« Beldar & kids see "Transformers" | Main | Video clip of Sen. Fred Thompson with wife Jeri and kids »

Sunday, July 15, 2007

Beldar's answer to Patterico's question about Husain v. Springer

My blogospheric friend Patterico, who was kind enough to link from his blog to my post from yesterday about the Second Circuit's decision in Husain v. Springer — and in particular about Chief Judge Dennis G. Jacobs' provocative dissenting opinion in which he proclaimed that he's not bothered to read his colleague Judge Guido Calabresi's opinion for the panel majority — asked this question in a comment (hyperlinks inserted by me):

Volokh thinks the majority opinion sets an important precedent. Beldar disagrees.

I'm wondering how to decide which of them is right. Any suggestions, Beldar?

Herewith, my reply. Of course, it's not short. Things are rarely short on BeldarBlog (hence the warning on the masthead).


Patterico, my friend, you could simply wait for the Federal Reporter, Third Series version to come out and see how many headnotes Thomson/West Publishing writes for it. Counting the number of headnotes is one rough way of measuring how much "law" a given written opinion stands for, although they don't put the really important headnotes in boldface or an extra-large font. One tends to generate one new headnote for every declarative sentence followed by a case citation, and it's entirely possible for an opinion to have lots of headnotes and yet not to have made any new law, or even to have repeated much law of much importance.


Prof. Volokh is a renowned (and properly so), tenured, and many-times published constitutional law professor whose specific expertise includes the First Amendment. I'm merely a solo practitioner in a general litigation practice whose last constitutional law credentials were a law school Am Jur award in that subject in 1979 and a successful Fifth Circuit appeal in 1983 upholding a summary judgment in favor of CBS News in a defamation case. So if you're deciding whose opinion is more likely to be correct based on the expertise, experience, and reputation of the person rendering it, Prof. V wins hands down.

On the other hand, you'd think that being such an expert, Prof. V might have been in a position to point to a few recent First Amendment cases and say, "Under the precedents set this past week in Husain v. Springer, these would all have come out the opposite way than they did." He hasn't done that; but perhaps he could, if someone asked him to.


One of my very first posts when I started this blog four years ago was about a Texas case that Prof. V read as a major cut-back in First Amendment protections for pornographic comic books, Castillo v. State, 79 S.W.3d 817 (Tex. App.—Dallas 2002, pet'n ref'd), cert. denied, 538 U.S. 924 (2003). I read that case as an aberration, in which an incompetent defense lawyer had let an aggressive prosecutor trample him, and in which the appellate court had made no new First Amendment law to speak of but rather merely held the defendant accountable for his lawyer's procedural lapses in failing to object.

Prof. V graciously corrected some factual errors he'd made in his original posting about the case, but we agreed to disagree over the case's precedential importance. In the four years since, it's been cited by other Texas courts a total of 10 times — and never in a case that contains the words "obscenity" or "First Amendment," but instead for its purely procedural holdings. If, nevertheless, as a result of that appellate opinion, there are either substantially fewer pornographic comic books available now in Texas or anywhere else, or substantially more comic book pornographers who've been convicted of obscenity, I'm unaware of that. So I tend to think that the passage of time has shown I had the better of the argument about that First Amendment case, anyway.


I suspect Prof. V would agree with me that there are less likely to be important future effects from that portion of the Husain v. Springer majority opinion discussing whether, for purposes of qualified immunity, the college president's actions were clearly illegal given the status of court precedents in 1997. Although I think that portion of the majority opinion is badly written, it's by far the most easily distinguishable in any future case.

We'd probably also agree that the most novel, and potentially sweeping precedent, has to do with the causal remoteness of the supposed chilling effect, which he (and the majority opinion) refer to as the college president having threatened the student editors' intended purposes for the election (as opposed, for example, to threatening to expel them, or to disband the paper, or impound its issues, or cut off its funding).

The majority opinion, though, doesn't itself treat its own holdings as being sweeping or revolutionary or precedent setting. It treats the "chill" as being more or less self-evident on these facts. Accordingly, I read the holding as being not very dangerous. In future cases, instead of a court saying, "Under the new rule of law proclaimed in Husain v. Springer, by which we are bound as a matter of precedent, we must ...," you'll instead have, at most, a court saying, "Under a similar set of facts in Husain v. Springer, the Second Circuit found ...."  The fact that no court — to Prof. V's experience or my own admittedly more limited experience — has been willing to find a "chill" on such weak facts before makes me doubt that many other courts will be eager to find such a chill on similarly (but distinguishably) weak facts again. And because it's fact-specific, I doubt many future courts will find themselves compelled to find such a chill on similarly weak facts. 

