- Online Edition
- Print Edition
- Donahue Lecture Series
- Archived Mastheads
Defamation suits involving anonymous online speech swing between extremes: Some cases involve vulgar postings meant to harass and ridicule, while others take on a whistleblower-like significance in exposing possible political or corporate malfeasance. Despite the prevalence of such cases, there are no national standards guiding a judge’s determination of when to reveal the identities of anonymous posters. Instead, courts have applied a jumble of tests. Some worried observers see the lack of uniformity and the accompanying uncertainties as threats to speak anonymously—a right the
Supreme Court has jealously guarded.
Complicating the issue is the variety of scenarios present in these defamation cases. These suits can be broadly separated into two factions: legitimate defamation suits sometimes called “cybersmears,” and illegitimate suits aimed merely at intimidating critics that resemble illegal Strategic Lawsuits Against
Public Participation (SLAPPs), which are sometimes called “cyber-SLAPPs.” Cybersmear suits are typical defamation actions brought against an anonymous poster who has sought to sully the reputation of his or her target; such speech is not constitutionally protected. CyberSLAPPs, on the other hand, are baseless
lawsuits that corporations, politicians, or others bring to silence critics engaged in constitutionally protected political speech online. Legitimate cybersmear cases and illegitimate cyberSLAPPs are both filed as defamation claims and can appear indistinguishable at first glance, making it difficult to balance one person’s right to speak anonymously against another person’s right to protect his or her reputation against defamation.
Two separate, but related, stories represent a growing debate permeating throughout the competitive atmosphere of Massachusetts high school athletics. At the 2010 Western Massachusetts Division I girls’ field hockey championship game, the two title contenders were engaged in a highly competitive match with the score tied late in the game. With time running out, a player broke free from the field and scored the championship-winning goal as the player collided into the opposing team’s goaltender. Both the play and ensuing result appear relatively normal until it is revealed that a male student athlete, a standout performer in both ice hockey and lacrosse, scored the game-winning goal, and that the female goaltender suffered a concussion as a result of the collision.
One year later, at the 2011 Massachusetts Women’s South/Central Sectional Swimming and Diving Championships, one of the top female swimmers in the meet, who had trained all year to receive the honors and accolades associated with an individual championship, was forced to settle for second place. Competing in the fifty-yard freestyle, the female swimmer was the fastest female in the field but was out-touched by one of the several male athletes competing in the event. The male athlete, whose time would have failed to qualify for the Massachusetts Boys’ Swimming and Diving State Championship, received all of the individual accolades associated with an individual championship while the fastest female swimmer in the meet had to content herself with second place.
The concept of a legal remedy is an old tenant of both the English and the American legal systems. At one time, based on the very remedies they had jurisdiction to provide litigants, American courts were split in two, with courts of equity and courts of law.
Remedies are omnipresent in civil litigation. The relief sought in civil cases fall into two broad categories: monetary or equitable. The concept of monetary damages, at its most basic level, is that the liable party pays a dollar amount for the harm it caused another. Conversely, equitable relief is sought in situations where money is insufficient to right the wrong suffered by the nonliable party. In many instances, this form of relief can require the liable party to act or forbear from acting.
A preliminary injunction—the focus of this Note—is one equitable remedy granted by the trial court, which typically lasts until a case can be fully adjudicated on the merits. The preliminary injunction is one of the most powerful remedies a court can issue.It is also an important tool for litigators when monetary compensation is insufficient to right the wrong suffered. In modern courts, a preliminary injunction can be the difference between moving forward with the case or dropping it all together because of how long it can take for a contested case to be docketed for trial.
In today’s technologically advanced world, nearly fifty percent of Americans own smartphones, a statistic that increases to sixty-six percent when considering Americans between the ages of twenty-four and thirty-five. This, along with the recording capabilities of smartphones, increases the potential number of police misconduct incidents caught on film. In order to avoid inevitable police misconduct litigation and potential punitive actions by their agencies and departments, police officers discourage citizens from filming them, often implementing creative uses of state and federal laws against civilians who record their activities. Such creative use of these laws raises constitutional concerns regarding civilian recordings of police officers performing their public duties, who for various reasons, do not want their on-duty activity recorded and therefore rarely consent to being recorded—especially when potential police misconduct exists. Fortunately, such police activity has recently received scrutiny from federal and state courts, as well as the United States Department of Justice.
