Thursday, March 27, 2008

Connecticut stalking law not void for vagueness

One way to challenge your criminal conviction is to argue that the criminal statute is unconstitutionally vague. The Constitution requires that the criminal law be clear and understandable, and due process requires that level of clarity before the government can restrict your liberty and put you in jail. We normally associate this theory with criminal cases, but it can also arise in immigration law.

The Second Circuit handled this issue in Arriaga v. Mukasey, decided on March 27. The government tried to deport Arriaga because he was convicted of the crime of stalking. Under the immigration laws, "Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is

After he lost in Immigration Court, Arriaga went to Federal court, arguing that the Connecticut stalking law is vague in violation of the Constitution. Here's what that law says:

A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.

As the Second Circuit tells us, "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.” This language is taken from a Supreme Court case, Kolender v. Lawson, 461 U.S. 352, 357 (1983).

The Court of Appeals finds that, as applied to Arriaga, the Connecticut law is not vague. Laws do not have to be drafted with razor-like precision to let everyone know what's illegal. "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” The problem for Arriaga is that we all know what stalking entails:

In virtually every state, stalking entails: (1) conduct beyond a single occasion, (2) intentionally or purposefully directed at a specific person, with (3) the consequence of instilling fear in that person. State penal codes vary considerably in such particulars as the types of conduct (e.g., following, pursuing, surveilling, cyberstalking), the level of intent (general or specific), and the standard of fear (objective or subjective). . . . The widely-accepted core meaning of stalking is demonstrated by the failure of almost every void-for-vagueness challenge brought against state stalking laws.

Since the Connecticut stalking law is comparable to that of other states, and in certain respects places a greater burden of proof on the prosecutor, he cannot raise a vagueness challenge. This is particularly true since that law does not vest significant discretion in prosecutors and therefore does not create the realistic likelihood that the law will snag innocent people improperly accused of stalking.

Circuit clarifies pleading standards for housing discrimination

Today's offering from the Second Circuit involves an allegation of racial discrimination under the Fair Housing Act. The Court clarifies what it takes under recent Supreme Court pleading requirements to make out a case of housing discrimination. In doing so, the Second Circuit reinstates a Complaint under that statute because the plaintiff sufficiently alleged facts in support of her claim.

The case is Boykin v. Keycorp, decided on March 27. The plaintiff asked the defendant bank for a loan in connection with her property in a predominantly African-American neighborhood in upstate New York. Although Boykin satified the bank's credit requirements, the bank turned her down, claiming that it did not make loans to out-of-state applicants. She further alleged that the bank did not offer her post-rejection guidance and counseling under bank policy, alternatives that it offered to non-minority applicants. Her pro se complaint alleged that the bank's justification for denying the loan was false and that this really happened because of her race, gender and location of her property.

The district court dismissed the Complaint as insufficient to state a claim under Federal Rule of Civil Procedure 8(a). The problem is that, in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court recently ruled that civil rights cases do not have to set forth every factual allegation in support of the claim, and that the plaintiff need only place the defendant on "fair notice" of the basis for the claim. No one can accurately pronounce the name of that case, but every civil rights lawyer knows what it stands for: civil rights complaints should not be dismissed unless the defendant knows enough from reading it to properly prepare for pre-trial investigation and discovery.

The Second Circuit (Sotomayor, Winter and Calabresi) applied Swierkiewicz to this Fair Housing Act case. It also applied another important Supreme Court case on the adequacy of a Federal complaint, Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), which makes it a little harder to draft a Complaint in Federal court. Replacing a more lenient standard, Twombly says that a Complaint "requires factual allegations sufficient 'to raise a right to relief above the speculative level.'" Under these dueling legal standards, Boykin's Complaint was enough to survive dismissal. The Second Circuit reasoned:

In short, Boykin identified the particular events giving rise to her claim and alleged that she was treated less favorably than other loan applicants because of her race, her gender and location of her property, just as the [employment discrimination] complaint in Swierkiewicz provided the date and circumstances of the plaintiff’s termination and alleged that employees of other nationalities were treated differently than the plaintiff.

The Second Circuit also answered a question that I had always wondered about: can a plaintiff in Federal court allege facts "on information and belief"? The answer is yes, particularly if the relevant factual allegations for the moment are within the defendant's control. Boykin alleged "on information and belief" that the bank more favorably treated non-minority loan candiates. This issue does not arise too often because, rather than rely on case law, the Court of Appeals cited the definitive guide to Federal court practice for the proposition that "Pleading on information and belief is a desirable and essential expedient when matters that are necessary to complete the statement of a claim are not within the knowledge of the plaintiff."

