry in motion103 when he reached into the vaults to dig out lyrics by a music video star from the 1980s—Thomas Dolby:

As will be seen, there is a place in the prosecutor’s arsenal for SFST evidence, but it must not be cloaked in an aura of false reliability, lest the fact finder, like

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the protagonist in the Thomas Dolby song, be “blinded by science” or “hit by technology.”104

THE EAGLES/DON HENLEY

Hotel California In the movie The Godfather: Part III, the character Michael Corleone (played by Al Pacino) says, “Just when I thought I was out, they pull me back in.”105 That same sentiment probably described the feeling of the club members in The Callawassie Island Members Club, Inc. v. Dennis,106 during a membership dispute where various members ceased paying dues and asserted that their letters of resignation relieved them of any future obligations. Judge James E. Lockemy (’74) ruled that the resigned members were not obligated to pay any dues that accrued after their resignation; otherwise, it would “create an unreasonable situation in which clubs could refuse to allow a member to ever terminate their membership obligations. In essence, Appellants would be trapped like the proverbial guests in the Eagles’ hit Hotel California, who are told ‘you can check-out anytime you like, but you can never leave.’”107 In the context of a bankruptcy case, In re Akbarian,108 the court used the verse to make the point that some decisions are not easily reversible. The court noted:

Under the Debtor’s interpretation, Chapter 7 would be like the Hotel California, a place “you can never leave.” But whether Chapter 7 is compared to a prison or the Hotel California, the essence of the comparison is the same: the Debtor argues that once a debtor enters Chapter 7, that person is unable to exit.109

The court concluded that while it is easier to enter Chapter 7 than to exit it, that fact alone does not make Chapter 7 a prison. “[W]hile a debtor may voluntarily choose to place [herself] in bankruptcy, [she] does not enjoy the same discretion to withdraw [her] case once it has been commenced.”110 Other courts have also used these lyrics in varying contexts, notably in cases involving prisons, confinement, or some other seemingly inescapable situation.111

The Heart of the Matter Judge Glenn Harrell (’70) of the Maryland Court of Appeals frequently sprinkles his opinions with song lyrics. In Morris v. State,112 an opinion from 2011, he used verses from a Don Henley solo record:

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Don Henley sang, “trying to get down to the heart of the matter,” often the “more I know, the less I understand.” Apropos of that sentiment, in the present case, the parties brief and argue an array of issues, only a few of which are actually before this Court and which we shall decide. In the process, they glaze the proceedings with a certain degree of opaqueness.113

The End of the Innocence Another one of Henley’s songs found a place in the California opinion issued in Womack v. Lovell.114 The introduction to the opinion set the stage for some lawyerly advice dispensed from Judge William W. Bedsworth (’71): In their rock-and-roll standard, “End of the Innocence,” Bruce Hornsby and Don Henley note that “The lawyers dwell on small details.” That’s true. We have to. The devil isn’t the only resident in the details; sometimes truth and fairness lodge there as well.115 In this case, we address a “detail” that was lost or hidden and resulted in what we consider an injustice. Fortunately, as is usually the case, painstaking attention to other small details enables us to correct this injustice. If you dwell on small details with an eye to fairness, the law works well.116

BOBBY FULLER FOUR

I Fought the Law No discussion of music lyrics in the law would be complete without at least mentioning the Bobby Fuller Four classic, “I Fought the Law”117 and its tale of lament from the perspective of a prisoner doing hard labor in prison because of his life of crime. In Davenport v. U.S.118 from the District Court of South Carolina, the court referenced a University of Florida Law Review article in a footnote quoting the song to show that a plaintiff’s misfortune was essentially his own fault:

The case record in Civil Action No. 8:00–2847–20BG reveals that the plaintiff lost his home because of his actions as a tax protester and his refusal to avail himself of numerous lawful procedures to contest his federal income tax liability, such as the filing of a tax court petition. Cf. David McCord, Imagining a Retributivist Alternative to Capital Punishment, 50 Fla. Law Rev. 1 (January 1998) (“A well-known ‘oldies’ tune has a convict lamenting, ‘Breakin’ rocks in the hot sun; I fought the law and the law won.”), which is citing a song originally popular in 1965. See The Bobby Fuller Four, I Fought the Law (El Paso Version) on El Paso Rock: Early Recordings Vol. I (Norton Records 1996). The song is also available from Del–Fi Records in another “oldies” compila- tion, Bobby Fuller, I Fought the Law, on Shakedown! The Texas Tapes Revis- ited (Del–Fi Records 1996), which is cited in L. Kevin Levine, Digital Music

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Distribution via the Internet: Is It a “Platinum” Idea or a “One Hit Wonder?” 104 W. Va. L.Rev. 209 (Fall 2001).119

GIPSY KINGS

Calaverada In Brown v. NCL (Bahamas), Ltd.,120 the court held a privilege could be waived, depending in part on whether its initial disclosure was compelled or the purpose of the disclosure. Judge Goodman added, “[m]otivation for the disclosure and the specific circumstances underlying the disclosure are critical in a case-by-case evaluation of potential work-product waiver.” He then added a notation: “As the Gipsy Kings explained in their song Calaverada, “I would like to know today the motive that you have.” (From the 1983 album, “Luna De Fuego,” 1983 Columbia Records).”121

THE GRATEFUL DEAD

This group, rising to prominence in the 1960s, is a source for lyrics used by judges primarily in two situations—describing strange facts or occurrences, or trains. Their lyrics are quoted (often without attribution) in many judicial opinions, primarily the phrase, “What a long, strange trip it’s been.”122

Tons of Steel In U.S. v. Youts,123 the U.S. Tenth Circuit considered the bizarre case of a defendant convicted in Kansas federal court of wrecking a train. Chief Judge Stephanie Seymour (’65) recounted a verse by The Grateful Dead in her opinion to describe the train as it sped around the curve:

“Nine hundred thousand tons of steel, out of control She’s more a roller coaster than the train I used to know. . .

Then, when alluding to the derailment, she also included the next verse of the song:

These wheels are bound to jump the tracks before they burn the ties.”124

Might as Well In the Youts case, Judge Seymour also discussed whether the trial court had erred in allowing the prosecution to introduce evidence of other crimes he “engineered,” namely Mr. Youts’ distinct pattern of stealing heavy

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equipment. She used the lyrics to another Grateful Dead song to describe the thoughts that probably went through the defendant’s mind when committing the crime:

Never had such a good time in my life before. I’d like to have it one time more.

And in a comment that likely described the defendant’s feelings about this bizarre episode, she also included:

I’d like to take that ride again.125

Casey Jones In Montgomery County v. Bhatt,126 Judge Glenn T. Harrell, Jr. (’70) considered whether a private landowner adjacent to a rail line could acquire a portion of a railroad’s right-of-way by adverse possession, simply by erecting both a fence and a shed that encroached for more than twenty years. Noting there was “trouble ahead, trouble behind,” he began his opinion quoting the Grateful Dead’s classic “Casey Jones”:

Driving that train, high on cocaine, Casey Jones you better watch your speed. The Grateful Dead, Casey Jones, on Workingman’s Dead (Warner Bros. Records 1970).127 Although the record of the present case does not reflect a comparable level of drama as captured by the refrain of “Casey Jones,” it hints at plenty of potential trouble, both ahead and behind, for a pair of public works projects (one in place and the other incipient) cherished by the government and some citizens of Montgomery County.128

Oh Babe, It Ain’t No Lie In Terry v. Carnival Corp.,129 another order written by Judge Jonathan Good- man described events during a four-day cruise that allegedly turned into the “voyage of the damned,” because travelers were “forced to subsist for days in a floating toilet, a floating Petri dish, a floating hell.” The defendant wanted the judge to dismiss the plaintiff’s lawsuit as a sanction for what it branded “false testimony in a frivolous lawsuit.” Since the issue involved deciding which side was telling the truth, Judge Goodman used “Oh babe, it ain’t no lie” as his theme for the case.130

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The Sidewalks of New York The court in the per curiam opinion of 184 W. 10th St. Corp. v. Marvits131 considered allegations that an elderly tenant in New York rent-controlled housing harbored two cats in an apartment in violation of the “no pet” rider to her lease. In his concurrence to the majority opinion refusing to enforce the restriction, Judge Douglas E. McKeon (’76) observed the following about cats and dogs:

The reality is that it is all but impossible for a cat owner to comply with the standards sought to be imposed by the court below and the dissent, unless, of course, the litter box becomes a thing of the past and countless feline owners are forced to go the way of their canine friends, to be seen, leash in hand, walking their cats, as the lyrics of the song go, “on the sidewalks of New York.”132 While that might remedy some of the dissent’s concerns about the Pet Law, the fact is a dog will always be a dog, a cat will always be a cat, but Athena and Apollo will never be Rover or Spot.133

GREEN DAY

Walking Contradiction In Del Monte International, GMBH v. Ticofrut S.A.,134 Del Monte sought to enjoin conduct it had previously agreed to, arguing that same conduct was now creating irreparable harm because it no longer agreed to the transactions. Judge Goodman opened his order with a brief lyrical analogy and short issue summary:

In their 1996-released song “Walking Contradiction,” American punk rock band Green Day musically advised, “[d]o as I say not as I do.” Twenty years later, Plaintiff Del Monte International, GMBH (“Plaintiff” or “Del Monte”) filed a Motion for a Preliminary Injunction . . . which is premised on an inconsistency which implicates the message inherent in those lyrics.135

GUNS N’ ROSES

Patience In Zamber v. American Airlines, Inc.,136 Judge Goodman granted a motion for discovery stay and opened his order by stating that notions of putting things on hold (i.e., waiting) and striving to move things along are, of course, contrary positions. The tension inherent in the differing views is such a

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well-known dichotomy that musicians and entertainers often write and sing about these two at-odds orientations:

Musical references to a desire to act immediately are not difficult to find: (1) Madonna sang, “hurry up, I just can’t wait / I gotta do it now, I can’t be late,” (2) Martha and the Vandellas proclaimed, “but hurry up, don’t take so long,” and (3) Marvin Gaye (with Mary Wells) warned, “hurry up, hurry up, before I lose my mind.” But songs about the contrary perspective are also not rare: (1) The Kinks sang, “so tired / tired of waiting / tired of waiting for you,” (2) Wilson Picket announced that he was “gonna wait till the midnight hour” and later “wait till the stars come out,” and Carly Simon complained because “anticipation, anticipation / is makin’ me late, is keepin’ me waitin’.”137

The judge concluded the stay order with this observation about how he expected his ruling to be received by the complaining party:

Finally, for purposes of musical symmetry, the Undersigned will end this Order with a musical reference which might provide some counter-balance to the dis- appointment which Zamber will surely experience after reviewing this Order. Specifically, Zamber might obtain a broader perspective by focusing on some lyrics by Guns N’ Roses, in that band’s “Patience” song: “Just a little patience is all you need (Ooh, this time, ah).”138

In another order written by Judge Goodman in Velarde v. HSBC Private Bank Int’l,139 he referred to the same Guns N’ Roses song when he held a case in abeyance until a sister court issued a ruling in collateral proceedings. As to when the case would restart, the judge said:

Plaintiffs will be able to resume their litigation by December 13, 2013, if not earlier. Until then, they will need to heed the advice provided by Guns N’ Roses: “All we need is just a little patience / Patience, patience, patience.”140

JIMI HENDRIX

Love or Confusion Judge Janice Rogers Brown (’77) of the D.C. Circuit Court of Appeals showed her experience by including a reference to Jimi Hendrix in U.S. ex rel. K & R Ltd. P’ship v. Massachusetts Hous. Fin. Agency.141 Writing about a mortgage subsidy program plagued by fraud allegations, Judge Brown observed,

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“Forty years ago, Jimi Hendrix trilled his plaintive query: ‘Is this love, baby, or is it . . . [just] confusion?’ Jimi Hendrix, Love or Confusion, on Are You Expe- rienced (Reprise Records, 1967). In this . . . case, we face a similar question . . . : Is this fraud, or is it . . . just confusion?”142

The plaintiff K & R said it was the former; Judge Brown ruled it was the latter.

Castles Made of Sand Judge Robert A. Gordon (’82) of the United States Bankruptcy Court in Baltimore must be a Jimi Hendrix fan. In the matter of In re Quillen,143 he described how undeniable contradictions between the relevant statutes and rules had left the bankruptcy system with a tangled thicket of conflicting reported decisions. He used one of Hendrix’s recordings to defend a conclusion admittedly reached for public policy reasons:

However, policy reasons, no matter how compelling, would be little more than “castles made of sand” if the plain meaning of the controlling Code provisions did not weave together to lead inevitably to the conclusion that a second Section 341(a) meeting of creditors must occur in a converted case.144

HERMAN’S HERMITS

Henry the Eighth A Louisiana appellate court judge commented about how the parties had been before his court on five previous occasions over the course of their ongoing domestic litigation. In Martin v. Martin,145 Judge Henry N. Brown Jr. (’66) addressed the repetitive court visits made by the parties: “‘Second verse, same as the first.’146 Nothing has changed in this case. Cynthia continues to file vexatious, harassing and repetitious petitions and motions, notwithstanding the crystal-clear orders of the trial court that there will be no further proceedings until she complies with the court-ordered mental health evaluation.”147

JOHN HIATT

Judge Goodman considered a sanctions motion in United States Equal Employment Opportunity Commission v. GMRI, Inc.148 by invoking “John

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Hiatt, a critically-acclaimed rock guitarist, pianist, singer, and songwriter whose songs have been covered by B.B. King, Bob Dylan, Bonnie Raitt, Buddy Guy, Eric Clapton, Keith Urban, and Three Dog Night (to name but a few of many performers from myriad musical genres).”149 The notion that someone shredded, destroyed, or discarded documents (or, to use other phrases from a Hiatt song, “doctored the evidence” to pursue “a cover up”) was at the heart of the sanctions motion being considered here.150 In his order, Judge Goodman recalled that Hiatt wrote a song called “Shredding the Docu- ment,” where the chorus says: “I’m shredding the document / I’m keeping my mouth shut.”151

HUEY LEWIS AND THE NEWS

Hip to Be Square Judge Frank Easterbrook (’73) of the U.S. Seventh Circuit used a trademark infringement case, Jay Franco & Sons, Inc. v. Franek,152 to recall a well- known song from this popular 1980s band. He opined that Plaintiff Franek was effectively trying to trademark “the circle”:

The same year Huey Lewis and the News informed America that it’s “Hip to Be Square,”153 Clemens Franek sought to trademark the circular beach towel. His company, CLM Design, Inc., pitched the towel as a fashion statement—“the most radical beach fashion item since the bikini,” declared one advertisement. “Bound to be round! Don’t be square!” proclaimed another.154

IMAGINE DRAGONS

It’s Time In U.S. v. Comas,155 Judge Goodman was asked to reverse course on a prior ruling. The judge denied the motion, but not before using the lyrics of a song by a contemporary band to set the tone for his order:

Lyrics from Imagine Dragons’ hit song “It’s Time” provide the applicable approach to the Government’s reconsideration motion of an order regarding the production of [disclosure] material at a pretrial detention hearing: I’m just the same as I was Now don’t you understand That I’m never changing who I am.156

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INCUBUS

Consequence A trial judge flexed his judicial muscles by benchslapping Latele Television with liability for attorney’s fees in Latele Television, C.A. v. Telemundo Com- munications Group, LLC.157 In doing so, the judge stated:

The fees award is a consequence of Latele’s bad faith failure to be truthful in discovery. As explained by the band Incubus in its “Consequence” song from its double platinum “Make Yourself” album, “You better not blink / Oh blink / The consequence is a bigger word than you think.”158

JEFFERSON AIRPLANE

White Rabbit Montana District Judge Donald W. Molloy (’76) used lyrical references from Jefferson Airplane’s biggest and most psychedelic hit in Goff v. Ferriter159 to describe facts that were both “unprecedented” and “bizarre.” Petitioner’s custody on a warrant was assumed by a bail agent, who the judge described as “a Smokey who wanted to ride with the Bandit.”160 The duo traveled from state to state dropping off felons here and there at local jails along the way. After all the other passengers had been dropped off, the agent told Petitioner to drive to Boise, Idaho.

In Boise, the Agent instructed Petitioner to drive to the airport. There, the Agent turned in the rented van. Refreshed by his slumbers, he decided to go ask Alice at Canyon Air Charter how much it would cost to charter a flight to Pittsburgh, Pennsylvania. Alice told him it would be $25,000. Apparently, that made the Agent feel small, because he peremptorily ordered Petitioner to a Chevron sta- tion near the airport to buy him a pack of cigarettes. When Petitioner returned, the Agent had disappeared. Petitioner searched the Boise airport “for hours.” Eventually, airport police approached him and asked to see his identification. Petitioner gave them his driver’s license. They discovered the outstanding warrant and arrested him. Later, someone spotted the Agent at a local hotel—need one add, with a woman. Phone calls were made. The Agent was fired. Petitioner found himself back behind bars in Boise.161

Another federal court, this one in Missouri, found the case of McCann v. Fort Zumwalt School District162 to be the right one to quote the song “White Rabbit” after a student marching band was prohibited from performing it as part of a program. A superintendent had concluded that the song related or

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referred to drug use. Judge Rodney Sippel (’81), said the superintendent acted reasonably, citing the lyrics to the song to show their connection to drug use, like “One pill makes you larger . . . .” Other lyrics from the song were just as direct:

And you’ve just had some kind of mushroom And your mind is moving low.

And, of course, there is the final verse from the song about feeding your head that pretty much sealed the deal.163

BILLY JOEL

Piano Man Recognizing that Billy Joel may have some experience on the matter, perhaps because his microphone once smelled like a beer,164 James L. Robertson (’65) of the Supreme Court of Mississippi used Joel’s signature song to discuss the history of alcohol consumption by inserting cultural references of a more recent vintage:

In more popular mediums, the prime-time television series, Cheers and Billy Joel’s recent song, “Piano Man,” employ the barroom genre to make us laugh, cry and understand life. Without these and so many others, we would be the poorer. Yet we are poorer for the hardship, misery, crime, and tragedy occasionally the proximate result of excessive consumption of alcoholic beverages. Our experience with strong drink is as rich with complexity and ambiguity as it is inevitable.165

Honesty In Farrey’s Wholesale Hardware Co. v. Zurich Am. Ins. Co.,166 the trial judge noted that the background of the case triggered a brief stroll down the “Piano Man’s” musical memory lane. There, Judge Goodman complimented an attorney on his candor when he conceded that a motion he filed should probably be denied:

Singer/songwriter Billy Joel musically lamented that “honesty is such a lonely word, everyone is so untrue.” (emphasis [on the word ‘everyone’] added). In the same song, he complained that “honesty is hardly ever heard” and “[ ]if you look for truthfulness, you might as well be blind.” (emphasis added). But as reflected in the removal/remand issues raised in this case, Billy Joel appears to be somewhat of a pessimist. Not everyone is dishonest, and truthfulness is in fact sometimes heard.167

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Scenes from an Italian Restaurant Judge Walter D. Kelley, Jr. (’81) led his opinion in Maurag, Inc. v. Bertug- lia168 with the words to one of Joel’s most recognizable tunes, using the lyrics to paint a visual picture of the restaurant at the heart of the dispute:

A bottle of white, a bottle of red Perhaps a bottle of rose instead * * * In our Italian restaurant. -Billy Joel, Scenes from an Italian Restaurant (1977)169 For many diners in the Williamsburg, Virginia area, Doraldo Ristorante Italiano (“Doraldo’s”) is the old, familiar place about which Billy Joel sings. The restaurant’s excellent reputation attracts customers from substantial distances.170

The court described the parties as “savvy businessmen and accomplished restaurateurs who can reach an understanding while enjoying a fine vintage (whether red, white or rose) in someone’s Italian restaurant.”171

We Didn’t Start the Fire To illustrate how bad a prisoner’s confused and disjointed ramblings were in a complaint, Judge Gregory Presnell (’66) of Florida’s Middle District issued a crushing benchslap in Riches v. Simpson172 to the filer of the lawsuit. He described the complaint—filed against many defendants (including O.J. Simpson, Steve Jobs, and Apple)—as “like a cross between Billy Joel’s ‘We Didn’t Start the Fire’ and a Dr. Bronner’s soap label, if Dr. Bronner had been a first-year law student with untreated paranoid schizophrenia.”173 Louisiana federal judge Carl Barbier also cited the song in Richardson v. Serpas,174 a civil action arising out of plaintiff’s claim he was unlawfully arrested for arson. In concluding the opinion, the court wrote, “To borrow a line from Billy Joel, Plaintiffs’ tune of ‘We didn’t start the fi-re (sic)’ strikes a chord that at least resonates beyond summary judgment.”175

I Go to Extremes In determining how “extreme” a “hardship” had to be to qualify for a modification of spousal support, New York Judge Richard Dollinger ’( 80) issued his order in Platt v. Platt176 after reviewing scores of judicial comments on what the term meant relating to dire financial circumstances:

In 2012, we live in an era of “extreme sports” and “extreme skiing.” We debate “extreme politics.” Even the New York songster Billy Joel wondered—“darling I don’t know why I go to extremes.” But, when the New York State Legislature

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included the phrase “extreme hardship” in the Domestic Relations Law as a touchstone for determining when a modification of maintenance was permitted more than a fortnight ago, the Legislature gave little indication of how “extreme” the “hardship” had to be to qualify for a modification.177

ELTON JOHN

Circle of Life In a lengthy opinion issued in Aquifer Guardians in Urban Areas v. Federal Highway Admin.,178 Judge Fred Biery (’73) used a plethora of cultural references from Broadway,179 movies, literature, The Bible, Guinness World Records, and television (including Mission: Impossible, Dragnet, X Files, Star Trek, Superman and the Lone Ranger) when discussing environmental responsibility. One of those cited references was Sir Elton John’s “Circle of Life” from The Lion King soundtrack:

Sapiens is Latin for wise. If Homo sapiens suppress their instinct to survive and fail to care for the whole circle of life,180 including karst invertebrates, the spe- cies should be renamed Homo stupiditus, having breached the environmental contract between themselves and all the Little Critters.181

Solidarity Judge Philip S. Straniere (’73) cited Elton John’s “Solidarity” as his theme for the order in Norris v. Soc. Servs. Employee Union 371,182 involving employment severance pay:

“We’re proud to be the working class, “Solidarity forever.”183 The above lyrics from “Solidarity” from “Billy Elliott The Musical” sung by striking coal miners in Margaret Thatcher’s England, apparently do not necessarily apply in labor unions when there is a change in union leadership as evidenced by this litigation.184

JANIS JOPLIN

Me and Bobby McGee In a dissenting opinion issued in Gordon v. Gordon,185 Judge Mark E. Polen (’69) of Florida’s Fourth District Court of Appeal cited Janis Joplin. A former husband alleged that his former wife extorted his consent to a property settlement agreement by threatening to disclose his falsified tax returns to the

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IRS. After the court’s majority voted to reverse and remand the case back to the trial court, Judge Polen countered that the wife’s claim should be viewed skeptically, since she had no risk of prosecution or other undesirable consequences by reporting to the IRS. The judge commented, “In a song made popular by the late Janis Joplin, it is stated: ‘Freedom’s just another word for nothin’ left to lose.’”186 Similarly, Judge Ed Carnes (’75) opined on the economic value of freedom with a reference to Joplin in U.S. v. Townsend:187

How should we value freedom and increments of it in monetary terms? There is lyrical authority for the proposition that, “Freedom’s just another word for nothin’ left to lose / And nothin’ ain’t worth nothin’, but it’s free.” Rejecting that view in this case, we adopt instead a non-lyrical, free-market approach that pegs the value of freedom and other intangible benefits to the price settled upon by the bribe-giver and the bribe-taker.188

KANSAS

Dust in the Wind In Kor–Ko Ltd. v. Maryland Dep’t of the Env’t.,189 a tenant sought to overturn a construction permit to operate a crematorium in the same industrial park building as its business operations. Beginning with the verses of a classic rock staple by the group Kansas, Judge Glenn T. Harrell (’70) opened his opinion with

Dust in the wind; All we are is dust in the wind. Opening lyrics of “Dust in the Wind” on Kansas’s “Point of Know Return” album (1977).190 Would Kansas’s song have made it to No. 6 on the “Billboard Hot 100” and achieved Gold Record sales status in 1978 had listeners understood that the dust in the wind may have contained arsenic, hexavalent chromium, hydrogen chloride, dioxins, and mercury, as we learn from the controversy before us, a case involving the emissions to the air from the operation of a crematorium?191

THE KINKS

20th Century Man In a false-advertising action styled as Edmondson v. Velvet Lifestyles, LLC,192 the plaintiffs alleged that the defendants misappropriated their images to advertise a swinger’s club. In Judge Goodman’s order following plaintiffs’

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request that defendants divulge their swingers’ club membership list in pretrial discovery, the court discussed privacy as the overarching theme at the heart of the dispute:

Musicians sometimes write and sing about privacy. In their 1994 song “Pry To,” (Pearl Jam, Pry To, on Vitalogy (Epic Records 1994)), American grunge/rock band Pearl Jam musically proclaimed “P-R-I-V-A-C-Y is priceless to me.” Like- wise, pop singer Michael Jackson sang “I need my privacy, I need my privacy” in his 2001 song “Privacy.” And The Kinks, in their 1971 song “20th Century Man,” voiced a similar complaint: “Got no privacy/ got no liberty / ‘cause the twentieth century people/ took it all away from me.”193

LED ZEPPELIN

Stairway to Heaven In a suit brought against movie director James Cameron and his film production company alleging copyright infringement by the film“ Avatar,” the opinion written by Judge Jesse M. Furman (’98) in Dean v. Cameron194 drew an analogy to other works:

The Court begins with what may be Plaintiff’s most compelling argument for substantial similarity: the comparison between Avatar’s “Hallelujah Mountains” and Plaintiff’s works featuring floating islands—including Floating Islands, The 1st of April, and Stairway to Heaven. The works are indisputably similar insofar as they present the natural world in a fantastical way by depicting airborne land masses. But Plaintiff does not have a monopoly on the idea of floating or airborne land, an idea that has been around since at least 1726, when Jonathan Swift published his classic Gulliver’s Travels. See also, for example, LED ZEP- PELIN, Stairway to Heaven, on LED ZEPPELIN IV (Atlantic Records 1971). Suspending a landmass is a predictable—if not common—way to make a vista more sweeping, breathtaking, and fantastical, and is plainly subject to both the principle that ideas are not protected and the doctrine of scènes à faire. Put simply, Plaintiff cannot copyright the idea of levitation, a trope often used to suggest a magical or fantastic realm . . . , and a common feature of films utilizing three-dimensional technology, such as Avatar . . . .195

LYNYRD SKYNYRD

Gimme Three Steps In State v. Sonnier,196 even though evidence showed Sonnier physically dragged a fallen officer only about four feet, Judge Lisa Van Amburg ’( 75) found that this evidence was enough to conclude that Sonnier at least briefly

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managed to “run away from” two officers, albeit with another in tow.197 In a footnote to these facts, the court considered how far a suspect had to travel to be considered “fleeing,” a term undefined in any of the applicable statutes. Judge Van Amberg felt this was instructive on the issue:

At least one popular southern rock song assumes three steps will suffice: “Gimme three steps, Gimme three steps mister, And you’ll never see me no more.” Allen Collins & Ronnie Van Zant, Gimme Three Steps, on Lynyrd Sky- nyrd (MCA Records 1973).198

Sonnier’s conviction was affirmed, and the officers never saw him no more.199

Free Bird In American Action Network, Inc. v. Cater America, LLC,200 an advocacy group sued an event production company arising out of an agreement to sponsor a Lynyrd Skynyrd concert in Tampa, Florida. That concert was subsequently canceled due to inclement weather. The lawsuit was filed in Washington, D.C., but defendants felt that if the case stayed there, things just couldn’t be the same:201 “The defendants move to dismiss the complaint for lack of personal jurisdiction and improper venue, suggesting that this case ‘must be traveling on now’ to Florida, where the concert was to occur and the defendants operated at the time of the contract’s execution.”202

Call Me the Breeze In another case from Judge Goodman’s court, Miami Yacht Charters, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh,203 the judge explained why he was denying a motion to amend the judgment, citing “Call Me the Breeze” as the theme of the order when declining to change his mind about whether to apply a new legal rule:

Lynyrd Skynyrd provided the approach which applies to Plaintiffs’ Motion to Alter or Amend Judgment in the band’s 1974 hit song “Call Me the Breeze”: “Ain’t no change in the weather / Ain’t no changes in me.”204

Similarly, in the Procaps S.A. v. Patheon Inc.205 case, Judge Goodman also included “Call Me the Breeze” in his Omnibus Order denying plaintiff’s motion for reconsideration, using the lyrics as a musical message to the parties on the issue of maintaining consistency in rulings:

In his iconic song “Call Me the Breeze,” covered by Lynyrd Skynyrd, Johnny Cash and John Mayer, among many others, recently-deceased songwriter and

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musician JJ Cale penned some lyrics which apply to Plaintiff’s Motion for Reconsideration: “Ain’t no change in the weather / Ain’t no changes in me.”206

DAVE MASON

We Just Disagree In yet another order from the Procaps S.A. v. Patheon Inc. case,207 Judge Goodman summed up the relationship between the two parties: “In his 1977 hit song, English singer/songwriter/guitarist Dave Mason, co-founder of the band Traffic, explained:‘ There ain’t no good guy, there ain’t no bad guy, There’s only you and me and we just disagree.’”208

The song lyric phrase “we just disagree” can surely be applied to the relationship between Plaintiff (“Procaps”) and Defendant (“Patheon”) in this antitrust lawsuit. Procaps and Patheon have disagreed about pretty much everything in this case . . . . * * * The Dave Mason lyrical reference is not completely applicable, though, as the parties do in fact have perceived “good guys” and “bad guys.” Without going into detail, suffice it to say that each party views the other as the so-called “bad guy” and has said as much more than once during this case. Regardless of who between them is the bad guy and regardless of whether there even is a bad guy (as opposed to a mere litigation adversary), the parties still continue to “just disagree.” 209

DON MCLEAN

Vincent In Alfred v. Walt Disney Co.,210 the Plaintiff sued Disney claiming they were holding back development of “the flying car.” Vice Chancellor Sam Glass- cock III (’83) said that, after reviewing the complaint, he understood what plaintiff was trying to say.211 Still, he was not impressed:

That Complaint is remarkable. It is in my experience a unique example of the pleader’s art. It cites to the epic of Gilgamesh, Woody Guthrie, the Declaration of Independence, Noah and The Great Flood, Game of Thrones, Star Wars Episode V: The Empire Strikes Back, Star Trek, President Obama, and Euclid’s proof of the Infinity of Primes, among other references. It is well-written and compelling. In fact, it can be faulted only for a single—but significant—shortcoming:

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it fails to state a claim on which relief could be granted. Therefore, I grant the Defendants’ Motions to Dismiss.212

Using Don McLean’s song about Vincent Van Gogh on the subject of unrecognized genius, Judge Glasscock added:

Robert Fulton was laughed at by his peers, as was Secretary Seward. Galileo faced the inquisition for promoting heliocentric theory. Stravinsky’s Rite of Spring caused a riot when first played. The Impressionists’ early work was considered unsalable, and Van Gogh “suffered for [his] sanity.”213 Plaintiff and his vision of a vertical take-off and landing flying vehicle—which vehicle would revolutionize transportation and save lives and resources—as well as his marketing plan to achieve economies of scale by generating demand through a tie-in to a similar vehicle made popular via cinema, may be of this ilk. If so, the Plaintiff should persevere; it reportedly took Edison over a thousand attempts to create the light bulb before he struck upon the carbon filament.214

Judge Glasscock dismissed the case, probably leading plaintiffs to believe the court did not listen, and they’re not listening still. Perhaps they never will.215

CHRISTINE MCVIE

Keeping Secrets An order issued by Judge Jonathan Goodman in Procaps S.A. v. Patheon Inc.216 quoted a song by Fleetwood Mac’s Christine McVie as its theme. Showing that he too knows the score,217 Judge Goodman recognized that Procaps had over-designated documents as “confidential”—a conclusion it too acknowledged:

“Why are we keeping secrets/Why don’t we both come clean and begin”—Chris- tine McVie, from the “Keeping Secrets” song218

MEAT LOAF

I’d Do Anything for Love (But I Won’t Do That) In U.S. v. Jones,219 the Government proved that some days it don’t come easy.220 After a husband and wife asked to be represented by the same lawyer, knowing no-one else could save them,221 the prosecution moved to disqualify the lawyer from representing the wife. Judge Berle M. Schiller (’68) granted the motion to disqualify, adding:

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The Court takes Defendants’ choice of counsel seriously and appreciates their stated desire to act in concert (which they can still accomplish through a joint defense agreement), but the hurdles joint representation poses here renders it impossible for this Court to accept a waiver. As Meatloaf (sic) once declared, “I would do anything for love, but I won’t do that.”222

Two Out of Three Ain’t Bad Appellant in People v. Cortez223 argued he should be allowed to withdraw his plea because he did not know when he entered it that a prior conviction would be thrown out, and thus be invalid for consideration by the court. On appeal, the defendant probably could have talked all night, but that wasn’t getting him nowhere.224 Considering this request, Judge William W. Bedsworth (’71) said:

The great legal philosopher Meat Loaf famously opined that “Two Out of Three Ain’t Bad.” But Meat Loaf wasn’t seeking a writ of coram nobis or he might have felt differently. Here, appellant is incontrovertibly correct that the reversal of his prior conviction constituted new evidence and that it was unknowable at the time he entered his plea. But his inability to establish that the invalidity of the prior conviction would have prevented rendition of the judgment in his case, precludes the issuance of the writ in his favor and compels us to affirm the judgment against him.225

Jumpin’ the Gun In Kendall Lakes Towers Condo. Ass’n, Inc. v. Pac. Ins. Co.226 Judge Good- man described the standard pretrial discovery process by saying, “If the parties cannot agree despite their good faith efforts to do so, then the court may intervene and enter an appropriate order requiring the offending party to comply with its discovery obligations.” However, “[i]f the offending party still refuses to comply, then the court is in a better position to determine whether the party has acted in bad faith and whether more severe sanctions are necessary.”

The defendant did not follow this approach here. In the Court’s view, the defense strategy behind this motion to dismiss put the cart before the horse and short-circuited the discovery and sanctions process. To use a musical reference, defendant’s discovery approach ignored the teachings articulated by singer- songwriter Meat Loaf, in his 1984 song, “Jumpin’ the Gun”: Heaven blesses those who wait, patience is a virtue, son Keep your toe on the line, keep your foot on the brake No sense jumpin’ the gun.”227

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In another order from the Procaps S.A. v. Patheon Inc.228 case, Judge Good- man denied a party’s motion without prejudice because it was premature: For now, Procaps’ motion conflicts with musical advice in two songs: 1. Keep your toe on the line, keep your foot on the brake/No sense jumpin’ the gun.229 2. All we are saying is give peace a chance.230

JOHN MELLENCAMP

Authority Song In Ray v. Judicial Corrections Services,231 Town of Childersburg contracted with Judicial Corrections Services (JCS) “to provide probation and fee col- lecting services for Childersburg’s Municipal Court.” Unfortunately, JCS took no action to determine the indigency status of persons subject to orders for payment and disclaimed having any responsibility to do so. Because plaintiffs were indigent and unable to pay, they were jailed for “failure to obey a court order.” They sued the defendants, saying that what happened to them was a total disgrace.232 Judge R. David Proctor (’86) denied the Town immunity by setting the theme of the case:

“I fight authority/Authority always wins.” Throughout his hit-making career, John Mellencamp (a.k.a., Johnny Cougar, John Cougar, and John Cougar Mel- lencamp) has struck a chord with the American public, garnering acclaim for his revealing insights on everyday life. However, the above lyric, from one of Mellcamp’s most enduring songs, fails to ring true in the present case. . . . Con- trary to Mellencamp’s chorus line, authority doesn’t always win. Indeed, in this case, the arguments of Childersburg and JCS substantially fail.233

Here, it was the plaintiffs that “came out grinnin’.”234

MOTLEY CRÜE

Time for a Change Explaining why the court demied a motion to amend the judgment rendered in Miami Yacht Charters, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh,235 Judge Goodman first cited the song“ Call Me the Breeze” in declining to apply a previously rejected legal rule. The judge contrasted his position (in defense of the status quo) with the more flexible approach expressed in Mot- ley Crüe’s “Time for a Change”: “As outlined above, the Court is following

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the ‘ain’t no changes in me’ mantra of the Lynyrd Skynyrd song, rather than the ‘Nothing stays the same / Now it’s time for change’ lyrics from the 1989 Motley Crue song, Time for Change.”236

MIKE & THE MECHANICS

Everybody Gets a Second Chance “Now there was someone, I heard him say, that the best laid plans sometimes go astray.”237 When that happens, sometimes a second chance is provided. That is what happened when Judge Goodman granted plaintiff’s request for leave to file an amended complaint in Gentry v. Carnival Corp.,238 doing so with a lyric about second chances:

The notion of providing a second chance is hardly unique to the rules governing pleading in the federal courts. The concept is frequently found in popular culture, including music. See, e.g., “Everybody Gets a Second Chance,” a 1991 song released by Mike and the Mechanics. The relevant lyrics from that song are: “Everybody gets a second chance, the circumstance to say I’m sorry.” The final chorus contains modified lyrics: “Everybody wants a, everybody needs a, everybody gets a second chance.”239

ROBERT PALMER

Bad Case of Loving You Frasca v. NCL (Bah.) Ltd.240 involved a personal injury lawsuit. Judge Good- man considered plaintiff’s attempt to prevent a compulsory medical examination from being performed by defendant’s expert. Using the Robert Palmer lyrics “doctor, doctor, give me the news”241 as his theme, along with “Doctor, my eyes / Tell me what you see”242 by Jackson Browne, the court granted the motion in part, placing certain limitations on what each side could see and do during the examination.