In other words, unless the future case is one of a university president "chilling" the First Amendment free expression rights of a college newspaper by having voided and then rescheduled a student election for what the court concludes was an invalid reading of university rules, I just don't think this case is going to have much persuasive power in any future First Amendment litigation. Outside the context of administration interference with college newspapers writing about student government elections, I doubt it will — or even could — have any relevance at all.

My suspicion, in other words, is that when Prof. V wrote that this might be a really important precedent, he actually meant that it pertains to a really important subject — the First Amendment.  But it's rather Chief Judge Jacobs' point — and I agree — that not every dispute that is characterized in a First Amendment analysis is necessarily an important case. This might make a great exam question for Prof. V's First Amendment classes. That doesn't mean it's an important question in real life.

Note that Judge Calabresi and Judge Walker didn't respond directly to the dissent. They did not, in other words, argue that, yes, this is an important case, or that it presented important undecided legal principles of first impression. They never address related questions like: Why was this case on the oral argument calendar? Why was this opinion designated for publication? Or most significantly: Why isn't this a case of de minimis non curat lex? And how (except in a scramble for court-awarded attorneys' fees) can it possibly justify the attentions of eight high-powered lawyers on the brief and the admittedly more limited resources of the federal judiciary — specifically, a federal magistrate, a federal district judge, and a panel of three federal circuit judges who, at $175k each/year, are badly underpaid in comparison to the market? Over a one-week delay in a student election that, when re-run, came out the same way? Over $2?

But now I'm basically re-arguing the point of my original post, which means I've run out of ideas to help you decide whether Prof. V on the one hand, or Prof. B and I on the other, have the better of the argument.


UPDATE (Mon Jul 16 @ 3:00pm): For an opposing assessment of the importance of the underlying litigation — including, if I understand it correctly, an argument (in comments) that Husain is really not much different in importance than the Supreme Court's decision in Rumsfeld v. Padilla — see S. COTUS' post at a blog called Appellate Law & Practice.

Posted by Beldar at 07:56 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Beldar's answer to Patterico's question about Husain v. Springer and sent a trackback ping are listed here:


(1) Patterico made the following comment | Jul 15, 2007 8:21:07 PM | Permalink

I just meant that, in deciding whether the majority opinion sets an important precedent, you might want to start the analysis by . . . reading the opinion.

(2) Beldar made the following comment | Jul 15, 2007 9:17:14 PM | Permalink

Chief Judge Jacobs says he didn't. I did. Prof. V did. I assumed you had, but if not, do. You, I, and Prof. V reading the majority opinion doesn't constitute a waste of federal judicial resources of the sort that Chief Judge Jacobs was complaining about. But his complaint really wasn't about what was or wasn't in the majority opinion, nor about the precedents it might (or might not) set.

Am I being a humorless scold?

To decide if this was an appeal that ought to be taking up the time of the federal courts, you don't necessarily need to get your knowledge of the case from the majority opinion. You could instead, for example, read the opinion of the district judge, or read the litigants' appellate briefs, or attend the oral argument, or (if you were on the panel) attend the circuit judge's conference afterwards. (Chief Judge Jacobs did all those things.) You could also probably learn enough about the case just from reading blog posts about it to make that decision.

But if you want to instead evaluate the majority opinion and its likely precedential effect, then we agree that you'd do well to read it. That's a different issue.

(3) Beldar made the following comment | Jul 15, 2007 9:57:02 PM | Permalink

Professors Volokh and Kerr seem to be saying that Chief Judge Jacobs had a duty to evaluate the majority opinion and its likely precedential effect. Their further assumption is that if he had, and if he concluded that it very likely had a large and horrible precedential effect, he had a duty to write a dissent saying so, and saying why.

Such a dissent might serve two purposes. First, it might possibly persuade either Judge Calabresi or Judge Walker to change their votes outright, or at least change some of the language in the majority opinion. Or second, it might leave a record to guide future discussions — perhaps for purposes of a motion for rehearing en banc or a petition for certiorari by the losing side in this case, or for discussion by academics in their law review articles about the First Amendment, or for consideration by a trial judge or appellate panel from another federal circuit in deciding a similar case.

As to the first purpose: It's equally valid to assume that as of the time of the post-argument conference — when, by definition, appellate judges are supposed to be thoroughly enough familiar with the case and with the legal rationales that could go into its decision that they're competent to vote on how the appeal ought turn out — Chief Judge Jacobs knew pretty well what Judge Calabresi intended to say when and if he wrote the majority opinion.

