US civil law: Beyond Law & Order

[Edit: This post has been edited from its original publication. See here for details.]

I've noticed that a lot of hits on my blog in re: the recent internet gossip scandal are coming from outside the US. While I am deeply puzzled as to why people in Lithuania seem to be passing my posts around, and not interested in debating the identity of the author involved (at least not until things have settled down some -- try me next year), it occurs to me that a lot of people not from the US or Canada have probably learned most of their American law from the television we export. Don't feel too bad about this -- frankly, a lot of people in America have learned most of their American law from television, which the police here find alternately funny and annoying.

BIG DISCLAIMER: None of this is to be construed as legal advice. I am not a lawyer. I am not in law school. I have never even been inside a law school, although I walk past the Harvard Law COOP on a pretty regular basis if that helps. I took a couple of communications law classes in college, and am vaguely acquainted with a couple of law students. I work with the only lawyer I personally know who casts a reflection and does not burst into flames upon exposure to sunlight. I just read a lot of very random books when I'm bored, which is usually.

Some of the stuff you see on Law & Order is broadly accurate. The police here are required to issue what's called a "Miranda warning" to anyone they arrest, and it does go roughly the way they rattle it off on TV. (Most states hand out wallet cards with the official wording on them to law-enforcement officers, although the courts have held that the exact words don't matter as long as the defendant understands those rights adequately.) It is a federally-imposed requirement, pursuant to a 1966 case called Miranda v Arizona, in which the Supreme Court held that the confession signed by the defendant, Ernesto Miranda, could not be used as evidence at his trial, because Miranda had not been explicitly informed/reminded of his right to competent legal representation prior to or during questioning, or his right to refuse to answer questions if his answers were self-incriminating. Both of these things are guaranteed by the US Constitution, and are considered to be in effect for anyone the police question, whether they are an American citizen or not. You've probably heard of the latter right before on the same TV shows -- if anyone is questioned by a lawyer or a detective, you may hear them say, "I plead the Fifth," i.e., the Fifth Amendment to the Constitution, which states that a suspect may not be forced to incriminate themselves. 

Note that police do not have to issue this warning to anyone who has not been officially detained for questioning; that people who have not been officially detained for questioning can end the interrogation at any time and the police cannot force them to continue or come back later; and that if the answer to the question does not implicate you in any crime, a refusal to answer can actually get you charged and prosecuted for "obstruction of justice". It's fairly rare for people to get slapped with that, mostly because there's no way to prove they're lying if they say "I don't recall", but it does happen from time to time, especially in murder cases or things like financial fraud, where the charge also covers actions like conspiring to conceal or destroy evidence in a criminal investigation.

It is also true that police cannot search you or your property without either permission or a warrant. The exceptions to this are that the police can search without stopping to ask if they have good reason to suspect a crime is in progress (e.g., they can barge into your apartment even if you say no if they hear a gunshot or someone screaming in another room, or search your pockets for suspicious baggies if you have bloodshot eyes and positively reek of weed), and they can search your person and your immediate environment at the moment they arrest you. This also extends to intercepting your communications; they cannot tap your phones without official say-so, although depending on what state you're in the person on the other end of the phone line may or may not be legally allowed to record your conversation without telling you what they're doing.

Furthermore, the concept of "double jeopardy" does exist and is generally accurately portrayed. In the American justice system, you cannot be tried twice for the same event in a criminal courtroom. If the state prosecutes and you're acquitted, that's the end of it. This only applies if the initial trial progresses to a verdict, however; if somebody violates process or comes up with really wacky new evidence in the middle of the proceedings, the court can declare a mistrial, which halts things before a verdict and basically declares a do-over where the entire thing must start back at square one. It's also possible for the state to file charges and later drop them -- charges dismissed "without prejudice" means the court gives the state permission to re-file the charges later if new evidence arises, and charges dismissed "with prejudice" means the court thinks your case blows and does not want to hear about this ever again.

