Small Print and Fine Print

At the Red Tape Chronicles, Bob Sullivan raises a common annoyance in a way that leaves every reader stupider for having been there.

Can the New York Yankees change the First Amendment and make their fans agree to the change? They tried recently.

“Ticket holders acknowledge and agree that the Yankees’ ban on foul/abusive language and obscene/indecent clothing does not violate their right to free speech,” the team wrote recently in a new far-reaching set of fine print published in the October edition of Yankees Magazine.  The phrase appears on tickets, too.

Anyone who’s been to the Bronx recently probably wouldn’t fault an attempt to make it more family friendly, but can a baseball team change the Constitution and force you to accept it?

So the Yankees want to limit bad behavior in their house? Not a terribly controversial  notion. But when Sullivan asks whether a baseball team can “change the Constitution,” brain cells begin to die.

Sullivan relies on a new book called “Boilerplate,” by lawyer Margaret Jane Radin, which raises the usual complaints about the small print that goes along with most purchases of good and services.

Radin’s point is that contracts, by definition, involve two equal parties that negotiate terms, while fine print is issued on a “take-it-or-leave-it” basis. (Just try to negotiate a lower early termination fee or strike out any clause when you sign a cellphone agreement.)  In layman’s terms, fine print is merely a list of bad things that can happen to you, the consumer. You might get hit with a penalty fee; your service might be terminated; your right to join a class-action lawsuit is surrendered.

Well, no. Some contracts are negotiable. Some are take it or leave it. Sometimes the parties are equal. Sometimes not. They are all still contracts.  For the most part, we have a choice. Nobody forces you to sign up for a couple of years for cellphone service, but if you want the free phone, that’s the giveback.

The bigger problem than contracts of adhesion are the click-wrap contracts that no one ever reads. But then, we’re so deluged in contracts and legalese that who has the time or interest? If Justice Scalia can’t be bothered to read the closing documents for a house, why should anyone else?

But Radin, and hence Sullivan, is very wrong when they assert that the small print is the equivalent of some corporate lawmaking. Notably, legislatures can prohibit the waiver of rights in small print. That is lawmaking. No small print can require something unlawful, even if the nice customer service rep thinks otherwise.  No small print trumps the law.  But when the law is silent, the small print takes over.

And why not? Many people have come to feel (note the use of the word “feel” rather than “think”) that they are entitled to enjoy the fruits of someone else’s effort with no strings attached.  By that, I don’t mean a term of years without an early termination fee, but without whatever additional crap someone put into the small print.  Even with the recent Instagram fiasco, where they laid claim to the right to sell people’s pictures, people had a ready choice. Say no. Don’t use the service.

But, you say, I want to use the service. I like the service. No, I love it! And I am entitled to use whatever I love and they shouldn’t be allowed to dictate the terms of service. Radin fuels the sense of entitlement:

“This is creating a mockery of state legislatures. We elect legislators, they decide something is important and debate it, then vote on a law, then it becomes law,” she said. “Then corporations write rules and they effectively become law, contradicting what the legislature did. What we think of as a contract is really important to our conception of social order. Think of how many people are affected by (boilerplate language). If it is thousands or millions of people, that’s letting a firm create a new legal universe.  That undermines our rule of law.”

This is utter nonsense.  Coming from a lawyer, it’s inexcusable, as nonlawyers will read it and believe that if a lawyer said so, there must be some merit to it. There isn’t, and Radin doesn’t merely disserve the ethical consideration of educating the public, but murders it by making people stupider.

Writing a book is a great way for lawyers to try to  establish credibility and distinguish themselves from the pack. Potential clients are very impressed that you’ve written a book, even if no one buys it or reads it.  To maximize the likelihood that someone will read it, authors frequently strive to be controversial and novel, sometimes writing absurd and ridiculous things in the hope that someone will notice they exist. 

When it comes to lawyers, however, the right to opine crazy isn’t unlimited.  Railing against the “tyranny” of small print is fine. We all hate it, and there are certainly substantial arguments to be made against click-wrap terms, which nobody reads, or the terms and conditions set forth inside packaging that no one sees until after a purchase is complete, the product opened and/or unreturnable. 