Finally, the Court of Appeals ruled that Boykin did not have to affirmatively allege that the bank was motivated by racial discrimination. Although it doesn't hurt to throw in that allegation to be on the safe side, it is enough for the Complaint to support that inference without the plaintiff explicitly alleging ill-motive. Reading the Complaint in the light most favorably to Boykin's position, the court can infer discriminatory intent in denying her the loan.

In ruling in Boykin's favor, the Court of Appeals articulates a lenient standard: "In sum, Boykin’s allegations, taken as true, indicate the possibility of discrimination and thus present a plausible claim of disparate treatment." But the Court also notes that there are other ways to get at the truth in the event the case is doomed to failure. The defendant can always move for a more definite statement if the Complaint is vague, and the plaintiff is also required under Rule 11 to file pleadings in good faith. Of course, as every lawyer knows, the ultimate means for dismissal is a motion for summary judgment, filed when the parties are finished with pre-trial discovery.

Tuesday, March 25, 2008

New York cannot enact the Passenger Bill of Rights

I would imagine that passengers on an airplane that's been grounded for hours on the tarmac think that their civil rights have been violated. In a legal sense, the answer is no, it's not technically a civil rights case as the courts have defined it. But sitting on the plane for more than three hours with nothing to do and nowhere to go certainly violates your sense of dignity. This is why the State of New York enacted the Passenger Bill of Rights, which required the airlines to provide passengers with "electric generation service to provide temporary power for fresh air and lights; (b) waste removal service in order to service the holding tanks for on-board restrooms; and (c) adequate food and drinking water and other refreshments."

This law may represent good public policy. But it's also illegal, according to the Second Circuit, which ruled that New York had no constitutional authority to pass this law because it conflicts with Federal law.

The case is Air Transport Association of America v. Cuomo, decided on March 25. This case covers an area of the law that few people know about: preemption. Generally speaking, under the Constitution's Supremacy Clause, if a Federal law broadly covers a certain subject matter, the states cannot legislate in that area. This case focuses on the Federal Airline Deregulation Act, which says:

Except as provided in this subsection, a State, political subdivision of a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

The Court of Appeals (Wesley, Livingston and Cogan) holds in this case that New York's Passenger Bill of Rights (PBR) is preempted by the Airline Deregulation Act (ADA) because the PBR is “related to a price, route, or service of an air carrier,” which the ADA already covers. Relying on a recent Supreme Court decision, Rowe v. N.H. Motor Transp. Ass’n, 128 S. Ct. 989, 998 (2008), the crux of the Second Circuit's reasoning is that "Although this Court has not yet defined “service” as it is used in the ADA, we have little difficulty concluding that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays relates to the service of an air carrier." In other words, New York is trying to do something which only the Federal government can regulate.

This case may be on a rocket ship to the Supreme Court. Why? Because as the Second Circuit notes, most of the Courts of Appeal that "have construed 'service' [under the ADA] have held that the term refers to the provision or anticipated provision of labor from the airline to its passengers and encompasses matters such as boarding procedures, baggage handling, and food and drink — matters incidental to and distinct from the actual transportation of passengers." Some Courts of Appeal -- particularly the Ninth and Third Circuits -- disagree on this issue, the Second Circuit notes, "constru[ing] service to refer more narrowly to 'the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail,' but not to 'include an airline’s provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities.'”

When the Courts of Appeal around the country disagree on the interpretation of a Federal statute, the Supreme Court usually intervenes to iron out those differences. This case is a perfect candidate for Supreme Court review.

I wonder if there will be any public relations fallout from this case. The latest craze is to complain about airline delays when passengers have to sit on the plane for hours without any access to food or bathrooms. The states are dealing with this problem by enacting passenger's "bill of rights." I am no expert on preemption or the Airline Deregulation Act, but I wonder what the next round of delayed passengers at LaGuardia Airport would think if they found out that the airlines went to court to strike down a law that would have given them food and comfort as they sat like ducks for five hours?

Friday, March 21, 2008

"Ministerial Exception" dooms discrimination case against religious defendants

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against employees because of race. But when Congress enacted that law, it carved out a "ministerial exception." This means that churches and religious organizations cannot be sued for gender, religious, national origin or racial discrimination. This exception doesn't arise very often, but it arose today, in Rweyemamu v. Cote, resulting in the dismissal of a racial discrimination claim against
Roman Catholic Diocese of Norwich, Connecticut.