TOM PETTY AND THE HEARTBREAKERS

The Waiting Judge Goodman denied a motion to compel in Haaf v. Flagler Const. Equip., LLC,243 but did so without prejudice for the parties to meet and confer over the proper scope of the discovery request. “Some discovery motions are

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brought to the Court too early. The discovery disputes at issue here fit into that category. As musically noted by well-known singer-songwriter Tom Petty, ‘the waiting is the hardest part.’”244 To conclude his order, the judge also added the following advice:

Plaintiff’s motion to compel is denied without prejudice. To come full circle by referring to the Tom Petty and the Heartbreakers lyrics, it might be hard for Plaintiff to wait for the discovery he seeks, but he needs to allow the issues to ripen before again seeking this Court’s involvement in these specific discovery issues.245

In an order in the case of Montoya v. PNC Bank, N.A.,246 Judge Goodman denied a motion to stay discovery by once again citing Tom Petty:

In their 1981 song “The Waiting,” Tom Petty and the Heartbreakers lamented that “the waiting is the hardest part.” Thirty-three years after the release of that song, Defendants want Plaintiffs to experience first-hand the meaning of those well-known lyrics by waiting for discovery until the Undersigned rules on Defendants’ not-yet-ripe motions to dismiss.247

Time to Move On Concluding the order in Montoya v. PNC Bank, N.A.248 denying the defendant’s request for a stay, Judge Goodman added:

By way of summary, and for the sake of musical consistency, the Undersigned will end this Order with lyrics from another Tom Petty song, albeit a solo effort without the Heartbreakers: As discussed above, the parties’ discovery timetable will now follow the chorus from “Time to Move On”: “It’s time to move on, time to get going.”249

ELVIS PRESLEY

Return to Sender Judge Roger W. Titus (’66) made the following observation in the case of Barnes v. Johnson,250 arising from a mortgage foreclosure rescue scheme. The court addressed why service of process on one of the defendants was not effective:

Indeed, a review of publicly available information and the summons returned by the Plaintiffs brings to mind Elvis Presley’s hit song “Return to Sender.” ELVIS

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PRESLEY, RETURN TO SENDER (RCA Records 1962). There, Presley sang about his (the sender’s) repeated failures in ensuring that his girlfriend (the recipient) received the letter he was sending. After hearing time and time again “Return to sender, Address unknown . . .,” Presley vows “[to take it himself] And put it right in her hand.” Plaintiffs’ counsel is similarly admonished to review the applicable Maryland and federal rules of procedure governing service of process to avoid similar errors in the future.251

In litigation that involved mail service, the court referred to “Return to Sender.” That case was Southern California Edison v. United States Postal Service,252 presenting an opportunity for Judge James E. Boasberg (’90) to use the lyrics after a bulk mailing service had a quarrel (but not “a lover’s spat”)253 with the United States Postal Service. Discussing generally the issue of returned mail, the court observed:

Elvis Presley once sang, “So then I dropped it in the mailbox / And sent it special D. / Bright and early next morning, it came right back to me.” “Return to Sender,” RCA Records (1962). In contrast to Elvis, SCE was apparently not quite so careful when addressing its mail, as USPS found that thousands of mailpieces per day were being returned to sender.254

Once Is Enough Alleged misstatements in a registration statement was the focus of class action litigation before Judge Robert W. Sweet (’48) in the case of In re Facebook, Inc., IPO Securities and Derivative Litigation.255

Defendants attempt to place a thumb on the scale against predominance by arguing at times in terms of shares (which were often purchased in significant numbers by institutional investors. (Citation omitted). However, how many individualized knowledge inquiries are present and whether they predominate is a matter of investors, not shares. Defendants need not ask a single investor who purchased 40,000 shares whether she knew about mobile’s negative impact on Facebook’s revenue (or anything else) 40,000 times. Once Is enough.256

Judge Sweet commented on the importance of the adage, “once is enough” by referencing various songs by several artists, including “The King,” saying it was “[a]maxim as applicable to fact discovery as to life and broken hearts. See Willie Nelson, Steven Tyler, One Time Too Many, on The Essential Wil- lie Nelson (Columbia/Legacy 2003); Lyle Lovett, Once Is Enough, on Lyle Lovett and His Large Band (MCA/Curb Records 1989); Elvis Presley, Once Is Enough, on Kissin’ Cousins (RCA Victor 1964).”257

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All Shook Up Commercial eyebrow threaders and owners of salons in Texas claimed that cosmetology licensing statutes and regulations violated their right to substantive due process. In his concurring opinion in the case of Patel v. Texas Dep’t of Licensing & Regulation,258 Texas Supreme Court Justice Don Willett (’92) commented on over-regulation in the service industry by observing that state licensing impacts our lives “from head to toe. Literally.” Justice Willett said what was on his mind and did not appear the least mixed up259 when observing that barbers and cosmetologists had spent years splitting legal hairs and clogging Texas courts:

Before 2013, if you wanted your beard shaved, you had to visit a barber (probably a man) and not a cosmetologist (probably a woman). And what is a “beard” anyway? Why, it’s the facial hair below the “line of demarcation” as defined in the Administrative Code. Even the Attorney General of Texas got all shook up wondering whether Elvis’s famous sideburns “were hair which a cosmetologist might trim, or a partial beard which could be serviced only [by] a barber.”260

Don’t Be Cruel A federal court in the Eastern District of Pennsylvania once handled a dispute about the publication of Elvis Presley photographs in Curtin v. Star Editorial Inc.261 In his ruling, Judge Harvey Bartle, III (’65) peppered one paragraph of his opinion with numerous Elvis song titles and lyrics:

We realize that this opinion is not likely to be music to the ears of either side. While we cannot stand in anyone’s shoes, blue suede or otherwise, it is possible that the parties, as Elvis devotees, are lamenting “Don’t Be Cruel” and “you ain’t no friend of mine.” It is not totally farfetched that they may be feeling “All Shook Up,” or agonizing that this court is nothing but a “Heartbreak Hotel.”262 The parties may even wish that this opinion be “Returned to Sender.”263 None- theless, we, like a hound dog,264 must follow the law.265

Another court used Elvis’s “All Shook Up,” as well as several other songs, in Elvis Presley Enterprises, Inc. v. Capece,266 involving a Houston nightclub named “The Velvet Elvis.” Judge Vanessa D. Gilmore (’81) made numerous references to some of Elvis Presley’s biggest hits in her ruling:

In July of that same year, EPE sent a cease and desist letter to Capece, threatening legal action if the bar opened with EPE’s trademark, “Elvis,” in its name. Capece was “All Shook Up.”267 * * *

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Defendants, on the other hand, maintain that Plaintiff is merely a victim of “Suspicious Minds.”268 * * * Stated simply, the Court must determine whether Defendants stepped on Plaintiff’s blue suede shoes.269 * * * At the outset, Defendants plea, “Don’t be cruel, we have a registered service mark.”270

Judge Gilmore found Capece was caught in a trap from which he couldn’t walk out,271 ending her final judgment against him in a most appropriate fashion:

The Clerk shall enter this Order and mail a copy to all parties. If said parties can no longer be reached at their disclosed addresses, the Court further ORDERS all correspondence be “Returned to Sender.” Thank you. Thank you very much.272

WILSON PICKETT

Mustang Sally Two disappointed buyers in Mickens v. Ford Motor Co.,273 alleged that Ford Motor Company knowingly sold them a Mustang automobile with design defects. To make the point that “the Ford Mustang, in production for over fifty years, is a fabled and popular automobile-and it seems to evoke strong feelings in its devotees,”274 Judge Kevin McNulty (’83) used cultural references to the iconic car, including a reference to the Steve McQueen movie, Bullitt and associated trivia:

Almost immediately, it earned a place in popular culture. See, e.g., Wilson Pick- ett, Mustang Sally, on The Wicked Pickett (Atlantic, 1966); Mustang Sally by Wilson Pickett (Citation omitted).275 (In this, the classic version of the song, an R & B singer laments that the recipient of his gift of a 1965 Mustang is ungrate- ful and unworthy.)276

Hold On I’m Coming In Malimos v. Malibu Pier Partners,277 the California court of appeal considered a dispute arising out of negotiations between parties for a food and beverage concession at the Malibu Pier. Describing the protracted contract negotiations, where at one point a party told the other that the contract would be ready “in the next week or so,” Judge James John Marchiano (’69) mused

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that the email was effectively saying, “To paraphrase the late Wilson Pickett, hold on, its coming.”278

PINK FLOYD

Time Bondholders sued the Federal Republic of Germany for default in paying on bonds offered by Germany for subscription in the United States prior to WWII. The appeal in World Holdings, LLC v. Fed. Republic of Germany279 addressed whether the plaintiff’s claim was stale after almost 50 years. Talk- ing about the six-year statute of limitations as applied to claims that accrued in 1964 and 1965, Judge Cecilia M. Altonaga (’86) used one song to drive home the point that the time for action had long passed:

“… And then one day you find [six] years have got behind you / No one told you when to run, you missed the starting gun.” Pink Floyd, Time.280

Another citation to the same song appears in a recommended order in Rotundo v. Garcia.281 Citing the lyrics from “Time,” Judge Goodman said that the situation presented was solely in the defendant’s hands:

Thus, the Undersigned does not accept as persuasive Garcia’s argument that he feared a removal would produce Rule 11 sanctions. Instead, as explained above, the Undersigned concludes that Garcia must confront the scenario articulated by Pink Floyd in the band’s hit song Time: “no one told you when to run, you missed the starting gun.” (Citation omitted).282

Comfortably Numb In Manetti v. Narragansett Bay Ins. Co.,283 magistrate judge Tonianne J. Bongiovanni (’88) issued a Report and Recommendation after discovery requests from the defendant came through in waves,284 yet plaintiff ignored them, acting almost as a distant ship smoke on the horizon.285 Commenting on plaintiff’s failure to respond, the court said this:

The Court considers the Poulis factors in determining whether to recommend the dismissal of this matter with prejudice. In so doing, as noted above, the Court is aware that despite having the opportunity to respond to Narragansett’s motion to dismiss, Plaintiffs have not opposed same. Instead, as largely has been the case throughout the entirety of this litigation, the Court has heard only crickets. Indeed, Plaintiffs’ uncompromising irresponsiveness has left the Court, much like Pink Floyd, questioning, “Hello, Is there anybody in there? Just nod

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if you can hear me. Is there anyone at home? ....” PINK FLOYD, Comfortably Numb, on THE WALL (Columbia Records 1979). Unlike with the rock band, however, Plaintiffs’ reticence has left the Court uncomfortably numb.286

Money Devon Enterprises sued Texas’s Hockley County Appraisal District contend- ing that the latter’s tax appraisal of their interest in an oil and gas reservoir was excessive. Put another way, Devon said the County was grabbing cash with both hands to make a stash.287 Devon wanted the County to keep their hands off its stack,288 but was unable to prevail at trial. Commenting on the faulty appraisal methodology used by the county, Judge Quinn (’81) in Devon Energy Production, L.P. v. Hockley County Appraisal Dist.289 quoted the Pink Floyd classic “Money”:

In sum, if only 50% of the mineral formation being taxed lay within Hockley County, then the taxing units for whom the Hockley District valued the property could only tax 50% of the formation. And, because they could only tax 50% of the formation, the Hockley District could only assess 50% of the formation for tax purposes. Any creative appraisal methodology that ignored this limitation was and remains unacceptable. To paraphrase the words of Pink Floyd in its song “Money,” appraisal districts assessing property crossing county lines are entitled to “share it fairly but don’t take a slice of [the other’s] pie.”290

Another Brick in the Wall A controversy about the hair length of male students at a private high school faced a Rhode Island court in Gorman v. St. Raphael’s Academy.291 The school in question had threatened the student with expulsion for not conform- ing his haircut to a newly-enacted school regulation. Judge Stephen J. For- tunato Jr. (’70) found in the student’s favor, and quipped, “It is tempting to conclude succinctly by paraphrasing Pink Floyd, at least so far as hair styles are concerned: ‘Leave the kids alone!’”292

Sorrow Another of Judge Goodman’s orders in the Procaps S.A. v. Patheon Inc.293 case addressed unresponsiveness to a formal request to provide adequate search terms for electronic discovery. Counsel explained his apparent lack of communication by arguing that opposing counsel had a history of sending emails that incorrectly summarized telephone conversations. Thus, by refusing to say whether agreed with the content of the emails, counsel intended to

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send the message by his silence that he disagreed. “Unresponsiveness” thus served as the theme for the court’s order:

In 1963–1969 and again in 1975, NBC, and then CBS, broadcast a television game show called “You Don’t Say,” which used the tagline, “[i]t’s not what you say that counts, it’s what you don’t say.” More than a decade later, Pink Floyd stressed a similar message in “Sorrow,” a song containing the lyric, “[a]nd silence that speaks so much louder than words.”294

THE POLICE

Wrapped around Your Finger In QBE Ins. Corp. v. Jorda Enterprises, Inc.,295 addressing the prospect of being stuck between a “rock and a hard place,”296 Judge Goodman cited numerous sources including the song “Wrapped around Your Finger” to explain the mythologically-based adage derived from Odysseus’ dilemma of navigating his boat between two sea monsters, Scylla and Charybdis:

The now-disbanded rock group “The Police” sang about these two mythologi- cal monsters in “Wrapped around Your Finger,” a song on the “Synchronicity” album, released in June 1983. Written by Sting, the song contains the following lyric: “You consider me the young apprentice, caught between the Scylia (sic) and Charybdis.”297

BILLY PRESTON

Nothing from Nothing Lawsuits involving force-placed insurance claims have faced a host of adverse legal rulings. In Montoya v. PNC Bank, N.A.298 the court observed that settlements are highly favored in these cases.299 Judge Goodman said that given recent adverse legal rulings, it was a possibility that most or all the plaintiff’s claims would fail, making settlement particularly attractive. For those reasons, Judge Goodman began his order approving the class settlement with this theme:

“Nothin’ from nothin’ leaves nothin’”––Singer/songwriter Billy Preston300 Some things get better with age: Wine. A new baseball glove. Single malt scotch (in the cask, before it’s bottled). A cast iron skillet. Judgment (and its cousin, wisdom). Some types of cheeses. Antiques. Pickles. Cooking skills. Leather. Compost. Fruit trees. And common sense.

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But not, apparently, class action lawsuits involving lender-placed insurance301 * * * To use a more-formal, slightly-modified version of the theme mentioned by Billy Preston in the song lyric excerpted above, something is better than nothing, and there is a decent chance that class members here would receive nothing if their claims had not been resolved in a settlement. The results here are surely significantly more than merely something, and the Undersigned approves the settlement.302

THE PRETENDERS

Brass in Pocket In Crosby v. State,303 an officer observed a car making suspicious movements. He observed the driver “slumped down” in the driver’s seat, giving the impression that he was trying to “avoid identification.” When the officer stopped the car, Crosby purportedly said he had a gun in his pocket, resulting in his arrest. Judge Harrell’s opinion considered the nature of Defendant’s driving style in the context of the motion to suppress. One of the Crosby’s co-defendants testified Crosby was not driving in a seated upright position, but explained “that’s how people drive, people drive with they (sic) seat back. That’s not slumping down when you already slumped down.”304 For clarification about what this driving style was all about, the court looked to some experts on the topic—The Pretenders:

In his brief, Crosby states that his driving posture (as described by Feaster) is known as the “Detroit Lean.” The source to which he directs our attention defines this driving style as “[d]riving with one hand on the wheel while slouched over to the right.” (Citation omitted). Our independent endeavor to determine whether such a phenomenon exists led us to another source: the alt- rock band, The Pretenders, who sing: Got motion, restrained emotion I been driving, Detroit Leaning

The court added these additional follow-up verses, which was closely analogous to the defendant’s situation:

* * * Gonna make you, make you, make you notice The Pretenders, Brass in Pocket, on PRETENDERS (Sire 1980)305

As the song predicts, Crosby’s “Detroit Leaning” (if that is what he was doing) succeeded in getting him noticed,306 but was insufficient to justify the stop.

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PRINCE

When Doves Cry The parties in Pickett v. Prince307 litigated over the use of “the Symbol” adopted by Prince for his identification during a time when the musician was identified as “The Artist formerly known as Prince.”308 Plaintiff used the Symbol to make a Symbol-shaped guitar at the heart of the dispute. Judge Rebecca R. Pallmeyer (’79) started her opinion, observing “Indeed, Defendant may as well have had this protracted litigation in mind when he lyrically asked: ‘Why do we scream at each other. This is what it sounds like. When doves cry.’”309 In ruling that plaintiff had no valid copyright interest in the Symbol, Judge Pallmeyer said “[s]ummary judgment is therefore granted in favor of Defendant, who now has good reason to ‘go crazy’310 and ‘party like it’s 1999.’311 After five long years of litigation, this court does not doubt that will be the case.”312

THE RED HOT CHILI PEPPERS

We Believe In Brown v. NCL (Bahamas), Ltd.,313 the parties wrangled over the disclosure of a witness’s sworn statement. Plaintiff wanted the cruise line to give it away now314 and hand it over during discovery. Judge Goodman cited the Red Hot Chili Peppers for the theme, “The motive, the measure, the purpose, the plea- sure”315 setting up a discussion about waiving a privilege.

Walkabout Florida’s Third District Court of Appeal in the case of City of Miami v. Sand- ers,316 considered a claim for the “negligent” use of excessive force by police officers during an arrest. Judge David Gersten ’( 75) said the concept of a cause of action for “negligent” excessive force is an oxymoron, and declined to adopt an argument by the plaintiff that would perhaps “make us look like oxen or morons or both.”317 The judge held no such cause of action existed, citing the Chili Peppers: “Law enforcement officers should not have to worry about being “detectives of perspective” concerning every cause of action flowing from discretionary police functions.”318

R.E.M.

It’s the End of the World as We Know It (And I Feel Fine) In an unattributed but clear reference to the R.E.M. song, Minnesota Supreme Court Justice Alan Page319 said in his dissent to Schowalter v. State:320 “I

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suspect that the bond market knows what the court refuses to admit, namely, that the only thing likely to prevent the Legislature from appropriating the funds necessary for debt service on these bonds is the end of the world as we know it.”321

REO SPEEDWAGON

Take It on the Run The Missouri Court of Appeals presented an in-depth discussion about hear- say in State v. Robinson322 in the context of a motion to suppress. The trial court was under the gun323 after the State argued the judge erred by finding no probable cause. Judge Gary D. Witt (’90) cited the rockers from Champaign, Illinois to discredit the reliability of the information used to get the warrant, keeping this in mind:324

Nor did Sgt. Arnsperger provide any indication that the source witnessed any activity through personal observation the information is merely a conclusory statement that a “reliable” source indicated that Robinson was now selling drugs from his home rather than from another location (i.e. the source “heard it from a friend, who heard it from a friend, who heard it from another”).325

THE ROLLING STONES

Fortune Teller Predicting the future is no easy task. Judge Goodman observed in Fowler v. Caliber Home Loans, Inc.326 that it was no surprise that people use different strategies to forecast what is likely to happen, with differing results. He said courts were also sometimes in the prognostication business: “Trial-level courts, for example, must predict how their appellate court would rule in cases where there is no binding precedent on a specific legal issue.”327 There- fore, as a trial judge he must predict how the court of appeals would rule on the issue raised by defendant’s motions to dismiss:

“I went to the fortune teller, Had my fortune read I didn’t know what to tell her/ I had a dizzy feeling in my head” —The Rolling Stones, from the song, Fortune Teller.328

Rock and a Hard Place A sanctions motion was addressed by the court in QBE Ins. Corp. v. Jorda Enterprises, Inc.329 The corporate plaintiff argued that it was, in effect, caught

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between “a rock and a hard place” because it had no witnesses able to answer questions on some of the relevant topics. Judge Goodman incorporated lyrics by the Rolling Stones into his order when describing what it meant to be caught between “a rock and a hard place”:330 To be caught between a rock and a hard place is a situation where you have to choose between two possible actions, both of which are dangerous, unpleasant or unacceptable. (Citation omitted). For a musical reference to this type of unenviable scenario, see “Rock and a Hard Place,” a 1989 song by the Rolling Stones, released on its “Steel Wheels” album. The Rolling Stones recorded the album in Montserrat and London. Writ- ten by Mick Jagger and Keith Richards, the song contains the chorus: “stuck between a rock and a hard place.”331 The phrase “to be caught between a rock and a hard place” is a reference to Odysseus’ dilemma of passing between Scylia (sic) and Charybdis. Syclia (sic) was a monster on the cliffs and Charybdis was a monster whose actions per- sonified a dangerous whirlpool. Both were exceedingly difficult to overcome. (Citation omitted). In particular, Scylla was a supernatural creature, with 12 feet and 6 heads on long, snaky necks. Charybdis, who lurked under a fig tree on the opposite shore, drank down and belched forth the waters three times a day and was fatal to shipping.332

You Can’t Always Get What You Want Numerous citations to the Rolling Stones song “You Can’t Always Get What You Want”333 appear in judicial opinions, especially to make pithy points about unrealized (or unrealistic) expectations.334 As an example, the case of In re Gallaher335 arose out of a failed plea deal, where the trial judge announced he would not accept a conditional plea. In response, the defendant sought to compel the trial court to accept his guilty plea, or to reassign his case to a new judge. Judge Mary Margaret McKeown (’75) of the U.S. Ninth Circuit began her opinion affirming the trial court as follows:“ In the classic words of the Rolling Stones, ‘You can’t always get what you want.’ The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent.”336 In Miller v. Miller,337 Judge Donna Stroud (’88) analyzed a trial court’s equitable distribution order and agreed that the lower court erred when it failed to distribute property and order the sale of both the marital home and shared Virginia property:

We understand that neither party wanted the real properties to be distributed to them for various reasons, but they also had not agreed to sell the properties. Sometimes the law does not allow the parties to get what they want; but sometimes they might find that that they get what they need. This is one of those

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times. What they need—and what the law requires—is an order classifying, valuing, and distributing all of the marital and divisible property.338

In a Michigan federal court case, a parolee in the state system asked for an injunction to stop the defendants from ordering him not to take medications prescribed by his doctor. In Witzke v. Stieber,339 Judge John Corbett O’Meara (’62) learned that plaintiff had been noncompliant with his parole terms and was an absconder for two months. Despite plaintiff’s claims, the defendants represented that no such orders about the medications were ever given. Judge O’Meara ended his order with a bit of advice: “The court advises Plaintiff that he is a state prison system parolee, and a noncompliant one at that. The court encourages him to remember: ‘You can’t always get what you want. But if you try sometimes, you just might find ... you get what you need.’”340 U.S. District of Columbia Court of Appeals Judge Janice Rogers Brown (’77) chose to quote The Stones in an opinion ironically styled as Stop This Insanity Inc. Employee Leadership Fund v. Federal Election Commission.341 She began her opinion in this way:

The iconic musician Mick Jagger famously mused, “You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.” The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). Here, Stop This Insanity—a grassroots organization—wants to remove the congressionally-imposed binds on solicitation by separate segregated funds, a type of political action committee connected to a parent corporation. What it needs, however, it already has—an unrestrained vehicle, in the form of that parent corporation, which can engage in unlimited political spending.342

Not content to leave it there, she concluded the opinion with an unattributed shout-out to another Stones hit: “We may never know why the Appellants wish to do things the hard way. The Constitution, however, does not guarantee a right to be obstinate. Try as it might, STII will get no satisfaction.”343

(I Can’t Get No) Satisfaction Speaking of “satisfaction,” the United States Court of Veteran’s Appeals considered Tulingan v. Brown344 where the Board of Veterans’ Appeals ordered the forfeiture of plaintiff’s benefits for his membership in a WWII Japanese army affiliate. Judge John J. Farley, III ’( 73) characterized the position taken by one of his dissenting colleagues as such:

While this issue might appear at first blush to be of only abstract academic interest, the dissenting opinion of Judge Kramer brings it right down to the concrete

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level. Borrowing from the lyrics of the Rolling Stones of a generation ago, Judge Kramer “can’t get no satisfaction” from what he describes as a “preliminary finding” of the Board. However, 38 U.S.C. § 6104(a) renders his relative satisfaction with the evidence of record perhaps of interest but inconsequential as a matter of law.345

In a court order that attracted widespread attention, Judge Philip S. Stra- niere (’73)346 of the Staten Island Civil Court issued sanctions against debt collectors and four law firms in a meticulously-crafted opinion loaded with lyrics and titles from numerous Rolling Stones songs. In the case of Colonial Credit Corp. v. Beyers,347 the judge dove into the band’s full catalog to decide that the actions of the plaintiff amounted to frivolous conduct. Here are but a few of the gems found throughout the opinion:

“I can’t get no satisfaction” may have been Mick Jagger’s problem, but as set forth below, a “satisfaction” has been issued to the defendant in this litigation, yet plaintiff and its revolving counsel continue to treat this as open litigation. At least Mick Jagger, if in need of a “satisfaction,” could make an application to the court pursuant to CPLR § 5020.348 * * * Somewhere in third-party debt buyer land, attorneys are still preparing documents on this file as if the plaintiff could claim that the defendant was still “Under My Thumb”349 and that in spite of the satisfaction of judgment, the debt did “Not Fade Away.”350 * * * Once again establishing that the third-party debt buying industry has no idea what each hand is doing, the court is now in receipt of a new “consent to change attorney” form dated September 3, 2014. Is it any wonder that courts dealing with consumer credit cases may be facing their “19th Nervous Breakdown” and in the need of a “Mother’s Little Helper?”351 * * * Perhaps the above sanctions will be sufficient to have third-party debt buyers pay a little more attention to their files and establish a remedy for the court to use in the future in similar situations. As noted by Mick Jagger You can’t always get what you want But you try sometimes you just might find You get what you need352

Time Is On My Side Judge Straniere (’73) also issued a ruling in Hellander v. Metlife Auto and Home Ins. Co.353 to address a delay in of a case that stagnated for more than six years—a period of time the judge noted was “just slightly less than the Siege of Harlech Castle in the War of the Roses in the 1460’s”:354 “Plaintiffs

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apparently believing ‘time is on my side’ applies to this litigation, waited about six years . . . to notice these matters for trial. On the other hand, the defendants assert that the ‘time has come today’ is the proper standard requiring that the matters all be dismissed as untimely.355

Sympathy for the Devil In another Rhode Island case, Fisher v. Applebaum,356 defendant claimed a sales contract was unconscionable and asked that the judge have no sympathy for the plaintiff, a “developer” [sic], a “man of wealth and taste.”357 The defendant also tagged the plaintiffs as “more sinners than saints” whose “game” was to maximize delay while the property appreciated in value. Judge Melanie Wilk Thunberg (’78) decided to give the defendant a short and pointed lesson about the lyrical interpretation of the subject song:

Neither sympathy nor the satanic lyrics of the referenced “song” have anything to do with this case. Sympathy for the Devil is about killing/assassinating people including: Jesus Christ, Alexander III (on the eve of the enactment of Russia’s first constitution), the Kennedys, and the victims of the 100 Years War and World War II.358

Wild Horses In Colorado Wild Horse v. Jewell,359 District of Columbia federal judge Christopher Cooper (’93) considered an order by the Bureau of Land Man- agement (BLM) to remove wild horses from Colorado land as “excess ani- mals.” Judge Cooper began his memorandum opinion with a line from the song “Wild Horses” as its theme:

“[They] have [their] freedom, but [they] don’t have much time.”360 So it is for a group of wild horses that, beginning tomorrow, are scheduled to be removed from two tracts of federal rangeland in northwest Colorado.361

Rough Justice A Delaware trial court used a more obscure Rolling Stones song in its opinion for the case of Estate of Dean.362 A master’s report by Abigail LeGrow (’04) concluded that reimbursement of educational expenses was consistent with a past pattern of giving. She explained:

Ultimately, the parties ask this Court to define Paulina’s “past pattern of giving” as it relates to her grandchildren’s education, a task made more difficult by the fact that there is minimal evidence, whether direct or otherwise, defining

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Paulina’s pattern, largely because she provided very little guidance regarding the parameters of this gifting and the parties have not followed a wholly consistent practice in requesting reimbursement or payment. Any ex post definition this Court can provide is little more than rough justice.363

In a footnote to that part of the report, the master quoted the applicable lyrics of the song “Rough Justice,” which further served to highlight the point: “‘I give you my positions, Don’t want no oppositions, It’s rough justice, . . . .’ Mick Jagger and Keith Richards, Rough Justice, on A Bigger Bang (Virgin 2005).”364

The Last Time In People v. Charles,365 the Supreme Court of California decided whether to grant a defendant a new penalty-phase trial after juries deadlocked in three previous penalty trials. The opinion written by Justice Kathryn M. Werde- gar (’62) observed that the trial court rejected economic considerations as a factor when deciding to grant a fourth penalty trial because “[i]t is the decision of the District Attorney to allocate public resources,” and if either side requested a trial by jury, “it is the constitutional duty of the court to provide a proper forum.” The appellate court said that on balance, “legally there is no justification to deny the People’s request to retry the penalty phase of the case,” but cautioned, “[i]n the words of Mick Jagger, ‘This could be the last time.’”366

TODD RUNDGREN

Fair Warning The court in Brekke v. Wills367 described this situation as a parent’s nightmare come true. Believing that the defendant (their daughter’s boyfriend) was the cause of her behavior problems, the parents told the young couple that they could no longer see each other. They became alarmed when defendant started writing letters to them (including a notable one with the salutation “Dear Bev”) containing offensive song lyrics, encouraging disharmony in the home, and contemplating killing them. The boyfriend argued the song lyrics were mere entertainment protected by the First Amendment and could not be considered harassment. Judge Arthur G. Scotland (’74) said, as expressed in words of the song “Fair Warning,” by Todd Rundgren, “You know, wishing won’t make it so.” The court ruled that by including the offensive lyrics in his “Dear Bev” letter, the boyfriend was not singing or otherwise attempting to entertain—he was using the lyric to ridicule and annoy.368

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THE SCORPIONS

Wind of Change Weather was the theme of the order in Montoya v. PNC Bank, N.A.369 dealing with force-placed insurance, where the court expressed no doubt that recent federal appellate decisions had “changed the climate” for class action attorneys—a theme furthered by using a lyric from The Scorpions:

In their 1991 hit song “Wind of Change,” the German rock band Scorpions explained that the future is “blowing with the wind of change.”370 Twenty-three years later, then-Chief United States District Judge Federico A. Moreno, in an order approving a class action settlement in a similar case, described as “significant” the “headwinds” created by two recent appellate decisions rejecting claims brought in connection with force-placed insurance coverage….371

BOB SEGER AND THE SILVER BULLET BAND

Turn the Page In an appeal by former Texas Tech University head football coach Mike Leach after his defamation claims lodged against the school were dismissed, the court in Leach v. James372 explained the factual basis of the dispute with Judge Quinn (’81) of the Texas Court of Appeals starting the opinion by using Bob Seger’s verse “There I go, turn the page” as its theme for the analysis.373

Against the Wind A former employee sued her employer for whistleblower retaliation. That employer responded with a motion to compel arbitration. The court in the case of Carter v. Fannie Mae374 considered whether that arbitration contract could be enforced because it allegedly exempted most employer claims against employees, such as trade secret claims. Judge William W. Bedsworth (’71) ruled that an implied-in-fact employment contract to arbitrate “certain” employment-related claims did not mean the contract was enforceable as to all claims. The judge was unwilling to break all the rules that would bend:375 “The contract before us is equally resistant to a severance remedy. We would have to rewrite the arbitration clause—which we cannot do—or somehow choose “what to leave in, what to leave out” which is also beyond our mandate.”376 Using the title verse from this song, Judge K. Michael Moore (’76) in Thomp- son v. Carnival Corporation377 considered a maritime personal injury action filed in Florida’s Southern District. The Court was unconvinced that it could

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exercise general jurisdiction, saying because of recent cases, “the arguments proffered by Thompson’s counsel are simply ‘runnin’ against the wind.’”378 In the force-placed insurance case of Montoya v. PNC Bank, N.A,379 that opinion also contained several weather references, including by Dylan and Bob Seger:

Getting back to those legal headwinds, as Bob Dylan once sang, “you don’t need to be a weather man to know which way the wind blows.” Thus, under the Defendants’ view, (case law) demonstrate that the legal forecast is for a climate more favorable to defendants. On the other hand, Plaintiffs might be tempted to point to Bob Seger and the Silver Bullet Band’s well-known lyrics––“I’m older now but still runnin’ against the wind.” Against the Wind, on Against the Wind (Capitol 1980).380

BRUCE SPRINGSTEEN

The River Maryland federal magistrate (now U.S. District Judge) Paul Grimm (’76) displayed a deep knowledge of Springsteen’s songs by his erudite use of his lyrics in a housing discrimination case styled Thompson v. U.S. Dept. of Housing and Urban Development.381 To make the point that discrimination- free housing placement for residents of public housing is “nothing more than a dream” without the aid of enforcement lawsuits to identify and redress illegal behavior,382 Judge Grimm stated that without such monitoring and enforcement activities residents may come to view the decree as “just one more unfulfilled dream, or worse.”383 On that topic, he made reference to Bruce Springsteen’s song “The River” in a footnote: “Is a dream a lie if it don’t come true, or is it something worse?”384

Worlds Apart In Fick v. Brown385 from the Montana Supreme Court, a landlord brought suit against former tenants claiming they had fraudulently brought a previous action in District Court, rather than in small claims court. Justice Beth Baker’s (’85) found the landlord’s lawsuit was frivolous and took the opportunity in her opinion to firmly chastise Fick:

Moreover, the tone and content of his briefs are outside the realm of acceptable language in court documents. In Fick’s desire to prevail on his claims, he has refused to accept the plain language of the law. “Sometimes the truth just ain’t enough/ Or is it too much in times like this.” Bruce Springsteen, Worlds Apart, on The Rising (Columbia Recs. 2002).386

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Some Reason to Believe The New Jersey Supreme Court considered whether an employer could fire an employee for “insubordination” because a complaint was made outside the chain of command. The employee claimed that a lower-level supervisor had previously ignored the same complaints. In an unsigned per curiam opinion filed in Fleming v. Correctional Healthcare Solutions, Inc.,387 the court quoted “The Boss” while holding that the law did not permit firing a whistle- blowing employee for going outside the “chain of command” to sidestep a non-responsive supervisor:

Fleming’s act of communicating her complaints to Miers involved protected conduct as a matter of law. Fleming claims that despite the difficulty of working in a prison, she remained the kind of person who “[a]t the end of every hard earned day ... [found] some reason to believe.” Bruce Springsteen, Reason to Believe, Nebraska (Sony/Columbia 1982). We are not so certain that plaintiff is that ideal employee, but “insubordination” for violating a chain of command cannot be relied on to justify her termination.388

Badlands Springsteen inspired Judge David Edelstein of the Southern District Court of New York to quote from “Badlands” in an insurance dispute where the parties were caught in a crossfire that they didn’t understand389 over the value of 42,100 bags of coffee. In Farr Man Coffee Inc. v. Chester,390 the court’s analysis concluded that plaintiffs had an insurable interest in the coffee because the contract which defined the subject matter of the policy was all about obtaining coffee; thus, they were entitled to coverage for a lengthy delay in the product’s shipment. The court said, “This reminds one: ‘. . . spend your life waiting for a moment that just won’t come, well don’t waste your time waiting.’ Bruce Springsteen: ‘Badlands,’ from Darkness on the Edge of Town—Columbia, 1978.”391

57 Channels (And Nothin’ On) Subscribers to Time Warner Cable Inc. appealed from an order dismissing their lawsuit against the cable company, the Los Angeles Lakers, and the Los Angeles Dodgers in Fischer v. Time Warner Cable Inc.392 The dispute began when Time Warner paid billions of dollars for the licensing rights to televise Lakers and Dodger games. Thereafter, the new SportsNet LA channel was added to the enhanced basic cable tier, causing a rise in subscribers’ monthly rates. Plaintiffs alleged this new arrangement violated the state’s unfair competition law, but Time Warner said federal law expressly permitted bundling

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of channels, thereby providing a “safe harbor” against unfair competition claims. Holding that federal preemption precluded the class action, Judge Laurence D. Rubin (’71) empathized with the plight of the affected cable subscribers: “With apologies to Bruce Springsteen, we appreciate the lament of cable television subscribers who feel that although they now receive 10 times 57 channels or more, mostly nothing’s on that they wish to view.”393

Glory Days In the family law case of Richards v. Richards,394 Connecticut Judge Michael E. Shay (’71) ordered that a former husband needed to make more effort at generating income to meet his support payments. The husband once had a substantial income which diminished after he lost his biggest client. Explain- ing that the husband needed to expand his job search into other employment areas, the court observed:

He clearly has an earning capacity greater than zero, and, with the responsibility for the support of six children, does not have the luxury of dreaming his dreams on their time. Meanwhile, as he basks in his past glory, perhaps he should consider the sobering message contained in the words of a popular song, that “time slips away and leaves you with nothing mister but boring stories of glory days.”395

In Flood v. Nat’l Collegiate Athletic Ass’n,396 the court considered the case of a deeply-committed fan of Penn State Football whose commitment to the Nittany Lions inspired him to bring a federal lawsuit against the NCAA in the wake of the Jerry Sandusky child sexual abuse scandal. Flood believed he met the requirements for “next friend” standing to bring his lawsuit for two inherent reasons: 1) he grew up in Harrisburg, Pennsylvania loving and playing the game of football since the age of 9 with other members of a team; by the end of his senior season at Susquehanna Twp. High school he was selected as a second team Capital Area Conference All–Star linebacker; and 2) if it were not for his parents being Penn State University alumni, “the plaintiff would never have attended a live Penn States (sic) football game in 1977, which afterwards, fed their passions and dreams of one day playing for the Nittany Lions.”397 Magistrate Martin C. Carlson (’80) was so unimpressed with Mr. Flood’s credentials, he cited the song “Glory Days” for this passage suggesting he thought the plaintiff looked like a fool boy:398 “Flood supports this claim of third party standing with factual averments that speak to his love of Penn State football, and reflect familiar themes of a middle-aged man’s wistful recollection of his youthful vigor,399 but add little to our understanding of this important legal question….”400

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Johnny 99 After receiving a whopper of a sentence—1,200 months in a federal prison— the defendant in U.S. v. Bullock401 appealed. The government originally suggested a sentence of 30 years, but the judge was not feeling lenient. The court imposed maximum sentences on each of the defendant’s counts, resulting in the 1,200-month sentence (a total of 100 years). Reviewing the district court’s sentencing order, Judge Terence Evans (’67) of the Seventh Circuit reversed for resentencing, and observed that “[o]ne hundred years is a long time––one year longer, in fact, than the standard lyrical shorthand for an unimaginably long sentence”402 with the notation to one of Springsteen’s songs and a host of others:

See, for example, Bruce Springsteen, “Johnny 99” (“Well the evidence is clear, gonna let the sentence, son, fit the crime / Prison for 98 and a year and we’ll call it even, Johnny 99.”); Bob Dylan, “Percy’s Song” (“It may be true he’s got a sentence to serve / But ninety-nine years, he just don’t deserve.”); Johnny Cash, “Cocaine Blues” (“The judge he smiled as he picked up his pen / Ninety-nine years in the Folsom pen . . ..”); Ed Bruce, “Ninety-Seven More To Go” (“Ninety-nine years go so slow / When you still got ninety-seven more to go.”); Bill Anderson, “Ninety-Nine” (“The picture’s still in front of my eyes, the echo in my ears / When the jury said he’s guilty and the judge said ninety-nine years.”); Chloe Bain, “Ninety-Nine Years” (“The sentence was sharp, folks, it cut like a knife / For ninety-nine years, folks, is almost for life.”); Guy Mitchell, “Ninety-Nine Years” (“Ninety-nine years in the penitentiary, baby, baby, wait for me, around twenty-fifty-five we’ll get together dead or alive.”).403

No Surrender This song became the court’s theme for its opinion in Miami Yacht Charters, LLC v. Nat’l Union Fire Ins. Co.404 The defendant’s war was still raging405 when, according to Judge Goodman, it enthusiastically embraced a “never- give-up” approach to litigation that asked the court to ignore binding precedent from a higher court:

In the well-known “No Surrender” song released on his “Born in the U.S.A.” album, Bruce Springsteen noted, “Well, we made a promise we swore we’d always remember, no retreat, baby, no surrender.” Springsteen’s “no surrender” philosophy may be fine for a rock and roll song about the importance of being true to one’s own dreams and beliefs, but it is frequently unhelpful in litigation. It is particularly inapplicable and inappropriate here.406

On that same point, in Adelman v. Boy Scouts of Am.,407 Judge Good- man presided over a wrongful death lawsuit arising out of the death of a

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17-year-old Boy Scout where two Scoutmasters’ compliance (or non-compliance) with the Boy Scout motto “Be Prepared” became a key issue. One of the defendants’ attorneys objected to producing several emails—without citing any legal authority to support their privacy claim.