A trustee’s discretion is generally constrained by statute, by the terms of the trust, and by the trustee’s fiduciary duty to act in the beneficiaries’ interests. When a trustee, acting within the scope of that discretion, distributes trust property into a new trust, that distribution is called “decanting.” In Morse v. Kraft, the Massachusetts Supreme Judicial Court (SJC) considered whether the broad discretion afforded to a trustee under the terms of an irrevocable trust included the power to decant. Holding that it did, the SJC nevertheless declined to adopt the Boston Bar Association’s (BBA’s) preferred position that such power is inherent in all trustees of irrevocable trusts
Although the First Amendment generally bars government restrictions on speech based on message or viewpoint, the government may restrict certain categories of speech where the speech’s content imposes harm that “‘overwhelmingly outweigh[s]’ any First Amendment concerns.” A true threat constitutes one such category of unprotected speech. In United States v. Martinez, the Court of Appeals for the Eleventh Circuit considered whether a true threat must be analyzed under an objective or subjective standard. The court held that true threats are analyzed under an objective standard, and following therefrom, the indictment of the defendant was constitutional where she made a threat that “‘an objectively reasonable jury could find beyond a reasonable doubt to be a serious expression of an intent to injure another person.’”
In a criminal trial, Federal Rule of Evidence 404(b) (FRE 404(b)) prohibits the prosecution from using a defendant’s other crimes, wrongs, or bad acts to prove the defendant’s propensity to commit the charged offense. Courts, in their discretion, may admit other bad acts to prove something other than propensity, such as knowledge, intent, or absence of mistake. In United States v. Lee, the United States Court of Appeals for the Seventh Circuit considered whether it was an abuse of discretion and reversible error to admit a prior drug possession conviction against a defendant in a trial for drug distribution. The Seventh Circuit held that the federal district court abused its discretion by admitting a prior possession conviction because it was probative “only in the sense that it established his propensity” to commit a similar crime.
On April 11, 2014, the Massachusetts Supreme Judicial Court (SJC) extended the pure-emergency exception to allow police officers and other public officials to enter a home without first obtaining a warrant “to render emergency assistance to animals.”1 The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights each require a judicial determination of probable cause prior to a government intrusion into an individual’s dwelling.2 Nevertheless, there are a number of exceptions to this requirement. One such exception “permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.”3 The SJC’s holding in Duncan extends that pure emergency exception to the rendering of emergency aid to animals as well.4
II. The Warrantless Entry Of The Defendant’s Home
Police officers arrived at the defendant’s home after receiving a telephone call from a neighbor who reported two dead dogs and one “emaciated” dog on the defendant’s property. Upon arrival, police officers “heard a dog ‘whimpering and very hoarsely and weakly barking’” from behind the defendant’s privacy fence. To get a better view, the officers climbed a nearby snowbank and saw three dogs leashed to a fence; two were “motionless” and “frozen” and one was “emaciated” and “barking.”5 There appeared to be no food or water for the animals. The officer’s attempts to alert any occupants in the defendant’s home—by engaging their police cruiser’s siren, emergency lights, and air horn and utilizing various public records to contact them—were unsuccessful.