The ministerial exception exists for a variety of reasons. As the Court of Appeals (Cardamone, Walker and Straub) points out, courts do not want to interfere with the internal workings of religious institutions. This might create excessive entanglement with religion in violation of the Establishment Clause of the First Amendment. Other courts worry about interfering with the church's autonomy as protected by Free Exercise Clause of the First Amendment. The ministerial exception derives from the common law tradition. Even prior to Title VII's enactment, the ministerial exception has prevented courts from resolving disputes against certain religious entities. As the Second Circuit noted, "Since at least the turn of the century, courts have declined to 'interfere[] with ecclesiastical hierarchies, church administration, and appointment of clergy.'"

Of course, the ministerial exception does not just protect ministers. Citing cases from around the country, the Second Circuit notes that it has protected music directors, press secretaries, and the staff of a Jewish nursing home. But the Second Circuit rarely has the occasion to apply that exception. In fact, it hasn't applied it at all. Judge Walker states: "This court has had no prior occasion to confirm the existence of the ministerial exception, and rarely an opportunity to discuss its scope."

This is bad news for the plaintiff here, as the Court of Appeals formally affirms the vitality of the ministerial exception in Title VII cases, for a variety of reasons, including the constitutional justifications outlined above. Since the plaintiff -- an ordained priest -- alleges that he was denied a parish administrator's position for racially discriminatory reasons, he must prove that the defendants' articulated reason for this decision was false: "Father Justinian complained to church officials, arguing that Bishop Cote had failed to follow canon law in staffing the vacancies." That would require the Court of Appeals to delve into church doctrine. "Such an argument cannot be heard by us without impermissible entanglement with religious doctrine," the Second Circuit reasons.

Thursday, March 20, 2008

No First Amendment claim for Principal accused of harboring radical beliefs

The Second Circuit agreed on March 20 that a public school had the right to punish an acting high school Principal who spoke to the New York Post about her alleged connection to an organization that promotes radical Islam and Palestinian causes. Although the principal denied any relationship with any of these controversial organizations, the district court found -- and the Second Circuit agreed -- that her First Amendment claim is likely to fail.

The case is Almontaser v. New York City Department of Education. Almontaser was acting Prinicipal at a public high school offering classes in Arab language and culture. The school prepares students for careers in international affairs and diplomacy. An activist group accused Amontaser of associating with an organization known as Arab Women Active in the Arts and Media which distributed t-shirts bearing the words "Intafada NYC." This created an uproar in the local media, so the New York Post interviewed Almontaser over the phone, with a Department of Education press officer on the line. Almontaser denied any relationship with that organization and, according to the Court of Appeals, the New York Post misquoted her in stating that the t-shirts were an "opportunity for girls to express that they are part of New York City society."

In the wake of the New York Post's misleading article, the City denied Almontaser's application for the position of permanent Principal. She moved for an injunction in district court, which ruled against her. The Court of Appeals sustains that injunction denial, reasoning that Almontaser made her statement to the New York Post as part of her official job duties, as the Department of Education required her to speak to the media about this issue and also oversaw her interview with the newspaper. This means that her statement was not protected by the First Amendment, which only protects "citizen" speech, not "official job duty" speech.

The Supreme Court drew the distinction between citizen and official job speech in Garcetti v. Ceballos, 547 U.S. 410 (2006), raising the ire of many plaintiffs' advocates who think that ruling sharply limits the speech rights of public employees. The Second Circuit has yet to issue a definitive ruling on the scope of that ruling. For the time being, the Court of Appeals has nibbled around the edges of Garcetti.

Almontaser's case is not over. It returns to the district court for additional proceedings. The Second Circuit notes that one issue for the district court is "whether a public employee, who is required by her employer to speak to the press as a condition of her employment, may be sanctioned for speaking accurately when her statement is, as her employer knows, inaccurately reported and then misconstrued by the press. We believe the issue is best addressed in the first instance by the district court."

Tuesday, March 18, 2008

Qualified immunity: injunction but no damages

Qualified immunity hovers over any civil rights lawsuit brought under Section 1983, the civil rights statute that allows you to enforce the Constitution against government officials. Qualified immunity is what it sounds like: government officials are immune from suit, but that immunity is qualified as it does not always apply. The general rule is that if the state of the law was not clearly established at the time of the civil rights action, the government official cannot be sued for damages. We know whether the state of the law was clearly established by looking at the case law as decided by the Supreme Court and the local Court of Appeals. Qualified immunity, however, does not stand in the way of an injunction to force the government to comply with the law. You can get an injunction but not recover damages in these esoteric cases.

