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Litigation Journal

Winter 2021 | Proof

Can’t Swim? The Jump Will Kill You

Robert E Shapiro


  • We may have an uneasy sense that the law does not always handle all controversies well or appreciate their significance.
  • The political wars over social media platforms represent a perfect example of easy cases with underlying problems.
  • Without a return to a more thoughtful and carefully grounded quest for information, we are all very much at risk.
Can’t Swim? The Jump Will Kill You
Yiu Yu Hoi via Getty Images

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Do easy cases make bad law? The more familiar refrain concerns hard cases, which are usually seen as the real troublemakers. It is a tribute to, but also a discouraging feature of, the law’s complexity how easy it is to get things wrong. Certainly, it’s true that difficult cases pose an extra challenge and can quickly bring on untoward results and set bad precedent. Just like lawyers who say they always win, judges who claim never to have been daunted by a tough problem are rare birds and are probably not telling you the whole story in any event. Hard cases haunt us all.

No one gets out of hard cases unscathed. The harder the case, the more fraught the process and the less certain the outcome, the greater the trap for even the most hardworking decision-maker to mistake or misunderstand the issue. Even the winner sometimes gets uneven or wobbly results. There can be lasting damage not just to the reputation of the lawyer and jurist alike but to the law itself. The digests are full of derelict decisions that parties are called upon to distinguish or that the courts have had to discount later or overrule. In some cases, the problem of a poorly decided hard case is obvious almost immediately. In others, the menace just lies quietly around for decades before causing serious mischief at a later date. Every experienced litigator can recite his or her own litany of such hard, and maybe wrongly decided, cases that have bedeviled good results, disrupting or blocking progress with bad precedent and leading to errant decision-making in the “instant” case as well.

At the highest level, the Supreme Court has been responsible for more than one such misadventure. Think, for example, of the decisions of the “Old Men” of our highest court during the New Deal. The matters that came before them may not seem like such hard cases now. But at the time, they were viewed as such, and it’s partly the sometimes dubious benefit of hindsight that has made their errors (if that is what they were) seem so obvious now. The harm done to FDR’s reform program was palpable.

Hard cases usually at least have the virtue of alerting both the courts and the parties that the matter requires heavy lifting. Everyone can tell it’s a difficult issue requiring skill, understanding, and a broad perspective if it’s to be decided correctly. Too-easy cases, on the other hand, lack this inducement to good judicial decision-making, and that can have its consequences too.

The Supreme Court in the infamous Corn Products case didn’t seem to have much trouble closing a standard dodge of the tax laws that had seriously disrupted the collection of internal revenue for some time. Few questioned the propriety of the ruling, at least at first. Only over time did it become obvious that by doing as it did—with relative ease (if not nonchalance)—the Court provided the basis for one of the largest tax loopholes ever to have frustrated the tax collectors. One of the risks in the “easy” case scenario is that, with the mind of the judge or court barely taxed, all the implications of what it is doing may not be thought through. In particular, the court may fail to consider the indignities a flaccid decision might suffer at the hands of lawyers determined to maximize the interests of their clients.

Then there’s the slippery slope problem. Think here of Bates v. Arizona. There the seemingly obvious permission the Court granted a public interest law firm to publish its rates in low-income communities later gave rise to a long line of incremental decisions creating a whole new professional world of marketing, advertising, and salesmanship. There is no hyperbole in saying that the outcome has been a fundamental reordering of not just how lawyers present themselves but what lawyering itself seems all about.

The law is a seamless web in more ways than one. The implications of what one is doing need to be carefully studied, and the process of how new cases might be built on the old must be considered. Or else it becomes possible that an easy decision in one place may lead to disruption elsewhere, and the results can be problematic or, in some cases, positively catastrophic. The self-consciously smiling faces of lawyers now gracing billboards, TV commercials, CLE seminar brochures, and law firm marketing materials are proof enough that easy cases can lead to bad law too.

This is not to say that some lawsuits are not easy by being just plain frivolous. Foreigners are often mystified by U.S. litigation, not understanding how certain claims can even be made or why there are not more severe, or really any, penalties for suing without a proper basis. When confronted with such “easy” cases, most courts still try to discern if there is any merit to be found, or even lurking, in a new complaint. We Americans may pay the price for this sometimes cumbersome procedure, but we gain by ensuring that claims that at first seem to have no merit, but do, can get a hearing. Perhaps this can be understood as a process similar in purpose to our defense of criminal procedure, where we prefer that nine guilty people may go free so that one innocent one is not convicted. We seem to prefer that nine baseless claims may be filed so that no meritorious claim, however unprepossessing at first, gets dismissed. So there would not seem to be any bad law made here.

