Professor Bainbridge...on law, politics, religion, culture & food

Criticizing Judges

Dan Slater of the WSJ reports:

On Friday, the Law Blog will moderate a panel at the annual ABA program entitled, “Judicial Criticism: Judges Under Fire.”

We were looking for current case studies to discuss on the panel, when the following news of fall-out from the Viacom-Google battle came across our desk. The Judicial Reports blog reports that SDNY Judge Louis Stanton, who last month issued an order forcing Google to turn over to Viacom its records of which users watched which videos on YouTube, has come under some serious fire from YouTube users who have decided to broadcast their grievances on the video-sharing site.

In his order, Judge Stanton (Yale, UVA law) wrote that privacy concerns were “speculative” and argued that the YouTube database was needed for Viacom’s case because it is the only existing record of “how often each video has been viewed during various time periods.”

Some avid YouTube users are, to say the least, pretty teed off over that, reports Judicial Reports, which says that, almost immediately after the order was issued, “angry YouTube patrons began directing a stream of furious videos at Viacom and Judge Stanton for his perceived attack on privacy rights. . . .And they continued even after lawyers for the two corporations had negotiated a way to access the records without revealing the personal information of YouTube users.”

In all, at least 34 unique videos have addressed Judge Stanton and his decision. A YouTube regular who goes by the nickname “Cap’n Awesome” delivered an expletive-laden rant calling on people to expose the Judge’s personal information. “This guy has it … coming to him,” he said. Another YouTube user, “InsaneClownPerv,” posted a scary rant that includes a bitter message scrolled across the screen in red letters while hip-hop music played in the background.

It is clear that public criticism gets under the skin of many judges. As Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit has argued, however, these concerns are often overstated:

Criticism, although sometimes hard to swallow, is essential for progress and improvement. Often, the harshest critics of the judiciary are the justices themselves, Pryor argued. “I doubt any contemporary politician in America has been more flamboyant in criticizing than the federal judiciary.” In their dissenting opinions, for example, justices criticize decisions regularly. “Americans are more, not less, likely to respect judicial independence when they know that the law can be criticized and changed by ordinary political processes,” he said. “I am reminded of the adage our mothers taught us, ‘sticks and stones may break my bones but words will never hurt me,’” he joked.

Claims that current criticisms of the judiciary are unprecedented “diminish the sacrifices that earlier giants of the federal judiciary endured,” Pryor asserted. Federal judges in the civil rights era suffered severe ostracism and abuse, more so than contemporary judges. The mother’s home of one judge was the target of a bomb, and the grave site of the son of another justice was vandalized. Violent attacks are rare today and it’s typically not the harsh critics who are performing these acts; it’s the disgruntled litigants or violent criminals who target judges. In response to judges’ recent safety concerns, Congress has provided federal judges with home security systems. “That appropriation suggests that the politicians and the public they serve still appreciate the need for an independent judiciary.”

Public criticism of judges, moreover, is one of the limited avenues available to hold unelected judges accountable. Criticism of judges invokes the social sanction known as shaming. Society long has made use of shame as a sanction. The Pilgrim’s stocks find a modern counterpart in the perp walk beloved of white collar prosecutors. The core idea is that reputationally sensitive individuals can be influenced by having their conduct held up to public obloquy.

Insulated by life tenure and various other protections, federal judges—especially those who intrude themselves into controverted social issues—ought to expect to be held up to scathing criticism when they render decisions that affect the lives of millions.

Judge Stanton’s incredibly arrogant dismissal of legitimate privacy concerns deserved precisely the ridicule to which the Youtubers have subjected him.