14 October 2009

A Round Tuit (5)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

On Monday, the leading British newspaper The Guardian reported that it had been gagged and could not report on Parliamentary proceedings:
The Guardian has been prevented from reporting parliamentary proceedings on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights.

Today's published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.

The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations.
Based on that lone fact, Paul Staines, who blogs about Parliament under the nom de plume "Guido Fawkes" surmised the names of the Member of Parliament, government minister, and company involved, as well as the topic of the question. Just over an hour after The Guardian posted its enigmatic report, Guido Fawkes' Blog posted its (correct) guess and the full text of the question about which reporting had been suppressed.

That question concerned the illegal dumping of toxic wastes in Ivory Coast by a company associated with the international oil firm Trafigura. A report about the illegal dumping had been leaked to the WikiLeaks website and efforts had been made by the company to suppress the site's posting of the report. As noted by the Fawkes blog, the Parliamentary questioning concerned the effectiveness of legal protections for whistleblowers in the Trafigura matter:
Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.

Online, on political and legal blogs and on Twitter, the public outcry was swift and strong. As things continued to escalate on social networks and "Trafigura" and "Carter-Ruck" became trending topics, the firm realized the futility of its position and agreed to scale-back, but not abandon entirely, its gag order. BBC News reported these developments and noted the roles which blogs and Twitter had played in the affair. As BBC News' Nick Higham reported, "In the anarchic, anything-goes world of the internet, where freedom of speech is a frequently heard rallying cry, injunctions banning publication of anything are unpopular. This one seems to have acted like a red rag to a bull." Bloggers didn't hold back in discussing the Streisand Effect Carter-Ruck and Trafigura had caused. Jamie Sport termed the debacle the "Carter-Ruck school of viral marketing":
Marketing experts were stunned today at the success of media law firm Carter-Ruck's high profile 'gagging order' campaign, designed to generate buzz around their client Trafigura's latest toxic waste product.


Public awareness of the brand name 'Trafigura' leaped by around 700%, up from 0.1% market penetration the day before. A spokesman said: 'This is a great result. Nobody had heard of us or our toxic waste dumping practices until Carter-Ruck got involved. This kind of publicity is priceless!'

An industry analyst said: 'It's been a clever job, making great use of viral and self-facilitating media nodes. Brands are starting to realise that to really make a splash you need to go the extra mile, do something big and zany - Carter-Ruck's strategy of assaulting British democracy and raping the very concept of free speech delivered an incredible awareness boost.

At the center of things, as always, was Mike Semple Piggot (Charon QC), with whom I've had the privilege to write on occasion. As he and others continued their lively discussion of the Trafigura gag order on Twitter, he and former government lawyer Carl Gardner discussed the situation in considerable depth. In conjunction with that podcast, Semple Piggot wrote:
The Commons' gag order was intended to prevent publication of Trafigura and Minton in the same context. As Wikileaks notes – the Minton report released by Wikileaks has not been mentioned in the press because of a 11 September 2009 media injuction.

“To-date the UK pubic has been kept in the dark. Paul Farrelly's question is an attempt to take on the suppression issue. In the process it connected the Minton report on WikiLeaks to Trafigura, something the UK media could not, or would not do.”

“Knowing this, lawyers for Trafigura, Carter-Ruck, obtained a second, secret media injunction to prevent reporting of Paul Farrely MP's questions. That this alleged order was granted is a bold and dangerous move by the High Court towards the total privatization of censorship.”

Last night I was on twitter and, along with many others, I saw the Guardian story and tweeted about it, expressing a degree of outrage. It did not take long before many hundreds of tweeters turned to thousands and overnight and this morning Trafigura and Carter Ruck found themselves a trending topic on Twitter – even Stephen Fry weighed in, adding countless thousands more to the clamour.
Gardner summarized his views thusly:
I think some blogger’s references to the Bill of Rights 1689 is over the top – the Bill of Rights protects Parliamentary debates themselves from injunctions, not the reporting of those debates by others. But the case does raise serious questions: Parliamentary privilege means nothing if law protects MPs’ right to speak in the House, but prevents us from knowing what they say. It seems extraordinary, especially in view of section 12 of the Human Rights Act, that a court should have felt it in the public interest to prohibit reporting of a Commons question. I hope this case prompts Parliament to look closely at what further protection is needed in this area – and prompts the courts to take more care in making sure “superinjunctions” – which prevent any discussion of the fact of the injunction or of who obtained it – are granted only where really necessary.

