John Ettorre / Legal Issue 2017

When historians cast their gaze back at the United States in 2016, they’ll no doubt focus considerable attention on the unusually contentious presidential contest. It was memorable for a host of reasons, not least how easily a nation's traditional legal norms seemed to be casually tossed aside in some of the campaign rhetoric. That included threats by one candidate to soften American libel law protections so as to punish critics and suggestions that the terms of longstanding international treaties might blithely be ignored.

Indeed, the law and legal developments occupied a central narrative in the public sphere all year, intertwined as they were with the election, but also with so much more.

Supreme Court Vacancy

It began in February with the death of Justice Antonin Scalia, one of the longestserving high court justices. Elevated to the court by President Ronald Reagan in 1986 and confirmed by the Senate in a 98–0 vote—a level of acclamation that could scarcely be achieved today—he went on to become a lightning rod for conservative causes, helping push the court to the right for a generation and becoming a celebrity in a way the court had perhaps never seen before.

Almost immediately, the White House nominated a replacement. Hoping for swift Senate approval, President Barack Obama named widely admired federal appeals court judge Merrick Garland, a political moderate.

But the Republican-led Senate refused to move on the nomination, failing to even schedule committee hearings, let alone approve a vote by the full chamber. Instead, the nominee went on dozens of traditional courtesy visits to various senators, a majority of whom refused to do anything more to act on his nomination, arguing that the next president should be given the right to choose their own nominee to the court.

The White House called this an “unprecedented level of obstruction,” citing the Senate’s solemn responsibility to do its duty embedded in the Constitution: to provide advice and consent on court nominees. It also pointed to six Supreme Court justices that have been confirmed in presidential election years since 1900. Democrats and other supporters and surrogates even launched an aggressive months-long social media campaign, imploring Senators to “do your job,” all to no avail thus far.

Immigration Policy

The continuing vacancy on the high court in turn drove an important development in federal immigration policy—or perhaps, more accurately, a crucial non-development.

In 2014, the Obama administration took executive action to expand the reach of two immigration programs: the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Child Arrivals (DACA). Together, these moves would have shielded as many as five million undocumented immigrants to the U.S. from forced deportation, or nearly half of the estimated 11 million now living in the country.

Those presidential actions were later challenged in court. When the Fifth Circuit federal appeals court in New Orleans refused to uphold their legality, the administration appealed to the Supreme Court. But without a ninth justice to break a tie, in June the court issued a split 4–4 decision in U.S. v. Texas, thereby effectively affirming the lower court’s decision, rendering the White House unable to shield these immigrants from being deported and allowing them to work in this country.

The court provided no explanation for its ruling, issuing only a curt statement with its decision: “The judgment is affirmed by an equally divided court.” It prompted a former U.S. solicitor general, Walter Dellinger, to observe that “seldom have the hopes of so many been crushed by so few words.”

Libel Law

For half a century,  American libel and defamation law has been largely a settled matter, dominated as it is by the landmark 1964 Supreme Court ruling in Sullivan v. New York Times, which considerably raised the bar for aggrieved parties to prove harm in such cases. Under the rubric established in that case, public figures must prove a defendant acted with reckless disregard for the truth in publishing or broadcasting allegedly libelous or defamatory material. In the decades since, it has proved to be a notoriously difficult legal threshold to achieve.

There have been occasional setbacks along the way, including a 1990 Supreme Court ruling in the Milkovich v. Lorain Journal Co. ase that gave hope to claimants suing over published opinions that seemed more like factual assertions than mere hyperbole. But in general, the U.S. legal system has become a bulwark in this area, sometimes causing aggrieved parties to go venue shopping, suing in Great Britain, where weaker legal protections are in place for speech.

But 2016 was a bad year for libel law in the U.S. Donald Trump’s oft-stated threats to reopen libel laws so as to weaken media protections didn’t help matters, setting a generally hostile tone for media liberties in certain parts of the culture. But a trio of high- profile court cases lost by prominent media institutions had an even more deleterious effect, suggesting that the media’s oft-noted unpopularity with the public is beginning to seep into the courtroom.

Perhaps the biggest case involved Gawker, a collection of provocative online-only news and gossip websites. In 2012, it posted a sex video involving wrestler Hulk Hogan that was viewed by an estimated seven million people. He sued, claiming violation of his privacy, and a Florida jury awarded him $140 million. The case took an unexpected turn when it was revealed that the lawsuit had been financed by Silicon Valley billionaire Peter Theil, who had himself been the subject of an earlier unwanted Gawker article about his sexual orientation.

In October, a jury awarded a total of $9 million to an agent of the State Bureau of Investigation that had been the subject of an investigation by the Raleigh News & Observer. Because of state caps on maximum court awards, the payout would be limited to $6 million if the case survives appeal. But it has nonetheless raised alarms among First Amendment advocates for the way plaintiffs’ attorneys used the paper’s own internal communications against it.

