The amici curiae in this case argue that standing can be established on the ground that the alleged government surveillance chills speech protected by the First Amendment. See Br. of Amici Curiae American Booksellers Association, et al., at 12-17; Br. of Amici Curiae First Amendment Scholars, at 9-19. As with plaintiffs’ argument, the amici curiae’s argument fails for the reasons articulated in Clapper. 133 S. Ct. at 1150-52. Both amicus briefs, which focus chiefly on the chilling argument, have been carefully reviewed and found unpersuasive.
It is also worth noting that the only other nine individuals who cite their own works as frequently as do the nine authors of the First Amendment Scholars amicus brief are members of the Supreme Court, who, unlike the amici, do so out of sheer necessity.
Ouch. That had to hurt. And from this, Eugene draws a lesson that he shares with other academics:
Ow! Can’t say whether the judge is right or wrong, or whether this sentiment is shared by many other judges. But in any event, apparently at least one judge gets annoyed by this, and what one judge feels (and feels strongly enough to merit mentioning in an opinion), other judges might well feel, too. Might be good for us academic amicus brief writers to keep in mind.
This phenomenon of academics citing to themselves, or in a minor variation, citing to their cohorts in a tight circle of outliers who assert an outlier position, each of whom cites to the other, presents a problem. But the question is why they do so and what they’re trying to accomplish.
Clearly, there is no authority to be had from pointing back to one’s own opinion to bolster the same opinion repeated elsewhere. Then again, law reviews aren’t authority to begin with, no matter how brilliant they are or their author thinks they are. It’s mostly a vanity citation; ten articles taking the same unsupported position are no better than one, and none overcome precedent, no matter how theoretically persuasive.
But there are reasons why this might be done that are legitimate and intellectually honest. If the purpose is to show consistency of position, then citing to older articles makes sense. If the purpose is to refer to a particular aspect of an argument, where one article goes into greater depth, then citing to it saves having to rewrite (and thus make a tedious article even more painful to read) what already exists.
A body of work, put together, may well present a far more in-depth, persuasive, assertion of a point than any one article alone. It’s perfectly fair to not reinvent the wheel when presenting an argument. Indeed, one would hope that judges prefer the avoidance of repetition, and appreciate that the whole of a body of work might achieve a fully developed position.
So it’s not authority? Yeah, well, that’s the nature of academic writing. Long on theory, short on precedent, designed to overcome the existing doctrine because that’s the scholar’s dream, to have the courts embrace his theoretical doctrine in place of their own. Can’t blame a guy for trying.
But the evil addressed in Judge Ellis’ decision is one of self-aggrandizement, which is demonstrated (in spades) in a comment to Eugene’s post:
This is where it smells like a scam, a guy (who just happens, in this instance, to be Kent Scheidegger of the notorious Crime & Consequences blog, where no jay-walking defendant deserves less than death). He could have simply said whatever it is he had to say (it is, after all, a blog comment), but instead cited to himself. It’s tantamount to Scheidegger shouting at the grown-ups, “hey everybody, look at me, look at me.” Because everybody is dying to go read his law rev article, because it’s so much fun and so worthy of our time.
Manufacturing self-expertise out of repetitive writing is no more worthy of a judge’s time and attention than stomping your feet. If a position is wrong once, it becomes no more right by publishing it over and over. Nor does the fact of publishing it over and over create greater substantive gravitas, thus taking an unpersuasive position and, by repeating the “lie,” bootstrapping it into truth.
There is a lot of this happening lately, and it reflects the growing academic desire to have their influence felt in more meaningful ways than writing another law review article that no one reads. They want to start molding judges’ views, influencing decisions that have actual impact rather than the warm comfort of knowing that your article was published by Skippy, the Editor-in-Chief of the Bumfuck Law School Journal of Defenestration, impressive as that may be.
So Judge Ellis was sufficiently annoyed at having to read a couple of law review articles expressing their author’s personal opinions at great length. What lawyer doesn’t know that feeling?
Surveillance can give rise to First Amendment injuries that confer standing on plaintiffs. See generally Neil M. Richards, Intellectual Privacy, 87 Tex. L. Rev. 387 (2008); Neil M. Richards, Intellectual Privacy: Rethinking Civil Liberties in the Digital Age (2015). There are two categories of First Amendment injuries caused by privacy violations: (1) violations of recognized First Amendment rights, such as the right to anonymous speech, the right to associational privacy, and the right to receive information; and (2) responsive speech suppression by the plaintiff, also known as the “chilling effect.” Commenters have noted of First Amendment privacy harms: “[s]urveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine.” Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1936 (2013).
So Neil Richards thinks surveillance has an inherent chilling effect. Got it. Three law review articles by Richards doesn’t make it any more than Richards’ opinion. He may be a well-regarded First Amendment in Cyberspace scholar in the Academy, but nobody gave him a robe yet. Rather than argue the merit of his analysis, the brief made a blanket assertion of how this is a “recognized First Amendment right” supported by multiple citations to Richards. So what? So Richards “recognizes” his own opinions and finds himself authoritative?
On the other hand, as annoying as it may be for Judge Ellis to feel compelled to read Richards’ law review articles, as much of a waste of time as it may have been, it’s an amicus brief by First Amendment academics. What did the judge expect? Of course they’re taken with their own opinions, as if they matter to anyone else, but then, if you don’t want to read law review articles manifesting an academic circle jerk, then reject their standing as amicus and trash the brief.
But if a court allows a gaggle of lawprofs to submit an amicus brief, don’t rip them for doing what academics do. You knew they were “scholars” going in, so what did you expect? Nobody likes self-aggrandizement (or reading law review articles), but it’s the currency of academia. Smack them for what they say if you find it unpersuasive, but not for being true to their nature.