The officers, relying on police protocol for handling animal-related emergencies, contacted the fire department to remove the locks on the defendant’s privacy fence. Once inside the defendant’s yard, the officers contacted animal control to remove the dogs. The entire event lasted less than two hours. The Essex County District Attorney’s Office charged the defendant with three counts of animal cruelty, under Chapter 272 of the Massachusetts General Laws.6
The defendant moved to suppress the police officers’ observations and the physical evidence giving rise to the charges, arguing the observations and evidence were unlawfully obtained under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. The District Court judge granted the defendant’s motion to suppress, reasoning that “‘[Massachusetts] courts have not as yet applied the emergency exception to animals.’”7 Nevertheless, the judge reported the question of law to the SJC, under the Massachusetts Rules of Criminal Procedure.8 The question presented to the SJC was “‘Does the ‘pure emergency’ exception to the warrant requirement extend to animals?’”9
III. A brief Summary of The Emergency Exception to the warrant requirement and decisions in other jurisdictions permitting the exception for animals
As noted above, both the United States Constitution and the Massachusetts Declaration of Rights consider a police officer’s entry into a home, a “serious governmental intrusion into one’s privacy,” and these provisions were designed to limit such intrusions.10 Despite this protection, courts have recognized an exception that allows police to enter into a person’s dwelling without a warrant if there is an “objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.”11 The need to protect the life of another person obviates the need for a warrant because of the impracticality of obtaining one during such an emergency.12 The emergency exception, unlike other exigency-based exceptions, is not based on investigating criminal activity and does not require the showing of probable cause.13 In order to ensure constitutional protections, there are two strict requirements for a warrantless entry under the emergency exception: the officer must have an objectively reasonable belief that an emergency exists; and the conduct of the officer, following the entry, must be reasonable under the circumstances.14
In many instances, this emergency exception can discreetly transform into a criminal investigation. There are numerous instances where an officer has responded to a reported emergency that resulted in an arrest.15 Despite the requirement to act reasonably, an officer’s subjective belief does not invalidate the exception.16 Additionally, the exception permits the officer to conduct a “protective sweep” in areas where the emergency may reasonably be found.17 Furthermore, any contraband or evidence of criminal activity observable in “plain view” during the emergency-based entry is subject to seizure.18
Prior to this case, there was a presumption that the emergency aid exception was related and limited to an imminent injury to a human being. In Massachusetts, there was no precedent or statutory provision for the courts to rely upon. Other state courts, for example, had addressed the issue by declaring that a reasonable interpretation of the emergency aid exception would permit the rendering of aid to “vulnerable and helpless animals.”19 Moreover, several states have held that “needless suffering and death” of animals is an exigent circumstance.20 These various state appellate court decisions display a growing consensus among the states that animals fall within the scope of living organisms protected by the emergency exception to the warrant requirement.
IV. The Supreme Judicial Court’s use of Statutory public policy to expand the emergency exception to include Animals
The SJC relied heavily on public policy underlying Massachusetts’s criminal statutes. The Court reasoned that it would be counterintuitive to punish individuals for animal mistreatment and abuse but prohibit officers from entering an alleged abuser’s dwelling without a warrant to render reasonable emergency aid.21 In particular, judges have the authority to make a totality-of-the-circumstances finding of whether there is imminent threat of bodily injury to a pet and judges are required to notify officers of such a finding.22
The SJC relied upon these statutes and noted that courts may consider such policies “when no previous decision or rule of law is applicable.”23 The Court concluded that rejecting the expansion of the emergency aid exception would run contrary to the underlying policy rationales and objectives of the statutes criminalizing animal mistreatment. Additionally, the SJC reasoned that not allowing officers or other public officials to enter a home without a warrant to provide emergency assistance to animals would force untrained persons to intervene, resulting in harm to the animal, layperson, or community at large.24 The SJC did limit the scope of the exception to animals harmed by humans, noting that without human action “the threshold for police entry . . . will be considerably higher.”25 Finally, in dicta, the Court noted a list of potential factors that other courts have considered, such as the species of the animal, the privacy interest at issue, the degree of police effort to obtain consent prior to entry, and the extent of intrusion and damage resulting from the entry.26 The Court remarked that the above list was not exhaustive and emphasized the need for a case-by-case determination upon the totality of the circumstances.
While the SJC’s ruling does appear to comport with the underlying policy objectives behind statutes criminalizing animal mistreatment and cruelty, this expansion of the emergency aid exception could open a defendant’s rights to abuse by officers seeking to use a whimpering dog as pretext for searching a person’s home for other illegal activity without probable cause or even reasonable suspicion. The SJC did go to rather great lengths to emphasize the limitations imposed by the emergency aid doctrine. In fact, the Court’s opinion hinted that it might be very difficult to utilize the animal-emergency exception when the injuries are not a result of a human cruelty, by stating that such an entry would have a “considerably higher” threshold. Additionally, the Court highlighted that the emergency exception requires officers to act reasonably under the circumstances. This should restrict the officer to the removal of the endangered animal; however, if the officer were to observe contraband, or other evidence of a crime, in plain view, such evidence would be admissible.