This distinction between immunity from suit for damages and the simultaneous availability of a Section 1983 suit for an injunction played out in a civil rights action against SUNY New Paltz, resolved by Judge Kahn a few weeks ago.

The case is Holmes v. Poskanzer, 2008 U.S. Dist. LEXIS 13545 (N.D.N.Y. Feb. 21, 2008). Holmes was the Student Government president who was suspended from campus after a confrontation with a college employee, who filed a criminal charges against him. The College has to provide students with a due process hearing before it suspends or expels a student, and Holmes was provided with such a hearing. But these hearings are not like other hearings. In the SUNY systen, for reasons having to do with administrative efficiency, the student has no right to counsel. After Holmes lost the hearing and the suspension took effect, he brought a lawsuit under 42 U.S.C. sec. 1983, seeking a court order allowing him to return to school because the hearing violated due process.

In January 2007, the Northern District of New York granted the injunction because, although college students generally don't have the right to counsel at these administrative hearings, since Holmes was facing criminal charges in the local Justice court, he was entitled to counsel at the hearing to protect his interests. That decision is reported at 2007 U.S. Dist. 3216 (N.Y.N.Y. Jan. 3, 2007). As summarized by Judge Kahn, "in the specific situation described by the Complaint, in which students are 'simultaneously facing possible university expulsion and pending state criminal charges,' those concerned with self-incrimination should be allowed to have counsel present in a consultative role to avoid a violation of due process. To meet the requirements of due process, a university disciplinary proceeding need not take on the trappings of a trial and the right to counsel described above need not include the traditional functions of a trial attorney. However, the refusal to allow counsel to accompany and advise Plaintiffs, in the situation alleged by the Complaint, could assert a violation of Plaintiff's due process rights."

That did not end the case, though. The State next moved to dismiss the Complaint for failure to state a claim, primarily arguing that the defendants are protected by qualified immunity. Here's where the interplay between injunctive relief and monetary relief intersect. Although qualified immunity does not prevent the court from issuing an injunction to remedy illegal behavior, since public officials do not have to stand suit for monetary damages claims when the state of the law is unclear, they can invoke qualified immunity for the non-injunctive claims.

That is what happened here. In Judge Kahn's order granting the injunction, he ruled that the Due Process Clause prohibits the State from disciplining a student without the right to counsel if he is facing criminal charges. He did not cite Second Circuit case law for this. Instead, he cited cases from the Eastern and Northern Districts of New York, Crowley v. United States Merch. Marine Acad., 985 F. Supp. 292 (E.D.N.Y. 1997) and Donohue v. Baker, 976 F. Supp. 136, 147 (N.D.N.Y. 1997). The Eastern and Northern Districts are wonderful courts, but they are not appellate courts and their rulings are not binding on other judges. As Judge Kahn reasoned, "there is no case law in the Second Circuit holding that a specific situation required the presence of counsel at a school disciplinary proceeding to satisfy due process. Accordingly, it would not be clear to a reasonable university employee that the procedures in place were insufficient and Defendants are entitled to qualified immunity with regard to this issue."

So, while the law in this regard is not crystal clear, Holmes won the injunction because some cases entitled him to counsel at the hearing. But the unclear state of the law in this area also means that Holmes cannot sue these officials for damages incurred in missing a semester of college. And that's how qualified immunity can get you an injunction, but not damages.

Thursday, March 13, 2008

Winning the battle, losing the war

A bad jury instruction is not always enough to win the appeal. That is the lesson learned from a ruling by the Court of Appeals in an employment discrimination case.

The case is Mobasher v. Bronx Community College, decided on March 13. At trial, the judge instructed the jury on the elements of a prima facie case under Title VII. The prima facie case is the first step in determining if the plaintiff has a case, and it asks, i.e., whether the plaintiff suffered an "adverse employment action" (such as significant demotion or termination or pay cut) and whether he was fired or demoted under circumstances creating an inference of employment discrimination. If the plaintiff makes out a prima facie case, then under the so-called McDonnell-Douglas burden-shifting scheme, the employer can defend itself by articulating the reason for the discharge or demotion. The plaintiff's duty at trial is to show that that reason is false and that the real reason was discrimination. We call this the "pretext inquiry."