A federal jury in Virginia also awarded $3 million to an administrator at the University of Virginia who sued for defamation over an article in Rolling Stone magazine about an alleged gang rape at the university.

Sexual Harassment

Perhaps not since the milestone Anita Hill-Clarence Thomas Senate hearings in 1991 has sexual harassment figured so prominently in the news as it did this year. Two particularly high-profile cases helped focus renewed public attention on the issue.

Bill Cosby and Roger Ailes have been two of the more durable public figures in American life over the last half century. Cosby has been a leading comedian and comic actor since the 1960s, and his eight-year stint as a TV dad on “The Cosby Show,” which ran from 1984 to 1992, has even been credited with making white America comfortable enough with black families to elect a black president. For his part, Ailes famously served as a media adviser to Richard Nixon before becoming the chief architect of a network that has forever changed politics: Fox News.

More recently, they shared a less lofty distinction, as both were on the receiving end of an avalanche of accusations of sexual misconduct.

More than 50 women have publicly accused Cosby of sexual misconduct, including allegations of drugging them before initiating sex. But he has been criminally charged in only one case, involving a Temple University employee who alleges he drugged her in his home before sexually assaulting her. A number of other women have filed civil lawsuits against him, and Cosby has lodged more than a half dozen countersuits, alleging defamation.

Fox News’ Roger Ailes was accused of sexual misconduct by more than two dozen women. But the case that probably brought him down in the end was filed by Gretchen Carlson, a 50-year-old former Miss America who had served as an anchor for the program “Fox & Friends” before being demoted. For more than a year, Carlson taped Ailes’ private comments to her, including a pointed suggestion that they should have a sexual relationship.

Meanwhile, campus activists and others concerned about the issue of sexual consent continued to push what they considered an important tweak in California’s “No Means No” law, first enacted in 2014. The law shifted the burden of proof in campus sexual assault cases from accusers to the accused. Recently, however, supporters have pushed for a change to a more positive slogan than he one long used by sexual assault prevention activists. “Yes Means Yes” is now the preferred phrase among many.

Information Security

If information security was once the exclusive province of techies and of limited concern to the wider public, that’s certainly no longer the case. Edward Snowden, WikiLeaks, and massive data breaches of corporate, academic, and government IT systems have seen to that.

The multilayered fallout from revelations of massive government intrusions of privacy, first revealed by government contractor Edward Snowden—which some call the Snowden effect—continued in 2016. More WikiLeaks data dumps have similarly helped focus the public’s attention on the larger problems of data privacy and information security. But so too has the fact that giant data breaches that compromise tens of millions of people’s private information have become routine.

Among the more high-profile data breach targets this year were the payroll company ADP, from which hackers stole payroll tax and benefit information on 640,000 clients, and the IRS, where hackers compromised the personal information for 700,000 taxpayers.

But a whole new level of alarm was touched off by a breach of the Office of Personnel Management, the federal government’s HR department, which was the subject of an apparent state-sponsored attack by hackers from China. Among the information acquired in the breach is confidential personal information on 22 million people, including the highly sensitive information contained on applications for security clearance. That raises massive new possibilities for potential espionage.

Meanwhile, theEuropean Union’s new data  privacy rules, passed this year and set to take effect in 2018, will affect any large organization in this country doing business with any European entity or individual.

Race

A string of deadly police shootings, many captured on amateur cell phone video, retaliatory shootings of police, and an especially bruising presidential campaign left racial tensions in America perhaps higher this year than at any time since the late 1960s.

It didn’t help matters any that law enforcement officers generally avoided legal penalties for their decisions to use deadly force, even when seemingly persuasive video evidence of questionable actions existed. Police officers in Baltimore, Cleveland, and Ferguson, Missouri were eventually exonerated for racially charged shootings.

But the federal government, through the Department of Justice, intervened in several places. The department found unlawful patterns and practices of policing in Ferguson and Cleveland violated citizens’ constitutional rights and ordered appropriate remedies.

And in a sweeping report issued in August, the department found that Baltimore police routinely used excessive force and conducted unlawful stops of citizens. Issued in response to the 2015 death of Freddie Gray while in police custody, which touched off severe riots in the city, the report noted that the city’s police practices “perpetuate and fuel a multitude of issues rooted in poverty and race” and encourage police to engage in “unnecessary, adversarial interactions with community members.”

The report renewed attention on so-called stop-and-frisk procedures. Civil libertarians had already sued New York City over the use of those police tactics, which they maintain amount to unlawful racial profiling. Police unions appealed, to no avail, and these procedures are now being revised under remedial court supervision in America’s largest city.