Would a legal duty to report "suspicious speech" be constitutiona
l?
Volokh, Eugene
VOLOKH at MAIL.LAW.UCLA.EDU
Fri Nov 1 14:53:00 PST 2002
1) I'm assuming that the theory is speech alone simply because that
provides a crisper hypo. If we conclude that it violates the First
Amendment to base negligence liability on the theory that the church should
have investigated / more closely supervised Shanley based on his speeches,
then we can ask whether it violates the Amendment to base negligence
liability on the theory that the church should have investigated / more
closely supervised Shanley based on his speeches and other matters. (I have
argued, of course, that liability based even in part on protected speech
must be subject to First Amendment scrutiny.)
I realize that this isn't the most effective way for lawyers interested
just in this particular case to analyze the case, but I think it's more
interesting from a theoretical perspective, if we're interested in more than
just the Shanley case.
2) Lynne's post raises an interesting question: "I suppose one theory
is whether this is like a *Tarasoff* case creating a duty (based on what
Poddar told the psychiatrist, which is protected speech?) or not. cf.
increased mandatory reporting requirements in many states. In INdiana,
*any* person who hs reason to believe a child is in danger has a duty to
report it--and under our "terrorism" watch, perhaps we are supposed ot have
a duty to report "suspicious conduct/behavior/speech" ( see the poor Fla.
med students driving in Georgia)." Well, what about it? Assume that the
government said "All employers have a duty to report to the police any
person making speeches that endorse the moral propriety of adult-child sex /
that endorse the moral propriety of terrorism / that endorse the moral
propriety of violent revolution" -- would that be constitutional?
Not exactly the same issue, I realize; among other things, the claim
here wasn't a duty to *report*, but a duty to investigate, supervise, and
potentially to bar from certain jobs. But it still seems to me interesting.
What do people think about this?
3) Lynne also says "As for whether speech on 'poliitcal or social
subjects' (doesn't that cover most of speech?) should trigger a duty to
investigate, or to protect workers, I think it depends on context. Is the
speech a threat? An incitement? A solicitation? Part of a pattern of
conduct directed against another employee? Is it *Brandenberg* or *Paladin
Press*?" -- but doesn't this make the case in *favor* of my skepticism about
this approach in the Shanley case? The claimed duty to
investigate/supervise/not assign Shanley did not arise from any speech that
fell within a First Amendment exception -- it wasn't threats, incitement,
solicitation, or Paladin-Press-like criminal facilitation. According to the
news account, the speech was advocacy of the moral propriety of adult-child
sex, which falls into neither of these categories, no?
Eugene
-----Original Message-----
From: Lynne [mailto:hendersl at IX.NETCOM.COM]
Sent: Thursday, October 31, 2002 8:49 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Legal duty to investigate employees based on their speech on
poli tical or social subjects
On Eugene's questions: from the news articles I've seen on the
deposition re: the Church & Paul Shanley, it initially appears that the
issue is "speech as the entire case" but note that they deposed the Bishop
on whether he was aware of the 1966 molest complaint or other complaints in
Shanley's file, and he denied any memory/knowledge, though he said he was
aware of complaints about Shanley speaking at/attending NAMBLA meetings.
This is a deposiiton and is used for discovery, so following up every
possible source of informaton seems appropriate. Assuming the theory is
speech alone seems premature (there was some case against NAMBLA in Mass. a
few years ago, I believe, arising out of a terrible murder, but I have long
since lost track of my e-mails about it, or whethe rit even got filed)
I agree this is a case involving whether the Church had a duty to
investigate Shanely, not a suit against Shanley himself. On the "duty"
aspects, I suppose one theory is whether this is like a *Tarasoff* case
creating a duty (based on what Poddar told the psychiatrist, which is
protected speech?) or not. cf. increased mandatory reporting requirements
in many states. In INdiana, *any* person who hs reason to believe a child
is in danger has a duty to report it--and under our "terrorism" watch,
perhaps we are supposed ot have a duty to report "suspicious
conduct/behavior/speech" ( see the poor Fla. med students driving in
Georgia)
You can of course state the claim at a more general level of whether
an employer has a duty to investigate employees based on speech. And at
that level, I guess the way the First Amendment comes in is that the use of
the courts is the requisite state action, nu?