As events unfolded, however, Schmidt’s counsel was not prepared to change his blinkered view of discovery, and his lack of flexibility effectively forced this unnecessary discovery litigation. Schmidt’s counsel could have conceded the discoverability of the documents, rather than adopt such an inflexible attitude. A defendant “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.” (Citations omitted). A “no surrender” mentality may be perfectly appropriate for a Bruce Springsteen rock and roll song, but it is frequently unhelpful in litigation, as illustrated by the unfortunate scenario here.408

With that, Judge Goodman cited the following in a footnote: “‘No Sur- render,’ a well-known song released in 1984 by Bruce Springsteen on his “‘Born in the U.S.A.’ album. (citation omitted). That song contains the following lyrics in the chorus: “‘Well, we made a promise we swore we’d always remember, no retreat, baby, no surrender.’”409

STRAY CATS

Nine Lives Ellis v. Warner410 was a case with allegations of racketeering and racketeering conspiracy to funnel the proceeds of unlawful activity into a cat rescue charity. In addressing the plaintiffs’ repeated attempts to state a cause of action, Judge Goodman said. “Cats are said to have nine lives,411 but this cat- related lawsuit is already on its fourth life and Plaintiff will be hard-pressed to breathe a fifth life into some of her claims. But other claims have survived for now in their fourth legal life, though they may not live beyond the summary judgment stage.”412

TALKING HEADS

Psycho Killer Plaintiff sued a drug manufacturer in Swayze v. McNeil Laboratories, Inc.,413 claiming product liability and negligence. A directed verdict against the plaintiff was affirmed by the U.S. Fifth Circuit. Perhaps Judge Irving Goldberg

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(’29) felt the majority was talking a lot but not saying anything414 when he felt compelled to dissent in the case. He asserted that the allegation claiming the doctors had directed or supervised nurse anesthetists was directly contradicted by the clear record at trial, leading him to cite yet another record—the Talking Heads’ “Psycho Killer” from the album and movie, “Stop Making Sense,” inserting the lyric “Can’t seem to face up to the facts” in a footnote attached to this observation.415

Once in a Lifetime Judge Berle Schiller (’68) of the Eastern District of Pennsylvania might have asked himself, “how did I get here?”416 when he used an unattributed lyrical quote from the Talking Heads in Hughes v. Mylan, Inc.417 The judge wanted to make it clear to everyone that the issues he was reviewing were precisely the same ones considered in a previous motion: “Here, from a removal perspective, this case is the same as it ever was.418 The same Plaintiffs have sued the same Defendants, alleging that the Mylan Defendants made and sold a defective product that killed people. Plaintiffs even bring the same legal claims and seek the same relief as sought previously.”419 One of the most well-known cases of an opinion peppered with musical lyrics involved the Talking Heads. For U.S. v. Abner,420 U.S. Fifth Circuit Judge Reynaldo Garza (’39) provided a law clerk who drafted the opinion a “once-in-a-lifetime” opportunity to work in at least 25 names of both albums and songs—allegedly without the knowledge of Judge Garza—in what was purported to be a failed attempt to win concert tickets.421 In truth, Judge Garza was well aware of what his clerk had done. In a 1990 interview with Indiana University Law School’s The Exordium newsletter,422 the law clerk who wrote the opinion, Steve Riggs, clarified what actually happened:

One night, I got to ask Judge [E. Grady] Jolly about a footnote he had dropped which made an uncited reference to Absalom, Absalom! by William Faulkner. He got the biggest chuckle out of the fact that I had noticed. He said that he tries to zip up legal writing and encouraged Judge Garza to do the same. . . . [When it came time to write the Abner opinion], I told him what Jolly had done with Faulkner, and asked him if we could do the same thing with popular song titles. . . . The Judge said it was fine as long as the opinion was“ intellectually coherent and makes good sense.” The Judge got a terrible kick out of it.

The many “Easter eggs” hidden throughout the opinion besides “Once in a Lifetime” include “Wild, Wild Life,”423 “Road to Nowhere,”424 “And She Was,”425 and “Burnin’ Down the House,”426 among many others.427

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TOMMY TUTONE

867-5309/Jenny Justice Elena Kagan (’86), one of the youngest members of the U.S. Supreme Court, showed that perhaps the High Court is moving away from citing opera and 1960s and 1970s music, and willing to fully embrace the music of the 1980s and beyond. In the 2013 case of American Trucking Association v. City of Los Angeles428 Justice Kagan wrote a unanimous opinion for the Court describing cargo transportation requirements in Los Angeles while also giving a hypothetical example of one:

Under that contract, a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to . . . affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: “How am I driving? 213–867–5309”).429

I Still Haven’t Found What I’m Looking For In an order granting defendant’s motion for a forensic analysis of plaintiff’s electronic media in Procaps S.A. v. Patheon Inc.,430 Judge Goodman invoked the line from the 1967 film“ Cool Hand Luke”431 by actor Strother Martin who says, “[w]hat we’ve got here is [a] failure to communicate.” Apparently, neither side met to discuss how relevant or responsive electronically stored information (“ESI”) from the case would be located and did not retain a retrieval consultant to help search for relevant ESI. Not surprisingly, he also found a musical lyric equally apropos: “Procaps’ counsel now concedes that, in retrospect, the document and ESI search was inadequate, thus confirming the applicability of the ‘[b]ut I still haven’t found / what I’m looking for’ lyric from the hit U2 song.”432

Every Breaking Wave In Marina Dist. Dev. Co., LLC v. Ivey,433 “high-stakes” professional gam- blers used an elaborate and hidden “edge-sorting” scheme for Baccarat that revealed to them the face value of a card before it was turned over. When the scheme was discovered, the casino alleged fraud. Judge Noel L. Hillman (’85) explained the concept of state-sanctioned gambling, where the odds are set up to benefit the“ house” and the state taxes the revenue. To discuss that

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the principle “the odds are against you” is literally true (and something every gambler knows), the court said:

Every breaking wave on the shore Tells the next one “there’ll be one more”434

To make the point that every gambler who plays against the house knows that they will eventually bet—and lose—more than they win over time, the court added the succeeding verse as well—that “Every gambler knows that to lose” is why they still gamble in the first place.435

VAN HALEN

Jump In the California court case of People v. Muschamp,436 the defendant allegedly cursed at a crying baby. The child’s mother did not take kindly to this, and when she responded with some choice words of her own, the defendant threatened to “bust” her head open with a shoe, stab or kill her, and got a knife to show he was serious. After getting convicted for this incident, defendant requested a minimal sentence. The court instead sentenced him to a lengthy prison term. Describing the defendant while affirming the lower court, Judge Art W. McKinster (’71) said: “Although we might agree with defendant that, in the words of Van Halen, ‘I ain’t the worst that you’ve seen,’437 his consistent pattern of behavior ranging from the obstreperous to the violent keeps him well within the proper scope of the Three Strikes law.”438

TOM WAITS

Step Right Up In Murray Ohio Mfg. Co. v. Continental Ins. Co.,439 a business made a claim for coverage resulting from an injury to a consumer caused by one of their products. In rejecting the insurance company’s claim that they were not obligated to provide coverage, Judge James Block Zagel (’65) relied on lyrics by Tom Waits:

Continental says that a policy provision excludes coverage for “injury or . . . damage arising out of . . . products which after distribution or sale by [Allied] have been labeled or relabeled or used as a . . . part or ingredient of any other thing . . . by . . . the vendor.” In other words, when Murray attached the bicycle brake to its bicycle it lost its insurance. One wonders how many bicycle brakes

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Allied or Continental expected would be sold without later being attached to a bicycle. Continental is simply relying on Tom Waits’ noted maxim, “What the large print giveth, the small print taketh away.”440 (“Step Right Up,” Copyright 1976, Fifth Floor Music, Inc. (ASCAP).) The maxim has at least one inherent limit. The small print cannot “taketh away” one hundred percent of what the large print “giveth.” If it does, then a contract may have no consideration. And the maxim’s force in insurance contracts is limited by the rules that such contracts are to be construed in favor of the insured and that the law does not countenance illusory coverage.441

A corollary to that “maxim” was described by the court in Med. Assur. Co., Inc. v. Dillaplain.442 While it is true that an exclusion can “taketh away” what the policy “giveth”443 an endorsement can also “giveth it back.”444

THE WHO

Won’t Get Fooled Again In Peppers v. U.S.,445 defendant argued that the complaint involved the same claims and arguments plaintiff previously asserted unsuccessfully. The plaintiff did not dispute this but suggested various reasons why her claim should be construed as “new” by the reviewing court. Judge Paul D. Borman (’62) found the plaintiff’s argument not merely unpersuasive, but so “lacking in credibility as to be frivolous and vexatious.” The judge noted, “The court finds appropriate the song by The Who, Won’t Get Fooled Again, which contained the lyrical phrase ‘Meet the new boss/Same as the old boss.’ In the instant case, the new lawsuit is the same as the old lawsuit. The Court will not get fooled again.”446

THE YARDBIRDS

I’m Not Talking In another South Florida case involving privileges and secrets, Breslow v. American Security Insurance Company v. Broward Dock And Seawall, Inc.,447 Judge Goodman described the dispute as being about “supposed secrets.” In his order on the plaintiff’s claim of privilege regarding emails, the court handed down sanctions against Breslow with the following comment:

Breslow (i.e., her counsel) would not have obtained a different outcome even if they followed the musical advice offered by the Yardbirds in their song “I’m Not

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Talking,” released in 1965 on the For Your Love album (Epic): “I’m not talking / Well that’s all I got to say.” That’s because the emails were not prepared in anticipation of litigation, a threshold issue which renders the later discussion about disclosure unnecessary . . . .448

NEIL YOUNG

Hey Hey, My My The way that record stores are set up (with records usually grouped by genre, then artist, then the title of the recording) was described by Judge George A. O’Toole Jr. (’72) in Q Division Records, LLC v. Q Records, QVC, Inc.449 to help explain how to succeed in a trademark infringement action. Saying that a plaintiff prevails by showing that its marks are distinctive and likely to be confused, the court held: “Consumer confusion is the touchstone of trademark law, as such confusion makes it difficult for consumers searching for either the defendants’ or the plaintiff’s wares to get what they want. Cf. Neil Young, ‘Hey Hey, My My,’ on Rust Never Sleeps (Warner 1979) (‘They give you this, but you pay for that.’).”450

WARREN ZEVON

Lawyers, Guns and Money Judge Lawrence E. Kahn (’62) wrote the opinion in the case of In the Mat- ter of the Estate of Cornelia C. Sage,451 arising after the son of the trust’s beneficiary became an excitable boy452 when he and his wife were arrested in Brazil and charged with illegal drug possession. The question was whether payments for legal fees and other “costs” from a trust (i.e., bribes paid to Brazilian officials) was a proper exercise of trustee discretion. In his ruling declining to allow these payments to be made from the trust, Judge Kahn said the court could not sanction such illegal payments by permitting the requested invasion of trust funds no matter how beneficial they were.453 He used Zevon’s “Lawyers, Guns and Money”454 to express understanding about the plaintiff’s valid motivation (the release of his son from a foreign prison):

The Court does not for a moment doubt the very real fear for the safety and well-being of these children. The papers paint a picture of prison life which humane individuals can barely comprehend. The Court is presented with a most brutal depiction of prison conditions. And these two Americans, beneficiaries of a substantial trust, found themselves thrown into such a foreign and inhuman

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environment. It is not necessary for this Court to delve into the cause or merits of the imprisonment itself; nor can it question the motives of a father’s decision to employ this means to free his children from such intolerable and life-threatening prison conditions. No father could do less. The lyrics of contemporary rock music capture the ageless seeking of a child for a parent’s help “Send lawyers, guns and money/Dad, get me out of this.”455 And while Dad did answer and get his children out, this Court cannot endorse the methods employed.456

NOTES

1. Daniels v. Crocker, 235 So. 3d 1, 13 (Miss. 2017). 2. Daniels, 235 So. 3d at 12 n.5. AC/DC, “Dirty Deeds Done Dirt Cheap,” on Dirty Deeds Done Dirt Cheap, Albert Productions, 1976. 3. Antizzo v. Cannizzaro, 43 Misc. 3d 1204(A), 990 N.Y.S.2d 436 (Sup. Ct. 2014). 4. Antizzo, 43 Misc. 3d 1204(A), 990 N.Y.S.2d at *1. Adrenaline Mob, “Judg- ment Day,” on Men of Honor, Century Media Records, 2014. 5. Zibtluda, LLC v. Gwinnett Cty., Ga. ex rel. Bd. of Comm’rs of Gwinnett Cty., 411 F.3d 1278 (11th Cir. 2005). 6. Zibtluda, LLC, 411 F.3d at 1280. 7. Martins v. Royal Caribbean Cruises, Ltd., No. 2017 WL 1345117 at *15 (S.D. Fla. 2017). 8. Martins, No. 2017 WL 1345117, at *15, citing Barenaked Ladies, “Take It Back,” on Barenaked Ladies Are Me, Desperation, 2006. 9. Thompson v. Wagner, 319 F.3d 931, 933 (7th Cir. 2003), as amended on denial of reh’g (Mar. 14, 2003). 10. Yellow Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925 (9th Cir. 2005). 11. Yellow Cab Co. of Sacramento, 419 F.3d at 926, citing Joni Mitchell, “Big Yellow Taxi,” on Ladies of the Canyon, Reprise Records 1970. 12. Ibid. at 927, citing Chuck Berry, “Nadine,” Chess, 1964. 13. Wakefield v. State, 2017 WL 6631566, at *16 (Md. Ct. Spec. App. 2017). 14. Wakefield, 2017 WL 6631566, at *16 n.7. 15. People’s Ins. Counsel Div. v. Allstate Ins. Co., 424 Md. 443, 36 A.3d 464 (2012). 16. People’s Ins. Counsel Div., 424 Md. at 466. Blue Öyster Cult, “Godzilla,” on Spectres, Columbia, 1977. 17. Ibid. at 467–468. 18. For its 1956 North American release, the Japanese film Godzilla was reworked as an adaptation and released as “Godzilla, King of the Monsters!,” Jewell Enterprises, 1956. “The film featured new footage with Raymond Burr edited together with the original Japanese footage. After appearing in the film, Raymond Burr began his starring role in 1957 as TV’s “Perry Mason.” Perry Mason, CBS Television, 1957. 19. AFL Philadelphia LLC v. Krause, 639 F. Supp. 2d 512 (E.D. Pa. 2009).

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20. Bon Jovi, “Blaze of Glory,” on Blaze of Glory, Vertigo, 1990. 21. Bon Jovi, “You Give Love a Bad Name,” on Slippery When Wet, Mercury, 1986. 22. Bon Jovi, “Living on a Prayer,” on Slippery When Wet, Mercury, 1986. 23. Bon Jovi, “Bad Medicine,” on New Jersey, Mercury, 1988. Jovi, “Bad Medi- cine,” at 517. In a footnote, the judge said, “The Undersigned wishes to credit his law clerk for her helpful knowledge of popular music in drafting this Memorandum.” 24. Bon Jovi, “Bed of Roses,” on Keep the Faith, Mercury, 1992. 25. Krause, 639 F. Supp. 2d at 532 (footnotes omitted). 26. Pensacola Motor Sales, Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211 (11th Cir. 2012). 27. A reference to Jackson Browne, “Lawyers in Love,” on Lawyers in Love, Asylum, 1983. 28. Pensacola Motor Sales, Inc., 684 F.3d at 1214. 29. United States v. McDonald, 740 F. Supp. 757 (D. Alaska 1990). 30. United States, 740 F. Supp. at 764 n.17, citing Jimmy Buffett, “Volcano,” on Volcano, MCA, 1979. 31. Ibid. at 764. 32. A reference to a verse in the song not quoted in the opinion. 33. Buehrle v. City of Key West, 813 F.3d 973 (11th Cir. 2015). 34. Associated Press. “Buffett lyrics help tattoo shop win appeal vs. Key West.” The Daytona Beach News Journal, January 4, 2016. 35. Buehrle, 813 F.3d at 980 n.2. 36. Bayview Loan Servicing, L.L.C. v. Forster, 786 N.W.2d 269 (Iowa Ct. App. 2010). 37. Bayview Loan Servicing, L.L.C., 786 N.W.2d at 269 n.1, citing in footnote 1 to Jimmy Buffett, “If the Phone Doesn’t Ring, It’s Me,” on Last Mango in Paris, MCA Records, 1985. 38. Bayview Loan Servicing, L.L.C., 786 N.W.2d at 269 at *1. 39. City of W. Liberty v. Employers Mut. Cas. Co., 2018 WL 1182764, at *6 (Iowa Ct. App. 2018). 40. City of W. Liberty, 2018 WL 1182764, at *6 (Doyle, J., dissenting), citing Jimmy Buffett, “Simply Complicated,” on License To Chill, Mailboat Records/ RCA, 2004. 41. Commc’ns & Control, Inc. v. F.C.C., 374 F.3d 1329 (D.C. Cir. 2004). 42. Commc’ns & Control, Inc., 374 F.3d at 1331. 43. Jimmy Buffett, “Changes in Latitudes, Changes in Attitudes,” on Changes in Latitudes, Changes in Attitudes, ABC, 1977. 44. Buffett, “Changes in Latitudes.” 45. From the same song, though not quoted in the opinion. 46. Commc’ns & Control, Inc., 374 F.3d at 1337. For another case using the Buf- fett song “That’s My Story and I’m Stickin’ to It” to describe a strategy of maintaining a frivolous defense, see Schnittgen v. BNSF Ry. Co., No. ADV-13-168 (District Court of Montana, Cascade County, October 10, 2014). 47. Procaps S.A. v. Patheon Inc., 2016 WL 1028008 (S.D. Fla. 2016). 48. Procaps S.A., 2016 WL 1028008, at *1 n.5.

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49. Referencing a verse from Chumbawamba, “Disagreement,” not quoted in the opinion. 50. United States v. Jackson, 390 F.3d 393 (5th Cir. 2004). 51. As adapted from the song, not quoted by the court. 52. United States, 390 F.3d at 396 n.3 citing The Clash, “Should I Stay or Should I Go,” on Combat Rock, Epic, 1982. 53. Reyes v. Collins & 74th, Inc., 2017 WL 2833450, at *6 (S.D. Fla. 2017). 54. Reyes, 2017 WL 2833450, at *6 (footnotes omitted) citing Coldplay, “The Escapist,” on Viva La Vida or Death and all His Friends, Parlophone/Capitol, 2008. 55. MGM Const. Servs. Corp. v. Travelers Cas. & Sur. Co. of Am., 57 So. 3d 884 (Fla. 3d DCA 2011). 56. MGM Const. Servs. Corp., 57 So. 3d at 996, citing Phil Collins, “Something Happened on the Way to Heaven,” on But Seriously, Atlantic Records, 1989. 57. From the same song, but not quoted. 58. J.H. v. State, 220 So.3d 508 (Fla. 3d DCA 2017). 59. Referring to Alice Cooper, “School’s Out,” on School’s Out, Warner Bros., 1972. 60. J.H., 220 So.3d at 511. 61. Tim Hortons USA v. Singh, 2017 WL 4837552 (S.D. Fla. 2017). 62. Alice Cooper, “No More Mr. Nice Guy,” on Billion Dollar Babies, Warner Bros., 1973. 63. Cooper, “No More Mr. Nice Guy.” 64. Procaps S.A. v. Patheon Inc., 2013 WL 6238647 (S.D. Fla. 2013). 65. Procaps S.A., 2013 WL 6238647, at *1, citing Robert Cray, “Consequences,” on Midnight Stroll, Mercury, 1990. 66. Powell v. Metro. Entm’t Co., 195 Misc. 2d 847, 849, 762 N.Y.S.2d 782, 783 (Sup. Ct. 2003). 67. A lyric from the same song, not quoted by the court. 68. Powell, 762 N.Y.S.2d at 783 crediting J.C. Fogerty for Creedence Clearwater Revival, “Who’ll Stop the Rain,” on Green River, Fantasy, 1969. 69. A lyric from the same song, not quoted by the court. 70. Powell, 762 N.Y.S.2d at 782 crediting J.C. Fogerty for Creedence Clearwater Revival, “Bad Moon Rising,” on Bad Moon Risin’, Fantasy, 1969. 71. Choi v. Asiana Airlines, Inc., 2015 WL 394198 (N.D. Cal. 2015). 72. Choi, 2015 WL 394198, at *4. 73. Stoner v. eBay, Inc., 2000 WL 1705637 (Sup. Ct. Cal. 2000). 74. Creedence Clearwater Revival, “Bootleg,” on Bayou Country, Fantasy Records, 1969. 75. Eminem, “My Name Is,” on The Slim Shady LP, Aftermath Interscope, 1999. 76. Marshall v. State, 415 Md. 399, 2 A.3d 360 (2010). 77. Marshall, 415 Md. at 402 n.1, giving “apologies to Crosby, Stills, Nash & Young for tinkering with the lyrics of this stanza of their song, “Our House.” Crosby Stills Nash & Young, “Our House,” on Déjà Vu, Atlantic, 1970. 78. Another lyric from the same song not quoted in the opinion. 79. In re Oracle Corp., 867 A.2d 904, 953 (Del. Ch. 2004).

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80. In re Oracle Corp., 867 A.2d at 953, citing to Elvis Costello, “Less Than Zero,” on My Aim Is True, Columbia Records, 1978. 81. Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 2014 WL 5319866, at *8 (S.D. 2014). 82. Guarantee Ins. Co., 2014 WL 5319866, at *1. 83. Ibid. at *8, citing Deep Purple, “Smoke on the Water,” on Machine Head, Warner Bros., 1972. 84. Frasca v. NCL (Bahamas) Ltd., 2014 WL 695413 (S.D. Fla. 2014). 85. Frasca, 2014 WL 695413 at *1, citing Carole King, “It’s Too Late,” on Tap- estry, A & M Records, 1971. 86. Ibid., citing Otis Redding, “It’s Too Late,” on The Great Otis Redding Sings Soul Ballads, Volt/Atco, 1971. 87. Ibid., citing Def Leppard, “Too Late for Love,” on Pyromania, Mercury, 1983. 88. Ibid. 89. Katchmore Luhrs, LLC v. Allianz Glob. Corp. & Specialty, 2017 WL 432671 (S.D. Fla. 2017). 90. Depeche Mode, “Everything Counts,” on Construction Time Again, Mute Records, 1983. The judge also included the remainder of the verse which says, “from the contracts / there’s no turning back.” 91. Katchmore, 2017 WL 432671, at *1. 92. Royal Bahamian Ass’n, Inc. v. QBE Ins. Corp., 744 F. Supp. 2d 1297 (S.D. Fla. 2010). 93. Royal Bahamian Ass’n, Inc., 744 F. Supp. 2d at 1303 n.10. Bo Diddley, “Before You Accuse Me,” Checker, 1958. See also Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 690 n.3 (S.D. Fla. 2011). 94. Adelman, 276 F.R.D. at 690. 95. Latele Television, C.A. v. Telemundo Commc’ns Grp., LLC, 2015 WL 1412363 (S.D. Fla. 2015). 96. Latele Television, C.A., 2015 WL 1412363, at *1. 97. Delmarva Health Plan, Inc. v. Aceto, 750 A.2d 1213 (Del. Ch. 1999). 98. Delmarva Health Plan, Inc., 750 A.2d at 1218, crediting Mark Knopfler for Dire Straits, “The Bug,” on On Every Street, Almo Music Corp., 1991. The maxim contra preferentem is a rule in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause be included. 99. United States v. Santisteban, 833 F.2d 513 (5th Cir. 1987). 100. United States, 833 F.2d at 515. This is an unattributed reference to Dire Straits, “Money for Nothing,” on Brothers in Arms, Vertigo, 1985. See also State v. Elward, 866 N.W.2d 756, 758 (2015). 101. For information on how the singer took the stage name “Thomas Dolby,” see Dolby v. Robertson, 654 F. Supp. 815, 817 (N.D. Cal. 1986). 102. United States v. Horn, 185 F. Supp. 2d 530, 551 n.37 (D. Md. 2002). 103. From the same song, but not cited in the opinion. 104. Horn, 185 F. Supp. 2d at 551. citing Thomas Dolby, “She Blinded Me with Science,” on The Golden Age of Wireless, Capitol, 1982, in footnote 37.

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105. The Godfather: Part III, Paramount Pictures, 1990. 106. The Callawassie Island Members Club, Inc. v. Dennis, 417 S.C. 610, 790 S.E.2d 435 (Ct. App. 2016); see also City of Otsego v. New River Hosp. Dist., 2010 WL 3306908 (Minn. Ct. App. 2010). 107. The Callawassie Island Members Club, Inc., 417 S.C. 610 at *4, quoting The Eagles, “Hotel California,” on Hotel California, Asylum, 1977. 108. In re Akbarian, 2013 WL 6710347 (Bankr. D. Utah 2013). 109. In re Akbarian, 2013 WL 6710347, at *5. 110. Ibid. 111. Franconia Assocs. v. United States, 61 Fed. Cl. 718, 721 (2004); Idaho Power Co. v. F.E.R.C., 801 F.3d 1055, 1056 (9th Cir. 2015); Jefferson Cty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 730 (Ky. 2012) (Venters, J., dissenting); Willis v. Palmer, 175 F. Supp. 3d 1081 (N.D. Iowa 2016); Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145, 1151 (10th Cir. 2004); Saleh v. Merchant, 2018 WL 287748 (N.D. Ill. 2018); King v. State, 990 So. 2d 1191, 1195 n.5 (Fla. 5th DCA 2008); Dep’t of Corr. v. Daughtry, 954 So. 2d 659 (Fla. 5th DCA 2007). 112. Morris v. State, 418 Md. 194, 13 A.3d 1206 (2011). 113. Morris, 418 Md. at 198 (footnotes omitted) citing Don Henley, “The Heart of the Matter,” on The End of the Innocence, Geffen, 1989. 114. Womack v. Lovell, 237 Cal. App. 4th 772, 188 Cal. Rptr. 3d 471 (2015). 115. Womack, 237 Cal. App. 4th at 774, referring to Don Henley, “The End of the Innocence,” on The End of the Innocence, Geffen, 1989. 116. Ibid. 117. Bobby Fuller Four, “I Fought the Law,” on I Fought the Law, Mustang Records, 1966. 118. Davenport v. United States, 2002 WL 1310282 (D.S.C. 2002). 119. Davenport, 2002 WL 1310282, at *14 n.4. See also Taylor v. Waldo, 309 Ga. App. 108, 709 S.E.2d 278 (2011). 120. Brown v. NCL (Bahamas), Ltd., 155 F. Supp. 3d 1335, 1336 (S.D. Fla. 2015). 121. Brown, 155 F. Supp. 3d at 1341 n.1. Gipsy Kings, “Calaverada,” on Luna De Fuego, Columbia Records, 1983. 122. Denton v. State, 478 S.W.3d 848, 849 (Tex. App. 2015), citing Grateful Dead, “Truckin’,” on American Beauty, Warner Bros., 1970. See also In re Estate of Catlin, 311 S.W.3d 697, 703 (Tex. App. 2010); Kerr v. Killian, 207 Ariz. 181, 182, 84 P.3d 446, 447 (2004); Lincoln Gen. Ins. Co. v. Liberty Mut. Ins. Co., 804 A.2d 661, 662 (2002); Michigan Citizens for Water Conservation v. Nestle Waters North America Inc., No. 01-14563-CE (Circuit Court of Michigan, Mecosta County, November 25, 2003). 123. United States v. Youts, 229 F.3d 1312 (10th Cir. 2000). The court also began the opinion by quoting John Denver, “Choo Choo Ch’Boogie,” on All Aboard, Sony/ Wonder, 1997. In the following paragraph, Judge Seymour gave another musical nod to Denver as she discussed the defendant’s boyhood love of trains by quoting John Denver, “Daddy What’s a Train?” on All Aboard, Sony/Wonder 1997. United States, 229 F.3d at 1314 n.2. 124. Ibid. at 1314 n.3, citing to The Grateful Dead, “Tons Of Steel,” on In the Dark, Arista, 1987; see also The Grateful Dead, “They Love Each Other,” on

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Reflections, Round Records, 1976 (“It’s nothing they explain. It’s like a diesel train— you better not be there when it rolls over.”). 125. Ibid. at 1317, citing The Grateful Dead, “Might as Well,” on Reflections, Round Records, 1976. 126. Montgomery Cty. v. Bhatt, 446 Md. 79, 130 A.3d 424 (2016). 127. Bhatt, 130 A.3d at 426; see also U.S. v. Miller, 811 F. Supp. 1485, 1487 n.1 (D. N.M. 1993). 128. In Miller, 811 F. Supp. at 1487 n.1, the Dead were one of several musicians and songs used to refer to “Trains: Icons of American folklore; venerated objects of our nation’s songs.” 129. Terry v. Carnival Corp., 2014 WL 11798518 (S.D. Fla. 2014). 130. Terry, 2014 WL 11798518, at *1. The Grateful Dead, “Oh Babe, It Ain’t No Lie,” on Reckoning, Arista, 1981. 131. 184 W. 10th St. Corp. v. Marvits, 18 Misc. 3d 46, 55, 852 N.Y.S.2d 557, 563 (App. Term 2007). 132. “The Sidewalks of New York” is a popular song about life in New York City during the 1890s. It was performed by many artists, including Mel Tormé, Duke Ellington, Larry Groce, and Richard Barone in addition to The Grateful Dead, “The Sidewalks of New York,” on Dick’s Picks Volume 30, Grateful Dead Records, 2003. 133. 184 W. 10th St. Corp., 852 N.Y.S.2d at 563. 134. Del Monte Int’l, GMBH v. Ticofrut S.A., 2017 WL 3610582, at *1 (S.D. Fla. 2017). 135. Del Monte Int’l, GMBH, 2017 WL 3610582Green Day, “Walking Contradic- tion,” on Insomniac, Reprise, 1995. 136. Zamber v. American Airlines, Inc., 2017 WL 5202748 (S.D. Fla. 2017). 137. Zamber, 2017 WL 5202748, at *1 (footnotes omitted), citing Madonna, “Over and Over,” on Like a Virgin, Sire-Warner Bros., 1984; Martha and the Van- dellas, “I Promise to Wait My Love,” on Riding High, Gordy, 1968; Marvin Gaye, “What’s the Matter with You Baby,” on Together, Motown, 1964; The Kinks, “Tired of Waiting for You,” on Kinda Kinks, Reprise, 1965; Wilson Pickett, “In the Midnight Hour,” on In the Midnight Hour, Atlantic, 1965; and Carly Simon, “Anticipation,” on Anticipation, Elektra, 1971. 138. Ibid., at *6 (footnotes omitted) citing Guns N’ Roses, “Patience,” on GN’R Lies, Geffen, 1988. 139. Velarde v. HSBC Private Bank Int’l, 2013 WL 5534305 (S.D. Fla. 2013). 140. Velarde, 2013 WL 5534305, at *12 from Guns ‘N Roses, “Patience.” 141. U.S. ex rel. K & R Ltd. P’ship v. Massachusetts Hous. Fin. Agency, 530 F.3d 980 (D.C. Cir. 2008). 142. U.S. ex rel. K & R Ltd. P’ship, 530 F.3d at 981. 143. In re Quillen, 408 B.R. 601, 618 (Bankr. D. Md. 2009). 144. In re Quillen, 408 B.R. referencing the line from The Jimi Hendrix Experi- ence, “Castles Made of Sand,” on Axis: Bold as Love, Experience Hendrix, L.L.C./ MCA, 1967. 145. Martin v. Martin, 903 So. 2d 619 (La. Ct. App. 2005). 146. Martin, 903 So. 2d at 622 n.3, citing Herman’s Hermits, Henry the Eighth,” on Herman’s Hermits On Tour, MGM, 1965.

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147. Ibid. at 622. 148. United States Equal Employment Opportunity Commission v. GMRI, Inc., 2017 WL 5068372 (S.D. Fla. 2017). 149. Ibid., at *1. 150. Ibid. 151. John Hiatt, “Shredding the Document,” on Walk On, Capitol Records, 1995. 152. Jay Franco & Sons, Inc. v. Franek, 615 F.3d 855 (7th Cir. 2010). 153. Huey Lewis and the News, “Hip to Be Square,” on Fore! (Chrysalis Records 1986). 154. Jay Franco & Sons, Inc. v. Franek, 615 F.3d at 856. 155. United States v. Comas, 2014 WL 129296 (S.D. Fla. 2014). 156. United States, 2014 WL 129296, at *1, citing from Imagine Dragons, “It’s Time,” on Night Visions, Interscope Records, 2012. 157. Latele Television, C.A. v. Telemundo Commc’ns Grp., LLC, 2014 WL 5816585 (S.D. Fla. 2014). 158. Ibid,. at *10. 159. Goff v. Ferriter, 2009 WL 577312 (D. Mont. 2009). 160. Goff, 2009 WL 577312, at *4, referencing the movie “Smokey and the Ban- dit,” Universal Pictures, 1977. 161. Ibid. Jefferson Airplane, “White Rabbit,” on Surrealistic Pillow, RCA Victor, 1967. 162. McCann v. Fort Zumwalt Sch. Dist., 50 F. Supp. 2d 918 (E.D. Mo. 1999). 163. McCann, 50 F. Supp. 2d at 921 n.2. 164. From Billy Joel, “Piano Man,” on Piano Man, Columbia, 1973, but not quoted in the opinion. 165. City of Clinton v. Smith, 493 So. 2d 331, 335–336 (Miss. 1986). 166. Farrey’s Wholesale Hardware Co. v. Zurich Am. Ins. Co., 2016 WL 7437939 (S.D. Fla. 2016). 167. Farrey’s Wholesale Hardware Co., 2016 WL 7437939, at *1 (footnotes omitted) citing to Billy Joel, “Honesty,” on 52nd Street, Columbia, 1978. 168. Maurag, Inc. v. Bertuglia, 494 F. Supp. 2d 395 (E.D. Va. 2007). 169. Maurag, Inc., 494 F. Supp. 2d at 395–396. Billy Joel, “Scenes from an Italian Restaurant,” on The Stranger, Columbia, 1977. 170. Ibid. at 396. 171. Ibid. at 401. 172. Riches v. Simpson, Case No. 6:2007-cv-1504-Orl-GAP-KRS (M.D. Fla., Sept. 24, 2007); also cited by Riches v. Pitt, 2007 WL 4547844 (E.D. Mich. 2007). 173. Riches, Case No. 6:2007-cv-1504-Orl-GAP-KRS. The reference is to the label on Dr. Bronner’s Soap, a liquid peppermint soap, with quasi-religious ranting all over it. 174. Richardson v. Serpas, 2012 WL 1899410 (E.D. La. 2012). 175. Richardson, 2012 WL 1899410, at *11. Billy Joel, “We Didn’t Start the Fire,” on Storm Front, Columbia, 1989.

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176. Platt v. Platt, 36 Misc. 3d 1233(A), 960 N.Y.S.2d 52, 52 (Sup. Ct. 2012), referencing Billy Joel, “I Go to Extremes,” on Storm Front, Columbia, 1989 without attribution. 177. Platt, 36 Misc. 3d 1233(A), 960 N.Y.S.2d at *1 178. Aquifer Guardians in Urban Areas v. Fed. Highway Admin., 779 F. Supp. 2d 542, 558 (W.D. Tex. 2011). The case also cites James Taylor, “Fire and Rain,” on Sweet Baby James, Warner Bros., 1970. Ibid. at 558–559. 179. See Aquifer Guardians in Urban Areas, 779 F. Supp. 2d at 548 n.43, referring to Jerome Kern and Oscar Hammerstein II, “Ol’ Man River,” in Showboat (1927). 180. Ibid. at 558 n.54, stating that “The Circle of Life” is a song from Disney’s 1994 animated film“ The Lion King,” composed by Elton John with lyrics by Tim Rice. Elton John, “The Circle of Life,” on The Lion King, Walt Disney Productions, 1994. 181. Ibid. at 558–559. 182. Norris v. Soc. Servs. Employee Union 371, 39 Misc. 3d 971, 972, 963 N.Y.S.2d 562, 562 (Civ. Ct. 2013). 183. From Original Cast of Billy Elliot, “Solidarity,” on Billy Elliott the Musical, Polydor, 2005, written by Elton John. 184. Norris, 39 Misc. 3d at 972. 185. Gordon v. Gordon, 625 So. 2d 59 (Fla. 4th DCA 1993) (Polen, J., dissenting). 186. Gordon, 625 So. 2d at 66, quoting Kris Kristofferson, “Me and Bobby McGee,” on Kristofferson, Monument Records, 1970. See also In re Sydnor, 431 B.R. 584, 597 (Bankr. D. Md. 2010). 187. United States v. Townsend, 630 F.3d 1003 (11th Cir. 2011). 188. United States, 630 F.3d at 1006 (footnotes omitted) citing the song as performed by its writer, Kris Kristofferson. 189. Kor–Ko Ltd. v. Maryland Dep’t of the Env’t, 2017 WL 388857 (Md. 2017). 190. Kansas, “Dust in the Wind,” on Point of Know Return, Kirschner, 1977. 191. Kor–Ko Ltd., 2017 WL 388857, at *1. See also Murphy v. Kmart Corp., 2011 WL 887908, at *5 (D.S.D. 2011). 192. Edmondson v. Velvet Lifestyles, LLC, 2016 WL 5682591 (S.D. Fla. 2016). 193. Pearl Jam, “Pry To,” on Vitalogy, Epic Records, 1994; Michael Jackson, “Privacy,” on Invincible, Epic, 2001; The Kinks, “20th Century Man,” on Muswell Hillbillies, RCA Victor, 1971. 194. Dean v. Cameron, 53 F. Supp. 3d 641, 648 (S.D.N.Y. 2014). 195. Dean, 53 F. Supp. 3d at 649. Led Zeppelin, “Stairway to Heaven,” on Led Zeppelin IV, Atlantic Records, 1971. For background information on the song Stair- way to Heaven, see Skidmore v. Led Zeppelin, 2016 WL 1442461 (C.D. Cal. 2016), and Vance v. Judas Priest, 1990 WL 130920 (Nev. Dist. Ct. 1990) talking about backward masking in this and other songs. 196. State v. Sonnier, 422 S.W.3d 521 (Mo. Ct. App. 2014). 197. State, 422 S.W.3d at 524. 198. Ibid. at 524 n.1. Lynyrd Skynyrd, “Gimme Three Steps,” on Pronounced ‘lĕh-’nérd ‘skin-’nérd, MCA Records, 1973. 199. From the song, not quoted by the court.

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200. Am. Action Network, Inc. v. Cater Am., LLC, 983 F. Supp. 2d 112 (D.D.C. 2013). 201. An unquoted reference from Lynyrd Skynyrd, “Free Bird,” on Pronounced ‘lĕh-’nérd ‘skin-’nérd, MCA Records, 1973. 202. Am. Action Network, Inc., 983 F. Supp. 2d at 116, using a line from Skynyrd’s Free Bird. 203. Miami Yacht Charters, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh Penn- sylvania, 2013 WL 866211 (S.D. Fla. 2013). 204. Miami Yacht Charters, LLC, 2013 WL 866211, at *1, from Lynyrd Skynyrd, “Call Me the Breeze,” on Second Helping, MCA Records, 1974. 205. Procaps S.A. v. Patheon Inc., 2014 WL 5786830 (S.D. Fla. 2014). 206. Procaps S.A., 2014 WL 5786830, at *1, citing JJ Cale, “Call Me the Breeze,” on Naturally, Mercury Records, 1972. 207. Procaps S.A. v. Patheon Inc., 2016 WL 1028008 (S.D. Fla. 2016). 208. From Dave Mason, “We Just Disagree,” on Let It Flow, Columbia Records, 1977. 209. Procaps, 2016 WL 1028008, at *1. 210. Alfred v. Walt Disney Co., 2015 WL 177434 (Del. Ch. 2015). 211. An unquoted reference to the song. 212. Alfred, 2015 WL 177434, at *1. 213. Ibid. at *5, citing Don McLean, “Vincent,” on American Pie, United Artists Records, 1971. 214. Ibid. at *5 (footnotes omitted). 215. From the song but not quoted by the court. Don McLean’s American Pie was also quoted by Judge Ming W. Chin (’67) of the California Supreme Court court in a case about the evidentiary value of song lyrics at trial in People v. Melendez, 384 P.3d 1202, 1219 (Cal. 2016). 216. Procaps S.A. v. Patheon Inc., 2015 WL 4430955 (S.D. Fla. 2015). 217. An unquoted reference to Christine McVie’s song. Fleetwood Mac, “Song- bird,” on Rumours, Warner Bros., 1977. 218. Mac, “Songbird,” at *1. Footnote 1 cites this verse as from Christine McVie, “Keeping Secrets,” on Christine McVie, Warner Bros., 1984, the second solo effort by the Fleetwood Mac vocalist and keyboardist. 219. United States v. Jones, 2011 WL 4923415 (E.D. Pa. 2011). 220. From Meat Loaf, “I Would Do Anything for Love,” on Bat Out of Hell II: Back into Hell, MCA Virgin, 1993. Not quoted by the court. For a similar sentiment, see Ringo Starr, “It Don’t Come Easy,” on Ringo, Apple, 1973. 221. Another reference to the song not quoted by the court. 222. Jones, 2011 WL 4923415, at *5. Each mention of “that” refers to the promise made previously in the same verse. Meat Loaf, VH1 Storytellers, October 18, 1998. 223. People v. Cortez, 2006 WL 331367 (Cal. Ct. App. 2006). 224. This is another unquoted line from the song, though slightly modified. 225. People, 2006 WL 331367, at *1 (footnotes omitted) citing Jim Steinman as the writer for Meat Loaf, “Two Out of Three Ain’t Bad,” on Bat Out of Hell, Cleve- land International/Epic, 1977.

