Sticks and stones

Some topics just must be borne as we move through law school, but Due Process is not one of those. It is to hearsay as warm, complex persimmon pudding is to dry toast. Ok, I know that's a pretty lame analogy, but it's autumn, and persimmon pudding is just around the corner.

A couple of note cases caught my eye. In Wisconsin v. Constantineau (400 U.S. 433), the Court held that a person's reputation or integrity was a property interest covered by the 14th Amendment's requirement of due process. Therefore a state cannot, as it did here, post a notice in retail liquor outlets forbidding the sale or gift of liquor to a particular person for a year, without notice or the right to be heard.

Then five years later, in Paul v. Davis (424 U.S. 693), the Court found that a flyer circulated by police that a person was an active shoplifter was not an infringement of that same right. The person had not been convicted of shoplifting. The remedy was to be found in a civil case for defamation. While that makes sense, it is difficult to reconcile the two cases.

In Paul, the party's good name was not protected by his right to due process, but in Constantineau, it was. Brennan dissented in Paul, fearing that this meant that official stigmatization would never be subject to due process concerns.

Remember that rhyme we flung at each other as children when at last we could come up with no insults or retorts to match our opponents? "Sticks and stones may break my bones, but words will never hurt me." Oh, so not true, as we all found out in the process of losing our childhood innocence.

What is said about a person when they are not in the room becomes in large part how they are viewed by their society as a whole. Those words not only define who they are for others but make the difference in whether they are invited to participate in social, political, educational and employment opportunities. And each of those either opens the door to, or closes off the option of yet more of these. We, I, am so free with words, sometimes for self-aggrandizing purposes, or even out of nervousness, or to fill a space. Yet those words can have sticking power, with not even notice to the person affected, nor any opportunity to refute or amend their impact.