This complicated burden-shifting test is so complicated that the Court of Appeals has over the years ruled that the jury should not untangle the prima facie inquiry, only the pretext inquiry. This is partly because the pretext inquiry is really where the action is, and the prima facie inquiry is preliminary. Important, but still preliminary. The judge makes the determination whether the plaintiff has a prima facie case.

What do you do if the judge ignores Second Circuit authority and instructs the jury to decide the prima facie inquiry, and then you lose the trial? You appeal. But the Court of Appeals will probably handle the appeal the way it did in the Mobasher case. It will remind us that the trial judge should not instruct the jury to answer the prima facie inquiry. But it will also find that the error was harmless and that there was enough evidence for the plaintiff to lose the trial on other grounds. Here is the crux of the Second Circuit's analysis:

The District Court’s instructions were indeed erroneous. First, those instructions took the jury through each step of the McDonnell Douglas burden-shifting framework, which we have said “undoubtedly constitutes error.” Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 758 (2d Cir. 2004). The language used in the traditional McDonnell Douglas formulation, “developed by appellate courts for use by judges,” “is at best irrelevant, and at worst misleading to a jury.” Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 118 (2d Cir. 2000)

It's difficult to win an appeal after you lose the trial in a case alleging employment discrimination as the jury is allowed to believe whatever witnesses it wants, including witnesses testifying that the plaintiff was a bad worker and that discrimination had nothing to do with his termination. So in an appeal like this, the plaintiff wins the battle by getting a ruling from the Court of Appeals that the jury instructions were incorrect. But he loses the war, because it's not enough for another trial.

The plaintiff in this case had a separate objection on appeal. The Court of Appeals rejected that objection also. The employer tried to prove that it did not discriminate against the plaintiff because it has hired other black employees. This is a common defense argument at trial, but you don't see it reflected in too many court rulings. Without citing any case law to support this well-known defense, the Court of Appeals held that the trial court did not abuse its discretion in allowing this evidence at trial, as it tended to prove that the employer did not discriminate against the plaintiff.

Saturday, March 8, 2008

The First Amendment still applies in City of Yonkers

The Westchester Guardian is a community newspaper distributed around Westchester County, providing political coverage and commentary about public officials. I see its newsracks every time I go to the White Plains courthouse. In 2007, the newspaper and its distribution boxes began mysteriously disappearing at Yonkers City Hall and throughout the City after the Guardian ran highly critical articles about City officials. Eventually, the Guardian's owner was given a summons while distributing the paper at City Hall, and the City acknowledged seizing 35 Guardian news racks. These and other tactics by the City end up in Federal court, where Judge Brieant in White Plains entered an injunction in favor of the Guardian.

The case is Guardian News v. Amicone, 2008 U.S. Dist. LEXIS 16965 (S.D.N.Y. March 3, 2008). The court found that the local ordinance governing the placement of newsracks may apply even-handedly to all newspaper distributors. But the evidence adduced at the preliminary injunction hearing confirmed that City officials had unduly focused on the Guardian's recognizable blue newsracks and did not remove newsracks maintained by other publications in 2007. In violation of the Constitution, the City was selectively enforcing its laws to punish the Guardian.

Judge Brieant further concluded that City officials had expressed hostility towards the Guardian and did not even believe it was a real newspaper, deeming it "propaganda" not worthy of the privileges accorded other publications. After noting that the newspaper had run articles critical of the City administration, the court concluded, "it is a fair inference that the response of the City was motivated largely by the abusive content of the Guardian. Under familiar First Amendment principles, this is simply not permitted." Under Judge Brieant's order, the newsboxes are permitted anywhere in the City so long as this placement does not violate the City code. That includes City Hall.

Finally, Judge Brieant struck down Yonkers' prohibition against distributing handbills or other printed matter within any park or any public place. In light of landmarks like Marsh v. Alabama, 326 U.S. 501 (1946) and Hague v. C.I.O., 307 U.S. 496 (1939), this provision is so unconstitutional that Judge Brieant observed, "after 80 years of First Amendment case precedent, this Court would be astonished to find that Defendants do not believe that in-hand distribution of printed materials on public City sidewalks is a Constitutionally protected activity." That part of the ordinance is stricken and the Guardian may be distributed by hand on sidewalks and anywhere else where this activity would not obstruct traffic.

Tuesday, March 4, 2008

Habeas case takes a tricky turn

A long-running habeas corpus proceeding took another turn in the Second Circuit as the Court of Appeals ruled that a trial judge went too far in preventing the State from re-trying a criminal defendant who had already prevailed in his Habeas petitition.