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226. Kendall Lakes Towers Condo. Ass’n, Inc. v. Pac. Ins. Co., 2011 WL 6190160 (S.D. Fla. 2011). 227. Kendall Lakes Towers Condo. Ass’n, Inc., 2011 WL 6190160, at *2 (footnotes omitted), 228. Procaps S.A. v. Patheon Inc., 2013 WL 4773433 (S.D. Fla. 2013). 229. Citing Meat Loaf, “Jumpin’ the Gun,” on Bad Attitude, Arista, 1984. 230. Quoting John Lennon (with the Plastic Ono Band), “Give Peace a Chance,” Apple Records, 1969. 231. Ray v. Judicial Corr. Servs., 2013 WL 5428360 (N.D. Ala. 2013). 232. From the song, but not quoted by the court. 233. Ray, 2013 WL 5428360, at *1, citing John Cougar Mellencamp, “Authority Song,” on Uh-huh, Island/Mercury, 1983. 234. Another line from the song but not included in the opinion. 235. Miami Yacht Charters, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh Penn- sylvania, 2013 WL 866211 (S.D. Fla. 2013). 236. Miami Yacht Charters, LLC, 2013 WL 866211, at *9, from Motley Crue, “Time for Change,” on Dr. Feelgood, Elektra, 1989. 237. Lyrics from Mike and the Mechanics, “Everybody Gets a Second Chance,” on Word of Mouth, Atlantic, 1991, not quoted by the court. 238. Gentry v. Carnival Corp., 2011 WL 4737062 (S.D. Fla. 2011). 239. Gentry, 2011 WL 4737062, at *9 n.3. “Mike and the Mechanics was formed in 1984 by Mike Rutherford, a bassist/guitarist who founded Genesis, one of the most successful musical groups in modern history.” Ibid. 240. Frasca v. NCL (Bah.) Ltd., 2013 WL 12324500 (S.D. Fla. 2013). 241. Frasca, 2013 WL 12324500, at *1, quoting Robert Palmer, “Bad Case of Loving You,” on Secrets, Island, 1979. 242. Ibid., at *1, quoting Jackson Browne, “Doctor My Eyes,” on Jackson Browne, Asylum, 1972. 243. Haaf v. Flagler Const. Equip., LLC, 2011 WL 1871159 (S.D. Fla. 2011). 244. Haaf, 2011 WL 1871159, at *1 (footnotes omitted). Tom Petty and the Heart- breakers, “The Waiting,” on Refugee, Backstreet, 1981. 245. Ibid. at *5. 246. Montoya v. PNC Bank, N.A., 2014 WL 2807617 (S.D. Fla. 2014). 247. Montoya, 2014 WL 2807617, at *1. 248. Ibid. 249. Ibid. at *3 citing Tom Petty, “Time to Move On,” on Wildflowers, Warner Bros., 1994. 250. Barnes v. Johnson, 2008 WL 8081701 (D. Md. 2008). 251. Barnes, 2008 WL 8081701, at *2 n.2. 252. S. California Edison v. USPS, 134 F. Supp. 3d 311 (D.D.C. 2015). 253. A reference to another verse in the song not used by the court. 254. S. California Edison, 134 F. Supp. 3d at 315. 255. In re Facebook, Inc., IPO Sec. & Derivative Litig., 312 F.R.D. 332 (S.D.N.Y. 2015). 256. In re Facebook, Inc., IPO Sec. & Derivative Litig., 312 F.R.D. at 348. 257. Ibid. at 348 n.11.

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258. Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015). 259. Unlike what was happening to the subject of the song. See Elvis Presley, “All Shook Up,” RCA Victor, 1957 (“Please don’t ask me what’s on my mind / I’m a little mixed up, but I’m feelin fine.”). 260. Elvis Presley, “All Shook Up,” 109 (Willett, J., concurring). 261. Curtin v. Star Editorial Inc., 2 F. Supp. 2d 670 (E.D. Pa. 1998). 262. Elvis Presley, “Heartbreak Hotel,” RCA Victor, 1956. 263. Elvis Presley, “Return to Sender,” RCA Victor 1962. 264. Elvis Presley, “Hound Dog,” RCA Victor, 1956. 265. Curtin, 2 F. Supp. 2d. at 675. 266. Elvis Presley Enterprises, Inc. v. Capece, 950 F. Supp. 783 (S.D. Tex. 1996). 267. Capece, 950 F. Supp. at 788. Elvis Presley, “All Shook Up,” RCA Victor, 1957. 268. Ibid. at 789. Elvis Presley, “Suspicious Minds,” RCA Victor, 1969. 269. Ibid. Elvis Presley, “Blue Suede Shoes,” Sun, 1956, originally recorded by Carl Perkins. 270. Ibid. at 791. Elvis Presley, “Don’t Be Cruel,” RCA Victor, 1956. 271. A reference to Elvis Presley, “Suspicious Minds,” not used by the court. 272. Capece, 950 F. Supp. at 804. For those unfamiliar with Elvis’s concert appearances, this last line added by the court refers to The King’s usual response to audience applause. The phrase, and Presley’s distinctive way of saying it, is widely parodied by Elvis impersonators everywhere. 273. Mickens v. Ford Motor Co., 2015 WL 5310755 (D.N.J. 2015). 274. Mickens, 2015 WL 5310755, at *1. 275. Cited from “Mustang Sally,” Songfacts, HYPERLINK "http://ww w.son gfact s.com /deta il.ph p?id= 5798" www.songfacts.com/detail.php?id=5798. 276. Mickens, 2015 WL 5310755, at *1, n.2. 277. Malimos v. Malibu Pier Partners, 2009 WL 4375448 (Cal. Ct. App. 2009). 278. Malimos, 2009 WL 4375448, at *2, referring to Sam & Dave, “Hold On I’m Comin’,” Stax Records, 1966. 279. World Holdings, LLC v. Fed. Republic of Germany, 794 F. Supp. 2d 1341 (S.D. Fla. 2011). 280. Ibid. at 1346 n.12, from Pink Floyd, “Time,” on Dark Side of the Moon, Harvest/Capitol Records, 1973. 281. Rotundo v. Garcia, No. 2013 WL 12092305 at *1 (S.D. Fla. 2013). 282. Rotundo, No. 2013 WL 12092305, at *13, quoting Pink Floyd, “Time.” 283. Manetti v. Narragansett Bay Ins. Co., 2014 WL 5465876 (D.N.J. 2014). 284. A reference to a verse from the song, not quoted by the court. 285. Another line from the song, also not quoted. 286. Manetti, 2014 WL 5465876, at *3. 287. This is a modified and unquoted verse from Pink Floyd,“ Money,” on Dark Side of the Moon, Harvest/Capitol Records, 1973. 288. Another unquoted verse from Pink Floyd, “Money.” 289. Devon Energy Prod., L.P. v. Hockley Cty. Appraisal Dist., 178 S.W.3d 879 (Tex. App. 2005).

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290. Devon Energy Prod., L.P., 178 S.W.3d at 882–883. See also Adams v. Town of Sudbury, 2016 VT 11, ¶ 12, 139 A.3d 567, 571 (Vt. 2016) citing the line as used in Devon Energy Prod. 291. Gorman v. St. Raphael’s Acad., 2002 WL 31455570 (R.I. Super. 2002). 292. Gorman, 2002 WL 31455570, at *18, from Pink Floyd, “Another Brick in the Wall,” on The Wall, Columbia Records, 1979. The court also cited the lyrics to the title song from the Musical “Hair.” 293. Procaps S.A. v. Patheon Inc., 2014 WL 1047748 (S.D. Fla. 2014). 294. Procaps S.A., 2014 WL 1047748, at *1 n.2, citing to Pink Floyd, “Sorrow,” on A Momentary Lapse of Reason, Columbia, 1987. The court also cited to Simon and Garfunkel in its order. 295. QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 686 (S.D. Fla. 2012). 296. The court acknowledged The Rolling Stones, “Rock and a Hard Place,” on Steel Wheels, Rolling Stone/Columbia, 1989. 297. QBE Ins. Corp., 277 F.R.D. at 686 n.12 citing The Police, “Wrapped around Your Finger,” on Synchronicity, A&M, 1983. 298. Montoya v. PNC Bank, N.A., 2016 WL 1529902 (S.D. Fla. 2016). 299. Montoya, 2016 WL 1529902, at *1. 300. Ibid. at *1 from Billy Preston, “Nothing from Nothing,” on The Kids & Me, A&M, 1974. 301. Ibid. 302. Ibid. at *2. 303. Crosby v. State, 408 Md. 490, 970 A.2d 894 (2009). 304. Crosby, 970 A.2d at 900. 305. The Pretenders, “Brass in Pocket,” on Pretenders, Sire, 1980. 306. Crosby, 970 A.2d at 900 n.12. See “Detroit Lean,” Urban Dictionary, http: // www .urba ndict ionar y.com /defi ne.ph p?ter m=det roit+ lean. 307. Pickett v. Prince, 52 F. Supp. 2d 893 (N.D. Ill. 1999). 308. The use of the Symbol arose from a dispute between Prince and his record label. It appeared to combine the traditional male and female signs. Prince wrote in his 1984 song “I Would Die 4 U”: “I’m not a woman. I’m not a man. I am something that you’ll never understand.” Pickett, 52 F. Supp. 2d at 895 n.5. 309. Ibid. at 894–895. This is a reference to Prince, “When Doves Cry,” on Purple Rain, Warner Bros., 1984. 310. Prince, “Let’s Go Crazy,” on Purple Rain, Warner Bros., 1984. 311. Referring to Prince, “1999,” on 1999, Warner Bros., 1982. 312. Pickett, 52 F. Supp. 2d. at 909. 313. Brown v. NCL (Bahamas), Ltd., 155 F. Supp. 3d 1335, 1336 (S.D. Fla. 2015). 314. A reference to The Red Hot Chili Peppers, “Give It Away,” on Blood Sugar Sex Magik, Warner Bros., 1991. Not quoted by the court. 315. Brown, 155 F. Supp. 3d at 1336, citing to The Red Hot Chili Peppers, “We Believe,” on Stadium Arcadium, Warner Bros., 2006. 316. City of Miami v. Sanders, 672 So. 2d 46 (Fla. 3d DCA 1996). 317. City of Miami, 672 So. 2d at 48. 318. Ibid. at 48, citing Red Hot Chili Peppers, “Walkabout,” on One Hot Minute, Warner Bros. Records, 1995.

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319. Justice Page played defensive tackle in the National Football League during 15 seasons with the Minnesota Vikings and Chicago Bears before becoming a judge. He is a member of both the College Football Hall of Fame and the Pro Football Hall of Fame. “Alan Page,” Encyclopaedia Britannica, https://ww w.bri tanni ca.co m/bio graph y/Ala n-Pag e. 320. Schowalter v. State, 822 N.W.2d 292 (Minn. 2012). 321. Schowalter, 822 N.W.2d at 304 n.1 (Page, J., dissenting). R.E.M., “It’s the End of the World as We Know It (And I Feel Fine),” on Document, I.R.S., 1987. 322. State v. Robinson, 454 S.W.3d 428 (Mo. Ct. App. 2015). 323. From REO Speedwagon, Take It on the Run, on Hi Infidelity, Epic Records, 1980. Not quoted by the court. 324. Referencing an unquoted lyric from the same song. 325. Robinson, 454 S.W. 3d at 439, citing REO Speedwagon, Take It on the Run. 326. Fowler v. Caliber Home Loans, Inc., 277 F. Supp. 3d 1324, 1326 (S.D. Fla. 2016); also cited at Fowler v. Caliber Home Loans, Inc., 2016 WL 3746668 (S.D. Fla. 2016), order amended and superseded, 2016 WL 4761838 (S.D. Fla. 2016). 327. Ibid. 328. Ibid., citing The Rolling Stones, “Fortune Teller,” on Got Live If You Want It!, London Records, 1966. 329. QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676 (S.D. Fla. 2012). 330. QBE Ins. Corp., 277 F.R.D. at 686. 331. Ibid. at 686 n.5. The Rolling Stones, “Rock and a Hard Place.” 332. Citing “Scylla and Charybdis,” Encyclopaedia Britannica, http://www .brit annic a.com /EBch ecked /topi c/530 331/S cylla -and- Chary bdis. The court also cited “Wrapped around Your Finger” by The Police about this same issue. 333. Crediting Mick Jagger and Keith Richards for The Rolling Stones, “You Can’t Always Get What You Want,” on Let It Bleed, UK Decca/US London Records, 1969. 334. See, for example, Trustmark Nat’l Bank v. Thomas, 2015 WL 11120574 (W.D. Tenn. 2015); McPeek v. Ashcroft, 202 F.R.D. 31, 33–34 (D.D.C. 2001); Camacho v. Nationwide Mutual Insurance Company, 188 F. Supp. 3d 1331 (N.D. Ga. 2016). 335. In re Gallaher, 548 F.3d 713 (9th Cir. 2008). 336. In re Gallaher, 548 F.3d at 714; see also United States v. Hamilton, 434 F. App’x 149 (3rd Cir. 2011); Trotter v. Columbia Sussex Corp., 2009 WL 3158189 at *5 (S.D. Ala. 2009); Cochran v. Geit, No. 2011 WL 3109991 (W.D. Wis. 2011); Pierce Cty. v. State, 148 P.3d 1002, 1028 (Wash. 2006); In re SCC Kyle Partners, Ltd., 2013 WL 2903453 (Bankr. W.D. Tex. 2013); In re Drew Transportation Servs., Inc., 2016 WL 6892459 (Bankr. E.D.N.C. 2016); Schurz v. Ryan, 730 F.3d 812 (9th Cir. 2013) (without attribution); Fid. Nat’l Title Ins. Co. v. Woody Creek Ventures, LLC, 2014 WL 1774821 (D. Colo. May 5, 2014); In re Disciplinary Proceedings against Kratz, 851 N.W.2d 219 (Wis. 2014); Colonial Credit Corp. v. Beyers, 46 Misc. 3d 1221(A), 15 N.Y.S.3d 711 (N.Y. Civ. Ct. 2015); People v. Henderson, 12 Misc. 3d 60, 818, 818 N.Y.S.2d 412 (App. Term 2006). 337. Miller v. Miller, 799 S.E.2d 890 (N.C. Ct. App. 2017).

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338. Miller, 799 S.E.2d at 803 (footnotes omitted) citing “with apologies” to The Rolling Stones, “You Can’t Always Get What You Want.” 339. Witzke v. Stieber, 2007 WL 200945 (E.D. Mich. 2007). 340. Witzke, 2007 WL 200945, at *1, with footnote crediting Rolling Stones, You Can’t Always Get What You Want. 341. Stop This Insanity Inc. Employee Leadership Fund v. Fed. Election Comm’n, 761 F.3d 10 (D.C. Cir. 2014). 342. Stop This Insanity Inc. Employee Leadership Fund, 761 F.3d at 11. 343. Ibid. at 17, citing The Rolling Stones, “(I Can’t Get No) Satisfaction,” on Out of Our Heads, Decca 1965, without attribution. 344. Tulingan v. Brown, 9 Vet. App. 484 (1996). 345. Tulingan, 9 Vet. App. at 490. 346. Judge Straniere authored another opinion with 23 musical group names inserted into one paragraph. Equable Ascent Fin. LLC v. Tirado, 48 Misc. 3d 1221(A), 26 N.Y.S.3d 213 *1 (N.Y. Civ. Ct. 2015). 347. Colonial Credit Corp. v. Beyers, 46 Misc. 3d 1221(A), 15 N.Y.S.3d 711 (N.Y. Civ. Ct. 2015). 348. Colonial Credit Corp., 46 Misc. 3d at *1 n.1, citing The Rolling Stones, (I Can’t Get No) Satisfaction. 349. The Rolling Stones, “Under My Thumb,” on Aftermath, Decca 1966. 350. Stones, “Under My Thumb,” noting in footnote 2 that The Rolling Stones, “Not Fade Away,” on England’s Newest Hit Makers, Decca 1964, words and music were written by Charles Hardin and Norman Petty (Charles Hardin being Buddy Holly’s first and middle names. His last name was actually“ Holley”). 351. Ibid. citing both The Rolling Stones, “19th Nervous Breakdown,” on Got Live if You Want It!, London Records, 1966 and The Rolling Stones, “Mother’s Little Helper,” on Aftermath, Decca, 1966. 352. Ibid. at *6 n.2, citing The Rolling Stones, “You Can’t Always Get What You Want.” 353. Hellander v. Metlife Auto & Home Ins. Co., 41 Misc. 3d 1226(A), 981 N.Y.S.2d 635 (Civ. Ct. 2013). Judge Straniere included in his opinion that “the failure of the parties to focus on ‘timing’ had placed the court in the ‘No–Fault World’ equivalent of a ‘time warp,’” which is “[n]ot unlike the “Time Warp” occurring in “The Rocky Horror Picture Show” music and lyrics by Richard O’Brien.” Hellander, 41 Misc. 3d at *1, n.1. Cast of The Rocky Horror Picture Show, “Time Warp,” on The Rocky Horror Picture Show, 20th Century Fox, 1975. 354. Hellander, 981 N.Y.S.2d 635 at *4. 355. Hellander, 981 N.Y.S.2d at *1, referring to The Rolling Stones, “Time Is on My Side,” on 12 X 5, London Records, 1964; Chambers’ Brothers, “Time Has Come Today,” on The Time Has Come, Columbia, 1966 without attribution. 356. Fisher v. Applebaum, 2005 WL 827018 (R.I. Super. 2005). 357. Fisher, 2005 WL 827018, at *2, citing to The Rolling Stones, “Sympathy for the Devil,” on Beggars Banquet, Decca, 1968. 358. Ibid. 359. Colorado Wild Horse v. Jewell, 130 F. Supp. 3d 205 (D.D.C. 2015).

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360. Colorado Wild Horse, 130 F. Supp. 3d at 208, citing The Rolling Stones, “Wild Horses,” on Sticky Fingers, Rolling Stones Records, 1971. 361. Ibid. 362. Estate of Dean, 2014 WL 3221222 (Del. Ch. 2014). 363. Estate of Dean, 2014 WL 3221222 at *7. 364. Id. at *7 n.56. The Rolling Stones, “Rough Justice,” on A Bigger Bang, Vir- gin, 2005. 365. People v. Charles, 61 Cal. 4th 308, 349 P.3d 990 (2015). 366. People, 349 P.3d at 333 citing The Rolling Stones, “The Last Time,” on Out of Our Heads, Decca 1965 without attribution. 367. Brekke v. Wills, 125 Cal. App. 4th 1400, 23 Cal. Rptr. 3d 609 (2005). 368. Brekke, 23 Cal. Rptr. 3d at 617. Todd Rundgren, “Fair Warning,” on Initia- tion, Bearsville/Rhino, 1975. 369. Montoya v. PNC Bank, N.A., 2014 WL 4248208 (S.D. Fla. 2014). 370. Citing The Scorpions, “Wind of Change,” on Crazy World, Mercury Records, 1991. 371. Montoya, 2014 WL 4248208, at *1. 372. Leach v. James, 455 S.W.3d 171, 173 (Tex. App. 2014). 373. Citing “Turn the Page,” Bob Seger. “With all due respect.” Id. at 173 n.1. Bob Seger, “Turn the Page,” on Back in ‘72, Reprise, 1973. 374. Carter v. Fannie Mae, 2014 WL 4212622 (Cal. Ct. App. 2014). 375. A reference to unquoted lyrics from Bob Seger, “Against the Wind,” on Against the Wind, Capitol, 1980. 376. Carter, 2014 WL 4212622, at *6, quoting from Bob Seger, “Against the Wind.” 377. Thompson v. Carnival Corp., 174 F. Supp. 3d 1327 (S.D. Fla. 2016). 378. Thompson, 174 F. Supp. 3d at 1337, crediting Bob Seger & The Silver Bullet Band, “Against the Wind.” 379. Montoya v. PNC Bank, N.A., 2014 WL 4248208 (S.D. Fla. 2014). 380. Montoya, N.A., 2014 WL 4248208, at *21. See also People v. Chacon, 109 Cal. App. 4th 1537, 1 Cal. Rptr. 3d 223 (2003); People v. Thomas, 109 Cal. App. 4th 1520, 1 Cal. Rptr. 3d 233 (2003) (same). 381. Thompson v. U.S. Dep’t of Hous. & Urban Dev., 2001 WL 1636517 (D. Md. 2001), also reported as Thompson v. U.S. Dep’t of Hous. & Urban Dev., 2002 WL 31777631 (D. Md. 2002). 382. Thompson, 2001 WL 1636517, at *4. 383. Ibid. 384. Ibid. at *4 n.12, quoting from Bruce Springsteen, “The River,” on The River, Columbia, 1980. 385. Fick v. Brown, 254 P.3d 593 (Mont. 2011), quoting the lower court order in Fick v. Brown, No. DV 10-152 (Dist. Ct. Park County, June 7, 2011). 386. Fick, 254 P.3d at 595. 387. Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 751 A.2d 1035 (2000). 388. Fleming, 164 N.J. 90, 751 A.2d at 1040. 389. See Bruce Springsteen, “Badlands,” on Darkness on the Edge of Town, Columbia, 1978. Lyric not quoted in the opinion.

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390. Farr Man Coffee Inc. v. Chester, 1993 WL 248799 (S.D.N.Y. 1993). 391. Farr Man Coffee Inc., 1993 WL 248799, at *22 n.35. Judge Edelstein was born in 1910, meaning he authored this opinion at age 83. 392. Fischer v. Time Warner Cable Inc., 234 Cal. App. 4th 784, 184 Cal. Rptr. 3d 490 (2015). 393. Fischer, 184 Cal.Rptr.3d at 501 n.18. Bruce Springsteen, “57 Channels (And Nothin’ On),” on Human Touch, Columbia, 1992 without attribution. 394. Richards v. Richards, 2003 WL 21213276 (Conn. Super. Ct., May 12, 2003). 395. Richards, 2003 WL 21213276 at *2 n.1, citing Bruce Springsteen, “Glory Days.” For a possible unattributed reference to the same song, see Wendt v. Host Int’l, Inc., 197 F.3d 1284, 1285 (9th Cir. 1999) describing a character in the sitcom Cheers (“Sam, the owner and bartender, entertained the boys with tales of his glory days pitching for the Red Sox.”). 396. Flood v. Nat’l Collegiate Athletic Ass’n, 2015 WL 5785801 (M.D. Pa. 2015). 397. Flood, 2015 WL 5785801 at *1. 398. See “Glory Days,” for the line, not quoted by the court. 399. Referencing Bruce Springsteen, “Glory Days.” 400. Flood, 2015 WL 5785801 at *1. 401. United States v. Bullock, 454 F.3d 637 (7th Cir. 2006). 402. United States, 454 F.3d at 638. 403. Ibid. at 638 n.1. Citing Bruce Springsteen, “Johnny 99,” on Nebraska, Columbia, 1982; Bob Dylan, “Percy’s Song,” on Biograph, Columbia Records, 1985; Johnny Cash, “Cocaine Blues,” on Now, There Was a Song!, Columbia Records, 1960; Ed Bruce, “Ninety-Seven More to Go,” on If I Could Just Go Home, RCA Victor, 1968; Bill Anderson, “Ninety-Nine,” Decca, 1959; Chloe Bain, “Ninety-Nine Years” on Max Hunter Folk Song Collection, Missouri State University Department of Music, 1959; Guy Mitchell, “Ninety-Nine Years (Dead or Alive),” Columbia Records, 1956). 404. Miami Yacht Charters, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh Penn- sylvania, 2015 WL 520846 (S.D. Fla. 2015). 405. See Bruce Springsteen, “No Surrender,” on Born in the U.S.A., Columbia, 1984, for the lyric, not quoted by the court. 406. Springsteen, “No Surrender.” The court cited Springsteen’s “No Surrender” as well as Kenny Rogers’ well-known musical advice in “The Gambler”: “You’ve got to know when to hold ‘em, know when to fold ‘em, know when to walk away, and know when to run.” Kenny Rogers, “The Gambler,” on The Gambler, United Artists, 1978. Ibid. at *6. 407. Adelman v. Boy Scouts of Am., 276 F.R.D. 681 (S.D. Fla. 2011). 408. Adelman, 276 F.R.D. at 700. 409. Ibid. at 700 n.22. 410. Ellis v. Warner, 2017 WL 634287 (S.D. Fla. 2017). 411. In footnote 1, the judge remarked that “the American rockabilly band Stray Cats released a song entitled Nine Lives.” Stray Cats, “Nine Lives,” on Blast Off!, EMI Records, 1989. 412. Ellis, 2017 WL 634287, at *1.

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413. Swayze v. McNeil Labs., Inc., 807 F.2d 464 (5th Cir. 1987). 414. See Talking Heads, “Psycho Killer,” on Stop Making Sense, Sire/Warner Bros., 1984, for the lyric, not quoted in the opinion. 415. Swayze, 807 F.2d at 472 n.1 (Goldberg dissenting). Judge Goldberg was born in 1906, meaning that he issued the opinion with the Talking Heads reference when he was 81 years old. 416. See Talking Heads, “Once in a Lifetime,” on Remain in Light, Sire, 1980. Not quoted in the opinion. 417. Hughes v. Mylan Inc., 2011 WL 5075133 (E.D. Pa. 2011). 418. Quoting Talking Heads, “Once in a Lifetime.” Expressing a similar sentiment, another opinion uses a different lyric from Herman’s Hermits, “I’m Henry VIII, I Am”: “Second verse, same as the first.” Martin v. Martin, 903 So. 2d 619 (La. App. 2 Cir. 2005). 419. Hughes, 2011 WL 5075133, at *6. 420. United States v. Abner, 825 F.2d 835 (5th Cir. 1987). 421. John Browning, “Legally Speaking: Lyrical Law,” SE Texas Record, http: // set exasr ecord .com/ stori es/51 06097 82-le gally -spea king- lyric al-la w; see also “25 Hid- den Talking Heads References,” McClurg’s Legal Humor, http: //law haha. com/2 5-hid den-t alkin g-hea ds-re feren ces/. 422. Greg Castanias, “Interview with Steve Riggs,” The Exordium: The Newslet- ter of the Indiana University School of Law, Vol. 14, Bloomington, IL., May 1990, 5. 423. Talking Heads, “Wild, Wild Life,” on True Stories, Sire, 1986. 424. Talking Heads, “Road to Nowhere,” on Little Creatures, Sire, 1985. 425. Talking Heads, “And She Was,” on Little Creatures, Sire, 1985. 426. Talking Heads, “Burnin’ Down the House,” on Speaking in Tongues, Sire, 1983. 427. Examples from the opinion include phrases such as “a once in a lifetime deal,” “Raleigh Abner had a wild, wild life,” “the pursuit of Clark as a witness is a road to nowhere,” “and she was acquitted,” and “the Abners had been caught burn- ing down the house.” (Italics not in original). For the other references, see http: //www .lega lunde rgrou nd.co m/200 4/02/ i_was _read y_to_ .html . Judge Garza, born in 1915, was 72 years old when the opinion issued. 428. Am. Trucking Ass’ns v. City of Los Angeles, Cal., 569 U.S. 641, 133 S. Ct. 2096, 2100 (2013). 429. Am. Trucking Ass’ns, 569 U.S. 641, 133 S. Ct. 2096 at 2100. Tommy Tutone, “867-5309/Jenny,” on Tommy Tutone 2, Columbia, 1981. 430. Procaps S.A. v. Patheon Inc., 2014 WL 800468 (S.D. Fla. 2014). 431. Cool Hand Luke, Warner Bros. Seven Arts, 1967. 432. Cool Hand Luke, 2014 WL 800468, at *1, quoting U2, “I Still Haven’t Found What I’m Looking For,” on The Joshua Tree, Island, 1987. 433. Marina Dist. Dev. Co., LLC v. Ivey, 216 F.Supp.3d 426 (D.N.J. 2016). 434. Ibid. at 432. 435. U2, “Every Breaking Wave,” on Songs of Innocence, Island, 2014, credited as © 2010–2014 (lyrics only) Bono, the Edge. 436. People v. Muschamp, 2016 WL 3344113 (Cal. Ct. App. 2016).

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437. Van Halen, “Jump,” on 1984, Warner Bros., 1983. 438. Muschamp, 2016 WL 3344113 at *3. 439. Murray Ohio Mfg. Co. v. Cont’l Ins. Co., 705 F. Supp. 442 (N.D. Ill. 1989). 440. Tom Waits, “Step Right Up,” on Small Change, Asylum, 1976. This portion of the Murray opinion was cited in Alpha Holdings, Ltd. v. Travelers Indem. Co., 2006 WL 1916982 at *12 (Cal. Ct. App. 2006). See also San Joaquin Cty. Med. Soc. v. AMCO Ins. Co., 2003 WL 23097002 at *3 (Cal. Ct. App. 2003), citing Waits v. Frito-Lay, Inc. 978 F.2d 1093, 1097 n.1 (9th Cir. 1992). 441. Murray, 705 F. Supp. ar 444. 442. Med. Assur. Co. v. Dillaplain, 2010-Ohio-841, ¶ 19, 186 Ohio App. 3d 635, 641, 929 N.E.2d 1084 1088 n.1 (2010). 443. Dillaplain, 186 Ohio App. 3d at 641 n.1, 929 N.E.2d at 1089 n.1; Dorman v. International Harvester Co., 46 Cal.App.3d 11, 120 Cal.Rptr. 516, 521–522 (1975); Gorman v. Saf-T-Mate, Inc., 513 F.Supp. 1028 (N. D. Ind. 1981); Oldham’s Farm Sausage Co. v. Salco, Inc. 633 S.W.2d 177, 181 n.2 (Mo. Ct. App 1982) (citing Dor- man); Boelens v. Redman Homes, Inc., 748 F.2d 1058 (5th Cir, 1984) (citing Gor- man); Simmons v. Taylor Childre Chevrolet-Pontiac, Inc., 629 F.Supp. 1030 (M.D. Ga. 1986) (citing Gorman); and Little v. MGIC Indem. Corp., 649 F.Supp. 1460, 1465 (W.D.Pa.1986). 444. Dillaplain, 186 Ohio App. 3d at 641, 929 N.E.2d at 1089. 445. Peppers v. United States, 2011 WL 4458777 (E.D. Mich. 2011). 446. The Who, “Won’t Get Fooled Again,” on Who’s Next, Decca, 1971. Peppers, 2011 WL 4458777, at *4 n.4. See also Marblegate Asset Mgmt. v. Educ. Mgmt. Corp., 75 F. Supp. 3d 592, 602 (S.D.N.Y. 2014); United States v. Havelock, 664 F.3d 1284, 1305 (9th Cir. 2012). 447. Breslow v. Am. Sec. Ins. Co., 2016 WL 698124 (S.D. Fla. 2016). 448. Breslow, 2016 WL 698124, at *11 n.9, quoting Yardbirds, “I’m Not Talk- ing,” on For Your Love, Epic, 1965. 449. Q Div. Records, LLC v. Q Records, QVC, Inc., 2000 WL 294875 (D. Mass. 2000). 450. Q Div. Records, LLC, 2000 WL 294875, at *2 n.2. 451. Matter of Sage’s Estate, 97 Misc. 2d 790, 412 N.Y.S.2d 764 (Sur. 1979). 452. See Warren Zevon, “Excitable Boy,” on Excitable Boy, Asylum, 1978. Not quoted by the court. 453. Sage’s Estate, 97 Misc. 2d at 794. 454. Warren Zevon, “Lawyers, Guns and Money,” on Excitable Boy, Asylum, 1978. 455. The narrative from the song “Lawyers, Guns and Money” somewhat mirrors the facts of the case. 456. Matter of Sage’s Estate, 97 Misc. 2d at 795, quoting Zevon’s “Lawyers, Guns and Money.”

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Klingensmith_9781498594868.indb 126 10/15/2019 2:48:04 PM Francine Banner, “Reckoning: People v. Weinstein,” in Crowdsourcing the Law: Trying Sexual Assault on Social Media (Lanham, MD: Lexington Books, 2019), 201–228. All rights reserved.

SIX Reckoning

People v. Weinstein

During the 1990s, the films produced by the Weinstein Company, led by CEO Harvey Weinstein, earned hundreds of Oscar nominations. The producer was praised for his activism on behalf of AIDS awareness and medical research. Weinstein promoted his wife’s fashion label into a multimillion-dollar business, demanding that actors in his films appear at public events in Marchesa gowns. Ronan Farrow describes that Wein- stein, “ha[d] been thanked more than almost anyone else in movie history, ranking just after Steven Spielberg and right before God.”1 In 2016, however, Weinstein’s empire began to crumble. The company invested in a series of less-than-successful films. Then, in the fall of 2017, the New York Times and the New Yorker reported that dozens of women had been sexually harassed or sexually assaulted by the mogul.2 Thus far, more than eighty women, among them prominent actors Uma Thur- man, Ashley Judd, and Lupita Nyong’o, have come forward to accuse Weinstein of inappropriate sexual behaviors ranging from exhibitionism to rape.3 Multiple civil suits have been filed alleging that the producer engaged in battery and quid pro quo sexual harassment.4 In May 2018, Weinstein was arrested in New York City for the alleged rape and sexual abuse of two different women, and it appears the fallout is far from over.5 As disclosures surged suggesting the extent of Weinstein’s alleged behavior, actress Alyssa Milano tweeted, Suggested by a friend: If all the women who have been sexually harassed or assaulted wrote “Me too” as a status, we might give people a sense of the magnitude of the problem. If you’ve been sexually harassed or assaulted write “me too” as a reply to this tweet.6

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Milano was quoting Tarana Burke, an activist who launched the hashtag while coming to terms with her own traumatic past.7 The #MeToo movement rapidly took on a global significance. In Italy, survivors tweeted about #quellavoltache (that time when), as French victims were encouraged to flag harassers with #BalanceTonPorc (snitch out your pig). #MeToo built on earlier hashtag campaigns, such as #GrabYourWallet and #NotOkay, which attracted millions of participants.8 As a result of organizing over social media, in March 2017, millions marched worldwide on behalf of women’s rights, many wearing hand-knit, pink, cat- eared hats to call out the president’s vulgar comments and the administration’s overall lack of support for women’s concerns. As the social movement took shape, claims of sexual harassment and institutional non- responsiveness implicated companies including Uber, Google, and Fox News.9 Although the Trump administration’s policies are, to put it mildly, less than woman-friendly, the president’s practice of using social networks as a platform for engaging in politics in fact may have helped to empower oppositional social movements like #MeToo. 10 Although social media were in the background in earlier administrations, the Trump presidency has shifted the role of such platforms from ancillary to primary tools of political messaging.11 The stylistic parameters dictated by social networks combined with factors like anonymity, disinhibition effects, and the president’s own personality, have contributed to a phenomenon whereby, as political discourse is engaged online, politics have grown exponentially more comba- tive.12 Pew Research Center identifies that since the 2016 election “angry” reactions on Facebook are much more common than “love” reactions.13 News media in the United States have become the most polarized of any democratic nation, with readers increasingly refusing to seek out information across the political divide.14 Increasing access to social media and growing anger fuel the #MeToo movement. After more than thirty years of activist, feminist interventions in the law, under many metrics the movement has revolutionized law on the books but has had painfully little success in effecting practically meaningful reforms. Crimes of sexual assault continue to be marked by low clearance rates and failures in reporting. Rape kits sit untested. Mis- taken assumptions about false claims and liars thrive. Were it two years ago, this book might have concluded that Carol Smart’s prediction in the 1990s of feminist changes to law being a Pyrrhic victory still held true. The #MeToo movement, however, is a game changer, channeling collective frustration at years of institutional indifference into demands for social and legal reforms. The breadth of the movement, and the changes to sentencing and statutes of limitations that it has inspired may signify a seismic shift, not only in the power among the members of the general public to effect legal change, but in their perception of themselves as

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change agents. MacKinnon characterizes #MeToo as having a “butterfly” effect, that “the right small human intervention in an unstable political system can sooner or later have large complex reverberations.”15 She writes that, at last her own “‘flights of activism’ . . . are producing ‘storms, sometimes tornados, in gender relations through law.’”16 As MacKinnon describes, after years of attempts at feminist interventions, the movement seems to be on the precipice of achieving what centuries of IRL social protest have been unable to accomplish. 17 The impact of #MeToo is visible in comments after the guilty verdict in the Cosby case. A reader on a major news site remarks, I hope this really is a new day. I hope that, if someone like Cosby or Weinstein actually faces consequences for abusing and sexually as- saulting their fellow human beings, those who commit these crimes who are not famous will also be held accountable. No more smearing the accuser, no more making excuses for male privilege. Real consequences. What a relief. Another notes, “[N]ow there may be consequences for sexual assault and misconduct. People will think twice before they abuse each other. . . . The old tricks of smearing the accusers didn’t work this time.” What is the potential of a virtual social movement like #MeToo in regard to law, and what is its peril? The answer depends in large part on how democratic and inclusive social networks turn out to be. The successful recall campaign of judge Aaron Persky in the Brock Turner case, as well as the numerous changes to sexual assault and rape statutes across the United States, attest to the strength and the unifying power of social media. However, it is an open question whether these changes, accomplished rapidly through the will of a virtual majority, are investing in traditional legal structures and institutions or refuting them. The answer, probably, is both. There has yet to be a true test of the #MeToo movement’s impact on law. The significance of the movement in the Cosby trial was emphasized only by its glaring and deliberate absence.18 Yet, as described in chapter 1, #MeToo did likely play a role in arguably the most significant portion of the trial, the decision about admission of evidence. The import of the social movement on the potential trials of Weinstein and others remains to be seen, although one can guess that the overwhelming interest in the producer’s prosecution already is making the criminal process much more transparent by significantly reducing the likelihood of a plea offer.

