Constitutional right not to turn over evidence about free spe ech activity

[Scarberry, Mark]

I'm assuming there is other evidence that the man who purchased Playboy
magazines committed a violent act against a woman, and that the fact of his
having purchased Playboy magazines is not being used to show that he did in
fact commit the violent act. It is proferred to help show that the reason or
motive or intent involved in the battery had to do with the victim's gender.
Perhaps it is being used at the sentencing stage to determine whether the
sentence should be enhanced for a "hate crime" motivation. Or perhaps the
crime itself requires gender animus as an element, and a limiting
instruction is given to the jury that evidence of purchase of Playboy
magazines must not be considered as evidence that the man committed the
violent act.

That makes the situation analogous to the hypo built on Haupt, I suppose, in
which it is undisputed that the  defendant helped his son, the Nazi
saboteur, evade capture, and the question is why he did it.

Perhaps there is an evidence teacher on the list who could help sort this
out, but I don't see why the record of purchasing Playboy would be
considered inadmissible character evidence any more so than the record of
purchasing Mein Kampf (though I think I agree that the record of purchasing
Playboy is less relevant).

Mark Scarberry

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Thursday, April 18, 2002 1:08 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Constitutional right not to turn over evidence about free spe
ech activity



        I am no evidence maven, but I think the Playboy example isn't very
helpful because such evidence is excluded under the normal rules of
character evidence, without regard to the First Amendment.  Our reaction to
this hypo would therefore, I think, be colored by the same evidence-based
(rather than First Amendment-based) objections that the law itself has.  And
this reaction therefore can't really be generalized to other contexts where
the rules of evidence would allow the evidence to be admitted.

        Consider Fed. R. Evid. 404, which generally states that "Evidence of
a person's character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular occasion,"
but allows the use of "Evidence of other crimes, wrongs, or acts" to show
"motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident."  If the claim is "X read Playboy, so he
must have contempt for women, which shows that he's more likely to have
raped this woman," that strikes me as classic inadmissible character
evidence *even if it's relevant*.  After all, even the person's past rape
convictions would usually be inadmissible (though I know that there are lots
of loopholes in the character evidence rules) to show that he was the rapist
here, even though these are surely more relevant than Playboy reading to
show a tendency to rape.

        So the First Amendment question would be fully exposed only when the
evidence is being used to show "motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident."  One such
example might be built on Haupt:  If someone helped his son, a Nazi
saboteur, evade capture, the question becomes whether he did so with intent
to aid the Nazis, and for that evidence that he had bought a copy of Mein
Kampf would be relevant (though of course not dispositive).  Likewise, if
the question is whether someone knew a particular fact, evidence that he
bought a book that set forth this fact would be relevant and admissible.  I
think in these situations the First Amendment imposes no bar on the
admission of the evidence.  (In the Playboy case, I also think the First
Amendment imposes no bar on the admission of the evidence, but I think the
evidence would be independently inadmissible under the character evidence
rules.)

        Does this make sense?  Or am I misunderstanding evidence law?

        Eugene

        -----Original Message-----
From:   Scarberry, Mark [SMTP:Mark.Scarberry at PEPPERDINE.EDU]
Sent:   Thursday, April 18, 2002 12:13 PM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Re: Constitutional right not to turn over evidence about
free spe ech activity

        Eugene and I have each made our case as to whether there should be
special limits on subpoenas of book buying records. I don't have anything to
add except to raise a question about Eugene's approach to the Playboy
hypothetical that was in my earlier message.


With regard to the Playboy hypo, Eugene's argument can be characterized as
saying that evidence of the purchase of magazines that arguably treat women
as mere objects to be exploited is irrelevant and inadmissible character
evidence when the question is what the defendant's state of mind was toward
the victim's gender. Some members of this list might disagree as to the
relevance question. If the judge thought it was marginally relevant, should
first amendment concerns lead the judge to exclude the evidence or to quash
a subpoena that sought the purchase records? Further, if this is
inadmissible character evidence then, in the saboteur hypo, why isn't
evidence of purchase of Nazi materials inadmissible character evidence where
the question is whether an act was committed with intent to help the Nazi
cause? I'd guess all of us on this list are more sympathetic to the
publisher of Playboy than to the publisher of Nazi materials, but that
shouldn't affect the analysis. Some of us may deny that Playboy treats women
as mere objects to be exploited, but can a difference of opinion on the
message presented by materials affect whether the purchase of those
materials is admissible evidence? I don't teach evidence, and I may be
missing something here about character evidence, but Eugene's approach here
seems problematic.

        Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu

        -----Original Message-----
From: Volokh, Eugene [ mailto:VOLOKH at MAIL.LAW.UCLA.EDU
<mailto:VOLOKH at MAIL.LAW.UCLA.EDU> ]
Sent: Tuesday, April 16, 2002 10:01 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Constitutional right not to turn over evidence about free spe
ech activity



                 [snip]

                As to the Playboy hypo, I think that the evidence is
irrelevant on these facts, but it would in any event be inadmissible
character evidence.  The better question would be if someone is being
prosecuted for beating a black person because of his race, and the issue is
whether the victim was indeed selected based on race -- or if someone is
being prosecuted for treasonously harboring a saboteur with the intent of
helping the Nazis, and the issue is whether the harboring was motivated by
love of Nazism or by parental love for the saboteur (who's the harborer's
son, see Haupt).  I think that evidence that the person bought a copy of
Mein Kampf should be admitted, just as I think that evidence that the person
said "I think Nazism is a great philosophy" should be admitted.  Of course,
evidence that the person bought the copy just to educate himself about
Nazism should be admissible in rebuttal, as should evidence that the person
said "I think Nazism is a great philosophy" sarcastically, or in order to
butter up a potential employer who was a Nazi sympathizer, or because he was
afraid that otherwise he'd get beaten up by the person he was talking to.

                Eugene

        Mark Scarberry writes:

                [snip by Scarberry]
A hypo for consideration: a man is charged with committing violence against
a woman on account of her gender; do list members think a subpoena to a
magazine shop of any records of purchases of Playboy magazines should be
upheld or quashed? If the magazine store owner refuses to tell a grand jury
whether the defendant ever purchased Playboy magazines at the store, should
a court hold the store owner in contempt?


Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu < < mailto:mark.scarberry at pepperdine.edu
<mailto:mark.scarberry at pepperdine.edu> >>


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