The factors enumerated above also demonstrate an attempt by the Court to impose limitations and case-by-case scrutiny by examining the totality of the circumstances. The factor derived from Suss, which examines the measures undertaken by officers to obtain consent prior to entry, has the potential to prevent secret entries when the residents of the dwelling are available to provide consent. Nonetheless, the SJC, in the future, will certainly be prompted to address what constitutes the minimum amount of effort to obtain consent. The Court also noted that the species of the animal was relevant, which raises the logical question of what counts as a protected animal. Perhaps there is some solace that officers, in cases reported in other jurisdictions, only seized neglected or abused animals. Nonetheless, as the Court notes, future litigation will have to flesh out the issues that will naturally arise from the Duncan decision.
The courts of the Commonwealth should vigilantly attempt to safeguard against allowing evidence from an otherwise unlawful search and seizure under the guise of rendering aid to tortured helpless animals. The SJC’s opinion makes a valiant effort to prevent abuse of the ruling, but the judges throughout the Commonwealth must strive to keep this ruling narrow and limited to circumstances that require immediate entry to preserve the life of an animal.
James Gardner Long III, Commentary, SJC Expands Pure Emergency Exception to Animals in Duncan, 2 Suffolk U. L. Rev. Online 52 (Sep. 12, 2014), http://suffolklawreview.org/sjc-expands-pure-emergency-exception
Under Article 66(c) of the Uniform Code of Military Justice (UCMJ), the military’s courts of criminal appeals have the unusual appellate power to conduct a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unique fact-finding powers in 1950 because under the original UCMJ, special and general courts-martial were highly unprofessional proceedings and extremely susceptible to command influence, thereby creating the risk of unjustly convicting and harshly sentencing servicemembers. Originally, there were not even military judges presiding at summary courts-martial. Instead, a senior line officer untrained in the law was designated president of the panel and was responsible for deciding questions of law, such as the admissibility of evidence. The panel president also served as a juror, voting with the panel to decide the accused’s guilt or innocence and sentencing. While law officers were present at general courts-martial, they were not the presiding officers of the court and lacked the traditional judicial powers bestowed upon judges to ensure the integrity of trials and other judicial proceedings. Furthermore, both the law officer and panel president were hand-picked and evaluated by the convening authority. Based on this structure and the high potential for both prejudicial command influence and legal error, the appellate courts’ de novo review of a trial court’s findings of fact was an important protection for servicemembers.
Today, these justifications for the plenary fact-finding powers of the courts of criminal appeals no longer exist. Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to. Despite this huge investment of resources in conducting a de novo review of claims of factual sufficiency, the courts of criminal appeals almost never find factual insufficiency. On the rare occasion they do, courts rarely reduce a sentence, and therefore, the high costs of the power’s continued existence cannot be justified. Not only will removing this de novo fact-finding power reduce the military’s appellate backlog, but it will also do so without prejudicing the rights of servicemembers because they already have numerous due process protections that civilians do not.
Cap-and-trade is a failed policy. Under the Kyoto Protocol, global emissions have continued to increase and the European Union Emissions Trading System (EU ETS) price collapsed due to hot air and over allocation of emissions. The time has come to abandon cap-and-trade as a method or means of potentially reducing global greenhouse gas (GHG) emissions. As such, the European Union Twenty-Seven (EU-27) should abandon the EU ETS and adopt a carbon tax with reinvestment (CTR), leading the way for the United Kingdom, United States, and China to also adopt this strategy. Together, the EU-27, United Kingdom, United States, and China account for 57% of total carbon-dioxide emissions, not including land use and deforestation. If these countries, which account for approximately 65% of global gross domestic product (GDP) and over 60% of world trade, adopt this system, it would provide a significant incentive for the remainder of the world to adopt similar legislation.
The tax would apply to all goods and services based on emissions intensity plus shipping emissions, and once collected, countries can retain the revenue for the purposes of rebuilding the power grid and developing alternative energy sources for transportation. This formula will lead to significant reductions in GHG emissions. With a CTR in place, the EU, United States, United Kingdom, and China would reduce their economy-wide emissions by 48%, 49%, 51%, and 13%, respectively, within twenty years. This would amount to a combined 34.2% reduction of current global emissions, which is a significant down payment to avoiding the world warming by more than 2oC. With respect to China, the 13% reduction is contrasted with most current projections that it will double its GHG emissions. This would occur while automatically putting a border-trade adjustment in place. Finally, the EU is heavily dependent on energy imports. The majority of these imports come from Russia, which has flexed its energy muscle multiple times under President Putin. With a CTR structure, the EU would become energy independent in the power and heating sectors, thus providing added political, as well as economic power, for the EU on the world stage.