By: Carey Shenkman[*]
Wednesday, the U.S. Supreme Court set a deeply alarming precedent in its decision in Kiobel v. Royal Dutch Petroleum, holding in substance 5-4 that the presumption against extraterritoriality defends corporations from being held accountable for human rights abuses like torture, rape, and murder committed in other countries. For years, U.S. courts were the only recourse for victims from countries with powerless, dysfunctional, or corrupt judicial systems. Their cases were a rare check on the conduct of our companies and their subsidiaries abroad.
Although Kiobel steepened the incline for human rights victims abroad seeking relief in U.S. courts, an earlier Supreme Court case tells us that this decision may not mean the end of these cases. Lower courts have, on at least one occasion, upheld a right that was foreclosed by the Court. This might happen where a judicial opinion is sufficiently fragmented or qualified. Indeed, one opinion demonstrating this was structured very similarly to Kiobel.
Justice Kennedy on Wednesday qualified the opinion of the Kiobel majority in a separate concurrence. He emphasized that cases may arise that are not “covered . . . by the reasoning and holding of today’s case.” He reiterated the importance of the “[m]any serious concerns with respect to human rights abuses committed abroad.” Justice Kennedy stressed that the issue “may require some further elaboration,” noting the fact that “[o]ther cases may arise with allegations of serious violations of international law.”
When I read this, I was reminded of another 5-4 Supreme Court opinion that played out similarly. In Branzburg v. Hayes, decided in 1972, the Supreme Court held that the First Amendment does not provide for any reporter’s privilege. In other words, there is no constitutional protection for the confidential relationship between a reporter and her sources.
Despite this holding, nine out of twelve federal jurisdictions still recognize some form of constitutional reporter’s privilege.
Justice Powell was a tiebreaker in Branzburg. And he, just like Justice Kennedy in Kiobel, filed a separate opinion qualifying the majority after breaking that tie. Justice Powell began, like Justice Kennedy, by advising caution: “I add this brief statement to emphasize what seems to me to be the limited nature of the Court’s holding.” An important consideration in Branzburg was potential government harassment of journalists to divulge their sources. Justice Powell stressed the need to balance “vital constitutional and societal interests on a case-by-case basis.”
Justice Kennedy’s caution to ‘wait and see’ in light of the serious human rights interests strongly parallels Justice Powell’s caution to examine important First Amendment interests case-by-case.
The structure of Kiobel may provide some wiggle room for lower courts, as such structure achieved in Branzburg. The majority in Kiobel fashioned a test where claims that “touch and concern” the United States would still have to overcome the presumption against extraterritoriality. Justice Breyer’s concurrence, with which three other Justices joined, declined to decide the case on this presumption. And Justice Kennedy’s cautionary words send a mixed message to lower courts. Courts might, on one hand, interpret Justice Roberts’ majority opinion to provide for a strong presumption. But Justice Kennedy, on the other, reminds courts that there are strong human rights concerns at play. These concerns might affect whether activity is said to “touch and concern” the United States. There is still judicial flexibility to determine whether severe human rights abuses affect U.S. commitments to uphold international human rights. These are all factors in the calculus for lower courts to decide whether sufficient exigencies exist to overcome the presumption against extraterritoriality.
After Branzburg, a majority of federal circuits actually worked around the ‘formal death’ of the reporter’s privilege, looking to the purpose of the First Amendment to do so. Similarly, courts concerned by the underlying human rights norms affected might distinguish Kiobel from a future case that Justice Kennedy warned would not be “covered . . . by the reasoning and holding.” After the dust settles, this means there may be room for at least some federal jurisdictions to allow cases against corporations that perpetrate horrific human rights crimes abroad.
* Carey Shenkman is a graduating J.D. Candidate at N.Y.U. School of Law, Researcher in First Amendment Law, Author in International Criminal Law, and Notes Editor on N.Y.U. Law Review.