#METOO: ITS PROMISE AND PERIL

For many participants, #MeToo has been not only inspirational but revolutionary. Articles describe the hashtag, posted as a Facebook status twelve million times in the movement’s first twenty-four hours, as an

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“avalanche,” a “deluge,” and a “reckoning.”19 For many, posting #MeToo marked the first time they had publicly spoken about having been harassed or assaulted, even to family or close friends. 20 One can only imagine the numbers of calls and emails that took place after relatives, accus- tomed to seeing vacation pictures, were confronted with the initially cryptic statement. Although, as highlighted in the introduction, the internet has proven to be a toxic space for women, it is also potentially a liberating one. Carrie Rentschler comments that the online environment has empowered feminist bloggers “to respond to rape culture, and hold accountable those responsible for its practices when mainstream news media, police and school authorities do not.”21 She describes how the internet enables young women to be “response-able witness[es]” to catcalls, harassment, and rape jokes, documenting and responding to bad behaviors with network-based strategies such as mobile phone video or Google mapping.22 While online activism has been parodied as “slacktivism,” the virtual environment in reality has been a location that has enabled change that is significant and, perhaps, more democratically effected than ever before. Notably, women are more than twice as likely to sign online petitions and more likely to be involved in virtual organizing, “bypassing the gate- keepers, simply by sheer mass—forcing attention on the issues they deem important.”23 Active participants in virtual forums are not only influencing legislative change and outcomes in criminal cases, they have accomplished significant inroads with regard to issues like repealing the “tam- pon tax.”24 Via social media, feminists, and particularly feminists from less visible sectors of society, can fill in information that national media coverage may have glassed over or ignored. 25 Significantly, although young women may be “attacked” or “policed” by other commenters, women of color point out that, for nonwhite women, tangible physical spaces also may feel unsafe. While the digital world may be perceived as an unusually toxic environment by a white woman, it may be interpreted differently by someone who regularly experiences harassment and exclusion in everyday life. 26 As Kaba and Smith explain, “Twitter may be toxic—but so is the world.”27 For non-white commenters, the digital environment can feel safer than the real-life world because despite not being protected spaces . . . [i]n these digital spaces, in- stances of abuse can be addressed without the physical confrontation required to speak up in offline public spaces. Reactions to violence can be contemplated and crafted without the anxiety that comes with an altercation at close proximity. When a woman is cornered on her Twit- ter feed, she need not go it alone; rather, there is often a heightened sense of collectivity among fellow hashtaggers. When trolls do appear, their toxic words are likely to be met with a group of women who

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stand up to them, advocate for one another, and stake ownership over the digital dialogue.28 As recent identifications of Permit Patties and Barbeque Beckies attest, people of color are surveilled even as they engage in innocuous, everyday activities. Ryan Bowles-Eagle explains that “[u]ltimately, hashtag activism . . . is not only about mobility but about the ability to loiter, to linger without needing a reason—something the architecture of a digital space like Twitter is designed to foster.”29 Unquestionably, the #MeToo movement has inspired survivors personally to speak out and, as it has gained steam, discussions about rape culture, slut-shaming, and toxic masculinity have been moved further into the mainstream.30 The collective calling out of friends and coworkers as potential perpetrators and harassers online has made many people more aware of the latent dangers around them in real life. As a professional in the entertainment industry wrote of the so-called shitty men list, “Over the course of the day, I had several conversations with female friends who asked a variation of the same question: This man is close to me, either professionally or personally; what is my role here?” 31 Others have been encouraged to consider how their own experiences fit into the larger construct of rape culture. As one participant in the movement reflected, I’ve never really thought about these moments cumulatively before. . . . In part, because they seem so “small” compared to what many have experienced—not worthy of consideration.32 This statement highlights how the #MeToo campaign has permitted and encouraged persons who have experienced sexual assault and harassment to view what they may have previously dismissed as “minor” vio- lations and humiliations not as isolated events but as part of a larger rape culture. This realization of a collective, shared experience is unprecedented. In January 2016, about a million people were talking about sexual harassment on Twitter; in January 2018, almost eight million people had something to say about the topic.33 Even if #MeToo does not have clear next steps, simply identifying the magnitude of sexual harassment and assault is a profound accomplishment.34 While #MeToo has inspired some to identify what they have experienced as a part of a greater rape culture, it also has created a perhaps less- comfortable space in which people can envision their roles as participants in fostering social and work environments that have been conducive to abuse and assault.35 The 2017 Dictionary.com Word of the Year was “complicit.”36 Our societal interest in the term reflects the idea that criminal responsibility is not only reserved for perpetrators but for those who aid and abet them. As sexual assault allegations have been revealed across varied fields, discussions concern not only the alleged perpetrators themselves but often those who have, tacitly or directly, supported their bad behavior. The idea of “whisper networks,” for example, has become

154 Lexington Books Legal Studies Chapter Showcase 206 Chapter 6 a popular way to describe groups of persons—usually women—who shared warnings about suspected harassers and perpetrators with select friends and colleagues but not to a wider and potentially more vulnerable audience.37 Like underground publications in times of political oppression, these networks of women have been praised for exhibiting agency; however, they are also problematic in their failure to publicly identify alleged perpetrators, leaving the most vulnerable to assault unprotected.38 Collec- tive self-reflection about our own and others’ participation in covering up allegations has also been an important part of the #MeToo movement.39 Uma Thurman’s February 2018 statement to the New York Times describing encounters with Harvey Weinstein, for example, reads more like a confession than the narrative of a survivor, conveying her regret that her silence had contributed to a “cloud cover” encouraging “lambs” to walk “into the slaughter.”40 The public emergence of a “sensational” criminal case can lead to a crisis moment, opening up a space for the public to voice opinions, not just about guilt or innocence, but about larger issues of race, class, and gender, free from the anxieties that overshadow in-person conversations. The disclosure that a serious crime has occurred brings up issues of public safety but also raises complex moral and ethical questions. In a case like that of Susan Smith, who drowned her children, the public debates concern, not only of guilt or innocence, but the deeper question of what it means to be a good or bad mother.41 When, in 2016, a grand jury in St. Louis County failed to indict Darren Wilson, the officer accused of homi- cide against Michael Brown, conversations took place that not only re- hashed facts in the case but confronted racism, poverty, and the role of discriminatory criminal justice practices in imposing structural violence. In this moment of #MeToo, space has been opened up for the renegoti- ation of legal meaning. Discussions about complicity mark yet another instance in which a formal, legal term is being vernacularized and perhaps reenvisioned in the public imagination. Yet, as openings arise for discussion and redefinition, it is important to take stock of not only the promise of #MeToo but the movement’s potential pitfalls.

A “GENDERED” BINARY

As discussed in the introduction, former Trump administration chief strategist and former CEO of Breitbart, Steve Bannon, identifies a threat to political conservatives from an “anti-patriarchy movement” that he predicts will be “stronger than the tea party.”42 Similar perspectives are in abundance among social media commenters who identify covens of angry women—witches, gold diggers, lynch mobs—waiting in the wings, eager to supplant men in positions of power.

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In the views of many internet posters, sexual assault accusations form an important part of a larger and unsettling, gendered upheaval that is taking place across society. As discussed in earlier chapters, there is a belief that men in power are being targeted by and are falling “victim” to lawfare deployed by “feminazis” like Gloria Allred. The witch hunts and lynch mobs described in chapter 4 evidence a widespread moral panic about impending gender wars. Across online forums, there is extensive support for the idea that sexual assault laws have been and are being constructed by women to punish and penalize men. As a commenter on a popular video site writes, The way the laws are written sexual assault is anything the woman thinks it is. Trying to kiss a woman and being rejected can be sexual assault. Flirting with a woman who you find out later is not interested can be sexual assault. Trying to hold hands with [a] woman who is not interested can be sexual assault. Sexual assault according to the way American laws are written is anything that the woman feels is un- wanted sexual advances. Which could be anything she doesn’t like and takes it be something that she thinks is sexual. When it comes to SEX all men are evil and all women are angels—RIGHT? On the site of a popular weekly entertainment magazine, a commenter explains, When it comes to sex the man is always wrong and the woman is always right—the way the feminist laws are written. There are many feminist women’s groups who lobby the government and make the government and Law enforcement believe that all men are evil and all women are angels that can do no wrong when it comes to SEX. On a conservative blog, a comment notes, “Winking is sexual assault. You be careful now.” While the identification that women as a category are out to take down all men is extreme, it is not incorrect to identify that, so far, the #MeToo movement appears to have been constructed along gendered lines. As people began to retweet and repost Alyssa Milano’s request that “all the women who have been sexually harassed or assaulted” write “me too,” some changed the word “women” to “persons.” Rapidly, fissures emerged. Was the social movement meant to call out men’s violence against women and girls or was its objective to identify gender-based violence against all persons? Some men who posted #MeToo were called out as “colonizers” attempting to piggyback on a campaign meant to protect a more marginalized group.43 Helena Theixos argues that the centering of women’s voices in the movement is purposeful: “The prioritizing of the heretofore silenced voice is a hallmark feature of this new activism. . . . Prioritizing the silenced victim’s voices is a conscious choice, in direct reaction to and in defiance of a culture of silencing.”44

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In response to #MeToo, a group of established Hollywood women, including Reese Witherspoon, established the TIME’S UP Legal Defense Fund. The website for campaign features a prominently displayed letter that begins, “Dear Sisters.”45 Via mechanisms like the “shitty men list,” men are being defined as the likely perpetrators of sexual assault and women constructed as victims or survivors. In much of the discourse surrounding the movement, there are roles for sympathetic men as allies or bystanders but not as victims of violence themselves. This construction of sexual assault along a gendered divide is troubling. Across institutional contexts—prisons, the military, the Catholic church—men are not only the majority of sexual assault perpetrators but they also comprise the vast majority of victims. Defining sexual assault crimes in terms of a gender binary serves to exclude some survivors from the justice system’s protections. The harm from this exclusion is felt by many men personally. Chris Brown, who accused conductor James Le- vine of sexual assault, describes that, while he admires the women posting the “me too” status, the movement itself has only furthered his “lone- liness as a past victim.”46 Similarly, Andrew Schmutzer, as a non-cis female survivor, characterizes his status as “always an adjunct.”47 Data demonstrate that reporting rates among men are lower than those among women, most likely because social stigma and shame are greater within the male victim population.48 The vast majority of research on sexual assault focuses on cis female victims, as do representations of rape, sexual assault, and sexual harassment across the media. There is a danger that this collective reluctance to view men as genuine victims serves to perpetuate rape culture; we are more likely to favor an eye for an eye approach to the punishment of Turner or Nassar if rape of men, or rape in prison is not “real rape.” The framing of #MeToo so far not only ignores that men are victims of rape in the direct, literal sense but in the broader sense that men, too, are impacted by structural violence. Men themselves are not bystanders to but are actively being harmed by patriarchy.49 As contemporary discussions of complicity by those speaking out against Weinstein attest, women are both beneficiaries of and victims in systems of oppression. This is also true of men. The calls to expand incarceration and retributive justice that have ac- companied the #MeToo movement risk intensifying this problem by continuing to focus on individual rather than structural violence. Across the criminal justice system, it has not been conservative but bipartisan reforms that have led to the curbing of judicial discretion and to longer and longer sentences. Advocacy by members of the feminist movement has contributed to mandatory arrest policies for both men and women in the context of allegations of intimate partner violence, to a lessened availabil- ity of parole, and to moral panics about sex offenders, stalking, and other sex-based offenses.

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Perhaps the most significant contribution of social media is the newfound ability to mobilize affinity groups instantaneously around a particular social issue or problem. Just a small sample of the ways in which social media have been used to effect legal change in the past few years includes not only the landmark recall of Judge Persky but an ongoing and growing movement to significantly extend or abolish statutes of limitation relating to sexual assault.50 Neither the movement toward extending statutes of limitations in relation to crimes of sexual violence nor the cry to remove biased judges is new; the crime control reforms fit into the neoliberal trend toward expanding the carceral state that has been going on for years. Now, however, social media and social networks are providing an unprecedented tool for efficiently mobilizing large and seemingly disparate groups of people around a single issue in an instant. There is also concern about who, really, is included in the social movement. Founder Tarana Burke, Ashwini Tambe, and others describe that, so far, the faces out in front—in social media language, the “influencers”—have been largely cisgender white women.51 As a result, Tambe critiques that the movement so far has largely centered on white women’s pain.52 Edwards’ criticism of the framing of the women’s movement in the 1970s may hold true today: the “analysis, that women’s shared oppression by men outweighs all potential for alliances along other lines” sets up a framework in which “Happy Rockefeller has more in common with a Black woman in an auto plant than has a male Black autowork- er.”53 Phyllis Chesler asks, “Will [#MeToo] be able to change the working conditions of farm and factory workers? More important, how will we be able to monitor and intervene in the daily work lives of female agricultu- ral workers, waitresses, secretaries, housekeepers, bar tenders, miners, students, soldiers and prostituted women?”54 She ponders whether, in fact, these women’s “working lives will become harder, harsher, if powerful men lose their sexual perks in the office and have to pay to treat women badly.”55 Transgender women, too, experience sexual violence at rates equal to or greater than nontransgender women. As Levine notes, “the attribution of violence against women to male domination offers little to those women who happen to be male-assigned. This is of particular concern in legal contexts.”56 The recent deluge of disclosures across the entertainment industry, and perhaps telling silences across other industries, demonstrate that, until very recently, the word of even relatively privileged white women would not have been believed over that of male colleagues and bosses. The allegations against Harvey Weinstein tellingly mark the first time in which the accusers of sexual assault are potentially more famous and richer than the accused. As Time Magazine asks, rhetorically, in its “Si- lence Breakers” article: “When movie stars don’t know where to go, what hope is there for the rest of us? What hope is there for the janitor who’s

158 Lexington Books Legal Studies Chapter Showcase 210 Chapter 6 being harassed by a co-worker but remains silent out of fear she’ll lose the job she needs to support her children? For the administrative assistant who repeatedly fends off a superior who won’t take no for an answer? For the hotel housekeeper who never knows, as she goes about replacing towels and cleaning toilets, if a guest is going to corner her in a room she can’t escape?”57 The #MeToo movement faces a Catch-22. It is the very fact that famous, primarily white, elite, cis female women are speaking out that gives #MeToo its power. Out in front of the social movement are women who are both “famous” and “familiar,” a tried and true strategy for success.58 At the Oscar ceremony in early 2017, actor Frances McDormand addressed the necessity for those in power in the entertainment industry to demand that any project on which they work contain an “inclusion rider,” a proviso that any workers associated with the project represent a real commitment toward diversity and equality.59 After the Oscar speech, the actor partnered with a law firm to create a template that could be inserted into employment contracts, requiring that production teams interview women and members of underrepresented groups.60 The only persons who can demand such a rider, though, are the people who have established their power. So far, it is mostly white and universally eco- nomically privileged women who have achieved status within the Holly- wood entertainment machine who, at last, seem to have come close to feeling as though they can speak out without facing massive repercussions. What fuels the movement’s power also creates its potential to be exclusionary. The troubled history of the women’s movement, dating back to Flor- ence Kelley, Louis Brandeis, and the National Consumers League (NCL), demonstrates that it is highly problematic when women speak on behalf of others. While the NCL advocated for female elevator operators and laundry workers in the early 1900s, white women activists were able to protest against oppression because women of color were employed as domestic workers at their homes.61 Although protections for white women workers in factories were enacted in the late 1800s, it was not until the 1970s when African American women domestic workers were afforded workplace protections such as minimum wage or maximum hour restrictions.62 Across liberal and conservative social media sites it is common for posters to suggest imposing longer or mandatory minimum sentences for sexual assault crimes, continuing to overlook and obscure the impact those changes may have on communities of color. St. Félix tweets, you “can just feel the intersectional framework, which hadn’t even truly been instituted, slipping from the discourse in favor of gender binary.”63 There are many nonwhite women—Anita Hill, Shonda Rhimes, Salma Hayek, Lupita Nyong’o, and others—in visible positions within the #MeToo and #TimesUp movements; however, in the overarching and largely one-di-

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mensional reframing of the movement as one about gender, the distinct and important interests of these women of color risk being swept under the rug yet again. As both bell hooks and, more recently, Roxanne Gay, articulate, the question of “who gets to be angry” is a political one.64 The answer to that question is being debated and disputed in the context of #MeToo. The TIME’S UP Legal Defense Fund is attempting to raise awareness around these issues of inclusiveness. On its website, the fund’s very first objective is “to help less privileged women—like janitors, nurses and workers at farms, factories, restaurants and hotels—protect themselves from sexual misconduct and the fallout from reporting it.”65 Ancillary to the TIME’S UP legal campaign is a promising, inclusive project begun by director and producer Shonda Rhimes, labeled 50/50 by 2020, an initiative that aims for inclusion across the entertainment industry, not only in terms of gender, but also sexual orientation, race, disability status, and other characteristics.66 Yet one has to wonder if calls for inclusiveness pale in comparison to the draw of #YesAllWomen. To become an effective movement for social change #MeToo also must contend with the powerful draw of biological explanations that appeal not only to fatalists like Steve Bannon but to participants in the movement themselves, raised on decades of “commonsense,” gendered truths.

UNREASONABLE WOMEN?

When Ruth Bader Ginsburg argued for abolition of the death penalty for rape in Coker v. Georgia, she was confronting, on behalf of the ACLU Women’s Rights Project, more than a century of legal arguments that relied on essentialist, gendered differences to advance legal protections for women.67 In Muller v. Oregon, Louis Brandeis famously—and lengthi- ly—appealed to (white, male) judges’ commonsense that white women’s status as “mothers of the race” should preclude them from working as many hours as male counterparts.68 In the criminal context, alienation of affection statutes and statutory rape laws all reflected the idea that women were in more need of protection than men, largely because their economic value decreased when they were “defiled.”69 These arguments were not crafted only by men. They were engineered and advanced by women activists, conscious that biologically based arguments might increase the likelihood of success of their legal arguments.70 Over time, feminists scholars and activists have employed arguments that women are naturally more caring and empathetic—or even more impressionable—than men in a pragmatic effort to secure legal policies favorable to women. Lenore Walker’s theory of learned helplessness, a foundational element of battered spouse syndrome, for example, is founded on the hypothesis that female victims who have been sub-

160 Lexington Books Legal Studies Chapter Showcase 212 Chapter 6 jected to repetitive, severe trauma at the hands of men may be rendered incapable of fighting back against an active assailant.71 Cahn critiques this idea that [a] reasonable woman. . . . will certainly not respond aggressively or resort to violence herself. The reasonable woman thus becomes a victim who needs protection; when her actions can be portrayed as those of a victim, she is protected by the courts. Other women do not, unfortunately, fit the reasonable woman stereotype.72 While some survivors may be passive or frozen in the face of oppression, others may fight back or behave in ways that do not comport with typically “feminine” reactions. Diagnoses like battered woman syndrome or rape trauma syndrome are helpful as explanations for why some victims of sexual assault may not promptly report, but they should not be imposed as expectations for all victims.73 Critics identify a danger that the #MeToo movement, like the theory of learned helplessness, is being centered around the idea that women, as a category, are in need of protecting. Condoleezza Rice exhorts, “Let’s not turn women into snowflakes. Let’s not infantilize women.”74 A recent article in the New Republic notes that #MeToo so far has given voice to a shared experience of what has been done to us by others. It turns out that this is an extraordinarily effective way to raise consciousness online. But it has a passive quality. And this allows certain presump- tions—about men and women, about feminism and misogyny—to rush in, so that they undergird a once-in-a-generation opportunity to rede- fine gender politics.75 Laura Kipnis queries whether the movement resonates with so many women because of echoes of legal protectionism: “[T]here’s something reassuringly familiar—at least timeless—about these tales of female peril, even amidst the supposed sexual free-for-all of hookup culture.”76 It is not unusual for social movements, even those ostensibly advocating for women’s rights, to draw on traditional, gendered stereotypes. Pamela Aronson, for example, identifies how anti-war activism engaged “gendered frames” to advance more radical objectives.77 Daphne Merkin dra- matically observes that the #MeToo movement might be creating a “victi- mology paradigm for young women . . . in which they are perceived to be . . . as frail as Victorian Housewives.”78 Fears that #MeToo replicates rather than challenges images of women as in need of protection bring to mind Judge Aquilina’s comments during the sentencing of Larry Nassar, referring to rape as uniquely traumatizing and survivors as not everyday women but as superhumanly strong.79 Sexual assault law is haunted by our tendency to construct law in the binary—victims are either brave survivors or gold diggers, perpetrators are innocent targets of extortion or monsters. Across social media, those whom we believe are revered as “ideal victims”; they are traumatized,

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uber-emotional, and concerned with the impact of their experience on society as a whole. The unlucky persons whom we disbelieve are cast outside the norm by applying labels like “gold digger,” “prostitute,” “THOT,” “liar,” or “bitch.” When it comes to actual victims, experiences and manifestations of trauma are often devalued or discounted. Chapter 3 addressed the societal tendency, exacerbated on social media, to transform one woman who lies into an example of the prototypical liar. The cumulative effect of centuries of maligning women accusers means that, as Leslie Jamison articulates, when “we start talking about wounded women, we risk transforming their suffering from an aspect of the female experience into an element of the female constitution.”80 For this reason, some refuse to post #MeToo status, arguing that, like rape law historically has done, the movement places the responsibility for registering and defining the parameters of a sexual assault on victims’ shoulders.81 Tarana Burke comments, “I want to teach people to not lean into their trauma. You can create the kind of joy in your life that allows you to lean into that instead.”82 For some, telling their stories may be cathartic, but this does not mean that they need to tell them to the world or to tell them on demand. In the background is the question of whether women, really, would be better than men at accomplishing fair and effective legal reforms. In the 1990s, political scientist Francis Fukuyama wrote an article notoriously imagining the benefits that would emerge—fewer wars, more empathy— if women reigned in international politics.83 Katha Pollitt, Barbara Ehren- reich, and other feminist scholars rapidly responded that, not only were men not biologically predisposed to war but women, when given the opportunity, also tend to embrace a power-hungry militarism.84 Just think of the Alma Coin character in the novel, Mockingjay (the final book in The Hunger Games series), played in the film by Julianne Moore. Coin is the “good guy” until, suddenly, she isn’t.85 As Sjoberg identifies, although they comprise a small number of perpetrators, women have participated in perpetuating wartime rape in greater numbers than one might imagine.86 Today, women comprise about 14 percent of child sex abusers of male children, and 6 percent of sex abusers of female children.87 Fourteen percent may not seem like a high number until one considers that a staggering 28 percent of youths age fourteen to seventeen report having been sexually victimized over the course of their lifetimes.88 Women in power have proven themselves to be capable of Weinstein- like behaviors. A prominent example is Miki Agrawal, the founder of Thinx period underwear.89 Employees accuse the former CEO of commenting on the size and shape of her employees’ breasts, an employee’s nipple piercings, her own sexual exploits, her desire to experiment with poly-

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amory, her interest in entering a sexual relationship with one of her employees, and the exact means by which she was brought to female ejaculation as well as touching “an employee’s breasts and ask[ing] her to expose them, routinely chang[ing] clothes in front of employees, and conduct[ing] meetings via videoconference while in bed, apparently un- clothed.”90 After a Title IX proceeding, New York University found philosopher Avital Ronell responsible for sexually harassing a male graduate student.91 Among the accusations levied against the academic were that she required the student to lie in her bed, repeatedly kissed and touched him, and refused to work with him if he did not reciprocate her advances. 92 In a refrain that sounds strikingly familiar, Ronell argues her behaviors were “campy” while the student describes them as “stalking.”93 In summer 2018, a newspaper revealed that one of the most outspoken accusers of Harvey Weinstein, Asia Argento, had paid a young, male actor $380,000.94 In the letter outlining his claims, the actor alleged that he experienced ongoing trauma as a result of sexual battery Argento perpetrated on him when he was seventeen and she was thirty-eight. The revelation of accusations against these women and disclosures by others of “complicity” in suppressing potentially damning information about suspected perpetrators supports the idea that, as the feminist movement has long argued, sexual assault is an exercise of power. Wom- en have participated in—or at least condoned—sexual violence much more frequently that we tend to acknowledge. Continuing feminist calls for expanded prison sentences suggest that women as a category are not opposed to expanding the carceral complex, even if that expansion happens to perpetuate a long-standing and intractable institutional rape culture. As one reporter notes, “It’s hard to escape a sense that feminists see the moment as one of sisterly revenge against men.”95 However, “the view that men as a group are the primary enemy of women as a group . . . overlooks the connection between the social condition of women and their role in the process of production.”96 It is only “[b]y viewing their status as a product of social relations rather than biology, [that] women can devise a strategy for liberation based on alliances with other groups fighting oppression.”97 As Hannah McCann wrote after allegations sur- faced against Avital Ronell, “we are called to rethink our emphasis on gender in the first place: perhaps what needs greater attention is who has the power to speak? Who has the power to mobilise accounts of the ‘truth’—whether that be the accused, . . . defenders, or otherwise—and who does not?”98 To truly be a “reckoning,” Tarana Burke tweeted, the #MeToo movement must shift from talking about “individuals” toward discussing the

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structural factors contributing to rape culture.99 We need to reckon with the feminist movement’s thirst for carceral solutions."

THE MADDING CROWD

As the torrent of accusations against Weinstein continued throughout 2017 and early 2018, actor Tom Hanks commented to BBC News of the producer, “We’re at a watershed moment, this is a sea change. . . . His last name will become a noun and a verb. It will become an identifying moni- ker for a state of being for which there was a before and an after.”100 Hank’s prediction has proven true. The producer’s strikingly rapid and comprehensive fall from grace has been given a nickname, the “Weinstein Effect”;101 #weinsteined has become a way to describe the experiences of both those who have experienced harassment or assault by a serial attacker and those accused of engaging in such behavior. The National Review argues that based on the number of his accusers, “it’s time for Bill O’Reilly to be Weinsteined.”102 An article in Architect Maga- zine queries when its industry will be Weinsteined, calling out a culture of “deep-seated male bias” that long has impeded women’s success in the profession.103 Advisers in the financial services industry admonish employers to prepare for the “Weinstein effect” by crafting robust complaint and investigation procedures.104 For some, the harshest outcome after a criminal conviction in the Unit- ed States is not the temporary loss of liberty but the lifelong diminish- ment of opportunity for not only personal economic success but for participation in civic life.105 Unquestionably, #MeToo already has fostered “collateral damage”—not bloodless statistics but actual human casual- ties. The USA Today site discussed earlier lists among the accused not just individuals like Larry Nassar, convicted of multiple counts of sexual assault against children, but men accused of other “sexual misconduct, ranging from inappropriate texts to groping to rape.”106 Listed alongside Nassar and Weinstein on the site are those who have ardently denied a single harassment allegation.107 The group of men whom the newspaper records as having been fired or demoted includes, in addition to persons accused of rape or sexual assault, men who have been identified as having had arguably consensual relationships with staff members and even those who are merely alleged to have had “sexually themed conversations.”108 Just prior to his announcement that he was entering the 2020 presi- dential race, Joe Biden, former vice president and an outspoken advocate against sexual violence, was accused by several women of inappropriate touching.109 What we now recognize as a predictable debate emerged. Was Biden’s behavior, as representative Lucy Flores characterized it, “de- meaning and disrespectful,” or was he simply “Uncle Joe,” an out of

164 Lexington Books Legal Studies Chapter Showcase 216 Chapter 6 touch “bumbler” who—if the allegations are accurate—sniffed and kissed an unknown young woman’s head out of mere cluelessness. As first set forth in the introduction, the movement has yet to deeply interro- gate what Roiphe calls a “problem of scale,” determining what behavior qualifies as criminal—or at least disqualifying of a public position—and what is merely creepy.110 Thus far, Biden seems to have escaped the allegations relatively unscathed, the verdict tending toward average Joe versus sexual predator in the court of public opinion. As we are well aware, however, the will of the mob can be fickle and fierce. What of the falsely accused? Some participants in #MeToo adhere to the idea that the reputational or economic damage that may be done to some wrongfully accused men pales in comparison to centuries of harm done to women in the context of sexual assault. Emily Lindin, a colum- nist at Teen Vogue, sums her position on Twitter: I’m actually not at all concerned about innocent men losing their jobs over false sexual assault/harassment allegations. If some innocent men’s reputations have to take a hit in the process of undoing the patriarchy, that is a price I am absolutely willing to pay.111 Heather Jo Flores explains this line of thinking on Vox, asking, Does an abusive man lose his home, his family, his career, his community? Because these are the things that women often have to give up in order to get away from abuse. More often than not, the woman/victim loses everything and the man/abuser keeps it all and moves on to his next victim, who is either oblivious or hoodwinked into thinking she’ll change him.112 Suzanna Danuta Walters asks, provocatively, “Why can’t we hate men?”113 After all, strikingly few men seem to have paid significant consequences for alleged sexual assaults, and they do commit the vast majority of violence.114 After years of horrific treatment of women by the criminal justice system, a significant mass of supporters of #MeToo suggest that, for perpetrators, a loss of a job or a little bit of reputational damage is no big deal. A common argument is that, for most of the accused, sexual assault allegations will prove to have been a small bump in the road. Historically, a woman’s loss of sexual honor “ruined” her forever, whereas men’s loss of honor could be reclaimed by vindicating attacks on women’s chastity.115 Today, there remains the possibility that via coun- seling, attendance at support groups, and participation in advocacy and community service, and a really good PR team, some of those accused in the tidal wave of #MeToo may be able to regain social and economic status, even—some might say, ironically—to become leaders in the movement themselves.116

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Regardless of whether some of those accused will be able to recover, however, the truth is that others have faced psychological, emotional, or even fatal, physical consequences as a result, not of a legal decision, but of reputational damage inflicted by an angry mob. The acknowledgment by some women that these are consequences we are “willing to pay” are tone deaf and exclusionary. As Tambe observes, [I]t is worth keeping in mind that the primary instrument of redress in #MeToo is public shaming and criminalization of the perpetrator. This is already too familiar a problem for black men. We know the history of how black men have been lynched based on unfounded allegations that they sexually violated white women. We know how many black men are unjustly incarcerated. The dynamics of #MeToo, in which due process has been reversed—with accusers’ words taken more seriously than those of the accused—is a familiar problem in black communities. Maybe some black women want no part of this dynamic. 117 Within just one year, the #MeToo movement so far has accomplished a judicial removal, the strengthening of state sexual assault laws, the exten- sion of statutes of limitation, and the firing or otherwise shaming of numerous alleged perpetrators. It is vital to ask what role, if any, due process has in this new and swift race to justice.

#METOO AND DUE PROCESS

On its face, the TIME’S UP Legal Defense Fund chaired by Anita Hill seems to be signaling a new faith in the institution of law in affording justice to victims. It is emblematic that Hill, who was failed so profoundly by the process during Justice Clarence Thomas’s Supreme Court nomina- tion and confirmation hearings, has taken on a visible, leading role in an organization promoting legal services for women experiencing sexual harassment.118 The efforts and monies committed so far to bolstering the TIME’S UP Legal Defense Fund, as well as the Persky recall campaign and petitions to reform sentencing and statutes of limitations evidence, suggest a strong commitment by feminists to strengthening the capacity of law as an institution to deal with sexual assault. As many accusers have identified, it is only when we finally see alleged perpetrators in handcuffs that we can truly know that justice is being delivered. Janet Halley critiques, however, what she identifies as a “governmen- tal feminism,” noting that, as the women’s movement shifts from advocacy into legal decision-making, there is a risk of lack of attention to procedural fairness.119 Halley is part of the “Harvard 19,” the group of law professors who critiqued the representations of Kamilah Willingham’s case in the film The Hunting Ground. In their letter characterizing the law student’s allegations and its aftermath, Halley and others remarked that “[p]ropaganda should not be allowed to erase [a] just outcome.”120

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The opinions of some #MeToo activists do seem to turn Blackstone’s formulation on its head, deeming it irrelevant if one innocent man is convicted as long as a hundred guilty ones are caught. This attitude risks expanding the crime control system and curtailing the nascent movement toward therapeutic jurisprudence and restorative justice. There is also the old adage—be careful what you wish for. While liberals tend to remember with fondness the era of Earl Warren as chief justice of the U.S. Su- preme Court, there is perhaps too little attention paid to the aftershocks of the Warren court’s decisions, when pleas to recall the judge and his like-minded colleagues appeared across the South in what Joel Cohen describes as “a strident campaign that would make ‘Three Billboards’ blush.”121 In 2009, the chief justice and two associate justices who formed the Iowa Supreme Court majority that legalized same-sex marriage were voted out, not due to a grassroots campaign conducted by constituents but as a result of money pouring in from outside, conservative political action committees enabled by the Citizens United decision.122 The United States has a troubling history of residents attempting to achieve justice outside the courthouse doors. In the Jim Crow era, it was not uncommon for lynch mobs to break into jails and kidnap men await- ing trial, the crowd preferring to exact extralegal punishments on Black suspects rather than to entrust the meting out of justice to the slower and potentially fallible courts. Recent recall campaigns, and the treatment of confirmed perpetrators, highlight that social media empower society to enact more and greater collateral consequences to punishment than ever before. When public shaming can lead to bankruptcies, firings, divorce, and other consequences, is law still necessary to provide justice and to effect social control? With relatively few civil cases pending and almost no arrests or convictions, so far the task of penalizing alleged bad actors has been mainly left to the corporations and institutions that employ them. Akin to a system of Pigouvian taxes, these entities are largely unaccountable to the state but instead face a risk of economic sanctions in the form of dimin- ishment of profits due to boycotts or public protest.123 For example, when allegations of sexual harassment brought Uber’s policy of dealing with such claims via arbitration into the spotlight, it was a social media campaign urging riders to delete the Uber application that pressed the company to revise the policy.124 There is a bill being proposed in the New York State legislature proposing to incentivize corporate policies using actual taxation, eliminating city tax breaks for corporations that knew about but did not respond to sexual harassment by employees. 125 A key objective of the TIME’S UP campaign is to promote similar legislation “to penalize companies that tolerate persistent harassment, and to discourage the use of nondisclosure agreements to silence victims.”126 While advocating corporate attention to—or, more accurately, casti- gating corporate inattention to—issues of sexual harassment is positive,

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concerns arise when legal processes, and particularly criminal legal processes, are put into the hands of nonlegal entities. These concerns are clear in the university context, where Title IX is heavily criticized for failing to provide justice to alleged victims and alleged perpetrators, particularly perpetrators who are non-white.127 It is also true in the context of institutions like prisons, the military, and religious organizations, which continue to face accusations of obscuring significant and widespread issues with sexual assault. The “fearless girl” staring down the Wall Street bull is more than emblematic here, signifying, on one hand, the distinct power of one young woman’s voice and, on the other, the capacity of an organization to corrupt that voice and deploy it to unin- tended ends.128 Donald Black theorized that the role of law in effecting social control was at its height when the social control effected by other important institutions—the family, education, religious organizations—were at their weakest.129 Today, supplanting the family and religious institutions are corporations, which play an instrumental role in helping to establish societal mores and norms. As corporations exercise an increasing responsibility in policing sexual harassment and assault, there is an argument that the role of law in resolving claims—and in promoting justice—may be diminished.

CONCLUSION

Crowdsourcing—mobilizing the masses to effect legal and social change—is the source of the #MeToo movement’s power. But, while we can see that many people are participating in a movement, we cannot begin to know why those people are participating.130 Part of the #MeToo movement’s collective appeal is that participants bring their own reasons for posting the status—healing, sympathy, solidarity, revenge all may be part of the motivation. To date, the TIME’S UP Legal Defense Fund has received more than $21 million and counting in crowdsourced donations. Are these persons clamoring to donate truly activists, or have social media turned us all into digital bystanders rather than invested, grassroots participants? 131 Skep- tics of #MeToo highlight other hashtag campaigns—#itsnotokay, #listenandbelieve, #WhyIStayed, #YouOkSis, #EverydaySexism—some of which have faded away or been colonized by those with opposing points of view.132 McGuire argues, “You don’t tear down the walls of patriarchy with a tweetstorm.”133 Today, however, maybe you do. For years the story of Kitty Genovese has been circulated as an example of the “bystander effect”—the theory that the larger the group of observers to a criminal act, the more likely it is that people will stand by and do nothing.134 Recently, however, re-

168 Lexington Books Legal Studies Chapter Showcase 220 Chapter 6 search has shown that most theories about Genovese had it wrong. Rath- er than standing by helplessly as they watched a young woman being murdered, additional information revealed over the years confirms that her neighbors tried to help in what ways they could, sometimes at personal risk.135 Jeremy Heimans and Henry Timms describe the change in power being effected by social media as “new power,” writing that “old power” was “held by few, jealously guarded,” while “new power” operates “like a current”—it is “open, participatory, and peer-driven.”136 Not merely observers, participants on social networks, such as those engaged in contributing to TIME’S UP or posting a #MeToo status, are evaluating, revising, and reinventing sexual assault law. Thus far, discriminatory myths, “commonsense” raced and gendered assumptions, and the polarizing platforms of social networks have proven to be a dangerous combination, driving participants toward embracing binaries and away from due process. Moments of crisis, however, are moments of possibility. As evidenced by the eight million people discussing sexual harassment on Twitter and the more than twelve million posting #MeToo as a status on Facebook, new opportunities have arisen to have vital conversations about law. Suddenly, the world is not only discussing concepts such as rape culture and victim-blaming, it is debating whether conduct does or does not fit into the “real rape” paradigm, whether Black defendants are being “rail- roaded,” and whether a particular sentence was meted out based on racial or socioeconomic privilege. The importance of making legal power structures visible cannot be underestimated. The institution of law is structured first and foremost to protect those in power, often via a lack of transparency.137 One reason why labels of gold digger, witch, or monster are effective is that they mask power structures, purposefully constructing an imagined world in which control belongs to those least likely to have it. As a result of #MeToo and other social media conversations, the public has shifted from talking about “hush money” and indictment of “gold diggers” and guilty “serial predators” to discussing how corporations and elite defendants have deployed confidentiality and nondisclosure agreements to secure the silence of marginalized victims. From Cosby I to Cosby II, the casting couch similarly began to be transformed from a location in which greedy starlets manipulate “lecherous” but unsuspect- ing old men to a place where predators deliberately stalk targets. These discussions suggest that social media can enable the public not only to focus on the people involved in sexual assaults but on the societal structures that enable such assaults to occur. A significant step forward for the movement so far has been exposing how forced arbitration, nondisclosure agreements, . . . and confidential settlements have operated for years to silence victims.”138

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There are significant problems with this new social movement that may only be exacerbated should #MeToo adhere to its current trajectory. The ubiquitous and problematic framing of sexual assault as an issue pitting women against men reflects the tendency to view criminal cases in terms of either race or gender rather than acknowledging how intersectional concerns pervade U.S. sexual assault law. There is also the literal exclusion that continues to take place—an exclusion of transgender persons, men, women of color, lesbians and gay men, incarcerated persons, and others—that disturbingly mirrors the exclusions that have long inhered in rape law itself. Lastly, there is the problem of the crowd, an entity that too often moves toward a swift and unreflective form of justice. Despite calls to “equalize” punishments among perpetrators, there is a disturbing trend to treat due process as a technicality. When one looks at other significant social movements it is important to realize that #MeToo is a beginning. Sexual assault laws reflect not years but centuries of social patterns of dismissal and dehumanization. As the philosophies and practices of influencers in other social movements attest, for radical social and legal change to occur, moments of profound discomfort are required. The question for those who want to effect positive legal change is how, in this era of “new power,” to channel the momentum of #MeToo. If indeed it is an offshoot of the existing feminist movement—a fourth wave—the question is how to guide it toward, at last, embracing its own inclusion rider. This is a vital concern that requires not only mobilization but redirection of the trend from the current, distinctly carceral, version of feminism. In the end, we are left with the overarching question of the place of law in this new social structure. As Christie describes, the job of lawyers is to take away the truth, to “steal” conflicts in an attempt to smooth things over, to win for one party, to make conflict go away.139 Today, social media have a unique and unprecedented Robinhood-like power to steal claims back and to place them in the hands of everyday people, in MacKinnon’s words, to do “what the law could not.”140 Public opinion does not just influence law, public opinion is law. Whether resolved via negotiation, such as settlement or plea bargain, or abandoned based on fear, evidentiary barriers, or inertia, it is a fact that the overwhelming majority of potential criminal and civil cases today do not go to trial. In a system increasingly geared toward expediency and efficiency, social media may provide the ideal platforms for punishments to be served quickly and decisively. Is the court of public opinion just one? The jury is out.

