Beldar's answer to Patterico's question about Husain v. Springer

My blogospheric friend Patterico, who was kind enough to link from his blog to my post from yesterday about the Second Circuit's decision in Husain v. Springer — and in particular about Chief Judge Dennis G. Jacobs' provocative dissenting opinion in which he proclaimed that he's not bothered to read his colleague Judge Guido Calabresi's opinion for the panel majority — asked this question in a comment (hyperlinks inserted by me):

Volokh thinks the majority opinion sets an important precedent. Beldar disagrees.

I'm wondering how to decide which of them is right. Any suggestions, Beldar?

Herewith, my reply. Of course, it's not short. Things are rarely short on BeldarBlog (hence the warning on the masthead).

*******

Patterico, my friend, you could simply wait for the Federal Reporter, Third Series version to come out and see how many headnotes Thomson/West Publishing writes for it. Counting the number of headnotes is one rough way of measuring how much "law" a given written opinion stands for, although they don't put the really important headnotes in boldface or an extra-large font. One tends to generate one new headnote for every declarative sentence followed by a case citation, and it's entirely possible for an opinion to have lots of headnotes and yet not to have made any new law, or even to have repeated much law of much importance.

*******

Prof. Volokh is a renowned (and properly so), tenured, and many-times published constitutional law professor whose specific expertise includes the First Amendment. I'm merely a solo practitioner in a general litigation practice whose last constitutional law credentials were a law school Am Jur award in that subject in 1979 and a successful Fifth Circuit appeal in 1983 upholding a summary judgment in favor of CBS News in a defamation case. So if you're deciding whose opinion is more likely to be correct based on the expertise, experience, and reputation of the person rendering it, Prof. V wins hands down.

On the other hand, you'd think that being such an expert, Prof. V might have been in a position to point to a few recent First Amendment cases and say, "Under the precedents set this past week in Husain v. Springer, these would all have come out the opposite way than they did." He hasn't done that; but perhaps he could, if someone asked him to.

*******

One of my very first posts when I started this blog four years ago was about a Texas case that Prof. V read as a major cut-back in First Amendment protections for pornographic comic books, Castillo v. State, 79 S.W.3d 817 (Tex. App.—Dallas 2002, pet'n ref'd), cert. denied, 538 U.S. 924 (2003). I read that case as an aberration, in which an incompetent defense lawyer had let an aggressive prosecutor trample him, and in which the appellate court had made no new First Amendment law to speak of but rather merely held the defendant accountable for his lawyer's procedural lapses in failing to object.

Prof. V graciously corrected some factual errors he'd made in his original posting about the case, but we agreed to disagree over the case's precedential importance. In the four years since, it's been cited by other Texas courts a total of 10 times — and never in a case that contains the words "obscenity" or "First Amendment," but instead for its purely procedural holdings. If, nevertheless, as a result of that appellate opinion, there are either substantially fewer pornographic comic books available now in Texas or anywhere else, or substantially more comic book pornographers who've been convicted of obscenity, I'm unaware of that. So I tend to think that the passage of time has shown I had the better of the argument about that First Amendment case, anyway.

*******

I suspect Prof. V would agree with me that there are less likely to be important future effects from that portion of the Husain v. Springer majority opinion discussing whether, for purposes of qualified immunity, the college president's actions were clearly illegal given the status of court precedents in 1997. Although I think that portion of the majority opinion is badly written, it's by far the most easily distinguishable in any future case.

We'd probably also agree that the most novel, and potentially sweeping precedent, has to do with the causal remoteness of the supposed chilling effect, which he (and the majority opinion) refer to as the college president having threatened the student editors' intended purposes for the election (as opposed, for example, to threatening to expel them, or to disband the paper, or impound its issues, or cut off its funding).

The majority opinion, though, doesn't itself treat its own holdings as being sweeping or revolutionary or precedent setting. It treats the "chill" as being more or less self-evident on these facts. Accordingly, I read the holding as being not very dangerous. In future cases, instead of a court saying, "Under the new rule of law proclaimed in Husain v. Springer, by which we are bound as a matter of precedent, we must ...," you'll instead have, at most, a court saying, "Under a similar set of facts in Husain v. Springer, the Second Circuit found ...."  The fact that no court — to Prof. V's experience or my own admittedly more limited experience — has been willing to find a "chill" on such weak facts before makes me doubt that many other courts will be eager to find such a chill on similarly (but distinguishably) weak facts again. And because it's fact-specific, I doubt many future courts will find themselves compelled to find such a chill on similarly weak facts. 

In other words, unless the future case is one of a university president "chilling" the First Amendment free expression rights of a college newspaper by having voided and then rescheduled a student election for what the court concludes was an invalid reading of university rules, I just don't think this case is going to have much persuasive power in any future First Amendment litigation. Outside the context of administration interference with college newspapers writing about student government elections, I doubt it will — or even could — have any relevance at all.

My suspicion, in other words, is that when Prof. V wrote that this might be a really important precedent, he actually meant that it pertains to a really important subject — the First Amendment.  But it's rather Chief Judge Jacobs' point — and I agree — that not every dispute that is characterized in a First Amendment analysis is necessarily an important case. This might make a great exam question for Prof. V's First Amendment classes. That doesn't mean it's an important question in real life.

Note that Judge Calabresi and Judge Walker didn't respond directly to the dissent. They did not, in other words, argue that, yes, this is an important case, or that it presented important undecided legal principles of first impression. They never address related questions like: Why was this case on the oral argument calendar? Why was this opinion designated for publication? Or most significantly: Why isn't this a case of de minimis non curat lex? And how (except in a scramble for court-awarded attorneys' fees) can it possibly justify the attentions of eight high-powered lawyers on the brief and the admittedly more limited resources of the federal judiciary — specifically, a federal magistrate, a federal district judge, and a panel of three federal circuit judges who, at $175k each/year, are badly underpaid in comparison to the market? Over a one-week delay in a student election that, when re-run, came out the same way? Over $2?

But now I'm basically re-arguing the point of my original post, which means I've run out of ideas to help you decide whether Prof. V on the one hand, or Prof. B and I on the other, have the better of the argument.

---------------

UPDATE (Mon Jul 16 @ 3:00pm): For an opposing assessment of the importance of the underlying litigation — including, if I understand it correctly, an argument (in comments) that Husain is really not much different in importance than the Supreme Court's decision in Rumsfeld v. Padilla — see S. COTUS' post at a blog called Appellate Law & Practice.