The Guardian and BBC News noted that bloggers and Twitter users were able to do online what the mainstream media could not do — or at least did not do — in this instance. The Guardian wrote:
Untroubled by the legal restrictions which had confined the Guardian to reporting at 8.31pm that it had been "prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found", internet users quickly reported that the gag related to a question by the Labour MP Paul Farrelly concerning the reporting of an incident in which toxic waste was dumped in the Ivory Coast.


After several requests on Monday afternoon from the Guardian's lawyers asking Carter Ruck to alter the terms of the injunction and thereby allow publication of Farrelly's question, the gag remained in place.

But just 42 minutes after the Guardian story was published, the internet had revealed what the paper could not.

Bloggers and the so-called Twitterati tonight claimed a historic victory for the power of the internet over what they saw as attempts by vested interests to shut down freedom of speech.
BBC News reported that:
[T]he lawyers in this case clearly reckoned without the "blogosphere". In the anarchic, anything-goes world of the internet, where free speech is a frequently-heard rallying cry, injunctions banning publication of anything are unpopular.


Imposing injunctions on news organisations has never been a foolproof way of stopping information from leaking out. But in the old days, when the principal means of transmission was word of mouth, only a favoured few ever got to hear of it.

The digital revolution has changed all that. Anyone with a PC or a laptop or an iPhone or a Blackberry, or any other digitally-enabled device, can now discover what all the fuss is about.

On this occasion the injunction seems to have been utterly counterproductive. The Guardian obtained a High Court hearing to challenge the injunction this afternoon. But at lunchtime Carter-Ruck bowed to the inevitable, and the Guardian's website was soon running full details.

There was much focus on internet presence and community-building during the most recent Presidential elections. The political unrest in Moldova was somewhat generously called a "Twitter Revolution". The more recent mass protests in Iran were organized and sustained to a considerable extent by users on Twitter. Notwithstanding those instances of social media playing some role in important events, I think that the Carter-Ruck/Trafigura matter can be rightly identified as the first meaningful occasion where online activism was primarily responsible for effecting the national political change it sought. On Twitter, naturally, Mike Semple Piggot (as @CharonQC) summed-up the occasion: "If anyone doubts the value of twitter or the anger of people at the use of injunctions to stop responsible reporting - see #trafigura tweets"

In part, the success of this online push was enabled by the nature of its target — a gag order attempting to maintain the secrecy of a document and political inquiry. Such an order is premised upon the fact that the information in question is secret; change that fact irretrievably and the basis for the order evaporates. Though questions of liability for disclosure may remain, following disclosure, formerly-secret information cannot be made secret once again. Cats let out of bags, horses loosed from barns, toothpaste squeezed out of tubes — use whichever idiom you prefer. Blogs and Twitter may not be capable of decisively affecting national events frequently, but the nature of online communications are particularly well-suited to affect situations like these.

This week's events demonstrate the difficulty governments and organizations face when they seek to maintain the confidentiality of information relevant to public debate. Once the means of communication are no longer controlled by a relative few newspapers and television and radio stations, gag orders like the one obtained by Carter-Ruck become unsustainable. Perhaps this week has taught at least the British government that its secrecy efforts are best concentrated on a few vital matters rather than diluted and diminished to serve private interests and to chill public debate.

The announcement late last week that President Barack Obama had won the Nobel Peace Prize was met with a collective "Huh?" When last year's Peace Prize laureate, Martti Ahtisaari, was recognized "for his important efforts, on several continents and over more than three decades, to resolve international conflicts," President Obama received his award based on a nomination submitted sometime during his first week-and-a-half in office. The propriety and import of the award were widely-discussed in the legal blogosphere.