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NOTES

1. Ronan Farrow, “From Aggressive Overtures to Sexual Assault: Harvey Wein- stein’s Accusers Tell Their Stories,” New Yorker, October 23, 2017, https:// www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual-assault- harvey-weinsteins-accusers-tell-their-stories. 2. Farrow, “From Aggressive Overtures”; Jodi Kantor and Megan Twohey, “Har- vey Weinstein Paid Off Sexual Harassment Accusers for Decades,” New York Times, October 5, 2017, https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html. 3. Emma Dibdin, “A Full List of Harvey Weinstein’s Accusers and Their Allega- tions,” Elle, December 13, 2017, https://www.elle.com/culture/a12838402/a-full-list-of- harvey-weinsteins-accusers-and-their-allegations/. 4. Matthew Haag and James C. McKinley Jr., “Lawsuit against Weinstein Might Open Door to Criminal Charges,” New York Times, May 2, 2018, https:// www.nytimes.com/2018/05/02/nyregion/harvey-weinstein-sexual-assault.html. 5. Kate Samuelson, “Harvey Weinstein Arrested on Charges of Rape, Sex Abuse and More,” Time, May 25, 2018, http://time.com/5291392/harvey-weinstein-arrested/. 6. Lisa Respers France, “#MeToo: Social Media Flooded with Personal Stories of Assault,” CNN, October 16, 2017, https://www.cnn.com/2017/10/15/entertainment/metoo-twitter-alyssa-milano/index.html. 7. Sandee LaMotte, “How #MeToo Could Move from Social Campaign to Social Change,” CNN, November 9, 2017, https://www.cnn.com/2017/10/30/health/metoo- legacy/index.html. 8. #NotOkay was created by Kelly Oxford, an author, in response to the release of the Trump “pussy grab” tape. At its height, the #NotOkay campaign was generating fifty tweets per minute. Another significant, recent hashtag campaign was #GrabYour- Wallet, a movement to rid retail stores in the United States of Trump brand products. Megan Maas, Heather McCauley, Amy E. Bonomi, and S. Gisela Leija, “‘I Was Grabbed by My Pussy and Its #NotOkay’: A Twitter Backlash Against Donald Trump’s Degrading Commentary,” Violence Against Women 24, no. 14 (2018): 3; Sarah Halzack, “Grab Your Wallet: The Woman Who Began Boycott of Trump Products in US Retailers,” Independent, February 14, 2017, https://www.independent.co.uk/news/ world/americas/grab-your-wallet-trump-boycott-products-us-retailers-shannon- coulter-nordstrom-donald-jr-ivanka-eric-a7579776.html. 9. Lydia Dishman, “This ‘Me Too’ Timeline Shows Why 2017 Was a Reckoning for Sexism,” Fast Company, December 6, 2017, https://www.fastcompany.com/40504569/ this-me-too-timeline-shows-why-2017-was-a-reckoning-for-sexism. 10. Baker, “Penn Professors Mull.” 11. Baker, “Penn Professors Mull.” 12. Baker, “Penn Professors Mull”; the president’s approach to Twitter has been referred to by some as “schoolyard bully tactics.” Andrew Buncombe, “Donald Trump One Year On: How the Twitter President Changed Social Media and the Country’s Top Office,” Independent, January 17, 2018, https://www.independent.co.uk/news/ world/americas/us-politics/the-twitter-president-how-potus-changed-social-media- and-the-presidency-a8164161.html. 13. German Lopez, “The Rise of Rage in Social Media Politics, in One Chart,” Vox, July 18, 2018, https://www.vox.com/policy-and-politics/2018/7/18/17588120/trump- politics-anger-facebook-pew. 14. Brett Edkins, “Report: U.S. Media among Most Polarized in the World,” Forbes, June 27, 2017, https://www.forbes.com/sites/brettedkins/2017/06/27/u-s-media-among- most-polarized-in-the-world-study-finds/. 15. MacKinnon, Butterfly Politics, 1. 16. MacKinnon, Butterfly Politics, 1. 17. MacKinnon, “#MeToo Has Done”; Catharine A. MacKinnon, Butterfly Politics (Cambridge: Harvard University Press, 2017).

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18. When Cosby jurors were asked about #MeToo, they routinely answered that “Not once were race or the #MeToo movement ever discussed, nor did either factor into our decision . . . Simply put, we were asked to assess the credibility of Ms. Constand’s account of what happened to her, and each one of us found her account credible and compelling.” Claudia Rosenbaum, “Bill Cosby’s Jury Says #MeToo and Race Weren’t Factors in His Guilty Verdict,” BuzzFeedNews.com, April 30, 2018, https://www.buzzfeed.com/claudiarosenbaum/bill-cosby-jury-speaks-out?utm_term=. ogXQjqaAqR#.vhPJDVnqVX; Kirby, “Bill Cosby’s Retrial.” 19. Renkl, “The Raw Power.” 20. Renkl, “The Raw Power.” 21. Carrie A. Rentschler, “Rape Culture and the Feminist Politics of Social Media,” Girlhood Studies 7, no. 1 (2014): 67. 22. Rentschler, “Rape Culture,” 69. 23. Jessica Bennett, “Behold the Power of #Hashtag Feminism,” Time, September 10, 2014, http://time.com/3319081/whyistayed-hashtag-feminism-activism/. 24. The Conversation, “Not Another Online Petition! But Here’s Why You Should Think before Deleting It,” The Conversation, January 29, 2019, https:// theconversation.com/not-another-online-petition-but-heres-why-you-should-think- before-deleting-it-110029. 25. Sherri Williams, “Black Feminists Resist Violence with Hashtag Activism,” Fem- inist Media Studies 15, no. 2 (2015): 343. 26. Mariame Kaba and Andrea Smith, “Twitter Is Toxic. And So Is the Rest of the World,” The Nation, April 17, 2014, https://www.thenation.com/article/where-twitter- and-feminism-meet/. 27. Kaba and Smith, “Twitter Is Toxic.” 28. Ryan Bowles Eagle, “Loitering, Lingering, Hashtagging: Women Reclaiming Public Space Via #BoardtheBus, #StopStreetHarassment, and the #EverdaySexism Pro- ject,” Feminist Media Studies 15, no. 2 (2015): 352. 29. Ryan Bowles Eagle, “Loitering, Lingering, Hashtagging.” 30. Bennett, “The ‘Click’ Moment.” 31. McDonough, “This Was Always Going to Hurt.” 32. Jonathan Mahler, “For Many Women, Trump’s ‘Locker Room Talk’ Brings Memories of Abuse,” New York Times, October 10, 2016, https://www.nytimes.com/ 2016/10/11/us/politics/sexual-assault-survivor-reaction.html. 33. Abby Ohlheiser, “How #MeToo Really Was Different, According to Data,” Washington Post, January 22, 2018, https://www.washingtonpost.com/news/the- intersect/wp/2018/01/22/how-metoo-really-was-different-according-to-data/?utm_ term=.b88662a4a5f1. 34. Sophie Gilbert, “The Movement of #MeToo,” Atlantic, October 16, 2017, http:// www.theatlantic.com/entertainment/archive/2017/10/the-movement-of-metoo/542979/ 35. Suzannah Weiss, “#MeToo Has Made Me See Anyone Is Capable of Sexual Abuse—Including Me,” Establishment, February 1, 2018, https:// theestablishment.co/metoo-has-made-me-see-anyone-is-capable-of-sexual-abuse- including-me-6455f93309a9. 36. Bill Chappell, “‘Complicit’ Is the Word of the Year in 2017, Dictionary.com Says,” NPR, November 27, 2017, https://www.npr.org/sections/thetwo-way/2017/11/ 27/566763885/complicit-is-the-word-of-the-year-in-2017-dictionary-com-says; “Why One Dictionary Made ‘Complicit’ Its Word of the Year,” All Things Considered, NPR, November 20, 2017, https://www.npr.org/2017/11/30/567572975/why-one-dictionary- made-complicit-its-word-of-the-year. 37. Roiphe, “The Other Whisper Network”; Alex Press, “It’s Time to Weaponize the ‘Whisper Network,’” Vox, October 17, 2017, https://www.vox.com/first-person/2017/ 10/16/16482800/harvey-weinstein-sexual-harassment-workplace. 38. Press, “It’s Time to Weaponize.”

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39. Maureen Dowd, “This Is Why Uma Thurman Is Angry,” Opinion, New York Times , February 3, 2018, https://www.nytimes.com/2018/02/03/opinion/sunday/this-is- why-uma-thurman-is-angry.html. 40. Dowd, “This Is Why.” 41. Harris, “Myths of Race and Gender.” 42. Oppenheim, “Steve Bannon Warns Trump.” 43. M. Yvonne Taylor, “Why #MeToo Can Be for Men, Too,” Houston Chronicle, October 16, 2017, https://www.houstonchronicle.com/local/gray-matters/article/Why- MeToo-can-be-for-men-too-12281653.php. 44. Helena Theixos, “Feminist Perspectives on the Apology of Louis CK and the #MeToo and #TimesUp Movements,” Media Watch 9, 2018, 268. 45. TIME’S UP website, https://www.timesupnow.com. 46. Associated Press, “Some Male Sexual Assault Victims Feel Left Behind by #Me- Too,” NBC News, April 19, 2018, https://www.nbcnews.com/news/us-news/some- male-sexual-assault-victims-feel-left-behind-metoo-n867386. 47. Associated Press, “Some Male Sexual Assault.” 48. Associated Press, “Some Male Sexual Assault.” 49. MenEngage Alliance, UN Women, “Men, Masculinities.” 50. Scott Anderson, “Statute of Limitation on Sexual Assault Extended under New Michigan Laws,” WXYZ.com, June 12, 2018, https://www.wxyz.com/news/statute-of- limitation-on-sexual-assault-extended-under-new-michigan-laws. 51. Notably, the movement has included very visible statements by women of color, including lawyer Anita Hill, producer Shonda Rhimes, gymnast Gabby Douglas, and actors Lupita Nyong’o, America Ferrera, Eva Longoria, and Salma Hayek. However, Tambe argues that, with these exceptions, it largely is “white women’s pain that is centered in popular media coverage.” Ashwini Tambe, “Reckoning with the Silences of #MeToo,” Feminist Studies 44, no. 1 (2018): 199. 52. Tambe, “Reckoning,” 199. 53. Edwards, “Rape, Racism.” 54. Phyllis Chesler, “My Questions about the #MeToo Moment,” Phyllis-Ches- ler.com written for Huffington Post, January 5, 2018, https://phyllis-chesler.com/ articles/my-questions-about-the-metoo-moment. 55. Chesler, “My Questions.” 56. Levine, “Sexual Scripts,” 329. 57. Zacharek et al., “Silence Breakers.” 58. Megan Garber, “Is This the Next Step for the #MeToo Movement?,” Atlantic, June 2, 2018, https://www.theatlantic.com/entertainment/archive/2018/01/beyond-metoo-can-times-up-effect-real-change/549482/. 59. Garber, “Is This the Next Step?” 60. Jennifer Calfas, “How Frances McDormand’s Oscar Speech ‘Super-Charged’ a Significant Change in Hollywood over the Last Year,” Money, February 22, 2019, http://money.com/money/5636361/frances-mcdormand-oscars-inclusion-riders/. 61. Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s–1990s (Princeton, NJ: Princeton University Press, 2017). 62. Woloch, A Class By Herself. 63. Josephine Livingstone, “The Task Ahead for Feminism,” New Republic, Novem- ber 17, 2017, https://newrepublic.com/article/145850/task-ahead-feminism. 64. Roxanne Gay, “Who Gets to Be Angry?,” New York Times, June 10, 2016, https://www.nytimes.com/2016/06/12/opinion/sunday/who-gets-to-be-angry.html; bell hooks, Killing Rage: Ending Racism (New York: Holt Paperbacks, 1996); Rebecca Traister, Good and Mad: The Revolutionary Power of Women’s Anger (New York: Simon & Schuster, 2018). 65. Cara Buckley, “Powerful Hollywood Women Unveil Anti-harassment Action Plan,” New York Times, January 1, 2018, https://www.nytimes.com/2018/01/01/movies/ times-up-hollywood-women-sexual-harassment.html?action=click&module=Most%20 Popular&pgtype=Homepage&_r=0.

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66. 50/50 by 2020, https://5050by2020.com. 67. Woloch, A Class By Herself. 68. Woloch, A Class By Herself. 69. Tenzer, “#MeToo, Statutory Rape Laws,” 8. 70. Legal arguments must fulfill the sometimes conflicting dual objectives of advancing long-term political or philosophical goals. For example, in the effort to gain African American representation in unions, attorneys like Charles Hamilton Houston aligned with political conservatives intent on union busting in order to further the objectives of both advancing a conservative political agenda and securing additional representation for Black workers in unions (Woloch, A Class By Herself) while, first and foremost, granting clients immediate relief if possible. 71. Susan Stefan, “The Protection Racket: Rape Trauma Syndrome, Psychiatric La- beling, and Law,” Northwestern University Law Review 88 (1994): 1328; Naomi R. Cahn, “Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice,” Cornell Law Review 77, no. 6 (1992): 1398–446. 72. Cahn, “Looseness,” 1416. 73. Stefan, “The Protection Racket,” 1328. 74. Jason Silverstein, “#MeToo Movement Could Turn Women into ‘Snowflakes’ and Make Men Resent Them, Condoleezza Rice Says,” Newsweek, January 14, 2018, http://www.newsweek.com/metoo-movement-women-snowflakes-condoleezza-rice- 780939; Masha Gessen, “Sex, Consent, and the Dangers of ‘Misplaced Scale,’” New Yorker, November 27, 2017, https://www.newyorker.com/news/our-columnists/sex- consent-dangers-of-misplaced-scale. 75. Livingstone, “The Task Ahead.” 76. Laura Kipnis, “What We Lose.” 77. Pamela Aronson, “Gender and Feminist Consciousness,” The Oxford Handbook of U.S. Women’s Social Movement Activism, eds. Holly McCammon, Verta Taylor, Jo Reger, and Rachel L. Einwohner (New York: Oxford University Press, 2017), 337. 78. Tenzer, “#MeToo, Statutory Rape Laws,” 31–32; Daphne Merkin, “Publicly, We Say #MeToo. Privately, We Have Misgivings,” New York Times, January 5, 2018, https://www.nytimes.com/2018/01/05/opinion/golden-globes-metoo.html. 79. Laura Kipnis, “What We Lose” (describing that “the big story of the moment” is that “[s]ex is dangerous; it can traumatize you for life. Rape is endemic and predators are everywhere”). 80. Leslie Jamison, “Grand Unified Theory of Female Pain,” VQR (Spring 2014), https://www.vqronline.org/essays-articles/2014/04/grand-unified-theory-female-pain. 81. Flores, “I Refuse to Post ‘Me Too.’” 82. Harris, “She Founded #MeToo.” 83. Francis Fukuyama, “Women and the Evolution of World Politics,” Foreign Af- fairs (September/October 1998), https://www.foreignaffairs.com/articles/1998-09-01/ women-and-evolution-world-politics. 84. Barbara Ehrenreich, Katha Pollitt, et al., “Fukuyama’s Follies: So What if Wom- en Ruled the World?,” Foreign Affairs (January/February 1999), https:// www.foreignaffairs.com/articles/1999-01-01/fukuyamas-follies-so-what-if-women- ruled-world (noting that “women have proved themselves no less susceptible than men to the passions of militaristic nationalism”). 85. Suzanne Collins, The Hunger Games: Mockingjay (New York: Scholastic, 2010). 86. Sjoberg, Women as Wartime Rapists. 87. “Statistics on Perpetrators of Child Sexual Abuse,” National Center for Victims of Crime, http://victimsofcrime.org/media/reporting-on-child-sexual-abuse/statistics- on-perpetrators-of-csa. 88. “Statistics on Perpetrators,” National Center for Victims of Crime. 89. Noreen Malone, “Sexual-Harassment Claims against a ‘She-E.O.,’” The Cut, https://www.thecut.com/2017/03/thinx-employee-accuses-miki-agrawal-of-sexual-harassment.html. 90. Malone, “Sexual-Harassment Claims.”

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91. Zoe Greenberg, “What Happens to #MeToo When a Feminist Is the Accused?,” New York Times , August 13, 2018, https://www.nytimes.com/2018/08/13/nyregion/ sexual-harassment-nyu-female-professor.html. 92. Greenberg, “What Happens to #MeToo?” 93. Greenberg, “What Happens to #MeToo?” 94. Kim Severson, “Asia Argento, a #MeToo Leader, Made a Deal with Her Own Accuser,” New York Times, August 19, 2018, https://www.nytimes.com/2018/08/19/us/ asia-argento-assault-jimmy-bennett.html. 95. Kyle Smith, “Feminists Seize the Moment for Sisterly Revenge,” National Review, February 5, 2018, https://www.nationalreview.com/2018/02/katie-roiphe-harpers- essay-common-sense/. 96. Edwards, “Rape, Racism.” 97. Edwards, “Rape, Racism.” 98. Hannah McCann, “Big Reputations: Who Has the Power to Speak #MeToo,” Australian Humanities Review 63 (2018): 186. 99. Amanda Arnold, “How #MeToo Leaders Are Responding to the Asia Argento Allegations,” The Cut, https://www.thecut.com/2018/08/metoo-respond-rose- mcgowan-amber-tamblyn-asia-argento.html. 100. “Tom Hanks Says No Way Back for Harvey Weinstein,” BBC News, October 19, 2017, http://www.bbc.com/news/entertainment-arts-41678196. 101. “The Harvey Weinstein Effect,” USA Today. 102. David French, “It’s Time for Bill O’Reilly to Be Weinsteined,” National Review, October 23, 2017, https://www.nationalreview.com/corner/its-time-conservatives- banish-bill-oreilly-progressives-are-banishing-harvey-weinstein/. 103. Aaron Betsky, “Waiting to Be Weinsteined: When Will Accusations of Sexual Harassment Arise in Architecture?,” Architect Magazine, November 21, 2017, http:// www.architectmagazine.com/practice/waiting-to-be-weinsteined-when-will- accusations-of-sexual-harassment-arise-in-architecture_o. 104. Nathaniel M. Glasser, “The Weinstein Effect: #MeToo Allegations in the Finan- cial Services Industry,” Take 5 Newsletter (November 2017), https://www.ebglaw.com/ news/five-issues-in-focus-for-financial-services/#_para1. 105. Sarah B. Berson, “Beyond the Sentence—Understanding Collateral Conse- quences,” National Institute of Justice 272 (2013), https://www.nij.gov/journals/272/ Pages/collateral-consequences.aspx. 106. “The Harvey Weinstein Effect,” USA Today. 107. “The Harvey Weinstein Effect,” USA Today. 108. Laura Kipnis highlights cases of firings of several men for misconduct such as having consensual affairs with staff or having conversations with sexual themes or making rejected passes. Kipnis, “What We Lose.” 109. Stephanie Zacharek, “What Men—and Women—Can Learn from Joe Biden’s ‘Inappropriate Touching,’” Time, April 25, 2019, http://time.com/5578143/biden- inappropriate-touching/. 110. Roiphe, “The Other Whisper Network.” 111. Weiss, “The Limits of ‘Believe.’” 112. Flores, “I Refuse to Post ‘Me Too.’” 113. McCann,” Big Reputations,” 188. 114. Walters, a professor, is now the subject of a Title IX complaint because of expressing these views. McCann, “Big Reputations,” 188. 115. Flores, “I Refuse to Post ‘Me Too.’” 116. Lucia Graves, “How Famous Men Toppled by #MeToo Plot Their Comeback,” Guardian, May 27, 2018, https://www.theguardian.com/world/2018/may/27/metoo- sexual-assault-claims-accused-men-plot-redemption-charlie-rose-mario-batali; “The #MeToo Movement and Les Moonves,” NPR, August 5, 2018, https://www.npr.org/ 2018/08/05/635748549/the-metoo-movement-and-les-moonves. 117. Tambe, “Reckoning,” 200.

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118. Sarah Boboltz, “Anita Hill Tapped to Cure Hollywood’s Epidemic of Sexual Misconduct with New Commission,” Huffington Post, December 16, 2017, https:// www.huffingtonpost.com/entry/anita-hill-hollywood-antisexual-misconduct- commission_us_5a356680e4b040881beb0dcb. 119. Halley, “Trading the Megaphone,” 106. 120. Ashe Schow, “19 Harvard Law Professors Pen Letter Denouncing ‘The Hunting Ground,’” Washington Examiner, November 11, 2015, https://www. washingtonexaminer.com/19-harvard-law-professors-pen-letter-denouncing-the- hunting-ground. 121. Joel Cohen, “Recalling Judges Just Because We Don’t Like Their Decisions?,” The Hill, March 23, 2018, http://thehill.com/opinion/judiciary/379648-recalling-judges- just-because-we-dont-like-their-decisions. 122. Cohen, “Recalling Judges.” 123. Jonathan S. Masur and Eric A. Posner, “Toward a Pigouvian State,” University of Pennsylvania Law Review 164 (2015): 93. 124. Michigan Automotive News, “Uber Will No Longer Force Victims of Sexual Assault into Private Arbitration,” MLive.com, May 15, 2018, https://www.mlive.com/ auto/index.ssf/2018/05/uber_will_no_longer_force_arbi.html. 125. Natalie Olivo, “NY Bill Would Deny Tax Credits over Sexual Harassment,” Law360, October 16, 2017, https://www.law360.com/articles/974896/ny-bill-would- deny-tax-credits-over-sexual-harassment. 126. Buckley, “Powerful Hollywood Women.” 127. For example, Corey Rayburn Yung’s hypothesizes that colleges and universities underreport sexual assault, based on data demonstrating that schools’ reports of campus sexual assault on average rise by over 40 percent during periods of investigation by the Department of Education. Corey Rayburn Yung, “Concealing Campus Sexual Assault: An Empirical Examination,” Psychology, Public Policy, and Law 21, no. 1 (2015): 6. 128. Cascone, “A Bunch of Bull?”; Entrepreneur Magazine similarly highlights “branding lessons” to be learned from Nike’s defense of Colin Kaepernik, the NFL player who controversially took a knee during the National Anthem, a campaign that at once emphasizes the corporation’s “values” and secures the loyalty of a young (and growing) customer base. Manish Dudharejia, “4 Branding Lessons from Nike’s Colin Kae- pernick Ad,” Entrepreneur, October 22, 2018, https://www.entrepreneur.com/article/ 321130. 129. Black, “Crime as Social Control.” 130. Sultana Lubna Alam and John Campbell, “Role of Relational Mechanisms in Crowdsourcing Governance: An Interpretive Analysis” (Completed Research Paper, Proceedings of the Nineteenth Americas Conference on Information Systems, Chica- go, Illinois, August 15–17, 2013). 131. Clyde Haberman, “What the Kitty Genovese Killing Can Teach Today’s Digital Bystanders,” New York Times, June 4, 2017, https://www.nytimes.com/2017/06/ 04/us/retro-report-bystander-effect.html?hp&action=click&pgtype=Homepage&click- Source=story-heading&module=second-column-region®ion=top-news&WT.nav =top-news. 132. LaMotte, “How #MeToo Could Move.” 133. Angelina Chapin, “Don’t Count On ‘Me Too’ to Sway the Bill Cosby Jury,” Huffington Post, April 19, 2018, https://www.huffingtonpost.com/entry/bill-cosby-me- too_us_5ad74918e4b03c426daa2fca. 134. Haberman, “What the Kitty Genovese Killing Can Teach.” 135. Haberman, “What the Kitty Genovese Killing Can Teach.” 136. Jeremy Heimans and Henry Timms, New Power: How Power Works in Our Hyper- connected World—and How to Make It Work for You (New York: Doubleday, 2018), 16–17. 137. Minna J. Kotkin, “How the Legal World Built a Wall of Silence around Workplace Sexual Harassment,” Washington Post, October 20, 2017, https://www. washingtonpost.com/outlook/how-the-legal-world-built-a-wall-of-silence-around-

176 Lexington Books Legal Studies Chapter Showcase 228 Chapter 6 workplace-sexual-harassment/2017/10/20/ac1f41dc-b2b1-11e7-9e58-e6288544af98_ story.html?utm_term=.c37867127452. 138. MacKinnon, “#MeToo Has Done.” 139. Christie, “Conflicts,” 4. 140. MacKinnon, “#MeToo Has Done.”

Lexington Books Legal Studies Chapter Showcase 177 Pauline Collins, “The Australian Military Experience: Discipline and Morality” in The Military as a Separate Society: Consequences for Discipline in the United States and Australia (Lanham, MD: Lexington Books, 2019), 145-186. All rights reserved.

Chapter Four

The Australian Military Experience— Discipline and Morality

BACKGROUND

Australia has experienced a sustained series of reviews and inquiries into the treatment of women in the defense, suicide of soldiers, and allegations of abuse, including sexual abuse.1 These have all indicated a very long history of such behavior. The 2016 Defence Abuse Response Taskforce Final Report (DART)2 spanned seven decades of all possible types of abuse, including individuals, groups, adult, children, women, and men, within the three arms of defense. Costing around $140 million, it presented a culture that has failed to learn from past mistakes. Risk factors identified included the operation of the chain of command, discouragement and lack of reporting, deficiency of consequences, and an environment fueled by drug and alcohol consumption. The then Minister for Defence, in 2013, observed that around 80 percent of those experiencing abuse did not report the abuse.3 DART was instigated by an earlier review undertaken in 2011 and conducted by an independent Australian law firm, DLA Piper.4 This review had been prompted by yet another event described as the “Australian Defence Force Academy Skype Sex Scandal,” revealed due to the female survivor going to the media.5 In addition, the Royal Commission into Institutional Responses to Child Sexual Abuse6 heard submissions related to the Australian Defence Force, with some survivors giving public testimony for the first time regarding abuse they had experienced in some cases over sixty years earlier. Not unlike the US, Australian military personnel’s poor treatment for survivors takes the form of dishonorable discharge, career loss, and poor rein- tegration, or inappropriate counselling and support. The Director of Military Prosecutions (DMP) has reported a “general dissatisfaction by the Services at

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the current state of the military justice system.”7 The story is one of a military culture unable to address the problem of abuse and risking a lack of public respect. This chapter considers the findings of the DART taskforce, along with other related review recommendations, and some of the cases that have been reported. It concludes with observations suggesting a way to address this growing challenge for the military in a society that increasingly demands observance of individual human rights. Certainly, the Defence Force Disci- pline Act, 1982 (DFDA) outlines an understanding that an individual’s rights are a paramount concern, but with a rider that such rights exist only insofar as they can operate alongside the demands of the act:

s 3 (18) The provisions of this Act in so far as they protect the individual are in addition to, and not in derogation of, any rights and freedoms of the individual, whether under the law of the Commonwealth or of a State or Territory, and this Act is not intended to exclude or limit the operation of any law of the Common- wealth or of a State or Territory providing for those rights and freedoms in so far as it is capable of operating concurrently with this Act.

Dissatisfaction by those subjected to the military discipline process has been clearly expressed as a system that:

• is excessively tied up in process, too slow, and too hard to use; • is too soft in terms of the punishments that can be imposed; • fails to contribute to instilling a sense of personal accountability; • fails to support proper discipline and the authority of rank; • provides little disincentive to bad behavior with inadequate penalties and powers of punishment; and • lacks transparency in that there should be public disclosure of disciplinary consequences.

An IGADF Military Justice Audit Survey of the navy found these feelings to be widespread and the following claims were reiterated:

• 30 percent believed that the complexity of the DFDA discourages people from laying charges; • 46 percent believed that processes involved in investigating offences took too long; • 44 percent believed that processes involved in trying offences took too long; • 29 percent believed that adverse administrative action processes took too long; and • 8 percent did not believe that the military justice system provided sufficient feedback to victims and complainants.8

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That the DFDA prescribes no specific sexual offences, relying only on the subsumed civilian law under the DFDA s 61, may be a very good reason to consider its inadequacy in dealing with the full range of behaviors that should attract discipline in the form of criminal punishment. Due to Defense receiving continual and ongoing allegations of sexual abuse, the then Secretary of the Department of Defence established a plethora of inquiries and reviews, on April 11, 2011, to respond to the allegations and to determine an appropriate way to address the complaints and the more general issues raised. These reviews included the following, alongside the two (DLA Piper and DART) already mentioned:

• an inquiry, under Defence regulations, to be conducted by Mr. Andrew Kirkham QC, into the management of the “Skype incident of March 2011” (Kirkham inquiry); • a review of the treatment of women at ADFA and the treatment of women in the ADF, and pathways for women into ADF leadership; • a review into employment pathways for women in the Department of Defence; • a review of the use of alcohol in the ADF; • a review of social media and Defense; • a review of personal conduct of ADF personnel; and • a review of management of incidents and complaints in Defense.9

The Inspector General of the Australian Defence Force (IGADF), in the Re- view of the Management of Incidents and Complaints in Defence including Civil and Military Jurisdiction,10 considered the interface between military discipline and civilian criminal justice reporting, which is characterized by a multiplicity of overlapping policy, and the need for a single complaint-handling agency.11 In this regard, the Inspector General welcomed the Complaint Management, Tracking and Reporting System (COMTRACK) initiative, but noted a need to adequately resource the body.12 The Defence Force Ombuds- man, in submissions to the IGADF, noted that there was a lack of clarity for command in the operation of the civilian-military interface for certain complaints and he further raised the appropriateness of an administrative or discipline response. The Ombudsman also noted the absence of an appropriate hotline, not only for military persons but also for civilians wishing to report an incident involving a military member. Particularly concerning were perceptions of a conflict of interest and lack of impartiality by the IGADF.13 The Ombudsman dismissed these perhaps too easily as a perception of bias. How- ever, the perception is relevant, whether the bias is actual or not is another matter entirely. The IGADF also noted the overlay of complaints bodies.

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Within the military, these include the Inspector General Defence own investigations; the Defence Whistleblower scheme with accompanying hotline;14 the Australian Defence Force Investigative Service (ADFIS), which deals with disciplinary investigations; the Fairness and Resolution Branch, which aims to assist in resolving matters at the lowest level; and the Office of the IGADF, which oversees, by inquiry, the operation of the military discipline system. The civilian system has its own bodies in the administrative complaints area. These include the Commonwealth Ombudsman, who also acts as De- fence Ombudsman, and various State and Territory Ombudsmen; and specialist tribunals such as the Administrative Appeals Tribunal, Veterans Review Board, the Human Rights Commission Tribunal, the Australian Commission for Law Enforcement Integrity, the Inspector General of Security and Intel- ligence, the Office of the Australian Information Commissioner, and the Social Security Tribunal.15 The Administrative Appeals Tribunal also reviews decisions where any Commonwealth legislation provides for such review.16 Most concerning, in a second report by the IGADF, was the over-duplication of audit and risk, raising the complexity and cost in the military above the experience of civilian organizations. Such activity obfuscates, rather than increases, efficiency and effectiveness, the latter being one of the justifications by the military for maintaining independence in this area:

The audit function of Audit and Fraud Control Division accounts for 45 staff with a personnel budget of less than $6 million and an operating budget of under $2 million, out of a total of at least 400 FTE audit and/or assurance positions across Defence costing more than $47 million per year. The total cost is much higher than would be expected when compared to other organizations of similar size. It reflects overlap and duplication.17

The ADF, like the US military, has a number of discipline options. Australia has both its administrative system and discipline system addressing criminal offending on three levels: courts-martial, Defence Force Magistrates, and summary authorities. Defence Force Magistrates are senior legal military officers, often reservists, providing an alternative to a court-martial and acting as a restricted form of court-martial. Summary Authorities are also appointed through the chain of command and operate across three levels, Subordinate Summary Authority (SSA), Commanding Officer (CO), and Superior Summary Author- ity, to provide limited lesser punishments. Discipline Officers,18 who deal with DFDA minor breaches of service offences by non-commissioned rank and officer cadets, where there is no factual dispute and the member admits the misconduct, provide the lowest level of control. All levels are subject to some form of review. The model is primarily adversarial with even minor offences requiring proof beyond reasonable doubt, despite these matters being akin to

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workplace discipline, with the continuum between these and criminal offending not delineated.19 This attracts a disincentive for use of discipline at the higher end of criminal offending.20 The lowest level of control has proved popular, as it is seen as quick and efficient. There has been an increasing use of this informal process instead of the other discipline options. Fairness is somewhat questionable, as submission to this style of discipline requires acceptance of the offending, thus perhaps placing pressure on members to admit guilt they would otherwise deny. If an accused does not admit to offending, the matter has to go to a service-level tribunal.21 The US likewise has a summary discipline system described as Non-judicial Punishment.22 It avoids the consequences and the hu- miliation associated with a court-martial but has other impacts of significance for military members. The outcome of the very extensive Rethinking Systems of Inquiry, Inves- tigation, Review and Audit in Defence amounted to the then Chief of the Defence Force, General D.J. Hurley, acknowledging the need to address the recommendations in the report, but concluding that most of the outcomes could be achieved by implementing action within the existing structure in order to minimize disruption. This involved some guidance and policy reform and an attempt to make the IGADF more independent.23 Broderick concluded in her final report, after having been involved in extensive reviews of the military as the Sex Discrimination Commissioner in the Australian Human Rights Commission that while many changes in policy and reform of culture had been undertaken, ongoing oversight and vigilance would be required.24 Australian military survivors expressed a lack of faith in the military ever being able to handle sexual and general abuse and discrimination complaints properly.25 The Director of Military Prosecutions reported in 2016 on an

. . . increase in the number of prosecutions for low-level sexual misconduct perpetrated by males on subordinate female members of the Defence Force. Such offences alleged sexual misconduct by male senior NCOs or officers . . . threatening failure if there was a refusal to engage in a sexual relationship . . . [with] Many of the incidents . . . committed in training establishments. It is apparent . . . that other incidents go unreported because the complainant does not believe that he or she will be believed and many just want to move on with their careers. . . .26

Perhaps the most significant aspect of the DLA Piper Review was that it resulted in the law firm receiving over 1,112 communications between April and October 2011 complaining of abusive treatment.27 The overwhelming numbers led to the Minister for Defence establishing the DART process, which commenced in November 2012. Apologies came from the Minister of Defence to survivors of abuse and from the Chief of Defence Force to the

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public.28 DART was initially meant to assist survivors of physical and sexual abuse, or workplace harassment and bullying that occurred prior to a cut-off date of April 11, 2011, and in particular the HMAS Leeuwin and Australian Defence Force Academy (ADFA) 24 matters. The latter related to survivor stories in 24 matters arising from ADFA. However, due to subsequent allegations and issues, DART had two extensions to the terms of reference. The first, in June 2015, and the second on November 11, 2015. DART’s work concluded in 2016 with its final and twelfth report.29 Over the life of DART, it received 2,439 complaints of which 1,751 reached a standard of plausibility considered to be within the terms of reference. This standard was used as it was less concerned with legal standards such as “beyond reasonable doubt,” because the focus was on survivors, many of whom now suffered drug and alcohol abuse and mental health problems as an outcome of the abuse. The plausibility test looked to the reasonableness of the allegations on the available information, taking into account that the oldest complaint related to an incident occurring over sixty years prior. The DART process was designed to redress past wrongs in the sense of hearing and respecting survivors, and enabling some of them to come forward and tell their story for the first time. A counselling and a reconciliation model, along with capped reparation payments were adopted. The reparation payments were not compensatory but rather an acknowledgment of wrongs that should not have occurred. The payments did not rely on confidentiality or exclude future legal action. They ranged from $5,000 to $50,000, and 1,723 payments totaling $66.63 million were made.30 Approximately just over a third of the survivors took up the offer of counselling, which utilized a trauma-informed practice. Those undertaking counselling represented 68 percent males and 32 percent females. Overall, survivors were 73 percent males and 27 percent females.31 The restorative engagement approach of DART was possibly the most advanced used to date in dealing with trauma survivors. It involved training facilitators in a respectful survivor conferencing process handling high emotional content. For those participating in the mostly face-to-face conferencing, 352 senior Defence officers and 619 survivors, the experience was reported as delivering a surprising and often profoundly positive impact.32 DART found the main concerns of the survivors were twofold: 1) to finally have acknowledgment from the institution, and where possible the abuser, that they had been wronged; and 2) to ensure others would never have to go through what they had experienced.33 Significant findings by DART included that many of the survivors were children (27 percent) when the abuse occurred, during their initial recruitment and training. Abuse was often perpetrated by more senior recruits or

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staff in positions of hierarchical authority, and “difference” ranging from age, religion, appearance, or illness tended to attract the abuse. The effects were often long lasting and the culture of defense was prohibitive of reporting.34 DART made eight recommendations. These focused around training those handling the survivors, and awareness raising to ensure proper management in dealing with, and advising, survivors.35 Also important was acknowledging that it could take years before a survivor can talk about or even begin to consider reporting abuse. DART recommendations 1, 2, and 7 contained some of the most telling concerns for the purposes of this work. First, there was a desire to ensure that those within Defence who are involved in the investigations, such as the officers employed by the IGADF and ADFIS, now under the overarching umbrella of the Joint Service Police Group,36 observe and have training in civilian policing best practice—particularly when dealing with sexual assault and abuse.37 Secondly, and most importantly, those civilian criminal offences involving acts of abuse, unless they are minor offences or offences occurring out of jurisdiction, ought to be investigated and prosecuted through the civilian justice system.38 This recommendation reinforces the civil-military principle of civilian precedence over the military. However, it is a principle that has been gradually eroded as Defence has contained more and more of its activity within its institutional walls. Thirdly, a need to have some outside superintendence was identified to ensure changes in policy, training and other reforms actually occur. This role was recommended for the Defence Force Ombudsman who independently reports to Parliament. It is clear from DART that trust was broken for many Defence members and the institution. The many reviews did result in the prosecution of two individuals involved in the ADF Skype incident. This prosecution took place through the normal civilian criminal justice system rather than the military court-martial system, because cadets are not a “defence member” as defined by the DFDA, in the same way that reservists, while not on duty, are not subject to discipline under the DFDA. This can create its own dilemmas for jurisdiction and claims for the need to compel obedience and greater discipline. The Jedi Council incident involved activities by reservists. Chief of the Defence Force v. Gaynor also concerned behavior of a reservist that arguably bought the military into disrepute, yet as a reservist, Gaynor could not be charged with disobeying a lawful command.39 In regards to investigation and civilian justice versus military discipline, it was apparent that ADFIS had investigated civilian criminal offences assimilated under s 61(3) Defence Force Discipline Act 1982, and in some cases, instead of handing over to the civilian police, apparently kept the matters in-house by dealing with them as administrative or service offences such as

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prejudicial conduct.40 It also was claimed that ADFIS discouraged survivors from reporting to the civilian authorities. It is interesting that the culture at the ADF Academy, as part of which the 24 allegations by women of abuse arose, saw all woman survivors disinclined to report to the civilian authorities.41 Through the detailed scrutiny of 67 matters, DART noted that the following reasons existed to justify using the civilian justice system, instead of the military discipline system, when prosecuting offenders:

1. no criminal record results from a conviction in the military system; 2. relevant offenders are not placed on the sex offender register; 3. there is no exposure to civilian sanctions such as probation, parole, and good behavior bonds; 4. there is no access to drug treatment options and other offender programs; 5. there is no opportunity for survivor impact statements as part of the sentencing process; 6. the survivor’s eligibility for compensation under survivors of crime schemes is affected; 7. prosecutions under the Defence Force Discipline Act are subject to a statutory limit of five years, which would not apply to a criminal prosecution based on the same alleged offence; and 8. police may not have access to a convicted member’s conviction record because the conviction is not recorded in police intelligence databases.42

The Australian High Court decisions limit the jurisdiction of military punishment under the DFDA to “service connected” matters, which maintain discipline for the particular needs of the military. This more restrictive approach is exemplified by the US case of O’Callahan,43 now overturned in the US by Solorio,44 in which then Chief Justice Rehnquist adopted the status test, relying simply on whether a person was a military member. However, the Australian High Court service test adopted in Re Tyler; Ex parte Foley45 has effectively evolved to permit almost any military matter being dealt with by the military. The argument is reduced to any behavior affecting military morale and reputation being a matter for military discipline. This relates to the status of those whose behavior is under scrutiny and thus encompasses far more than the original service test envisaged:

In the military context, the commission of crimes by defence members, even when off duty and extraneous to their service, can reflect on their fitness, and on the reputation of the ADF as a whole. Parliament may thus decide, as it has, that any crime committed by a defence member may be prosecuted as a service offence.46

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Proponents of the service test, Justices Brennan and Toohey in Re Tracey; Ex parte Ryan,47 acknowledged at the time that the subjective assessment of the service connection could lead to questions of “impression and degree.”48 In White v. Director of Military Prosecutions,49 the High Court, by a six to one majority, permitted ordinary criminal offences committed by military personnel under civilian law, even while off duty, to be heard by service tribunals, or as defense disciplinary matters, instead of by the civilian courts. Ultimately, the Defence Force Discipline Appeal Tribunal, a non-court, asserted a preference for the status test in Australia:

as recognized in Solorio, the “service status” test has the advantage of providing a much clearer and cleaner test than that of “service connection.” The DFDA . . . legislation is framed in terms of the “service status” test . . . no decision of the High Court rejects the “service status” test, and it has never been held that, insofar as the DFDA embraces the “service status” test, it is beyond power. Ac- cordingly, even if the “service connection” test were not satisfied, in the absence of any decision of the High Court precluding its acceptance, we would find jurisdiction on the basis of the “service status” test.50

A memorandum of understanding exists between the Director of Military Prosecutions (DMP) and the Director of Public Prosecutions (DPP), which requires consultation and consent before an assimilated serious criminal offence such as murder or sexual assault can be pursued in the military jurisdiction particularly when committed within Australia.51 However, although the consent requirement exists, a warrant for arrest, charging, and holding in custody can all occur prior to obtaining any consent.52 This rather shrouded process has lost sight of the reason for its existence, which is to respect civil- military control and ensure most matters are dealt with in the civilian justice system unless there are extremely good grounds to deal with it in the internal military discipline system. Opportunity for uncertainty exists when certain sexual offences, such as indecent assault, do not require DPP approval before being pursued in the military domain. The memorandum speaks of service offences, yet the current state of the case law in Australia remains unclear on determination of what this means. The then government and ADF rejected the extensive 2005 Senate Inquiry into the Effectiveness of Australia’s Military Justice System recommendation that all criminal offences, irrespective of location, be referred to the civilian authorities.53 It was claimed the Senate inquiry members acknowledged the importance for the chain of command to have control over discipline.54 Cer- tain sexual offences under the Crimes Act 1990 Part IIIA are to be referred to the DPP for consideration of jurisdiction to prosecute.55 None of these factors provide justification to reject the recommendation made by the Senate.