As for whether speech on "poliitcal or social subjects" (doesn't that
cover most of speech?) should trigger a duty to investigate, or to protect
workers, I think it depends on context. Is the speech a threat? An
incitement? A solicitation? Part of a pattern of conduct directed against
another employee? Is it *Brandenberg* or *Paladin Press*?
I am no authori on tort or even the First Amendment, so I would
defer to others on this, but i do think there are shifts--thanks to high
profile workplace killings, dangers ot employees from abusive partners,
etc.--in beliefs about employer's duties, at least in some states.
sincerely
Lynne
Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Box 451003
Las Vegas, NV 89154
702-895-2625
----- Original Message -----
From: Volokh, Eugene <mailto:VOLOKH at MAIL.LAW.UCLA.EDU>
To: CONLAWPROF at listserv.ucla.edu <mailto:CONLAWPROF at listserv.ucla.edu>
Sent: Wednesday, October 30, 2002 3:12 PM
Subject: Legal duty to investigate employees based on their speech on poli
tical or social subjects
I much appreciate Lynne's post; here are some thoughts about it:
1) *Speech as part of the case vs. speech as the entire case.* I agree
entirely that the Shanley cases involve serious charges about the Church's
misconduct, and perhaps the Church might well be liable based on what it
knew about what Shanley actually did, or was accused of doing. If the case
against the Church rested on that, this would be fine. But here the
plaintiffs seem to be claiming, as part of the case against the Church, that
they should have investigated Shanley for his public speeches and his
political association. As I've argued in other contexts, I think that if a
claim is based at least in part on protected speech, the First Amendment is
triggered, see http://www1.law.ucla.edu/~volokh/harass/proc.htm#PART
<http://www1.law.ucla.edu/~volokh/harass/proc.htm#PART> ; NAACP v. Claiborne
Hardware.
2) *Speech as evidence*. But don't we let speech be used as evidence
of what people did (e.g., an out-of-court statement that "I shot the
sheriff" is evidence that the person did indeed shoot the sheriff) or
intended (e.g., an out-of-court statement that "The Nazis are great, and
people should support them" may be evidence that the speaker actually
intended to help the Nazis by sheltering a saboteur, see Haupt v. U.S.)?
Yes, that's right. But here speech is being introduced as more than just
evidence of Shanley's intent or actions. Rather, the claim is that
*employers have a legal duty to investigate employees based on their speech
on political or social subjects."
I say this because that's the essence of negligence liability -- if an
entity can be held liable for not doing X, this means that the entity has a
duty to do X; that's the "duty" prong of the negligence test. Under the
plaintiffs' theory, it seems to me, an employer has a duty to investigate
employees when they make certain statements on political or social subjects,
whenever their political or social views might be correllated with the
employees' tendency to engage in certain crimes in the future. If the
employer breaches that duty, and then damage results (and the but-for cause
and proximate-cause elements are satisfied) because the employee does indeed
commit the crime, the employer will be held liable.
It seems to me that such a legal duty to investigate employees based on
their speech on political or social subjects -- enforceable by the risk of
tort liability -- violates the First Amendment, at least in many cases.
Here the speech is not just being used as evidence; rather, failure to
investigate the speech is itself one of the elements of a tort.
3) *A hypothetical.* Say that a UPS delivery man gives public speeches
in favor of Bin Laden, saying that the attacks on the U.S. were justified,
and that jihad against America and Americans is the only proper reaction to
American crimes. UPS does not investigate him further, or supervise him
particularly closely because of his speech. At some point, the delivery man
leaves a bomb in an office building -- and his being a UPS delivery man in
some measure helped him do this. The bomb explodes and kills people; the
decedents sue UPS for negligent retention and negligent supervision. Should
they win?
If they do win, what would you, as the lawyer for UPS -- and a wide
variety of other employers -- advise them to do when they hear that an
employee has spoken out in favor of the moral propriety of terrorism, or in
favor of certain kinds of violence more generally?
Eugene
-----Original Message-----
From: Lynne [mailto:hendersl at IX.NETCOM.COM]
Sent: Tuesday, October 29, 2002 12:25 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: U.S. v. Robel and the Catholic Church scandal
The way Eugene phrases the question ("government imposing a duty to
investigate". . .) suggests that one's statements cannot ever be used as
evidence of mental states, awareness, knowledge, or notice. (And wasn't
there a thread earlier about claims that what one reads establishes what one
is likely to do in the context of reading books about terrorisim, or bombs,
or something?)