Jason Fischer minced no words in stating that "It’s official... the Nobel Prizes have lost all significance.... Now it is clearly just a leftist love fest with no real accomplishment value whatsoever." Patrick at the Popehat blog shared the opinion that the award was not merited by Obama's achievements thus far in office and suggested that Obama should refuse to accept it. He speculated about the Nobel committee's motivations:
[T]he committee has sullied and trivialized itself and its prize with this one. Obama has not furthered the cause of world peace in any measurable way, because he hasn’t had time to do so. It remains to be seen whether his policies will in fact further world peace.... Awarding the prize to Obama smacks of post-colonial paternalism, and faintly of racism.

“Here’s a pat on the head, magic negro. You’ve come so far!”
Robert Ambrogi also felt that the prize was awarded to Obama a bit prematurely but generously named Obama the "Lawyer of the (Day) (Week) (Century)".

Although most in the legal blogging and Tweeting community were quick to line up on either side of the debate about whether the award of the Nobel was merited, only Jonathan Adler seemed unsurprised by the award itself. He wrote:
Unlike some, I don’t think the award of the Nobel Peace Prize to President Obama during his first year in office is all that shocking. For many years the Nobel Peace Prize has been given as much if not more for what the committee hopes recipients will accomplish as for what they’ve already done.... [I]t only makes sense that the Committee would award the prize to a President who has adopted a more conciliatory foreign policy, is seeking to reduce nuclear weapons stockpiles, is pursuing more aggressive action on climate change, etc. These are policies the committee supports, and awarding the prize to Obama could, in their view, help ensure these policies are adopted and eventually succeed.
Roger Alford suggested other theories to explain Obama's award: "I think there are four possible interpretations of this award: (1) his achievements as President; (2) to promote global democracy; (3) as the culmination of the civil rights movement; or (4) as a symbol of the spirit of internationalism." Commenting on Alford's post, Charlie Martel suggested that "The fifth possible reason is that the Committee may be trying to influence the President to make good on his promise."

Tom Smith seems to lean toward Martel's explanation:
I think giving the prize to Obama was a shrewd move, well calculated to influence events in a direction the Nobel Peace Prize Committee would like to see. My thinking is this. Any observer of politics can see that Obama is rather a vain man. It's not an uncommon fault among world leaders. He seems to care deeply what others think of him. More than most of us would, Obama is likely to feel now that he has to live up to being a winner of the Nobel Peace Prize. He's already President of the US; now he has to live down, in an odd way, having been given this prize.
Eric Muller's take on things was more favorable to the committee and the President; Muller wrote that, "they handed Obama the prize not just because he isn't George Bush (though that surely helped), but because he represents a reaffirmation of an idea about the United States and the role that idea can play in world politics and world peace. That idea is the possibility of cross-racial, cross-"tribal," cross-ethnic, cross-religious reconciliation."

While others criticized Obama's lack of accomplishment in office or sought to find hidden messages from the Nobel committee to explain the award, a few gamely attempted to identify a few meaningful accomplishments of Obama's still-young term in office. Most of those posts seemed stretched to the point of breaking, but Diane Marie Amann's effort was a particularly credible try:
By way of a few examples, [Obama and his administration] have:
  • Immediately upon taking office, ordered the closure of the detention camp at Guant├ínamo, and labored since then to make this happen;
  • Simultaneously ordered an end to unlawful interrogation practices;
  • Reiterated a vision for a nuclear-free world and pressed for nuclear arms reduction through U.S. ratification of the Comprehensive Test Ban Treaty, strengthening of the existing nonproliferation framework, and negotiation of a new U.S.-Russia treaty....
  • Taken part in the 1st high-level face-to-face talks with Iran in 3 decades....;
  • Pledged U.S. contribution to global combat against climate change; and
  • Joined the Human Rights Council of the United Nations.
Let's see here. He issued an order which has yet to be carried-through (largely due to his administration's own legal efforts and procedural delays), issued another order which seems to have been carried-through, pushed for nuclear arms reduction (albeit with a stable country which isn't building up its arsenal), held unproductive talks with an unstable regime which is building its nuclear capability (and largely ignored others which are pursuing similar capabilities), promised to address (at considerable cost) a scientific problem which many scientists aren't convinced is a problem, and joined a group which has long been a bad joke and which recently condemned the lone stable democracy in the Middle East for defending itself against terrorist attacks on its civilians.