Indeed, as the senior active-status judge on the panel (Judge Walker took senior status in 2006, after his term as chief judge ended), Chief Judge Jacobs would have gotten to assign the drafting of a proposed majority opinion if his own vote put him in the majority.

It's entirely possible, and indeed reasonable to presume, that Chief Judge Jacobs made all, or essentially all, of the points he might have put into a written dissent in oral form during the conference.

It's entirely possible, and not unreasonable to presume, that he'd made those same points before the oral argument, either orally or, perhaps, by sharing a pre-argument bench memo that he or his clerks prepared.

He might already have read a bench memo from Judge Calabresi or his staff before the arguments. After the conference, he might have read an outline or an earlier draft of the majority opinion. He might have had a clerk read and summarize for him the final version of the majority opinion before he wrote his dissent. And he might have read the majority opinion after writing his dissent, and thereby simply have confirmed to himself that, no indeed, there was nothing unexpected there which changed his assessment, and thus no reason to issue an amended dissent.

There is, in short, absolutely know reason to think that Chief Judge Jacobs would be surprised today were he to in fact read Judge Calabresi's majority opinion, carefully and in full. Instead, there are many terrific reasons to think that he wouldn't be at all surprised.

I think the more reasonable assumption is that however much or little Chief Judge Jacobs did know about the majority opinion when he wrote his dissent, he thought — like I do — that it's unlikely to have much precedential effect.

But let's indulge in the opposite speculation. Let's suppose that however much he did know about the majority opinion when he wrote his dissent, Chief Judge Jacobs was indeed concerned that it will be a blockbuster First Amendment precedent of sweeping impact that will affect thousands of future cases within and without the Second Circuit.

How many First Amendment cases come out in the Federal Reporter, Third Series from the thirteen courts of appeals each year, do you think? Certainly at least many dozens. Probably more than a hundred, I'd guess.

This one doesn't claim to be a big deal.

By writing a detailed dissent, fly-specking the majority opinion's various assumptions and descriptions of the record and holdings, Chief Judge Jacobs might have prompted Judge Calabresi to shore up any weak spots in response. He very likely would have prompted Judge Calabresi to improve on the weakest portions of the majority opinion in ways that would make it not only better reasoned and more persuasive, but more sweeping.

If he made Prof. Volokh's point, for example, that no prior federal case has found this remote a claimed "chill" to be sufficient, he very likely would have prompted Judge Calabresi to have bolstered and possibly broadened, or at least made more explicit, that portion of his opinion (which as it stands is a pretty dull, weak single paragraph with one not-very-apt case citation).

If some commentators, or some future litigants and courts, were trying to decide how deliberately Judge Calabresi's opinion had expanded First Amendment law on how much "chilling" is enough, they certainly couldn't conclude that, well, Judge Calabresi really hadn't focused much on that, and didn't intend much by that holding — not if he'd clearly stuck to it, despite focused attacks from Chief Judge Jacobs in dissent.

Arguably, then, if Chief Judge Jacobs had read the entire majority opinion closely, and if he had been concerned that it would have a big precedential effect, his best strategy still would have been not to dissent from it in detail.

However: As Prof. V pointed out, by his provocative admission that he had not read the majority opinion, Chief Judge Jacobs has helped ensure that this appellate decision will not simply slip unnoticed into the vast sea of murky First Amendment precedents.

And that's precisely why I think it's more likely that regardless of the depth (or lack thereof) of his knowledge of what was in the majority opinion at the time he wrote his dissent, Chief Judge Jacobs probably shared (and likely still shares) my view that the majority opinion is not likely to make any big precedential waves in the future. That's part of why he chose this particular case to make his provocative point.

(4) Patterico made the following comment | Jul 15, 2007 11:08:03 PM | Permalink

I see you have a couple of comments since my last one. I have sort of skimmed them, and I'm probably familiar with the general points they likely make. They're wrong.

(5) Patterico made the following comment | Jul 16, 2007 8:33:08 AM | Permalink

OK, I guess that joke is getting old.

(6) gary made the following comment | Jul 16, 2007 10:00:26 AM | Permalink

Just so you guys don't think you're the only two talking - Judge Jacobs is in the running for Folk Hero of the Year. Just because a crappy case is filed in Federal Court doesn't change the fact that the case is, at heart, crap. God bless him!

The comments to this entry are closed.