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Ironically, the need to maintain high morale and discipline, cited as one justification for a separate discipline system, seems to be defeated by the internal system in which so much sexual and physical abuse and harassment is sustained. It is informative to consider standard claims made for maintaining the status quo. These include arguments 1, 2, and 3 outlined in chapter 1, such as “adversely affecting command and morale” and the “military necessity to maintain a strong fighting force.” These were put forward in 1992 as justification for dismissing anyone in the Australian military who was homosexual. Three other justifications for removing homosexuals were proposed: national security, due to the stigma attached; health issues such as AIDS; and that children in defense need protection from such behavior.56 This was in the early 1990s, and while these claims could certainly be dismantled as arguments that look somewhat silly now, cultural change occurs slowly. Not until Anzac Day 2017 could wreaths be laid acknowledging the contributions to service across the generations of lesbian, gay, bisexual, transgender, intersex, and queer (LGBTIQ) service members.57 The 1986 ADF instruction on homosexual behavior in the defense force, reaffirmed in June 1992 but overturned in November of the same year by then Prime Minister Paul Keating, had an annexure B that outlined unacceptable sexual behavior by defense members.58 Paragraph 4 is telling in attitude, and one that still seems to support resistance today:

This obligation defines the limits of the ADF concern regarding the sexual behavior of members. Sexual behavior which is inconsistent with this obligation is termed unacceptable sexual behavior and will normally warrant disciplinary and/or administrative action, where such behavior: a) is prejudicial or is likely to be prejudicial to group cohesion; b) is prejudicial or is likely to be prejudicial to command relationships; c) is prejudicial or is likely to be prejudicial to the attainment of military objectives through reducing the operational effectiveness, health or safety of the individual or the group; d) takes advantage of, or threatens the person or personal integrity of subordinate of underage persons; e) brings or has the potential to bring discredit on the ADF; or f) is unlawful under either civil or military law.59

These claims are now clearly redundant, adding to the many reasons that justify no longer maintaining the military discipline system as a separate system. Evidence from the DART investigation shows that of the 1,723 reparation payments made, 97 percent contained a component to acknowledge a failing by the institution in managing the complaint. Initiation practices including bastardisation, a term encompassing harassment and bullying, often con-

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tinued without a response from the institution. Physical injuries and errant and unusual behavior seemingly go unobserved by those in charge despite a hierarchical command environment. As part of the drive to cultural change, defense have implemented various directives and policies. These have included instructions supporting respect for equity and diversity and have encouraged commanders to model this change by taking action that eliminates unacceptable behavior.60 Some evidence of the changing culture saw ADF members permitted for the first time in 2013 to march in their uniform in the famous Sydney LGBTI Mardi Gras,61 and the acceptance of women in combat as the Gillard government moved to allow in 2011.62 Public commentary, particularly in social media, was also included in the instructions for change and extended to reserve military personnel.63 Bernard Gaynor, a reservist who joined the military in 1997, served as an officer in the active army from 2002–2011, and became a major in 2013 while part of the reserve forces, tested the strength of this commitment. In 2013, he made comments reflecting his views of the LGBTI community and members of the Islamic religion on his personal blog website, Facebook, and Twitter account.64 Refusing to desist and take down his comments when requested by the Chief of Army, Gaynor’s commission was eventually terminated. The matter went to the federal court on a constitutional challenge.65 Gaynor was claiming that the directive restricted his implied public freedom of political speech. The single judge accepted Gaynor’s argument, stating:

It may be the case that members of a full time regular service are rarely (if ever) free to publicly express opinions against the policies of the ADF or the decisions of their superiors but the same cannot always be said about members of Reserves. Such persons are often not on duty. They are private citizens, in substance, when not on duty and not in uniform. Military discipline under the Defence Discipline Act (sic) does not apply to them. In my view, their freedom of political communication cannot be burdened at those times.66

This position was overturned on appeal to the full court in 2017.67 There, the court found that the single court judge had erred in their application of the implied freedom of speech test. Unlike the First Amendment to the US Constitution, the Australian Constitution has no such explicitly included rights. The High Court has resolved to imply a limited freedom of speech into the Australian Constitution. However, it does not provide individual personal rights of free expression, instead focusing more generally on the legislative power to pass legislation that acts in a restrictive manner on the ability for public political communication to occur freely.68 The impugned Defence regulation 85 in Gaynor was considered to apply to the suitability

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of officers, and supporting diversity in opinions and outlook, yet requiring “. . . respect and tolerance, without which diversity cannot flourish.”69 Thus, it was directed at the appropriateness of an officer’s behavior in a leadership position and was not focused on limiting free communication or the subject matter of any communication. In Gaynor, the court noted “. . . the lack of tolerance and respect for fellow officers and other ADF members about whom he was speaking [was] aptly described as extreme, including his refusal to accept and abide by orders and directions given to him.”70 The appellate court observed that Gaynor’s behavior was incompatible with that expected of a leader, even a reservist, demonstrating an incapacity “. . . to operate within the hierarchal structures of the ADF in ways that advance the cohesiveness of the armed forces.”71 The attention to prioritizing group cohesion, military command objectives, and reputation over breaches of the law shows an ongoing focus of the military institution. This is identified by the military attitude when the media is involved in reporting internal incidents. Foster has found a general hostility towards the media from within defense. He claims the perception is of a media that is antagonistic and works to damage the reputation of the military, “. . . because the one thing the ADF feared more than an adverse outcome on the battlefield was bad press and the damage that this might do to its reputation.”72 Hostility towards the media is an entrenched feature of the ADF’s coterie culture and is a central feature of the military’s vision of its relations with civil society, according to Foster and others.73 This fear of loss of reputation and antagonism to the media is common within coteries, confirming the la bella figura syndrome.74 A major cultural repositioning has to occur to acknowledge individual well-being, which remains unaddressed and at odds with the prioritized military ethos. In attempts to simultaneously contain and redress the situation, defense has set up yet another internal body—the Sexual Misconduct Prevention and Response Office (SeMPRO), which is designed to improve education, revise policies, and publish statistics. Much like its US cousin, the Sexual Assault Prevention and Response Office (SAPRO), it has a limited remit and reports internally to the Chief of Defence.75 Lack of substantive redress impacts on survivors, perpetrators, and extended others as is witnessed in the following case vignettes.

CASE VIGNETTES, FROM THE INQUIRIES

Abuse can take many forms. Sexual and physical abuse often are the most abhorrent. However, DART noted the high prevalence of both sexual and workplace harassment and bullying.76 This type of behavior is perhaps more

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insidious and harder to uncover, but the consequences are potentially equally destructive. Also noted by DART was the reality that perceptions of the impact of the abuse are distinctly individual, and there is no correlation between the objective type of the abuse and the subjective impact on the individual.77 What is common is the repression by a culture that condemns “dobbing.”78 A survivor, particularly one going to the media or to a body outside the coterie’s control, also euphemistically referred to as “beyond the wire,” presents a peril to the hierarchical system of authority and fraternal code of honor, perhaps more aptly named a code of (dis)honor. Despite this repression, a few brave persons are still prepared to speak out. Then independent senator, Jackie Lambie, an ex-service member herself, successfully advocated for three investigations in relation to the matters now described.

The Constant Battle: Suicide by Veterans A former Special Air Service (SAS) member came forward publicly to give evidence before a Senate inquiry into suicide among veterans.79 He spoke of his family’s suffering and being “blacklisted” by the military institution. His complaint lay on two fronts. First, he claimed he was the survivor of sexual abuse during interrogation training in 200680 and second, his brother, also a service member, had been the survivor of harassment that he believed had adversely affected him.81 The brother had received psychological help following the death of a friend. Later he felt sidelined when given a job looking after exhibits in a regiment museum instead of returning to his position in the SAS where, as a highly trained soldier, he had participated in multiple tours of duty.82 Dr Scally’s submission to the Foreign Affairs, Defence and Trade Refer- ences Committee, “The Constant Battle: Suicide by Veterans,” expresses his experience in the military as a regimental medical doctor serving for 21 years:

I wish to elucidate that not all harm occurs overseas; indeed, I have seen significant trauma and morbidity occur in the barracks and field training environment (including training deaths, injury and suicides). I have witnessed gross mistreatment verging on torture and have been compelled to be complicit to it. I have witnessed the persecution of soldiers by sub-unit commanders who were previously the subject of a parliamentary enquiry into . . . psychopathic bullying, yet were nonetheless deemed fit to take command, and further ruin young lives. I have been threatened with imprisonment for not changing my medical opinion to suit the wants of command.83

The Department of Veterans Affairs has received recommendations for improvement as a result of “The Constant Battle” Senate inquiry. The Veterans Entitlement Act 1920 (Cth) and the Safety, Rehabilitation and Compensation

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Act 1988 (Cth) are just some of the legislative instruments operating in this domain.84 One simple recommendation addresses the issue of the complex web of legislation and administrative burdens veterans have to try and navi- gate in order to access support when in a vulnerable state.85 For the military, making claims for special treatment as an institution capable of being ready to fight and manage a war, and therefore operating on efficiency, responsiveness, and flexibility, the allegation of bureaucratic regulatory overload seems too common. Due to the claims made and Senator Lambie’s push, the Senate referred two more inquiries to the Foreign Affairs, Defence and Trade References Committee: one looked at the circumstances related to the SAS officer’s claim of sexual abuse during Resistance to Interrogation training, and another into the matter of the Jedi Council described below.86 The three inquiries came on top of the many inquires undertaken internally in Defence as well as independently by other bodies.87 What they signify is the ongoing cost to the taxpayer of maintaining a broken system, one that seems never capable of being truly fixed no matter how many inquires may be undertaken or how much fiddling around the edges occurs. The Resistance to Interrogation training inquiry noted that after 2006 this training was rebadged as “Conduct after Capture.” One participant raised the degree of usefulness of the training, stating “[t]he crux is that it is actually a misnomer to call it ‘training,’ because no instruction was given, there was no feedback, there was no evaluation and there was no coaching.”88 Similar issues arose as with the Survival, Evasion, Resistence, and Escape (SERE) program in the US, including the use of this training for other potential purposes, such as training the trainer in certain interrogator tactics; questionable levels of consent; potential for a breach of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the conflicted position for psychologists and medical personnel involved in the training. The committee recommended that information on the participants be retained by the military and be accessible to the Department of Veterans Af- fairs, and that an independent arm’s-length third party be permitted to review the participants for potential psychological harm after the hardest, level C, training for Conduct after Capture had occurred.89 A member of defense tasked with assisting members with mental health issues made claims in 2013 of having experienced abuse. As an army psy- chologist for 16 years, holding some responsibility for the welfare and mental health of deployed military and having served in many campaigns, including in Bougainville, East Timor, the Solomon Islands, Iraq, and the Middle East, Morgan said his claim was mishandled with non-compliance in reporting deadlines, including by the most senior ranks of defense.90 The member

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overcame fear of personal consequences to express frustration at what he perceived as little change in the way survivors of abuse were treated, notwithstanding the extensive number of inquiries and reports:

I can categorically say that no matter all of the cultural reviews, the establishment of the abuse tribunal and the DLA Piper report, nothing has changed about the way Defence reacts to abuse . . . My personal experience tells me that the Army’s abuse management strategies that I’ve seen—delay, deter and deceive—are still in force now . . . They say one thing in public and do another thing in private.91

The inquiry into suicides found that high levels of complexity in the legislative regime provided to assist veterans needed to be addressed. Also noted were contributing factors to suicide such as sexual abuse, bullying, and harassment.92 The government has responded to the committees, report into military member’s suicide with agreement to the majority of the twenty-four recommendations and an expenditure of $31 million to support their new ini- tiatives. This includes establishing a national de-identified veterans’ suicide register to enable a closer understanding of the problem. The government softened on an early budgetary reluctance and extended non-liability health care to free and immediate health care for anyone who has served one day with the military—removing the prior requirement of three years’ service.93 Improving the transition to civilian life has been given attention by providing an annual physical and mental health checkup and a white card to discharg- ing military personnel, to enable access to mental health treatment when they feel it is needed.94

The Jedi Council Another incident reflecting the issues is known as the “Jedi Council” saga. It provides an insight into the many aspects of abuse. Overarching in this was the inability of the separate defence institution to deal with the event in a manner that satisfied anyone. Named, inaccurately, as a perversion of the fic- tional “Jedi Council,” which was portrayed in the Star Wars movie as the Jedi Order, a spiritual, philosophical, and paramilitary organization combining religion and warrior attributes in a meritocratic hierarchal secretive organization aimed to fight evil and bring about good, the real so-called Jedi Council of the ADF brought about harm, not good. However, it did have the attributes of a separate secretive coterie, subject to its own rules. The group filmed or photographed women, often without their knowledge, during sexual activity and the resulting digital media files were sent by email to a substantial number of defense personnel, possibly 172, not all necessarily group members.

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The emails were often headed “Dear Jedi Council” and conveyed descriptions around the activity depicted. One serving member who received these emails was a lieutenant colonel but, as it turned out, he never opened the uninvited emails but deleted them instead. Nevertheless, then Chief of Army, Lt. General David Morrison, allegedly gave enough information for the public to be able to identify the person, along with two others who were stood down, before the outcome of an investigation had substantiated any wrongdoing. The ADF denied providing anyone’s name to the media in the subsequent inquiry.95 Famous for his speech that went around the world and exhorted the military to overcome such sex scandals, and later named Australian of the year, David Morrison’s actions nevertheless drew comment.96 Despite the lieutenant colonel’s claim that he and his family’s lives were destroyed, he stated that he required no more than a public apology.97 Senator Jackie Lambie had gained access to a New South Wales police report into the Jedi Council matter that had allegedly suggested investigation irregularities by ADFIS.98 In the Foreign Affairs, Defence and Trade References Committee Inquiry into “Matters Raised by NSW Police, Strike Force CIVET,” the exchange of offensive emails by the Jedi Council, and an independent police investigation by NSW police detectives carried out in July 2012, were the subject of scrutiny. Allegations of other inappropriate conduct by ADFIS staff and investigations by the IGADF suggested a potential culture that not only may not uphold appropriate standards expected from an investigative body but also may propagate disrespect.99 At the conclusion of the Jedi investigation, nine members had their service terminated while another seven managed to avoid this outcome, even though six of the seven received a censure. The inquiry noted that the remaining 176 defence members and employees identified as involved in Operation JARRAH were assessed individually by their chain of command. Generally, an administrative sanction applied.100 Most concerning was that the Foreign Affairs, Defence and Trade Refer- ences Committee reported that they were unable to fully report due to difficulties in obtaining evidence. A jurisdictional objection was made by the NSW police commissioner suggesting a federal government body could not intrude on state police operations and “[a]ny purported scrutiny of NSW Po- lice’s actions which are available if the POA Report is produced should not be undertaken by the Commonwealth Parliament, including a Senate Com- mittee, but by the NSW Parliament.”101 The committee responded in relation to the refusal by NSW police to provide their report, suggesting that it was an unusual response given the committee had never requested the report.102 The committee noted that the IGADF had carried out a second inquiry, which found “serious shortcomings with ADFIS investigative practices and

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procedures” requiring measures to improve the Australian Defence Forces’ “understanding and investigation of cybercrime and ICT misuse.”103 Perhaps surprising for an organization dedicated to the cutting-edge defense of Aus- tralia’s security, Senator Lambie commented that

[w]hile the Committee rightfully does not rely upon the draft CIVET report due to the inability to establish its status, the draft report did raise very serious concerns about the proper workings of federal agencies that have thus far evaded proper Parliamentary scrutiny.104

ADF Skype Matter Prior to the two particular cases described, the sex scandal “Skype incident,” leading to the DLA Piper and the DART process, had occurred. A young female cadet, unbeknownst to her, had been live videoed while having consensual sex at the Australian Defence Force Academy.105 Subsequently the survivor, now known as “Kate,” was allegedly hazed through disciplinary proceedings against her by the management of ADFA in relation to other matters. This was acknowledged by the then Minister for Defence as “inappropriate, insensitive, wrong [and] almost certainly faulty in the law.”106 Despite the many inquiries instigated by the 2011 Minister of Defence’s response to the Skype sex scandal, an investigative journalist reporting in 2014 found that there was a lack of awareness among cadets of the inquiry process, and even if they were aware, a lack of faith and trust in a system that had already failed them so badly.107 The Kirkham Inquiry, set up to look at the specific ADF Skype incident, concluded there had been no wrongdoing in pursuing disciplinary action against the cadet.108 The perpetrators were charged and found guilty by a jury within the civilian system, for indecency and using a carriage service for the offence. Both perpetrators managed to elude imprisonment, due to their age and previous good character, and they received twelve-month good behavior bonds.109 Kate responded by stating: “[a]s Defence culture stands at the moment, I think we still have a really long way to go before I would feel confident in being able to say, ‘Yes, it’s a good career choice for females.’”110 By coming forward, Kate empowered many others to feel able to make aligned claims. In 2013, her bravery was recorded by being awarded Daily Life’s woman of the year,111 but this could never redress the personal cost in losing her career, being discharged on medical grounds, and left to follow a different career. Kate indicated she would continue to fight “for as long as it takes” to keep the issue alive for the public.112 The stamina needed for this is colossal. As Thornton has noted, very few woman can sustain a prolonged

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action.113 Nevertheless, some woman hold out, while also trying to sustain a career despite the negative workplace. The reality is that systemic harassment is insidious in nature as it fashions a male dominance in a male domain of generalized power. Broderick’s extensive 2012 review on women serving in the Defence Force114 advocated increasing the targets for gender employment and punishing managers who failed to address abuse and sexual harassment. However, implementation is a slow process.

Case 40—Royal Commission into Institutional Response into Child Sexual Abuse The Royal Commission into the Institutional Response to Child Sexual Abuse focused on abuse reported in relation to the military bases Leeuwin, Western Australia, and Balcombe, Victoria. This was due to the similar nature and extent of abuse reported to have occurred over a similar period of time, yet coming from different services situated on opposite sides of the country.115 The evidence portrayed a climate of widespread abuse, involving unequal power by older males over younger males, in an informal hierarchy engaged in ritual hazing practices that were accepted as part of a rite of passage into the coterie.116 HMAS Leeuwin was a navy base located onshore in Western Australia. It operated between 1960 and 1984 as a training institution for junior recruits. Around 13,000 boys aged between 15 and 16 years passed through the base in their entry into the navy. The training was conducted over 12 months. For the first six months, the boys were ranked “Junior Recruit Second Class” after which they progressed to “Junior Recruit First Class.” Once they had successfully completed the training they went on to further officer training or were allocated to a navy ship. The intake of recruits was staggered over three monthly intervals, supporting an unofficial hierarchy system, which so easily lent itself to abuse. The colloquial names given to each staggered recruitment intake tells a story. The newest recruits were titled the “new grubs,” the next group the “grubs,” the next the “shits,” and the most senior the “top shits.”117 Their welfare needs, including discipline, was overseen by two Divisional Officers, each responsible for two separate divisions of around 100 recruits, and they were assisted by a Petty Officer and a Chief Petty Officer, who were ranked as senior sailors.118 Concerning is that abuse at Leeuwin had seen two previous inquiries, one in 1971, conducted by Navy Judge Advocate General Rapke, and referred to as the Rapke Report. This related to a publicized bashing of a junior recruit. The mother of the 15-year-old survivor had reported the matter in the media.119 Rapke’s report exonerated the officers as largely upstanding and dili-

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gent service personnel. He consigned the matter to an over-enthusiastic group bashing that had been inflicted on the survivor by four or five recruits due to his stepping outside his “unofficial” level of hierarchy in applying his own bullying. Rapke’s report, not released due to the age of the alleged survivors and privacy concerns of those involved, received some coverage in the media. It would appear that the survivor and perpetrators had all received similar discipline. Rapke seemed most concerned with the media coverage and was keen to emphasize the isolated nature of such incidents as being due to some “bad apples.” Rapke did not consider the abuse was systemic or institutionalized. It was reported that he felt “. . . confident that if [the survivor] or any other of the lads involved continues with his naval career, he will find happiness and satisfaction in that career and perhaps even benefit from the miserable experiences he has been subjected too.”120 This is the language of “a rite of passage” that survivors indicated they were encouraged to believe and accept. More enlightened than Rapke, in 2014, DART’s investigation of accounts of abuse by 238 former junior recruits acknowledged that the level of abuse was more serious and widespread, including sexual abuse, and was perpetrated by not only junior recruits but also participating staff members.121 Given Rapke’s response, it is perhaps no surprise that more than 40 years later it was still a culture in which complaining about abuse is discouraged. An aberrant la bella figura attitude was sustained by the lack of appropriate management where survivors did attempt to report abuse, with no actions taken and in some cases an active dissuading from making the complaint. DART found that this arose because of the stigma attached, leading to shame at having been abused, along with fear of discharge, or threats of further abuse for “dobbing” by reporting, and a general lack of trust in reporting to other staff members.122 That the unofficial system of hierarchical bullying and abuse continued was due in part to the institutional “blind-eye” to such la brutta figura matters. While 36 survivors of child sexual abuse at Leeuwin contacted the Royal Commission, the commission heard evidence from only five of these survivors. These five, two being abused by staff and three by fellow recruits, indicate a pattern of abuse occurring within their first six months at the Leeu- win base when they were aged 15–16 years. One of the survivors had given evidence to Rapke in 1971. He testified that prior to this, he had been warned that if he indicated it was anything other than “boys being boys” he would suffer repercussions. This survivor endured a “boys being boys” culture, in which regular acts of anal and oral sex were performed on and by him that involved both junior recruits and staff, while he was 16 years of age. His attempt to report to a chaplain met with threats that any reporting could endan- ger him further. After running away, which for him seemed his only option,

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he alleged that when he was caught, further sexual abuse occurred when in the custody of the naval police. At his court-martial the Divisional Officer, whom he had told about his abuse, described him as a troublemaker resulting in his “unsuitable discharge.”123 The Balcombe Barracks, an Australian army base on the Mornington Peninsula, Victoria, which operated from 1948 to 1982, provided 7,500 trade apprenticeships educating female and male recruits from secondary schools for four years in technical and clerical trades. Again, the recruits were divided into companies with each comprised of three platoons commanded by a sergeant, a company sergeant major, and a clerk and storeman. Senior apprentices were given the unofficial rank of hut corporal with apprentices expected to report any incidents to them before reporting to divisional staff. This entrenched an unofficial hierarchical power structure ripe for abuse of the junior “sprogs.”124 A Manual of Personnel Administration was the only procedural document, which has now mysteriously disappeared, that dealt with all complaints no matter the age or whether sexual abuse was alleged.125 Twelve survivors contacted the Royal Commission regarding their abuse while children at the Balcombe Barracks, and evidence was heard from five of these survivors. This compares to the 68 complaints (30 involving children) provided to DART about physical or sexual abuse at Balcombe. A number of the survivors alleged that on numerous occasions anal penetration occurred where a broom handle was used, and these survivors still, in 2014, were denied any compensation due to their inability to produce contemporaneous evidence. The Royal Commission found the complaints were to be made to Divi- sional Officers with no special procedures for child sexual abuse complaints. However, for an organization that prides itself on efficiency, the procedures were complicated by their overlay in a number of different source documents.126 The now lost “log-books” provided the only records of complaints. Only one of the five survivors giving evidence made a written complaint at the time of the incident, which ultimately resulted in no action being taken.127 Bastardisation was a general all-encompassing term used to cover incidents of bullying, harassment, and abusive initiation practices. Four navy staff, including the chaplain at the time, gave evidence to the Royal Commission. Many years later, in 2016, even after the closing of the base, they still tended towards a denial of the abuse or the extent of it. Retired Rear Admiral Peter Sinclair was given charge of Leeuwin after the Rapke report to improve the situation. Yet, Sinclair, who served from 1948 to 1989, and was to be gover- nor of New South Wales from 1990 to 1996, told the Royal Commission that, despite working to ensure the abuse did not continue, he was appalled to hear of it now, and simply could not understand how it could occur.128 This was

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notwithstanding his evidence of experiencing “. . . a terribly uncomfortable and not very exciting”129 initiation himself and awareness of inappropriate sexual initiation activities such as “nuggeting”—the covering in boot polish of another’s testicles. Such a rite of initiation was considered acceptable, but not widespread.130 The entire approach to allowing initiation practices such as these or initiation of any sort is in need of a cultural change that seems yet to be comprehended by coterie institutions. The apparent shock and surprise by senior military figures tends to be a repeated refrain. Vice Admiral Ray Griggs, commenting on the DART evidence and findings, expressed that the evidence “. . . absolutely sickened me,”131 acknowledging a failure in the duty of care by the military establishment. The Royal Commission also inquired in detail into the complaints ema- nating from Australian Defence Force Cadets because these were not addressed in any other inquiries; and Defence continues to recruit children from the age of 13.132 Cadets can remain to the age of twenty and from age eighteen they can transition into “Adult Cadet Staff Members,” eligible to apply to become instructors of cadets. From age nineteen, they can become officers overseeing cadets.133 The ADF Cadets collectively cover the three services. Cadets are not members of the ADF, and the ADF service chiefs are responsible for the cadets.134 A common problem arising in this environment is inappropriate relationships between instructors and cadets. Although attempts to prevent these have been made since 2004, it would appear that the issue remains unre- solved. As an institution, the defense force, which prides itself on efficiency, seemed to have little clear understanding of the legal requirements regarding the age of consent and, more importantly, the obligations of those in positions of authority. While a federal system means the criminal law varies across states, applying differing ages of consent, it became clear during the Royal Commission that inaccurate or incomplete information in relation to these laws was present in the cadet and instructor training materials.135 This is despite the issuing of various policy manuals, including those that forbid relationships of a close personal nature between staff and cadets, training around the age of consent, and reporting obligations and duties to the civilian authorities.136 For a military, it is a major concern that the trainers, nor the cadets, understand their obligations as part of the duties they are expected to ultimately fulfill in the forces. The Royal Commission heard evidence from seven witnesses concerning five cases of alleged child sexual abuse, out of the 25 survivors that contacted the commission. From 2001, Defence had kept records of incidents of allegations of child sexual abuse, which indicates 154 recorded allegations up to the time of the Royal Commission’s inquiry in 2016. Almost one third, 51

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allegations, involved adult instructor assaults on a cadet, 10 involved ADF staff, and the remainder saw other cadets as perpetrators.137 Key concerns for the Royal Commission were how the management of complaints or allegations of child sexual abuse internally affected the capacity to protect children, and how internal investigations influenced criminal investigations. The lack of satisfactory processes became highlighted by the tragic case of one cadet. Due to a relationship with a 30-year-old instructor when she was only 15 years old, she was told she had a choice of resigning or being dishonorably discharged. She ended up taking her own life by suicide. The pain for her family was made all the greater when it became clear that a decision to reinstate the cadet had been made before her death, but she had not been advised in a timely manner.138 The perpetrator was relocated, eventually leaving the military. The Royal Commission found some common factors that surrounded abuse episodes, including that those to whom abuse was to be reported were sometimes the abusers; if reported, further abuse or loss of job prospects was a possibility;139 a desire to get just desserts by waiting for suitable rank to enable the survivor to become the abuser; a blurring between abuse and punishment; and fear of being accused of being homosexual, leading to discharge.140 Other common traits found were that most abuse tends to occur during out-of-hours activity or under cover of night. Vice Admiral Griggs indicated in his evidence that the internal procedures at Leeuwin should have provided high levels of supervision. He indicated that duty staff were present in the recruits’ accommodation blocks at all times, except during short absences for meals, alongside a system of roving patrols. However, the survivors giving evidence indicated that this was not the case and the recruits’ accommodation blocks were not patrolled, with most abuse occurring at night.141 Hierarchical entrenchment of power played a significant role. The staggered recruiting and separation into two divisions set up a hierarchical competitive system that was heightened through the selection of Divisional Officers from leading junior recruits, who were empowered to report their peers and to give direct orders to junior recruits where it was thought to lead to good order and discipline. An attempt to address this had occurred after the Grey Review,142 through the removal of the hierarchical cadet structure and its replacement with a mentoring approach. Residential Support Officers (RSO) were created in 2012 to operate as mentors/supervisors in order to assist with supervision in the residential location and overcome isolation of first-year cadets during their transition.143 As a footnote to these proceedings Major Griggs, who had a prominent role in giving evidence to the Royal Commission, became embroiled in his own controversy, having a relationship with a lower-ranked member of the

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military.144 Adultery is not an offence in the Australian military and a different approach to married members having affairs is taken to that of the US. Largely seen as a private matter, unless fraud or issues of rank and line management are involved, the military generally does not interfere. Still, such behavior by senior leaders can have repercussions on discipline at a moral level.

THE INSTITUTIONAL RESPONSE

The government response to the DLA Piper Report included a continuation of much of the Pathway to Change Reforms that had commenced in 2012 as part of an Evolving Defence Culture.145 The strategy had arisen out of seven reviews into Defense culture and other reform proposals. At least fourteen major reviews occurred between 1995 and 2011 alone and the reviews continue.146 Reforms occurred at ADFA after 2011 with the goal to provide a safer, more inclusive workplace. Culture was a key concern, with the Review into the Treatment of Women at ADFA recommending attention to:

• ADFA’s role and purpose • Equity and diversity • ADFA’s structure and staffing • Midshipmen and cadets as young people and future leaders • Accommodation and supervision • Minimizing risk, managing incidents, and ensuring the safety of the workplace • Advice and referral • Data.147

To get a sense of the inquiry landscape, some of what follows provides an overall portrait, beyond matters already discussed. In 2011 and 2012 Eliza- beth Broderick, Sex Discrimination Commissioner, reported on her review into the treatment of women in the ADF.148 The review indicated considerable discrepancies in the recording of the number of assaults between the Values, Behaviour and Resolution Branch (VBR) of the Defence Department, the Service Police Central Records Office of ADFIS, and the IGADF 2011 report. The commissioner considered this to be

concerning, as it means that trends cannot be followed, offenders and repeat offenders cannot be tracked and areas in which sexual abuse are occurring cannot be identified with accuracy. It also means that targeted preventative strategies

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cannot be properly put in place. Of considerable concern is that the failure to capture incidents of sexual abuse accurately can place ADF members at risk of harm from undetected or untracked offenders.149

This echoes the similar state of statistics reporting in the US, by which useful statistics, providing meaningful evidence that enable exact comparisons, are difficult to obtain. Civilian prosecution authorities do not keep records that distinguish a matter as one involving the military—either as related to offenders or survivors. This all indicates a general preponderance of either non-concern or lack of transparency. The government accepted the Brod- erick recommendation to establish the Sexual Misconduct Prevention and Response Office (SeMPRO) to coordinate and improve survivor support and timely responses, as well as assembling information on rates and types of abuse and related misconduct.150 Although it took some time to implement, SeMPRO also has an education and policy function. A further outcome from both the Broderick’s Report and the DLA Piper Review was the assurance of confidentiality for any reporting of harassment or abusive conduct, and the possibility of a dignified and expedited exit without financial or other penalty from the military.151 In the 2016–2017 reporting cycle, SeMPRO indicated it had received 265 formal reports of sexual misconduct, indicating little change from the 2013– 2014 numbers and generally only fluctuating up or down by around 5 percent over the last four years.152 Unfortunately, however, SeMPRO was the subject of a number of concerns. SeMPRO, not unlike its US counterpart SAPRO, only deals with sexual abuse. Other matters, such as sexual harassment, physical abuse, and discrimination are addressed by the VBR in ADFIS.153 Not until after the Royal Commission into Institutional Responses into Child Sexual Abuse did SeMPRO consider the policies and practices of the ADF cadets, and only in October 2016 were support services offered to cadets, their families, officers, and instructors in a 12-month trial.154 Furthermore, these policies and practices would appear to lack insight into male tendencies not to report sex offences, when considering SeMPRO’s claims that sexual offences are gendered crimes because formal reports are by females in “eight out of every ten victims.”155 This raises concerns for around 80 percent of males in defense, many of whom may not be reporting. The DART Review referred to a hotline provided as having a deficit focus as part of a personal service, which diminishes the building of trust. Other issues included exceptions to the restriction of disclosures that needed more explanation to survivors, and there was room for still further improvement in the communication with survivors, particularly with regard to their options for support and forensic evidence gathering and the provision of face-to-face support.156

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DART suggested the following six features were causal to the abuse in ADFA:

• issues of gender and culture within the male-dominated environment at ADFA, including the cadet hierarchical structure that was in place until the late 1990s; • concerns about the suitability and experience of some staff members in supervising young people in a mixed gender environment; • inadequate levels of supervision and security in the ADFA accommodation; • excessive use of alcohol by cadets; • issues with reporting of abuse, including inadequate policies and procedures regarding the management of reports of abuse and a culture, which discouraged abuse; and • a failure of leadership to prevent, stop, and respond to abuse.157

In response to the nine Recommendations by the Foreign Affairs, Defence Report and Defence and Trade References Committee Process to Support Victims of Abuse in Defence, the government noted most but only agreed with one recommendation, namely that Volume 2 of the DLA Report should be released without being redacted or conveyed in summary form. The government rejected the recommendation to continue the superintendence activities of DART beyond June 2015.158 The Senate Foreign Affairs, Defence and Trade Committee Report on the DLA Piper Report encouraged Defense to have senior members participate in the restorative engagement established by the DART program, with an independent review to see if a similar continuing program should exist and an independent review of the completion of the Pathway to Change to understand its effectiveness.159 The Eggleston Senate report recommended that research using anonymized data received by DART would be fruitful, and that the Inspector General’s recommendation for support officers be implemented.160 The renewed batch of inquiries saw Defense become busy with a number of programs. However, the long list of inquiries can obscure just what is happening. Probably one of the most significant was a major inquiry in 2005 by the Senate into the Effectiveness of Australia’s Military Justice Sys- tem.161 This inquiry was broad-ranging, covering both the discipline and the administrative inquiry system. It resulted in a substantive change with the introduction of the new Australian Military Court (AMC). Sadly, due to the then Howard government’s response of only partially adopting the Senate’s recommendations, after advice from Defense, which claimed a need for operational effectiveness by maintaining control over the discipline of soldiers, the AMC ultimately failed. Ironically, defensive in protecting Ch III courts,

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the High Court in Lane v. Morrison162 found the military court unconstitu- tional, returning the military to its separate historic courts-martial system.163 Since this outcome, the military justice system has reverted to the prior courts-martial system with interim legislation and the situation remaining in place nearly a decade later. This was notwithstanding the ongoing inquiry environment plainly showing a lack of ability in the institution to achieve the desired level of control and good moral behavior. Prior to the High Court’s decision, earlier in 2009, a further independent report reviewing the new court structure had reported favorably that all but six of the thirty recommendations in the Senate Report, which had been accepted by the government, had been implemented. In a type of numbers game, the report also contentedly noted that of some 382 recommendations in reviews conducted in the ten years 2000–2009, only 28 remained to be implemented.164 There is no denying that Defence took some steps to address systemic issues identified in the DLA Piper Report. A key response was the adoption of a strategy for cultural change through implementing the Pathway to Change—Evolving Defence Culture.165 This strategy encompassed Defence’s cultural ambitions to be realized through a five-year plan. It required gathering much of the reviews advice in order to focus on key areas, namely leadership inclusivity and accountability; values and behavior education; reform of ADFA and other training establishments; improved management of ADF personnel career pathways; and improved complaints management processes. The Royal Commission heard from Vice Admiral Griggs that these key changes were mostly completed with the focus now moving to their normal- ization.166 Senior Defence members also engaged in a review and an audit into the inquiry system itself, including the military discipline system,167 but it was criticized by DART for its restricted consultation.168 The IGADF made 1,336 recommendations and suggestions towards improving military discipline arrangements and procedures in the period 2014–2015, and 900 in 2015–2016.169 By December 2016, it was said that actions and recommendations were complete and Defence was now shifting to stabilizing and evaluating the changes. Part of the process has involved collaboration with the Human Rights Commission visiting bases and reviewing data as an external oversight mechanism to ensure cultural reform is real.170 Complaints of unacceptable behavior showed a decrease, amounting to around 1 percent of ADF, or 668 incidents, being formally recorded by 2016–2017. This number has to be considered against a backdrop in which only 10–20 percent of matters are addressed as serious enough to warrant a formal discipline or administrative response, the majority being resolved at the earliest and lowest possible stage, often using alternative dispute resolution methods.171

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The closed nature of coteries leads to the risk of groupthink and failure to hear the critical voice. Thus, the very thing such societies fear most—reputational damage—becomes inevitable. Being open to outside input, involving the civilian side of the civil-military equation, can only improve performance. The Orme Report, Beyond Compliance–Professionalism, Trust, Capability in the Australian Profession of Arms, provided a classic example back in 2011.172 While many apt and well-made points were clear in the report, it suffered from a common fatal flaw in such matters. It was comprised mostly of current or retired military members and looked to other militaries to solve its problems, when often these militaries come from a similar background suffering similar problems, which they have also failed to grapple with over time. This internalized and unconscious bias operates within a closed bubble that requires bursting. The bursting was encouraged by DART, with the committee exhorting a continued engagement with external bodies such as the Australian Human Rights Commission.173 The challenge is for the highest civilian courts, such as the High Court, to also heed this call and change its default approach.174 The Orme Report acknowledged that a different culture was needed and that incremental change was not enough, while it also rightly recognized the forest of red tape, with policies and procedures becoming a contributing source of problems.175 While showing some insight into the problem of a warrior culture that engages in insider and outsider behavior, and in which sexual conquest is equated with combat prowess, the review then took a backward turn, falling into reliance on two of the aspects that arguably contribute to this. Citing Huntington the review drew on hierarchy and the distinctive “Profession of Arms” as the answer.176 It also looked to the US and UK, taking a workplace health and safety approach adopted in the UK to the crash of a military aircraft known as the “Nimrod” disaster.177 The unlikely nature of such a model, which demands open communication in a flattened structure with the key component of critical thinking and the critical voice being ac- commodated, was misunderstood when trying to apply it to a closed strictly hierarchical culture. The core belief in adopting an operationally focused culture is questioned. The literature contests that other fundamental structural changes are needed before a culture can change, and by focusing on the human elements over the organizational values, more genuine results are likely.178 The review never addressed the DFDA’s adoption of the criminal laws but comment was made that “the DFDA provides a very similar balance of obligations and protections to those that apply to the civilian criminal law,” while noting that the issue of a self-administered discipline system was oner- ous.179 This statement, and the acceptance that “an effective system regulating personal conduct must be transparent, demonstrate that people are held to

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account, and be timely,”180 along with acknowledging “human infallibility,” misses the central problem. The problem is that the coterie administers a criminal punishment system ruled by discretionary human decisions, which makes it separate and different from the criminal system of the primary society, in which the law is imposed through observing a rule of law rather than a rule by men. Perhaps unsurprisingly, despite the flurry of activity to implement the various recent reviews, new allegations continue to arise. These have included the Jedi Council sex scandal in June 2013 and, in the same month, a further scandal involving hazing of recruits that included sex acts.181 This is not un- expected in the sense that no system will eradicate abuse, because humans will always be humans. What it does indicate, however, is the expenditure of huge sums of public funding in these reviews, and seemingly “busy” reforms have seen the problem continue apparently unabated. The reality is that abusive behavior is fostered in a culture that remains resistant to the outside, that seeks to distinguish itself as “elite” and maintains its own internal discipline beyond that of the civilian society it is ultimately part of and accountable to. The question left unanswered is whether the sexual abuse and other harassment activities would be any worse if the military was subject to the same system of criminal punishment and discipline as the civil society, or more importantly perhaps, whether they would be less, and whether discipline in the military would be damaged or in fact improve? Notwithstanding the declared approach of “zero tolerance”182 and increased reporting, perhaps due to survivors feeling greater confidence in the updated processes and the ethical and cultural change programs, the reality remains that perpetrators are removed and released into civilian society. Thus civilian society becomes the place for military failures, without accountability to the public for the inadequate response to these individuals’ conduct. That institutional change requires outsiders to ensure cultural adjustment and relevancy, in alignment with the primary society, becomes a constant need when secret coteries strongly protect their separateness.183

CONCLUSION

Despite the perpetual inquiries and reports, along with various changes, the DLA Piper report sadly indicated that “the military has not been able to provide evidence that all—or even many—of the alleged perpetrators identified during previous inquiries were called to account.”184 The secret coterie is left with a lack of confidence from both members and the public, achieving the

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very opposite of the desired reputational outcome, through its reluctance to address la brutta figura. Regardless of the well-intentioned statements, such as those by Defence Force Chief David Hurley, that everything would be done to stamp out abuse, the DLA Piper investigators claimed a lack of open cooperation. The law firm cited difficulties in obtaining information from the ADF and receiving an insurmountable stack of material after the requested deadlines had passed, resulting in this material remaining un-investigated.185 Notwithstanding the ever-closer alignments with those of the civilian systems it remains that, the executive arm, through an internal disciplinary process, provides military discipline. This was a key problem for Kirby J in White v Director of Military Prosecutions. The judge in dissent considered that the Australian Constitution did not allow for citizens, who are also military personnel, to be tried without a jury, as called for under s80 of the Con- stitution and in line with the requirements of Ch III courts.186 No attempt was made by the majority to balance the military demands against the equally, or arguably more important, historical demands of democracies, as regards the rule of law and separation of powers. The majority did not consider the historical importance of the need for civilian control of the military. This position by the courts does not give support to a legislature struggling to address the growing military coterie and its demands. What is wrong here is the piecemeal, but complicated and expensive, inquiry process. Inquiries tend to focus on one aspect such as one arm of the military, or a certain rank level or type of military personnel, for example women, rather than addressing the whole system. Those inquires that have been broader, and have included significant change recommendations, have often resulted in the military influencing the government response to accord with the military’s desires. None of these activities is surprising when some common sense is applied. Research has been available for many years to empirically establish the nature of power and group behavior, particularly in institutions of hierarchical power. What is concerning is how the separate society manages to keep these matters concealed while prioritizing reputation over all else. Such attitudes and environment, providing a secret protective network, evidently lead to cover-ups and this fortifies abuse. For instance, in the appointment of DART chairperson and former West Australian Supreme Court Judge Len Roberts-Smith, it may have seemed that his position as a military reservist of major general rank was useful, but it may also have been perceived as possibly clouding belief in a fully independent review. Robert Cornall eventually took over from Roberts-Smith as chairperson, but not before Roberts-Smith indicated that a stand-alone royal commission

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into the HMAS Leeuwin cases was unwarranted.187 The ADF has managed to evade a Royal Commission into its operations despite such calls having been voiced since its inception in 1951. Originally given 12 months to do its work, the DART final report was submitted in November 25, 2014, taking 24 months longer than intended. Defence’s response to the reviews seems to lag in timing and appears as if little steps are taken rather than a more sweeping approach being embraced. Buried in reviews, the small incremental steps lack a general possibility of substantive cultural and structural change. DART noted the hierarchical and environment risk factors and the long-held anti-dobbing culture that needed to be taken into account, while Defence merely reports statistics or survey results in an effort to be seen to be monitoring the issues.188 The old adage of “prevention being better than a cure” is apt here. Submissions made to the Broderick Review suggested that academy training for cadets was a costly exercise at around $300,000 per cadet, and that a more appropriate way to provide undergraduate education for cadets was required: “ADFA will be eternally vulnerable to the risks of misbehavior by its students.”189 Vital reforms would require a dedicated urgency that appeared to be lacking when it came to revising the processes for managing responses to sexual assaults. These included requirements for administrative or disciplinary action to be taken, which were not released for a further three years after the DLA Piper review in the form of the revised Defence Instructions (General).190 Clearly, the justification that incorporates the whole of the civil criminal law into the military system is in need of revision. Civilian society still demands order to function and uses coercion, such as criminal punishment and workplace discipline, to maintain this.191 A specialized legitimate constitutional civil court (Art III US; Ch III Australia) could still satisfy the military demands in this regard.192 There is no reason the criminal law cannot have specific offences applying to a class of persons that satisfy a particular category, which would not be a breach of the rule of law. The law is only applicable to that segment of society that fulfills the essential elements of the crime; for instance, criminal offences by company directors and other professionals falling in specific categories are provided for within criminal codes.193 A soldier in a modern democracy maintains their joint civilian status while providing professional soldiering. They no longer only need drills in military methods and tactics but they need an understanding of political science, history, international relations, sociology, psychology, and human organizational management systems. The next chapter highlights the importance of this broader knowledge by looking at how other militaries and institutions have addressed matters such as leadership and values.