Still, we may have an uneasy sense that the law does not always handle all controversies well or appreciate their significance. In most lawsuits, even if meritless, there is usually some kind of underlying problem that may need addressing somehow, whether or not in the lawsuit itself. When the case is an easy one, it may be because it just doesn’t measure up as a legal claim. But the dismissal may still have the effect of making a genuine underlying controversy seem frivolous too, even if it’s not, giving too broad comfort about an issue possibly still important, even critical for our society. Americans, Alexis de Tocqueville observed, have a great facility for turning social and political questions into legal ones. A converse concern may be operative here. That is, a bogus legal case may actually signal a real social issue pursued speciously in the guise of a lawsuit. The lawsuit gets dismissed, and rightly so. The social problem remains. The lawsuit may have twisted the social issue, to make it look like a lawsuit. But the social issue is still there, seeking some form of resolution.

Social Media Cases

The political wars over social media platforms represent a perfect example of an easy case in which the underlying problem may have gone unattended and, along the way, become misunderstood. For some time now, various advocacy groups have believed themselves poorly served by social media. This is hardly an issue reserved to one partisan faction or another, as can be seen in the broad dissatisfaction with Facebook’s approach to various social issues favored by its denizens, both right and left. Facebook has hired a group of luminaries to vet its own policies and mediate the individual claims made by those who are dissatisfied on decency, fairness, or accuracy grounds. The goal is to ensure that all legitimate, but only legitimate, points of view are considered. Suffice it to say that the objectors, liberal and conservative, disagree about what may be “legitimate” or “decent” or what a fair balance might look like. These are akin to the issues that have bedeviled the courts over the years in trying to enforce content-neutral standards for the First Amendment, all the more so now as they try to meet the challenge of hate speech and extremism.

Perhaps misunderstanding those First Amendment considerations, some advocacy groups identifying themselves as conservative have now begun to take to the courts to try to win through the legal process better treatment of themselves and their supporters by internet applications. The results have not been to their liking. In all cases, the courts have found nothing of merit in such challenges, whether framed in terms of First Amendment claims or otherwise. They are easy cases, not taxing the courts much, possibly because the issue is not really a legal one at all, but a political or social one, without reasons to be adjudicated in the courts in the first place.

Typical is the Ninth Circuit’s decision in Prager University v. Google, LLC, decided in February 2020. In Prager, a conservative think tank sued Google’s YouTube on the grounds of political prejudice and a violation of free speech. The reason was that YouTube had apparently marked some of PragerU’s videos “Restricted,” based on their content, a designation that denotes sensitive, debatable, or potentially offensive material. PragerU thought this not just unfair but a violation of its First Amendment rights, while also being a form of false designation in violation of California statutes.

There is no First Amendment issue here. Judge Lucy Koh in the district court dismissed the complaint, addressing the First Amendment point by noting that there was nothing about YouTube that made it a governmental entity capable of violating First Amendment rights (“Congress shall make no law. . . .”). The Ninth Circuit easily affirmed. There Judge Margaret McKeown carefully analyzed the First Amendment claim and agreed with Judge Koh that there was nothing that made YouTube a public instrumentality. Systematically demolishing PragerU’s arguments, she noted that YouTube’s mere ubiquity did not make it something that undertook a public function, a point the Supreme Court has long emphasized. It was not, for example, like a company town, performing and monopolizing distinctly governmental services in some way. YouTube enjoys no monopoly on, or even dominance of, political information or opinion. Rather, as Judge McKeown rightly stressed, there are a vast number of different ways in which people can and do engage in information gathering and expressing opinions. YouTube and other social media, however pervasive, represent a small fraction of what’s available. She could have gone on to say that we could have little claim to be a free country in the first place if all information exchange were or had become monopolized or was now a governmental function.

The District of Columbia Circuit reached an identical conclusion in Freedom Watch, Inc. v. Google, Inc., in May 2020. It found so little merit in Freedom Watch’s argument that Twitter and YouTube had to balance the views of liberals and conservatives, it rejected the claim in a per curiam decision deemed unworthy of publication. Social media platforms are not a public utility, nor publicly run. They take myriad forms (new ones every day) and compete vigorously among themselves to gain the attention, if not the devotion, of netizens.

Easy cases. Indeed, it is not just difficult but virtually impossible to argue with these decisions. The First Amendment is a guaranty of free, not equal, speech, allowing it to be conducted outside the reach of government control. Private entities are entitled to think, publish, and promote what they wish, subject to other restrictions that might arise from other constitutional limitations. Of course, some forms of federal regulatory control are available. Thus, in the case of radio and television, the federal government, as the guarantor of the airwaves, once had its now-defunct “fairness rule,” requiring network TV to give opposing political positions “equal time.” But this was government using its regulatory power to ensure fairness. It was not an application of the First Amendment, but an activity limited by it.

