Tuesday Talk*: Prior Restraint and The Geo-Fence Around the Jury Box

As Walter Olson argues, the scientific evidence that glyphosate, the active ingredient in Roundup weed killer, does not cause cancer is strong, if not irrefutable. Not being qualified to render an opinion, I demur, but that hasn’t stopped judges from letting the cases proceed, or juries from finding for plaintiffs. The law has always had a troubling relationship with science.

But Monsanto, maker of the chemical, found a curious mechanism to fight back, inside the courtroom yet outside. Much as anyone who uses the internet is painfully aware the the advertisements pushed at them are miserably misdirected (no, Google, I already bought the widget, so it’s less than enticing to include a widget ad on every pop-up ad), an alternative is available, as Monsanto figured out. And it was not shy about using it.

Plaintiff attorney Steven Brady with the San Francisco-based Brady Law Group, said Monsanto has been sending in-app pop-up ads to people inside the Alameda County Administration Building, where the trial is being held.

Brady specifically accused Monsanto of geofencing, a process by which one can use GPS, Wi-Fi or cellular data to draw a virtual boundary around a specific location. It can trigger text messages, alerts, notifications or send targeted ads on social media.

Apparently, a dedicated party can use internet to pinpoint specific pop-up ads to a very narrow geographical area. In this case, the courthouse where the Roundup case was being tried, in order to “talk” to the nice folks within. That group of folks just happens to include the jurors deciding the case, and they weren’t getting special discounts on weed killer.

At a hearing on the motion Thursday, Brady told the judge: “These aren’t ads selling Roundup, they’re touting safety and scientific studies in this building. It’s going too far,” he said.

While jurors are admonished not to read stories about the case or engage in investigation outside the evidence produced in the courtroom, they have no control over the flotsam pushed into their face by the powers in control of the ether. And Monsanto, having the capital necessary to buy ad time with its preferred content, seized the opportunity to make its case beyond the witness stand directly to the jurors.

The defense argued that it’s doing nothing more than fighting fire with fire.

In their opposition filed Wednesday, Monsanto’s lawyers called the plaintiff motion “unconstitutional, unnecessary, and dripping with hypocrisy,” because plaintiff law firms have been engaged in a blitz of advertising “disparaging Roundup across multiple media platforms in the San Francisco Bay Area.”

The opposition also pointed to a $5 million ad campaign in 2018 by plaintiff law firms that intensified this year. The campaign included an ad featuring environmental crusader Erin Brockovich, saying “corporations [are] putting their profits over our safety and it’s happening now with Monsanto.”

The defense lawyers also noted that they had moved for a mistrial at the outset of the current trial, “because the jury pool in this case was bombarded with 2,187 anti-Roundup television and radio ads from Dec. 1, 2018 to March 21, 2019, in the local media market alone.”

While the lawyer solitications for Roundup cases, including its unchallenged claims of liability, have been ubiquitous, they use the ordinary means of general television and radio commercials. If they fly in the face of science, so what? That’s for judges and  jurors in a courtroom to decide. And that’s why Monsanto targeted the decision-makers directly.

Except the two mechanisms aren’t quite comparable. Putting out ads to the public that Roundup causes cancer may well create a public perception that it’s indisputable, despite the absence of valid scientific evidence to support it, because the general public gets to believe whatever it wants, Jurors, however, are constrained to decide based on the evidence in the courtroom, including expert scientific evidence as the gatekeeper, the judge, permits.

So was the judge in this case, Alameda County Superior Court Judge Winifred Smith, outraged? Not so much.

The judge disagreed.

“You’re talking about the First Amendment,” Smith said. “Prior restraint is serious and I can’t do that.” She added the plaintiffs’ attorneys were asking her to “assign a subjective intent that I don’t know exists.”

But is it prior restraint when technology has the capacity to geofence the message to the courthouse, to the jury box? When the message being shoved down jurors throats is expressly directed to the jury’s fact-finding purpose, and it circumvents evidentiary rules and due process entirely. Is Monstanto not seeking to tamper with the jury?

Prior restraint, as a First Amendment concept to silence in advance the exercise of free speech and press, is unconstitutional. But as with most rights, there are long-established limits, and decorum within the courtroom is one of them. Just as a party has no right to speak at will during trial, disregard the court’s instructions to sit down, shut up and let opposing counsel ask questions and the witness answer, the freedom to speak gives way to the maintenance of order at trial, for otherwise there can be no trial and chaos ensues.

And the purpose of Monsanto’s targeted campaign was clearly to influence the jury beyond the reach of the court. The irony of jury nullification activists being convicted for handing out pamphlets outside the courthouse should be duly noted.

But what if Monsanto hadn’t been able to pinpoint its message, and like the lawyers seeking clients, had bombarded the airwaves with it’s message that there was no sound scientific evidence to support the claim that Roundup causes cancer? If that would be acceptable, as the equivalent message to the plaintiffs’ lawyers, is it less acceptable because technology provided the means to geofence their target audience?

*Tuesday Talk rules apply. Do not aggravate me, please.

Tuesday Talk*: Prior Restraint and The Geo-Fence Around the Jury Box curated from Simple Justice