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NOTES

1. Clint Arizmendi, “A Culture of Reviews” Australian Defence Force Journal 192 (2013): 81; Elizabeth Broderick, “Advice to the Minister for Defence the Hon. Kevin Andrews” (Australian Human Rights Commission, June 24, 2015): 37–47. 2. Robert Cornall, “Defence Abuse Response Taskforce” Final Report “DART” (Commonwealth of Australia, March 2016) https://www.defenceabusetaskforce.gov .au/reports/Documents/dart-final-report.pdf. 3. Stephen Smith MP, “Paper Presented on the Defence Abuse Response Task- force” Press Release, June 20, 2013 http://www.minister.defence.gov.au/2013/06/20/ minister-for-defence-stephen-smith-paper-presented-on-the-defence-abuse-response -taskforce/. 4. Alan Eggleston, “Report of the DLA Piper Review and the Government’s Response” (Foreign Affairs, Defence and Trade References Committee, June 2013). 5. Daisy Dumas, “Woman of the Year Is ADFA Skype Sex Scandal Cadet” Syd- ney Morning Herald, December 16, 2013 http://www.smh.com.au/national/woman -of-the-year-is-adfa-skype-sex-scandal-cadet-20131215-2zfcz.html. 6. Peter McClellan, Robert Fitzgerald, and Helen Milroy, “Royal Commission into Institutional Responses to Child Sexual Abuse,” December 15, 2017 https:// www.childabuseroyalcommission.gov.au/final-report. 7. JA Woodward, “Director of Military Prosecutions Report for the Period 1 January to 31 December 2016” (Department of Defence, April 18, 2017): 4, [9]. 8. Minister for Defence, the Hon Stephen Smith MP, “Sex Discrimination Com- missioner to Lead Review of the Australian Defence Force Academy and the Austra- lian Defence Force” Media Release, April 11, 2011: C. W. Orme, “Report of the ADF Personal Conduct Review. Beyond Compliance–Professionalism, Trust, Capability in the Australian Profession of Arms” (Department of Defence, 2011): 52. 9. See Broderick “Advice to the Minister”: 6, 37–47, providing a good overview of the inquiries and reports up to the end of 2014. 10. Geoff Earley, “Review of the Management of Incidents and Complaints in De- fence Including Civil and Military Jurisdiction” (Department of Defence, September 6, 2011) http://www.defence.gov.au/Publications/Reviews/SystemsInquiry/. 11. Ibid., Recommendation 33, 43. 12. Ibid., Recommendation 36, 45. 13. Commonwealth and Defence Force Ombudsman, “Management of Disciplin- ary Complaints. Submission by the Commonwealth and Defence Force Ombudsman” in IGADF Review (2011) Enclosure 1 in Earley, “Review of the Management.” 14. See DI(G) PERS 45-5 Defence Whistleblower Scheme. 15. See Earley, “Review of the Management”: Annex B to Enclosure 4. 16. Administrative Appeals Tribunal Act (Cth) 1975 and the Administrative Ap- peals Tribunal Regulation (Cth) 2015. 17. Earley, “Review of the Management”: Audit Phase Second Report February 25, 2014: 1.

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18. Laurence Street and Air Marshal Les Fischer, “Report of the Independent Review on the Health of the Reformed Military Justice System” (January 23 2009): [48], 13; “. . . the ADF’s major [military justice system] success story is the widespread employment and popular support for the [Discipline Officer] Scheme.”; Mark Cunliffe, Geoffrey Brown, and Gerard Fogarty, “Re-Thinking Systems of Inquiry, In- vestigation, Review and Audit in Defence, Annex G: Specialist Roles and Processes” (2014): 6.1.9, 31: “Since 2001, the use of the Discipline Officer Scheme in the ADF has more than doubled from 2,333 infringements in 2001 to 5,285 in 2011.” 19. Michael Inman, “Defence Criminal Investigations Hamstrung by Discipline Laws: Prosecutor” The Sydney Morning Herald, January 6, 2018 https://www smh.com.au/national/defence-criminal-investigations-hamstrung-by-discipline -laws-prosecutor-20180105-h0dyiq.html: “The military’s top prosecutor used her annual report to argue the Australian Defence Force should consider abandoning the current military discipline system—based on the largely adversarial civil criminal justice model.” 20. See Rodger Gyles, “HMAS Success Commission of Inquiry Allegations of Unacceptable Behaviour and the Management Thereof” (Department of Defence, December 2011): Part III Report: [2.12]: “That makes the investigation of even a minor matter a difficult task.” 21. Cunliffe et al., “Re-Thinking Systems of Inquiry”: 6.1.8. Summary discipline system; 6.3.3: 30, 32. “The modern US and UK systems also permit an accused member to elect to be tried by Court-martial if they do not wish to be dealt with by a summary authority.” 22. UCMJ art 15. 23. Cunliffe et al., “Re-Thinking Systems of Inquiry” Summary of decision following consideration of Report on Stage B http://www.defence.gov.au/Publications/ Reviews/SystemsInquiry/docs/Summary_of_agreed_reforms.pdf. 24. Broderick, “Advice to the Minister.” 25. 22 “A number of victims, including some who were still serving, [said] they were not confident in the ability of the military to properly and transparently manage any future complaints.” 26. Woodward, “Director of Military Prosecutions Report”: 4–5, [13]-[14]. 27. Gary Rumble, Melanie McKean, and Dennis Pearce, “Report of the Review of Allegations of Sexual and Other Abuse in Defence. Facing the Problems of the Past” DLA Piper Review (October 2011) Volume 1. 28. Rumble et al., “DLA Piper Review”: xxxix; Simon Cullen, “Smith Deliv- ers Apology for Defence Force Abuse” November 26, 2012 http://www.abc.net.au/ news/2012-11-26/taskforce-to-consider-royal-commission-into-adf-abuse/4391934. 29. Cornall, “DART.” 30. Ibid., 1, 15. 31. Ibid., 21. 32. Ibid., 19–20. 33. Ibid., 64 34. Ibid., 50. 35. Ibid., 6.

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36. Dave Devlin, “Joint Service Police Group Launched” June 17, 2017 http:// news.navy.gov.au/en/Jun2017/Events/3794/Joint-Service-Police-Group-launched .htm#.WnKXv2iCzIU; Gary L Jones, “Collaborative Policing: A Facilitated Ap- proach to AFP/RACMP Inter-Agency Co-Operation” (2017) https://www.army .gov.au/our-future/blog/strategy/collaborative-policing-a-facilitated-approach-to -afpracmp-inter-agency-co; T. Dawe and D. Connery, “Army-Police Interoperability: Collective Contributions to Future Land Power” Australian Army Land Power Forum 2017 https://www.army.gov.au/our-future/blog/amphibious-joint-interagency/army -police-interoperability-collective-contributions. 37. Cornall, “DART”: 41–43. See further, Inspector-General of the Australian Defence Force Regulation 2016 Pt 3, Division 1 s 6 (1) (a) “the following persons are eligible to be appointed as an inquiry officer, inquiry assistant or Assistant IGADF: (a) a member of the Defence Force, of any rank.” 38. Cornall, “DART”: 43–44. 39. Chief of the Defence Force v. Gaynor [2017] FCAFC [151]. 40. Cornall,”DART”: 42. 41. Ibid., 37–39. 42. Ibid., 43. 43. O’Callahan v. Parker 395 US 258 (1969). 44. Solorio v. United States 107 S. Ct 2924 (1987). 45. (1994) 181 CLR 18. 46. Williams v. Chief of Army [2016] ADFDAT 3 [49] (Tracey and Hiley JJ). 47. Re Tracey (1989) 166 CLR 518. 48. Ibid., 570. 49. White v. Director of Military Prosecutions [2007] HCA 29. 50. Williams v. Chief of Army [2016] ADFDAT 3 [50]-[51] (Tracey and Hiley JJ). 51. DFDA s 63 (1); See Lyn McDade, “Director of Military Prosecutions Annual Report for the Period 12 June 2006 to 31 December 2007” Department of Defence, Commonwealth of Australia, 2008: 1–59: Annex B “Memorandum of Understanding between the Australian Directors of Public Prosecution and the Director of Military Prosecution,” May 22, 2007; Jurisdictional considerations and issues have been considered in Rumble et al., “DLA Piper Review”: 38; Defence and Trade References Committee, The Senate Foreign Affairs, “The Effectiveness of Australia’s Military Justice System” (June 2005). 52. DFDA s 63 (2). 53. Senate Foreign Affairs, “The Effectiveness of Australia’s Military Justice System”: Recommendation 1; Department of Defence, Government Response to the Senate Foreign Affairs, Defence and Trade References Committee “Report on the Effectiveness of Australia’s Military Justice System” (October 2005). 54. Government Response “Report on The Effectiveness of Australia’s Military Justice System”: 13–14 “. . . [t]he maintenance of effective discipline is indivisible from the function of command in ensuring the day-to-day preparedness of the ADF for war and the conduct of operations” and “[r]ecourse to the ordinary criminal courts to deal with matters that substantially affect service discipline would be, as a general rule, inadequate to serve the particular disciplinary needs of the Defence Force.”

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55. DFDA s 63 (1)(a)(ia). 56. Gary Brown, “Homosexuality and the Australian Defence Force: The Issues” (Department of Parliamentary Library, 1992). 57. See further, Shirleene Robinson, “Witch-Hunts and Surveillance: The Hidden Lives of Queer People in the Military” The Conversation, April 25, 2017 https://the conversation.com/witch-hunts-and-surveillance-the-hidden-lives-of-queer-people-in -the-military-76156; Dylan Welch, “Fighting the Enemy Within” The Sydney Morn- ing Herald, April 16, 2011 http://www.smh.com.au/federal-politics/political-opinion/ fighting-the-enemy-within-20110415-1dhu1.html. 58. Brown, “Homosexuality”: 15. 59. Ibid.: Annexure B unacceptable sexual behavior by defence members. [4]. 60. See e.g., Defence Instruction (General) October 2001: 18 (1). 61. Robinson, “Witch-hunts”; But cf Miranda Devine, “Mardi Gras: Why Were Aussie Soldiers Allowed to March?” The Queensland Times, March 6, 2017 https://www.qt.com.au/news/mardi-gras-why-were-aussie-soliders-allowed-march /3151185/. 62. Robert Burton-Bradley, “ADA Says Women Not Suited for Land Combat Because of Rape Risk” News Ltd, April 13, 2011 https://www.news.com.au/national/ victims-demand-defence-forces-abuse-inquiry/news-story/68ef2a3438534fdb16bfab 9a48caf88b?sv=20ee52be2c7757c1f375cbf9bbc53d71. 63. Defence Act 1903 (Cth) s 9A (2); DI(G) ADMIN 08- 2 “Use of Social Media by Defence Personnel,” January 16, 2013: [19] “. . . Defence personnel must not post material that is offensive towards any group or person based on any personal traits, attributes, beliefs or practices that exploit, objectify or are derogatory of gender, ethnicity or religion. Such behavior involving social media may amount to conduct that could constitute an offence against provisions of the DFDA, the Public Service Act 1999 or amount to a breach of the APS Code of Conduct.” This policy extended to army reserve members not on duty. 64. Gaynor v. Chief of the Defence Force (No 3) [2015] FCA 1370, [117]- [118]. 65. [2015] FCA 1370 [186]; Chief of the Defence Force v. Gaynor [2017] FCAFC 41 66. [2015] FCA 1370 [280]–[287]. 67. [2017] FCAFC 41 [112]. Defence Legislation Amendment (First Principles) Act 2015 (Cth). On 1 October 2016, the Defence (Personnel) Regulations were re- pealed and replaced by the Defence Regulations 2016 (Cth). 68. Chief of the Defence Force v. Gaynor [2017] FCAFC 41 [47]-[65]. See further, Cunliffe v. The Commonwealth, 182 CLR 272, 326 (Brennan J) “The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.” 69. Chief of the Defence Force v. Gaynor [2017] FCAFC 41 [108]. 70. Ibid., [109]–[110]. 71. Ibid., [106]. 72. Kevin Foster, “Looking for Failure? Why the ADF Hates the Australian Media” The Conversation, August 13, 2013 https://theconversation.com/looking-for

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-failure-why-the-adf-hates-the-australian-media-16800 [15]; Kevin Foster, Don’t Mention the War: The Australian Defence Force, the Media and the Afghan Conflict (Monash University Publishing, 2013). 73. Jonathan Turley, “The Military Pocket Republic” Northwestern University Law Review 97 (2002): 1, 76. 74. McClellan, “Royal Commission.” 75. Cornall, “DART”: 47. 76. Ibid., 28–30. 77. Ibid., 6, 59. 78. Thornton, “Sexual Harrasment”; See further, Williams v. Robinsons 2000 EOC 93-112 HREOC. 79. Alex Gallacher et al., “The Constant Battle: Suicide by Veterans” (Foreign Affairs, Defence and Trade References Committee, August 2017) https://www.aph .gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and _Trade/VeteranSuicide/Report: reporting 118 suicides since 2000. 80. Eoin Blackwell, “Former SAS Trooper Evan Donaldson Declines $1 Million Settlement Offer from Defence” The Huffington Post, June 16, 2016 http://www .huffingtonpost.com.au/2016/06/16/former-sas-trooper-evan-donaldson-declines -1-million-settlement/; Alex Gallacher et al., “Operation of the Australian Defence Force’s Resistance to Interrogation Training” (Foreign Affairs, Defence and Trade References Committee, 27 March 2017). 81. Michael Koziol, “Former SAS Trooper Breaks Down Telling Senate Inquiry of Brother’s Attempted Suicide” The Sydney Morning Herald, November 18, 2016 http://www.theherald.com.au/story/4303048/former-sas-trooper-breaks-down-telling -senate-inquiry-of-brothers-attempted-suicide/?cs=4219. 82. Ibid.; Blackwell, “Former SAS Trooper Evan.” 83. Gallacher et al., “The Constant Battle”: Submission 59, 3. 84. See as amended by Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017. 85. Gallacher, et al., “The Constant Battle”: Suicide XXV, Chapter 3, 42–43, Chapter 4, 53–58. 86. Alex Gallacher et al, “Matters Raised by NSW Police Strike Force Civet” (Foreign Affairs, Defence and Trade References Committee, 2017); “Operation of the Australian Defence Force’s (ADF) Resistance to Interrogation (RTI) Training, November 10, 2016, Senate referred the matter to the Foreign Affairs, Defence and Trade References Committee for inquiry and report by 20 March 2017 http://www .aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence _and_Trade/ADFRTI. 87. Senate Foreign Affairs, Defence and Trade Committee report, Mental Health of Australian Defence Force Members and Veterans, September 2016. 88. Gallacher et al., “Matters Raised by NSW”: 13 [2.42]. 89. Ibid., 15–17. 90. Hayden Cooper, “Officer Breaks Ranks to Condemn ADF’s ‘Neglect’ of Abuse Victims” ABC 7:30 Report, March 8, 2013 http://www.abc.net.au/news/2013 -03-07/army-officer-says-adf-fails-abuse-victims/4558834.

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91. Hayden Cooper, “Officer Breaks Ranks”; “Clarification–Chief of the De- fence Force interview on ABC’s 7:30 program–7 March 2013” March 8, 2013 https://news.defence.gov.au/media/on-the-record/clarification-chief-defence-force -interview-abcs-7:30-program-7-march-2013. See further Eggleston, “Report of the DLA Piper Review”: 51 (Submission 22). 92. Gallacher et al., “The Constant Battle”: 22, [3.34]. 93. Australian government, “Response to the Foreign Affairs, Defence and Trade Committee Report The Constant Battle: Suicide by Veterans” (Australian government, October 2017): 3. 94. Ibid., 3–4. 95. Gallacher et al., “Matters Raised by NSW Police”: 2.16, 8 “Defence at no time in its public announcements regarding the investigation and resolution of this matter named any individuals involved, whether as an alleged participant, witness or survivor . . . Defence’s internal inquiries and investigation did not identify any De- fence member or individual who may have disclosed this information to the media.” 96. Miranda Devine, “It’s Not Too Late to Say Sorry, David Morrison. Many Are Still Waiting to Hear a Few Simple Words” The Daily Telegraph, October 22, 2016 https://www.dailytelegraph.com.au/rendezview/its-not-too-late-to-say-sorry-david -morrison-many-are-still-waiting-to-hear-a-few-simple-words/news-story/fa861060 b1187f75598c0dbcff4288e9. 97. Andrew Greene and Dylan Welch, “Police Say Defence Failed to Cooper- ate with Jedi Council Sex Scandal Investigation” ABC News, November 23, 2016 http://www.abc.net.au/news/2016-11-23/police-say-defence-failed-to-cooperate-with -investigation/8051974. 98. Gallacher et al., “Matters Raised by NSW”; Gallacher et al., “The Constant Battle.” 99. Patrick Lion, “ADF Investigation Service Sent ‘Insulting and Humiliating’ Emails” News Corp Australia Network, June 21, 2013 http://www.news.com.au/ national/adf-investigation-service-sent-8216insulting-and-humiliating8217-emails/ news-story/c28fdce4d40bb66dc3a3d1287a5c34bf; Ian McPhedran, “Senior Austra- lian Defence Force Investigator Risked Execution When She Carried Heroin from Afghanistan to Dubai,” The Courier Mail, May 29, 2012 http://www.couriermail .com.au/news/national/senior-australian-defence-force-investigator-risked-execution -when-she-carried-heroin-from-afghanistan-to-dubai/news-story/f0660e4a3f100e8cc b82c252eb8d40f7?sv=52c55107288d9e56cb068dea0e794d87. 100. Gallacher et al., “Matters Raised by NSW”: 6 [2.7]-[2.8]. 101. Ibid., Appendix 2 Item 3. 102. Ibid., 9 [3.3]. 103. Ibid., 10 [3.7]. 104. Ibid., 13 [1.2] 105. Ian McPhedran, “Defence Sex Scandal: Cadet Secretly Filmed Liaison with Colleague” Adelaide Advertiser, April 6, 2011, 17. 106. Minister for Defence, the Hon Stephen Smith MP, “Interview with David Speers SKY News PM Agenda” Transcript, April 6, 2011 cited in Eggleston, “Report of the DLA Piper Review”: 6.

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107. Michael Brissenden and Alex McDonald, “Former Deputy Commandant Warned Australian Defence Force Academy Not the Best Way to Train Next Gen- eration of Officers” ABC Four Corners, June 10, 2014 http://www.abc.net.au/news/ 2014-06-09/former-deputy-commandant-issued-warning-on-adfa/5510658. 108. Minister for Defence, the Hon Stephen Smith MP, “Outcomes of the Kirkham Inquiry” Media Release, March 7, 2011. 109. Christopher Knaus and Michael Inman, “ADFA Skype Scandal Cadets Sen- tenced, Avoid Jail” The Canberra Times, October 23, 2013 http://www.canberratimes .com.au/act-news/adfa-skype-scandal-cadets-sentenced-avoid-jail-20131023-2w0hz .html: “The Minister stated that the [Kirkham] inquiry had found that neither the ADFA Commandant, nor the Deputy Commandant, had made an error of judgement in their decision to commence and conclude disciplinary proceedings against the female cadet. Nonetheless, the Minister remained of the view that this was an error of judgement. The Minister indicated that the inquiry report would not be publicly released.” 110. Dumas, “Woman of the Year”: [13]. 111. Ibid. 112. Ibid. 113. Thornton, “Sexual Harrasment”: 440. 114. Australian Human Rights Commission, Review into the Treatment of Women in the Australian Defence Force Academy, Phase 1 Report, October 2011: 99–100 recommending a hotline and establishing a database; Australian Human Rights Com- mission, Review into the Treatment of Women in the Australian Defence Force, Phase 2 Report, August 2012: 36–37 establishing a dedicated Sexual Misconduct Prevention and Response Office (SeMPRO) and the ability for complainants to make confidential approaches to SeMPRO. 115. McClellan, “Royal Commission” Case Study 40, August 2016: 7 [26] “Royal Commission has been contacted by 111 people about incidents of child sexual abuse within the ADF. Of those 111: 50 contacts were about child sexual abuse at either Leeuwin or Balcombe, and 26 were about child sexual abuse within the ADF Cadets. Also 30 people about allegations of child sexual abuse that occurred at other ADF establishments.” 116. McClellan, “Royal Commission”: 377. 117. Ibid., Case Study 40: 7 [34]. 118. Ibid., 7 [35]. 119. Judge Rapke’s “Report on Recruit’s Charges: Connolly Admitted Bullying,” Navy News, 1971; McClellan, “Royal Commission” Case Study 40, August 2016: [37]. 120. Rapke’s “Report on Recruit’s”: 6; See “DPP Quits over Promotion ‘Misjudg- ment’” ABC News, May 15, 2011 http://www.abc.net.au/news/2011-05-15/dpp-quits -over-promotion-misjudgment/2694324. Raptke was dismissed from office as Victo- ria DPP at age 60 in 2011 due to tensions around appointment of a female prosecutor to a high-level position. 121. McClellan, “Royal Commission” Case Study 40: 7 [38]. 122. Cornall, “DART”: 31.

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123. McClellan, “Royal Commission” Case Study 40, Opening Submissions: [68]. 124. Ibid., [95]. 125. Ibid., [99]. 126. Ibid., Overview: [43]—The procedures could be found in—“the Queen’s Regulations and Admiralty Instructions, as varied by the Regulations and Instructions for the Royal Australian Navy ABR 5016 (RAN Regulations and Instructions), Gen- eral Navy Orders, and the HMAS Leeuwin Ship’s Standing Orders (Leeuwin Ship’s Standing Orders).” 127. Ibid., Opening Submissions: [49]; see also [74] “Mr Frazer made a claim for compensation to DVA in 2001. The claim was initially rejected due to a lack of corroborating evidence. Following an appeal to the Administrative Appeals Tribunal, Mr Frazer’s claim was accepted when he was able to locate a witness to his abuse.” 128. Ibid., Case Study 40, Report: 40: 45. 129. Joanna Woodburn and Philippa McDonald, “Child Abuse Royal Commis- sion: Former Navy Officer Says Abuse ‘Surprised and Horrified’ Him” ABC News, June 22, 2016 http://www.abc.net.au/news/2016-06-22/child-abuse-royal-commission -navy-base-rite-of-initiation/7533556. 130. McClellan, “Royal Commission” Case Study 40, Report: 46. 131. Michael Brissenden, “HMAS Leeuwin: Navy Chief Says Defence Turned a Blind Eye to ‘Sickening’ Abuse against Young Sailors” ABC News, June 18, 2014 http://www.abc.net.au/news/2014-06-18/navy-chief-says-defence-turned-blind-eye -to-hmas-leeuwin-abuse/5533766. 132. McClellan, “Royal Commission” Case Study 40, Opening Submissions: [30], Report: [74]. 133. Ibid., Opening Submissions: [134]. 134. Cadet Forces Regulation 2013 (Cth). 135. Currently, the legal age when an individual is able to validly consent to sex is: 17 years in Tasmania and South Australia; 16 years in the Australian Capital Territory, New South Wales, the Northern Territory, Victoria, Western Australia, and Queensland. In Queensland, the age of consent for anal sex is 18 years of age. Notwithstanding the age of consent, legislation in the Australian Capital Territory, the Northern Territory, New South Wales, Victoria, Western Australia, and South Australia makes it an offence for a person in a supervisory role to have sexual intercourse or intimacy with a person under their special care who is aged 16 or 17 years. 136. McClellan, “Royal Commission” Case Study 40, Opening Submissions: [152]-[164]: “Pursuant to the Child Protection Policies, AAFC members have mandatory reporting obligations that require any adult supervisor who becomes aware of any suspected or known child sexual abuse to report the matter immediately to local authorities (civilian police and child protection agencies) and report up the chain of command”; [166]: “There will be evidence that Defence is currently consolidating its policies concerning minors in the ADF and ADF Cadets and that a central policy document known as the Youth Policy Manual (YOUTHPOLMAN) will be produced”; The YOUTHPOLMAN from August 2017 prohibits any sexual interaction between Defence and Cadet Adults (including cadets over the age of 18) and Cadets and Other Minors under the age of 18 in any Defence context, 1.2, 1.23.

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137. Ibid., [138]. 138. Ibid., [171]-[177]. 139. Ibid., [193]: “CJF feels she was bullied and refused a promotion as a result of speaking out against the way the investigation was conducted and also for involving the Director General of the AAFC in the investigation.” 140. Ibid., [54]: “child sexual abuse were viewed through the general prism of “unnatural” or homosexual acts at the time. The institutional response to such acts was laid down in a variety of Navy Orders that made ‘buggery,’ ‘indecent assault’ and an ‘act of gross indecency with a male person’ offences punishable by discharge from the Navy”; [62]: “survivors will say that they made, or attempted to make, reports about incidents of abuse to staff and that they were not believed, or told that the abuse was ‘a rite of passage’ into the Navy, or that no action was taken. One survivor will give evidence that he reported abuse to a staff member and was subsequently threatened with dishonorable discharge”; Girard Dorney, “Australia In- vestigates Horrific Abuse of Over 200 Teenage Boys at Navy Base” Vice News, July 21, 2014 https://news.vice.com/article/australia-investigates-horrific-abuse-of-over -200-teenage-boys-at-navy-base. 141. McClellan, “Royal Commission” Case Study 40, Opening Submissions: [51]. 142. Bronwyn Grey, “Review into Harassment and Sexual Offences at the Austra- lian Defence Force Academy” (Australian Defence Force, 1998). 143. Broderick, “Advice to the Minister”: 50–51. 144. David Wroe and Deborah Snow, “An Officer, If Not Quite a Gentleman” The Sydney Morning Herald, December 1, 2012 https://www.smh.com.au/national/ an-officer-if-not-quite-a-gentleman-20121130-2am0m.html; Rory Callinan, “ADF Knew of Officer’s Affair with Ray Griggs, but Husband Didn’t” The Austra- lian, March 21, 2018 https://www.theaustralian.com.au/national-affairs/defence/ adf-knew-of-officers-affair-with-ray-griggs-but-husband-didnt/news-story/376f21c 59c684488e18c59d74315e3fb. See also King v. Chief of Army [2012] ADFDAT 4. 145. Eggleston, “Report of the DLA Piper Review.” 146. Report to the Senate on the Elimination of Sexual Harassment in the ADF, 1995; Women in the ADF: two studies, 1996 (Burton Report); Kathryn Quinn, “Sexual Harassment in the Australian Defence Force” (Commonwealth of Australia, 1996) http://www.defence.gov.au/fr/reports/shinadf.pdf; Brigadier Hon A. R. Abadee, “A Study into Judicial System under the DFDA” (1997); Bronwyn Grey, “Review into Ha- rassment”; Defence Ombudsman’s Own Motion Investigation—Own motion investigation into how the Australian Defence Force responds to allegations of serious incidents and offences. Review of Practices and Procedures, 1998; Military Justice Procedures in the ADF, Joint Standing Committee on Foreign Affairs, Defence and Trade, 1999; Report of an Inquiry into Military Justice in the ADF, 2001 (Burchett Report); Senate Foreign Affairs “The effectiveness of Australia’s military justice system”: Defence Ombudsman’s Own Motion Investigation—Management of Unacceptable Behaviour Complaints in the ADF, 2007; Rumble et al., “DLA Piper Review”; Street and Fischer, “Report of the Independent Review”; Gyles, “HMAS Success.” 147. Broderick, “Advice to the Minister”: 49, 182: Appendix A provides a detailed description of the reforms.

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148. Elizabeth Broderick, “Report on the Review into the Treatment of Women at the Australian Defence Force Academy” (Australian Human Rights Commission, 2011) https://defencereview.humanrights.gov.au/reports; Elizabeth Broderick, “Re- port on the Review into the Treatment of Women at the Australian Defence Force, Phase Two of the Review into the Treatment of Women in the Australian Defence Force” (Australian Human Rights Commission, August 22, 2012) http://defence review.humanrights.gov.au/reports. 149. Broderick, “Phase Two of the Review”: 254 150. Ibid., Recommendation 18 & 19, 36–37. 151. Ibid., 254, 270–271; Eggleston, “Report of the DLA Piper Review”: 20 [2.52]. 152. Department of Defence, “Sexual Misconduct Prevention and Response Of- fice Supplementary Report 2016–17, A Supplement to the Defence Annual Report 2016–17” (SEMPRO, 2016–2017) http://www.defence.gov.au/annualreports/16-17/ Downloads/SeMPRO-Report-1617.pdf:4. 153. Broderick, “Advice to the Minister”: 67. 154. Department of Defence, “Sexual Misconduct Prevention”: 11. 155. Ibid., 10. 156. Alex Gallacher, “Processes to Support Victims of Abuse in Defence” (Senate, Foreign Affairs, Defence and Trade References Committee, October 2014: [6.18]- [6.19]. 157. Broderick, “Advice to the Minister”: 49. 158. Australian Government, “Processes to Support Victims of Abuse in Defence” Response to the Foreign Affairs, Defence and Trade References Committee Report (May 2015). 159. Gallacher, “Processes to Support Victims of Abuse”: 40–41; Department of Defence, The Defence Committee, “Pathway to Change: Evolving Defence Culture a Strategy for Cultural Change and Reinforcement” (Department of Defence, 2012) www.defence.gov.au/pathwaytochange/; Australian Human Rights Commission, “Pathway to Change: Collaboration for Cultural Reform in Defence, Women at ADFA: Measures to Promote Gender Equality and Assessment of Their Adequacy” (Department of Defence. Australian Human Rights Commission, March 26, 2014) https://defencereview.humanrights.gov.au/publications/report-review-treatment -women-australian-defence-force-academy/3-women-adfa-measures. 160. Eggleston, “Report of the DLA Piper Review”: Recommendation 5, xi; Rec- ommendation 7 xii. 161. Senate Foreign Affairs, “The Effectiveness of Australia’s Military Justice System.” 162. Lane v. Morrison [2009] 239 CLR 230. 163. [2009] 239 CLR 230; Andrew D Mitchell, “Too Close for Comfort: Lane v. Morrison and Its Effect on Australian Military Justice” Public Law Review 21 no. 1 (2010): 9; Alison Duxbury, “The Curious Case of the Australian Military Court” Oxford University Commonwealth Law Journal (2010): 155. 164. Street and Fischer, “Report of the Independent Review”: [87], [88], [89] . 165. The Defence Committee, “Pathway to Change.”

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166. McClellan, “Royal Commission”: [37]. 167. See Cunliffe et al., “Re-Thinking Systems of Inquiry.” 168. Len Roberts-Smith, “Sixth Interim Report to the Attorney-General and the Minister for Defence” (June 2014): 23–24. 169. Australian Defence Force, “Annual Report” (Department of Defence, 2014–2015) http://www.defence.gov.au/annualreports/14-15/part-three/chapter-9 .asp: Ch 9; Australian Defence Force, “Annual Report” (Department of Defence, 2015–2016) http://www.defence.gov.au/AnnualReports/15-16/Chapters/chapter-5 .asp#ReportOfIGADF Ch 6. 170. Australian Defence Force, “Annual Report” (Department of Defence, 2014– 2015) Ch 7. 171. Ibid., 107. 172. Orme, “Report of the ADF.” 173. Gallacher, “Processes to Support Victims of Abuse”: [6.16]. 174. Pauline Collins, Civil-Military “Legal” Relations: Where to from Here? The Civilian Courts and the Military in the United Kingdom, United States and Australia. (Leiden: Brill Nijhoff, 2018). 175. Orme, “Report of the ADF”: [21], [43]. 176. Ibid., [42], [112]. 177. Ibid., [102]-[104]. 178. See e.g., Jay W. Lorsch and Emily McTague, “Culture Is Not the Culprit” Harvard Business Review (2016): 96. 179. Orme, “Report of the ADF”: Annex C, 52. 180. Ibid., [95]. 181. Alys Francis, “ADF Recruits Performed Sex Acts in Hazing, Sources Say” 9News National, June 22, 2013 http://news.ninemsn.com.au/national/2013/ 06/22/12/11/adf-recruits-performed-sex-acts-in-hazing-sources. 182. Gallacher, “Processes to Support Victims”: 48, [4.6]. 183. Banner, “Institutional Sexual Assault”: 165–166; See, Jacoba Brasch, More Martial than Court: From Exceptionalism to Fair Trial Convergence in Australian Courts-Martial (PhD Thesis, University of New South Wales, 2011). 184. Eggleston, “Report of the DLA Piper Review”: 13. 185. Simon Cullen, “Sexual Predators May Have Targeted Military: Report” ABC News, July 10, 2012 http://www.abc.net.au/news/2012-07-10/government-releases -report-into-adf-sex-abuse/4121056 “. . . the report’s authors have criticized the way Defence has dealt with the latest inquiry, saying obtaining information from the ADF was ‘particularly problematic.’ They say the review team received a vast quantity of material—‘over a metre-high stack’—in the days and weeks after the internal dead- line for documents. The report says the material was too voluminous and too late for it all to be considered”; Roberts-Smith, “Sixth Interim Report”: 23. 186. [2007] HCA 29 held that the “defence power s51 (vi) is sufficient to enable Parliament to provide for disciplinary powers to be exercised judicially by officers of the armed forces. The power exercised, while judicial in nature, is not the judicial power of the Commonwealth pursuant to Ch III, but is supported solely by section 51(vi) to maintain or enforce discipline”; But cf Alexander Street, “Submission No 2 of

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Alexander Street SC” AMC (Transition Provisions and Consequential Amendments) Bill 2012, July 11, 2012 http://www.aph.gov.au/DocumentStore.ashx?id=3846db08 -d509-42cd-8c36-e3eb12fb9157: 3–9. 187. Len Roberts-Smith, “Seventh Interim Report to the Attorney-General and the Minister for Defence” (Defence Abuse Response Taskforce, September 2014): 12; Cornall, “DART”: paras [5], [36]-[40]. 188. Gallacher, “Processes to Support Victims”: [6.20]. 189. Brissenden and McDonald, “Former Deputy Commandant.” 190. Gallacher, “Processes to Support Victims”: [6.17]. 191. See e.g., Australian Federal Police Act 1979 (Cth) (AFP Act) and the Aus- tralian Federal Police Categories of Conduct Determination 2006 (Cth) establish the disciplinary regime relevant to AFP appointees, category 3 conduct, the investigator may recommend any one or more of the following: termination; remedial action; training and development action; or any other action that the commissioner can take in relation to the AFP appointee.; See Public Service Act 1999 (Cth) s15 Breaches of the Code of Conduct (1) An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct: (a) termination of employment; (b) reduction in classification; (c) re-assignment of duties; (d) reduction in salary; (e) deductions from salary, by way of fine; (f) a reprimand. 192. White [2007] HCA 29 [134] (Kirby J) “There is absolutely no reason why the functions assigned under the Act to service tribunals could not be performed by a Ch III court.” 193. See e.g., Criminal Code Act 1995 (Cth) Part 2.5 Corporate Criminal responsibility; Part 5.5 Prescribed terrorist organization.

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