Tuesday, I posted about it on my blog Sgaggio v. De Young (D. Colo.), incorrectly concluded online critiques of police calling them “pig,” terroristist,” “bitch”, “punk and ass” and “dirty ass” were illegally “obscene” so the First Amendment did not protect the content.
Michael Kaufmann, however, adds another procedural detail. It turned out that both the Magistrate judge’s First Amendment analysis and the response to the plaintiffs’ reply were copied almost verbatim from defendants’ motions for summary judgment. After seven months of pending, the report and recommendation were released on the motion the day after the retirement of the Magistrate Judge.
For an illustration of all the similarities: Here is a portion from Magistrate Judges’ report and recommendations.
Their enforcement reveals the narrowly tailored nature and restrictions. Plaintiff posted posts that contained indecent and obscene language. Other posts expressing the same viewpoint of Plaintiff that did not contain offensive and indecent language were not restricted. The restrictions were not intended to restrict viewpoints that the government might disagree with and they were deliberately narrowed so as to exclude obscene or indecent language. The restrictions opened up a wide range of communications channels through which Plaintiff could voice his disapproval of police officers. 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 claimed that he had social media accounts for Youtube, Instagram and Parler but did not use them. Plaintiff may have also been able to criticize the government via pamphleting or traditional media.
Here’s the equivalent passage (with the paragraph break removed), from defendants’ motion to summary judgment:
Their enforcement reveals the narrowly tailored nature and restrictions. Plaintiff posted posts that contained indecent and obscene language. Others postings that expressed the same opinion as Plaintiff but did not include offensive or indecent language were allowed. These restrictions didn’t target views with which government could disagree, and were specifically designed to filter out offensive and inappropriate language. The restrictions opened up a wide range of communications channels through which Plaintiff could voice his disapproval of police officers. You could post on your own or any other City/Department-operated Facebook pages. He also could communicate on any number ever growing social media networks. Plaintiff testified himself that he had social media accounts on Youtube and Instagram but did not use them. Plaintiff may have also been able to criticize the government via pamphleting or traditional media.
While such widespread copying is not explicitly forbidden and I agree that it is common in some state courts, it has been criticized by some federal judges. To quote FComdata Network, Inc. (10th Cir. The Tenth Circuit.
Comdata alleges that Flying J’s preliminary findings of facts and legal conclusions were adopted almost in full by the District Court. Regrettably, this appears to be the case…. The court’s mass adoption of a party’s proposed findings and conclusions of legal law does not provide much aid in appellate review, especially if an adopted submission is adversarial.
“[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]The litigants have tangible evidence that the judge engaged in discussions with them and reached a decision on their behalf based upon his or her reasoning and logic. A court that adopts the opinion of a party as its own is eroding the essential purposes of judicial opinions. Bright v. Westmoreland County (3d Cir. 2004).
This critique can be applied to both copying from briefs and from the proposed conclusions of law. “A district judge cannot photocopy a brief from a lawyer and issue it as an opinions. Briefs should not be interpreted as partisan arguments. Judges should evaluate briefs and produce a neutral conclusion ….” DiLeo v. Ernst & Young (7th Cir. 1990). The Supreme Court did not rule that decisions to adopt the findings of fact of a party should be reversed, but it pointed out that “the courts have been criticized for verbatim accepting findings of truth prepared by the prevailing side.” Anderson v. Bessemer City (1985).
Whatever the case, literal copying may be okay from time to time, but here the Magistrate judge seems led astray because the arguments copied were not sound.