The issue in the Shanley cases is whether the Church was reckless or
negligent in moving Paul Shanley around from parish to parish with knowledge
of complaints *not only* about his "speeches" at meetings of NAMBLA, but
also complaints to church officials that he was molesting children.
Molesting children is a crime, not just a deviation from Church doctrine or
an internal Church matter. Shanley's speeches tend to show that he approved
of such conduct, which potentially makes the claims of abuse more credible.
IMHO long as speech has relevance to issues of notice, negligence or even
recklessness in tort or crime, it would seem to me that statements made by
Shanley are relevant to establishing the existence of awareness and fault
on the part of Church authorities, and it is in this context that these
cases and depositions are proceeding.
Lynne
Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Box 451003
Las Vegas, NV 89154
702-895-2625
----- Original Message -----
From: Volokh, Eugene <mailto:VOLOKH at MAIL.LAW.UCLA.EDU>
To: CONLAWPROF at listserv.ucla.edu <mailto:CONLAWPROF at listserv.ucla.edu>
Sent: Tuesday, October 29, 2002 9:00 AM
Subject: U.S. v. Robel and the Catholic Church scandal
A few weeks ago we had a very interesting discussion about U.S. v.
Robel, and a story I heard this morning on NPR reminded me of it, in a very
different fatual context:. Here's the N.Y. Times story today that discusses
the issue:
http://www.nytimes.com/2002/10/29/national/29PRIE.html?pagewanted=print
<http://www.nytimes.com/2002/10/29/national/29PRIE.html?pagewanted=print&pos
ition=top> &position=top
"Bishop Knew Boston Priest Had Praised Man-Boy Sex," By PAM BELLUCK
"When he was a top official in the Roman Catholic Archdiocese of Boston,
Bishop Thomas V. Daily, who now heads the Diocese of Brooklyn, promoted a
priest to lead a suburban parish in 1983 even though he had received
numerous complaints that the priest was advocating sex between men and boys,
according to a deposition released today.
"The priest, the Rev. Paul R. Shanley, has since become a central figure in
Boston's clergy sexual-abuse scandal, and is accused of molesting at least
25 people, six of whom say they were abused as young children at that
suburban parish. . . .
"The bishop also acknowledged that he did little in response to a string of
complaints that Father Shanley was giving speeches outside of Boston that
endorsed sex between men and boys and was attending the formative meetings
of the North American Man-Boy Love Association. . . .
"For example, Bishop Daily, who was the Boston Archdiocese's second
highest-ranking official from 1975 to 1984, was asked in the deposition
about accusations he received in 1977 that Father Shanley had said in a
speech that 'the adult is not the seducer; the kid is the seducer.' . . .
"Yet in the deposition, Bishop Daily acknowledged that there was no
indication that the archdiocese investigated those or subsequent similar
accusations, discussed them with Father Shanley or did anything to reprimand
him."
As I understand it, the particular claim that's now at issue against
the church is one of negligent hiring or negligent supervision -- and the
question of Shanley's speeches is relevant because (the tort theory goes),
given those speeches, the church should have investigated Shanley further to
determine whether he was in fact molesting boys. My sense that this is the
theory is reinforced by another sentence from the story: "Yet in the
deposition, Bishop Daily acknowledged that there was no indication that the
archdiocese investigated those or subsequent similar accusations, discussed
them with Father Shanley or did anything to reprimand him."
To the extent that this is the theory, is it consistent with the
First Amendment? As a practical matter, I agree that it would be smart for
a church to look closely at priests who are advocating behavior that
violates the church's laws. Likewise, it would be smart for a private
defense contractor during the Cold War to closely investigate employees who
seem to be involved in pro-Communist groups or who say pro-Communist things,
just as during World War II it would have been smart for them to investigate
seeming Nazi sympathizers, and today it would be smart for them to
investigate people who seem to sympathize with terrorists.
But may the government impose a duty to investigate people based on
their expressed political, social, or moral views, on pain of massive legal
liability if they fail to investigate, and the people later misbehave?
Eugene
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