With this option clearly in mind, these conservative groups, and their political allies, have next looked to governmental regulatory powers to see if there were a means to enforce their idea of “fairness” through that course. The Ninth and D.C. Circuits were not asked to rule on that effort, though they may soon find themselves considering whether such governmental action is in any sense “fair” or constitutional itself. Again the reversion to governmental regulation as a means to these advocates’ ends underscores the correctness of the courts’ original view of the First Amendment argument. Free speech doctrine is correctly applied not to private purveyors of information but to governmental regulatory action, if at all.

So is all well and good? You might think so. An obviously illegitimate claim easily disposed of. A social or political issue relegated to its proper regulatory forum, where it may be fully considered and the First Amendment properly applied. But think again. Through no fault of the courts, which are not equipped to solve deep-seated and perplexing social issues, there is much more here to worry about than may first appear. The now rejected frivolous First Amendment litigation and the sensible assignment of a political issue to its rightful place in the regulatory arena have obscured a deeper issue that is lurking, which is not an issue of free speech, or fairness, at all.

Is the Issue Legal or Societal?

What is that, you ask? Stop and consider for a moment. Isn’t the real problem not any First Amendment concern, or a problem of balance and “fairness,” but the fact that social media have become central to our information forming and gathering in the first place? This is a perplexing and peculiar development. And a dangerous one.

For all the attractiveness and utility of social media, it is difficult to overstate the ills that, as sources of information and news, social media are responsible for right before our eyes. The ascendancy this means of communication has gained amid the many sources of information Judge McKeown listed is positively alarming. Social media posts, by their very brevity, do not lend themselves to careful formulation or consideration. It is difficult enough, even upon concentrated thought and reexamination, to understand the complexities of most social and political issues, let alone personal ones, which often require detailed investigation and nuanced analysis for one even to get a foothold. By their very nature, social media posts denigrate or detract from that process, where they are not in fact actually designed to substitute for it. Posts that are repeated or retweeted again and again often contain, unintentionally or otherwise, misleading or just plain wrong information that takes on the guise of truth, merely from repetition. They elbow out more subtle, not to mention less popular, ideas and make our first thoughts and immediate opinions our last ones too. Good or contrary ideas can become, in Jonathan Swift’s great phrase, “the thing that is not,” which may not be said or entertained, no matter what the evidence. Reasoning suffers. Thus, Gulliver was driven from the land of the Houyhnhnms because of its rulers’ refusal to be challenged on their settled prejudice that Yahoos could not be reasonable creatures.

When fueled by anger or what has been called “paroxysms of indignation,” social media posts can become the province of an extreme few who whip up emotion and thereby use internet processes as a megaphone and a club. Some of those who today express and marshal the greatest outrage at those who do not support Colin Kaepernick’s kneeling have failed to notice that a similar approach condemned him in the first place. Indignation of this kind can go off in multiple directions, from 0 to 180 degrees, sometimes all at once. But it is almost always incautious and illiberal. For this reason, foreign persons meddling in U.S. elections have found they need not convince people of a specific narrative, the Big Lie, to do their mischief. Lots of little lies, or half-truths, can sow confusion or by themselves excite social media in all kinds of ways, allowing it to work its harm all on its own.

Bad thinking and malice are hardly the only problems. Think how social media posts are sometimes generated by those trying to burnish their images with sometimes overstated or even fictionalized accounts of themselves, as commentators or experts. On social media, everyone can be a celebrity, with all of the attendant hollowness, posing as a thinker who does very little real thinking, let alone study, at all. The harm to our social and political discourse is acute, and much more serious and immediate than frivolous lawsuits on the First Amendment or concerns about partisan regulatory authorities. While the latter may cause us to focus on whether posts and tweets are liberal or conservative, there is the far more acute crisis of a society not just poorly informed or misinformed, or influenced one way or another by partisanship, but hardly informed at all, and every day losing more of its understanding of what it means to be so.

What can be done? The answer is as perplexing and elusive as the problem is disturbing. The trouble is not one that the courts created or that falls to them to solve. In easily disposing of the First Amendment cases, they hardly had reason to address the more fundamental problem of a society—and an electorate—that is making personal, social, and political choices on the basis of information that is hardly better than rumor, flinty opinion, carelessly formed faction, and bursts of misguided indignation; or that is bound to be mistaken, misdirected, and subject to the grossest forms of manipulation, domestic and foreign. Democracy may die in darkness, as the Washington Post proclaims, and (as it could have added) in silence too. But it is also unlikely to survive the too-magnified glare and overamplified noise of internet postings, regardless of their partisan point of view. Without a general kind of return to a more thoughtful and carefully grounded quest for information, we are all very much at risk, liberals and conservatives alike.