Incomplete, pass, pass, fail, incomplete, fail. If my child came home with grades like that, I can guarantee that she wouldn't be getting any awards.

Supreme Court reporter Lyle Denniston, whose work I've raved about previously, received some well-deserved time in the limelight this week. Along with fellow reporter Joan Biskupic, Denniston discussed the SCOTUS' inner workings in an excellent episode of C-SPAN's weeklong series about the Court. Bill Marler did a turn on CNN's Larry King show this week and, anticipating a touch of nervousness, he outlined his short-term and long-term recommendations to fix our food safety system. For his efforts, he was awarded the Nobel Peas Prize.

Eric Turkewitz was somewhat ambivalent about receiving recognition as a "Super Lawyer":
The company that puts out the information says the lawyers are vetted before they appear. So if we are vetted, then perhaps this really is something to be proud of?

But what kind of vetting actually takes place? Super Lawyers claims on their website that:
Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. They have a full page of words on their website to describe their process, but it doesn't seem very revealing to me. They have a "research department" that assigns "point values" to different criteria.

I must confess that this all seems pretty meaningless to me. If you want to know if I'm good at what I do, it seems you would have to read a brief I've written, read a deposition I've taken or perhaps watched a trial.


So what will I do? I don't really know yet, though putting it on my website... and then linking that "honor" back to this post showing my complete ambivalence might be one option. At least it would educate the legal consumer a bit about those that put such things on their sites or on their office walls.

Finally, arguments were heard this week in Maryland v. Shatzer, a case I mentioned previously. Diana Gillis provided an excellent recap of those arguments. Susan Bandes offered some insight into the challenges facing the Court in attempting to limit the rules established by Edwards v. Arizona without sacrificing the clarity of those rules:
The proper focus of the Miranda rules is counteracting the coercion inherent in custodial interrogation. Edwards assumes that when a suspect invokes his Fifth Amendment right to counsel, he has expressed his inability to withstand the coercive nature of custodial interrogation on his own. Shatzer invoked his right to counsel. He was not provided with counsel, but he was removed from the coercive situation. The question is whether his return to custodial interrogation 31 months later is a continuation of that coercive environment. Perhaps, as Justice Ginsburg suggested, a suspect in this situation would assume that if he invokes the right to counsel again, the interrogation will again cease. Or perhaps, as Justice Sonia Sotomayor implied, he would have no reason to believe he will ever get the lawyer he's requested. Chief Justice John Roberts began the questioning by positing the extreme version of this catch and release cycle: the suspect invokes Miranda, the police let him go, they bring him in, he invokes Miranda, they let him go, they bring him in, and so forth until he breaks down and talks.

The real stumbling block for the Court may be its desire for a bright line rule. As the Court recognized in last term's decision in Arizona v. Gant, predictability and clarity are important values, especially when crafting conduct rules for law enforcement, but sometimes they are outweighed by other values. The State and the United States resisted the pleas of several justices to articulate a bright line rule based purely on the passage of time (though they ultimately relented and suggested possible time limits.) Passage of time may in some instances ease a coercive atmosphere, but if the suspect remains in the same coercive environment, passage of time can actually exacerbate its coercive nature. Change in environment is therefore relevant, and so might be the change from pretrial to post-conviction status. In short, the Court may be headed toward a Michigan v. Mosley-type rule that requires weighing several factors. Miranda's animating principles might be better served by a more flexible test for determining whether reinterrogation amounts to the kind of badgering that leads to coerced self-incrimination.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Biology Online, Discover Magazine, and Paris Odds n Ends Thrift Store.

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