The Volokh Conspiracy
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Judge's Decision Finding Criticisms of Police "Obscene" Was Mostly Copied from City's Briefs
I blogged Tuesday about Sgaggio v. De Young (D. Colo.), which wrongly concluded that various online criticisms of police (calling them "pig," "terrorist," "bitch," "punk ass," and "dirty ass") was legally "obscene" and thus unprotected by the First Amendment; for more details on the substance, see here.
But reader Michael Kaufmann adds a procedural detail: It turns out that the Magistrate Judge's First Amendment analysis was copied, entirely and nearly verbatim, from the defendants' motion for summary judgment and the city's reply to plaintiff's response. The motion had been pending for seven months, and the report and recommendation on the motion was released the day the Magistrate Judge retired.
To give just one example of the many similarities, here's a passage from the Magistrate Judge's report and recommendations:
The narrowly tailored nature of the restrictions can be seen in their enforcement. Plaintiff's posts containing obscene and indecent language were restricted. Other posts expressing the same viewpoint of Plaintiff that did not contain offensive and indecent language were not restricted. Thus, the restrictions did not target viewpoints with which the government may disagree and were narrowly tailored to ferret out only obscene and indecent language. Finally, these restrictions left open a myriad of other communication channels in which Plaintiff could express his criticism of the police. Not only could he have posted on his own Facebook page and other nonCity/Department operated Facebook page, he could have communicated on any number of ever expanding social media platforms. Plaintiff testified that he has social media accounts on Youtube, Instagram, and Parler, but failed to use them. Further, Plaintiff could have voiced his criticism via traditional media or pamphleting.
And here's the corresponding passage from the defendants' motion for summary judgment (with a paragraph break removed):
The narrowly tailored nature of the restrictions can be seen in their enforcement. Plaintiff's posts containing obscene and indecent language were restricted. Other posts expressing the same viewpoint of Plaintiff that did not contain offensive and indecent language were not restricted. Thus, the restrictions did not target viewpoints with which the government may disagree and were narrowly tailored to ferret out only obscene and indecent language. Finally, these restrictions left open a myriad of other communication channels in which Plaintiff could express his criticism of the police. Not only could he have posted on his own Facebook page and other nonCity/Department operated Facebook page, he could have communicated on any number of ever expanding social media platforms. Plaintiff himself testified that he has social media accounts on Youtube, Instagram, and Parler, but failed to use them. Further, Plaintiff could have voiced his criticism via traditional media or pamphleting.
Now such extensive copying from parties' is not categorically forbidden, and indeed I believe it's common in some state court systems; but some federal court decisions have expressed concern about it. To quote Flying J Inc. v. Comdata Network, Inc. (10th Cir. 2005) (the Tenth Circuit is the one in which this decision was rendered),
As a preliminary matter, Comdata complains that the district court adopted Flying J's proposed findings of fact and conclusions of law almost verbatim. Regrettably, this appears to be the case…. The court's wholesale adoption of one party's proposed findings of fact and conclusions of law provides little aid on appellate review, particularly in the likely event that the adopted submission takes an adversarial stance.
"[V]erbatim adoption of proposed findings of fact and rulings of law ought ordinarily to be avoided, as such a practice can obfuscate the extent to which the order was the 'product of personal analysis and interpretation by the trial judge …." Petrovic v. AMOCO Oil Co. (8th Cir. 1999). "[Judicial opinions] are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions." Bright v. Westmoreland County (3d Cir. 2004).
And this critique has been applied to copying from briefs as well as from proposed conclusions of law: "A district judge could not photocopy a lawyer's brief and issue it as an opinion. Briefs are argumentative, partisan submissions. Judges should evaluate briefs and produce a neutral conclusion …." DiLeo v. Ernst & Young (7th Cir. 1990). Indeed, even when the Supreme Court held that decisions that adopt a party's proposed findings of fact should still be reviewed deferentially, it noted that it had "criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties." Anderson v. Bessemer City (1985).
In any event, though, whether or not such literal copying is sometimes acceptable, here it seems to have led the Magistrate Judge astray, because the arguments that were copied are not actually sound.