None of this applies to things like cease and desist letters. The cases you see on TV are almost always criminal cases. In these, the state is the entity accusing someone of a crime against a person or property -- even in personal crimes like assault where the victim is given the option of "pressing charges" or letting it go, what actually happens is that the victim gets to say yea or nay to whether the state bothers to drag the offender into court over it. C&D letters, copyright infringement complaints, libel and slander complaints, breach of contract, and other stuff, typically involving money or reputation, are covered by civil courts instead. Civil courts do not handle accusations of crime from the state; civil courts handle accusations of wrongdoing from a plaintiff, i.e., a person who is complaining. Civil cases are what you see on TV shows like Judge Judy, if God forbid that thing is exported elsewhere in the world, and don't generally involve jail time if the defendant loses. (The defendant might ultimately wind up in the clink if the court orders them to stop a certain behavior or pay a fine, and the defendant refuses to obey the ruling -- that's considered 'contempt of court' and is a criminal charge due to you disrespectin' a lawful order from the proper government authorities.) 

Criminal cases in US courts are decided on the principle of "reasonable doubt". If the prosecutor argues to the jury that the defendant did it, and the jury agrees that the evidence given would convince any reasonable person of that, then they come back with a guilty verdict. Civil cases in US courts are decided "on the preponderance of the evidence", which is to say that the plaintiff and defendant both present their cases and the verdict is decided on the basis of who the jury thinks is most right. The standards of evidence in civil courts are much lower, precisely because they do not involve depriving the loser of his or her freedom and other assorted rights. (Enron et al notwithstanding, the right to gobs and gobs of money is not in the US Constitution.) This is why O J Simpson could be found not guilty of the murders of Nicole Simpson and Ronald Goldman in criminal court, and then promptly be sued for "wrongful death" in a civil court. The wrongful death charge was not a criminal one, double jeopardy therefore does not attach, and all the attorneys only had to convince the jury that he probably, rather than almost certainly, killed the two of them to win the civil case. 

I can't find the C&D letter myself -- not that I'm trying all that hard -- but "cease and desist posting mean and untrue things about me" sounds like it may be a libel complaint. Libel (or the spoken equivalent, slander) is basically a fancy way of complaining that someone is saying stuff that's wrecking your reputation. First off, in order to get the courts to listen to your libel complaint, you need to assert that whatever's being said is either costing you money or causing you serious psychological harm. You can't file a libel complaint against something that's wrong but harmless; the courts would throw it out, even if you found a lawyer fool enough to write it up. If the court hears your complaints but you present insufficient evidence that the gossip has caused you actual damage somehow, you lose the case. What sort of thing causes damages changes with who you are, and the time and place in which you live. Decades ago, an accusation of homosexuality could destroy an actor's career, and tabloids could be and were dragged into court for calling someone out as gay. Today, most of those suits would be laughed out of court, on the basis that nobody much cares.

Secondly, there are a number of ways to defend yourself even if you are saying something mean in public. The most rock-solid one is truth. If someone prints an article saying I'm a puppy kicking meanie and I sue over it, then all they have to do is turn up reasonable evidence that what they're saying is correct -- CCTV camera footage of me kicking a puppy, for instance -- and they win. Note that this does actually require some amount of concrete fact to work; Liberace once sued a gossip column for printing that he was gay, and despite the fact that he was widely known to be queerer than a football puck, he won the case because nobody would cough up any tangible proof. A related defense is that what you said was true to the best of your knowledge and there was no reasonable way you could have found out otherwise; this shifts the burden of proof to whoever gave you the bogus "evidence", and the plaintiff is subsequently free to sue the original source, should they so desire.

Another popular way to defend against libel suits is to print only opinions. I am completely within my legal rights to say that Red Bull is vile swill that tastes like SweeTarts in cough syrup, because that is a matter of personal opinion -- I had a roommate once who loved the stuff. Stage magicians and professional debunkers Penn & Teller have a witty, if profane, explanation of this in the intro to their show Penn & Teller's Bullshit!, where they point out that if they call some guy a fraud, and they can't either show he's been convicted of fraud already or prove their case to criminal standards, he can sue the pants off them, whereas if they simply declare that he's an asshole he hasn't got a legal leg to stand on.

The C&D letter in question was evidently CC'd to a number of law firms. I don't know why it was taken down, but one possible explanation may be that one of the law firms CC'd the putative author back, and either found out that he didn't actually write it, or found out that he did and advised him he really didn't have a case. Impossible to know unless someone comes forward to say, which I think is rather unlikely.