The case is DiSimone v. Phillips, decided on March 4. In 2005, a Federal judge ruled that a criminal defendant who was acquitted for intentional murder cannot be convicted for depraved indifference murder. This ruling was significant because these two different murder theories were not always deemed mutually exclusive. But the courts have since held that, since depraved indifference murder does not require an intent to kill, it cannot serve as a backup charge to intentional murder. This was good news for DiSimone, who was acquitted in State court on his intentional murder charge but convicted of depraved indifference murder stemming from an knifing incident.

In 2006, the Court of Appeals vacated the Habeas grant because it was not clear whether DiSimone had fully exhausted, or preserved, these issues in the State court system. Habeas law requires that the criminal defendant fully appeal his constitutional issues in the State appeals courts before seeking a Habeas ruling in Federal court. On remand, the trial judge determined that, in fact, the State had violated its obligation to disclose to DiSimone evidence that someone else may have caused the killing. We call that a "Brady" violation based on the U.S. Supreme Court case that requires prosecutors to turn over that evidence. The State therefore agreed that the conviction for depraved indifference murder should be vacated.

But that did not end the story. The trial judge, Charles L. Brieant, decided that the State cannot re-try DiSimone at all in connection with this incident, reasoning that there was no point to any re-trial since he cannot be convicted for depraved indifference murder. This time around, the Court of Appeals disagrees, reasoning that "the district court was correcting state errors which had not yet been made. As yet, no state court had even considered the question whether DiSimone could be retried."

This means that DiSimone has to wait for the State to determine whether to try him again for depraved indifference murder. If the State so proceeds, DiSimone has to exhaust the appellate process in State court. The Second Circuit does note that, in the end, DiSimone may prevail in State court, either by arguing that the evidence does not support a depraved indifference murder charge or that double jeopardy would prohibit another prosecution.

Monday, March 3, 2008

"Libel tourism" case alleging terror funding fails in Second Circuit

Guy sues gal in England for defamation because gal says in her book that guy funds terrorism. Guy wins defamation case in England (stopping gal from speaking ill of guy) which does not have the First Amendment protections that make it much more difficult to win defamation cases in the United States. Gal then files lawsuit in New York federal court for a declaration that (1) guy cannot win any defamation case against her in the United States, and (2) the English defamation judgment cannot be enforced here in light of our superior free speech values. Guy wins in the Second Circuit.

The case is Ehrenfeld v. Mahfouz, decided on March 3, 2008. The case has a complicated history. Mahfouz first prevailed against Ehrenfeld in England, taking advantage of England's notorious pro-plaintiff libel laws. Ehrenfeld then sued in the Southern District of New York in a pre-emptive strike, seeking a court order that she cannot be sued for defamation in this country. The problem is that Mahfouz's only connection to New York is that Ehrenfeld lives in New York and her obligation to stop disparaging Mahfouz in England is carried out in New York.

Ehrenfeld is a sympathetic party here. She describes the case as "libel tourism," where libel plaintiffs sue writers in jurisdictions that are hostile to freedom of speech, in this case, England. They then use those judgments elsewhere. But the laws in New York, binding on the Federal courts, do not allow New Yorkers to sue outsiders with little if any connection to New York. When the Second Circuit got the case a few years ago, it asked the New York Court of Appeals to rule on this matter which truly requires an expert in New York law to resolve the issue. While defamation judgments are difficult to win in New York, the judges on the New York Court of Appeals would probably win a defamation lawsuit if someone accused them of faulty knowledge of New York law. They advised the Second Circuit that New York law cannot allow a suit like this to go forward since Mahfouz has little, if any, connection to New York. On the basis of that ruling from the New York Court of Appeals, the Second Circuit dismisses the case.

Any law student will tell you that nothing is more boring than New York civil practice, particularly the rules governing "long-arm jurisdiction," which addresses when a New Yorker can sue an out-of-stater in New York courts. But the broader implications of this case have raised enough concern about liability for provocative New York writers that several media bigwigs filed advisory briefs with the Second Circuit on this issue (favoring Ehrenfeld) and the New York Legislature is considering amending the long-arm statute to authorize lawsuits like this. That pending legislation is no reason for the Second Circuit to delay ruling on this case, and the Court points out that if the law is eventually changed, Ehrenfeld can sue Mahfouz again, or re-open this judgment.