Romero v. Fox News (CA1 8/4/15)

This case involves a police chase and a dramatic killing and Fox News and the First Amendment. So our real interest, of course, is the standard-of-review paragraph. But we’ll save that for the end.

A carjacker fled police for  80 miles; then he stopped, got out of the car, and, after a bit of aimless wandering in the desert, abruptly shot himself in the head. Fox News broadcast the whole thing – including the suicide,  since it wasn’t using a delay on the feed from the helicopter camera. Two boys in the community heard about it at school; after school they rushed home to watch the video on YouTube, discovering thereby that the carjacker they watched kill himself was their father.

An appropriate response to this tragedy, someone eventually decided, was a lawsuit against Fox News for negligent and intentional infliction of emotional distress. Fox News moved to dismiss on First Amendment grounds; the trial court granted dismissal; the Court of Appeals affirms.

The court first tells us, citing various U. S. Supreme Court cases, that “speech on matters of public concern” merits “special protection” whereas speech on “purely private matters” gets “less . . . protection.” The court thus frames the issue here as whether this speech was public or private. It does not explain why “less protection” would for purposes of this case mean “no protection” nor where along the presumed continuum between “public” and “purely private” one passes the boundary of tort law. However, the simple public v. private distinction was probably how Fox presented the issue.

Matters of public concern include matters of legitimate news interest. The court spends a page explaining why the chase was such a matter. Then it turns out that the plaintiff agreed; her argument was merely that the few seconds of suicide were private. But public v. private is determined by the speech’s “overall thrust and dominant theme,” not by individual snippets here or there.

Plaintiff apparently also argued that Fox News shouldn’t have a First Amendment defense since it didn’t in this broadcast – although it normally did – use a tape delay. The court says basically that this didn’t make public speech private, that public speech is protected, and that having to use a tape delay to protect against liability would have a chilling effect.

So by now you’re anxious to hear about that standard-of-review stuff:

We’ve stopped pointing out that boilerplate standard-of-review paragraphs are silly. They’re now a standard module in CA1’s Lego-like process of building opinions. Removing them would require a depth of stylistic analysis that it is the purpose of that process to avoid, rather like lawyers who are happy to practice law by filling out legal forms without worrying about why the forms are worded as they are.

But the standard-of-review section here is actually two paragraphs. The first is boilerplate. The second, though, tells us that dismissals on First Amendment grounds are examined “with a more rigorous eye” (opinions are prone to such careless — and in this case slightly painful – analogies). The court cites for the proposition an opinion written by a U. of A. law professor sitting as a pro tem on CA2 in 1988. (The wording of the opinion suggests that an opinion by Judge Fidel also said it; the suggestion is no doubt inadvertent since it is wrong.)

What (we hope you ask, though apparently no one ever has) does that mean? Our guess is that because the Constitution was involved someone had vaguely in mind the rational basis-intermediate scrutiny-strict scrutiny idea. But those terms  describe distinct (at least in theory) methods of analysis. The analysis of a 12(b)(6) dismissal doesn’t vary by defense – which is why the court could have and use that first, boilerplate, paragraph. So the quotation means that when the First Amendment is the defense the court must do the same thing it always does – but more rigorously. In other words, some cases and some parties are important and for them courts need to work hard; for the rest of us the rest of the time they can throttle back and churn out the usual slop.

Of course this court didn’t mean that. But that’s what it said, and that courts are capable of saying such things does nothing to allay the suspicion of cynics that that’s the way they tend to think.

(link to opinion)