But we do not have the right to conflate small print with corporations sucking away our constitutional rights or creating a new legal universe.  That feeds the angst, the conspiracy theorists and the disenchanted, but it’s fundamentally wrong from a legal perspective, and there is simply no viable argument to support it.  That’s where the line gets drawn.

Yet Radin wrote a book. Sullivan wrote about the book. And somewhere, sometime, someone may stumble across what they wrote and challenge it from centerfield at a Yankee game.  And they will never make it to the seventh inning stretch.  Small print may suck, but legally, its fine print unless the law otherwise prohibits it.  You are not entitled to feel otherwise.

H/T Ken at Popehat


8 thoughts on “Small Print and Fine Print

  1. John David Galt

    “Clickwrap contracts” have a more serious defect, one that the Ninth Circuit (which first declared them valid) didn’t address. The problem is that they violate the long-standing principle that, when you go to the store and buy a product without a written contract, the contract of sale becomes fixed and unalterable when the money and goods change hands. This ought to (and used to) mean that when I get home with my new copy of Microsoft Office, open the box and start installing it, and am presented with a “clickwrap license agreement” on the screen, I am perfectly entitled to respond, “These terms are BS, because I wasn’t told about them at the time of sale, and now it is too late, period.”

    Interestingly enough, there WAS a proposed law, UCITA, about 15 years ago that would have changed that principle, but it was successfully fought in state legislatures, and only Virginia and Maryland ever ratified it. That ought to have ended the whole idea, but instead, these overentitled merchant princes are managing to use the courts to sneak it in anyway. The judges responsible should be impeached.

  2. SHG

    That has always troubled me as well, as it violates basic contract law.  But then, it would wreak havoc with technology, and we can’t have that when people are hypnotized by the shiny objects.

  3. Canvasback

    Sullivan and Radin may have been able to pull together an argument by staying on the specific case and noting that: “The New York Yankees’ new $1.3 billion stadium—the most expensive ever built in the United States—is being made possible by a generous grant from an increasingly familiar sponsor: the taxpayer.” (Heartlander: Oct. 8, 2008) Then we can show that attendees are encouraged to speak in a partisan manner during the events in this publicly funded venue. Now it’s an easy jump to claim that the gatekeepers can’t limit that speech.

  4. SHG

    It’s an interesting point, but the Yankees were merely one example in Sullivan’s article and Radin’s book rather than the focus of the argument.

  5. RP

    Sullivan/Radin also miss the point that consumer protection laws and court rulings eliminate the worst of the overreaching in the fine print. I recently purchased a car and had to sign multiple documents containing small-print waivers. I could cheerfully sign everything, however (and without reading most of it), knowing that I was in New Jersey and there are assorted lemon laws, consumer protection laws, etc. that would assuredly protect me if, for example, there was something wrong with the car. Same thing with buying a house — the wording of the documents is heavily regulated. Such contractual language is “take it or leave it” both from the standpoint of what the corporations do to us, as well as what they are permitted to do by the feds and by 50 state legislatures. So, sign away with confidence, and even if your government overlords have failed to protect you with respect to some provisions (e.g., arbitration provisions are generally enforceable) there are always arguments that can be made as to, e.g., whether the waiver was “clear and prominent” enough, etc. — that is, there are still opportunities for the most litigious among us to have their day in court and employ us lawyers. In fact, maybe the larger issue is whether, as consumers, we know the govt. protects us as to all matters and therefore are no longer vigilant in protecting ourselves. I don’t have to watch what I eat if I’m in NYC, because if it were that bad for me, Bloomberg would have banned it, right?

  6. Jacob H

    I’m confused. I thought the 1st amendment only applied to the federal government (and the states through the 14th amendment)?
    Does the government own the Yankees? If not, how is it a violation of the 1st amendment for a non-public ball club to regulate their park?

  7. SHG

    A private entity that accepts significant government funding (such as the Yankees for the construction of the new stadium) can be an analog of government and thus responsible for constitutional adherence as if it was a governmental entity. This happens a lot with universities.

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