Ahmed Ghailani, who participated in the 1998 bombing of the US embassy in Tanzania (killing over 200 people), has been convicted on one count. He was acquitted on the other 284 counts, including all the murder charges. Ghailani could still be (and hopefully will be) sentenced to life in prison. Nevertheless, this result has to be seen as a failure of Eric Holder’s scheme to try terrorists in civilian courts.
Some will try to argue that this result is a success, since Ghailani was convicted of something and could serve life in prison. (For example, Greg Sargent gives it a stab.) But even the New York Times sees how flimsy that spin is:
While Judge Kaplan could still sentence Mr. Ghailani to a life sentence, even some proponents of civilian trials acknowledged that his acquittal on most of the charges against him was damaging to their cause because it was a stark demonstration that it was possible that a jury might acquit a defendant entirely in such a case. Several critics explicitly noted Mr. Holder Jr.’s vow that “failure is not an option” in the prosecution of accused conspirators in the Sept. 11 attacks.
Joe Miller’s campaign for Senate hinges on getting 11 thousand write-in votes for Murkowski disqualified, mostly for misspelling her name. For example, many people spelled her name “Murkowsky”.
On one level, this sounds stupid. The intent of “Murkowsky” votes is clear. But it turns out that Alaska law is quite strict. It requires that write-in votes write the name “as it appears on the write-in declaration of candidacy”. It adds that “The rules set out in this section are mandatory and there are no exceptions to them.”
One might argue (and I would agree) that this law is foolish. But it is clear.
I argue that election law ought to be observed punctiliously. Elections are zero-sum, adversarial situations. (They are much like trials in this regard.) One cannot bend the rules with disadvantaging one party. The only way to treat all parties fairly is to observe the rules scrupulously. It is legitimate to challenge the law as illegal, but it is too late after the election has been conducted to challenge the law as unwise.
That said, American election jurisprudence does not seem to agree with me. The law very often seems to be thrown out on the basis of vague principles. For example, in the 2002 Torricelli-Lautenberg switcheroo, the New Jersey Supreme Court set aside the state’s election law (which forbade the switch), based on the principle that voters deserved two major-party candidates, and the decision was upheld in federal court. (On the other hand, in a nearly identical situation in 2006, the courts ruled that Tom DeLay could not be replaced on the ballot, so perhaps the real principle is just to set aside rules when doing so favors Democrats.) So while Joe Miller has the law on his side, I think he is unlikely to win.
Finally, although Miller has a case, I wish he wouldn’t pursue it. I wish he would think about the moral element here. If he prevails to win the seat, it will be over the express will of the voters. Is a seat won under such circumstances really worth having? Certainly there are many that feel the answer is yes (e.g., Al Franken). But I would hope for better from a Tea Party candidate.
IT IS as if every homeowner were obliged to publish a map showing burglars the easiest way into his house and where his valuables are stored. That is how American businesses view a proposal that the Financial Accounting Standards Board (FASB) floated in July. The FASB wants to force firms to publish detailed information about what they might get sued for and how much it might cost them. This would provide a how-to guide for lawyers looking for targets. . .
Worse, companies would have to keep an eye out even for the “remote” possibility of expensive litigation: for example, by watching scientific journals for findings that could later result in lawsuits. Then, once a proceeding has begun, the FASB rules would have companies reporting expert testimony on the potential liabilities they face. It would also force them to reveal, in certain circumstances, the amount of insurance they have bought to cover potential damages.
JUSTICE GINSBURG: Is there — you’ve been asked questions about the vagueness of this and the problem for the seller to know what’s good and what’s bad. California — does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there — is there any kind of opinion that the — that the seller can get to know which games can be sold to minors and which ones can’t?
MR. MORAZZINI: Not that I’m aware of, Justice Ginsburg.
JUSTICE SCALIA: You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.
Last month we saw a bizarre idea pushed by Dalia Lithwick of Slate and Ben Adler of Newsweek saying not only that the Congress need not refrain from passing unconstitutional bills, but that to refrain from passing unconstitutional bills would actually be “weird” and “dangerous”. Both believed (or claimed to) that the Supreme Court should be the sole arbiter of constitutionality and it was improper for the other branches even to consider it. (Lithwick even suggested that the principle was written in the constitution, which of course it is not.)
Now we see President Obama expounding the same principle:
Q: And one of the things I’d like to ask you — and I think it’s a simple yes or no question too — is do you think that “don’t ask, don’t tell” is unconstitutional?
THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.
So only the Supreme Court can have a firm opinion about whether DADT is constitutional? Slate and Newsweek don’t matter, except as a window into the mentality of the liberal elite, but when you see President Obama expounding the same idea, it’s liable to become the received wisdom of the left.
POSTSCRIPT: He also implies that he has never considered the question (i.e., an answer would be off the top of his head). I assume that’s a lie, because the alternative is worse: the President of the United States (and a former professor of constitutional law) has never given any thought to DADT, despite it being a controversial policy of his administration, and one that his administration is defending in court.
The Washington Post has broken its silence on the Black Panther affair, reporting that the Justice Department is hostile to race-neutral enforcement of the laws, just as former DOJ officials havealleged:
In recent months, [J. Christian] Adams and a Justice Department colleague have said the case was dismissed because the department is reluctant to pursue cases against minorities accused of violating the voting rights of whites. Three other Justice Department lawyers, in recent interviews, gave the same description of the department’s culture, which department officials strongly deny.
“The department makes enforcement decisions based on the merits, not the race, gender or ethnicity of any party involved,” spokeswoman Tracy Schmaler said. “We are committed to comprehensive and vigorous enforcement of the federal laws that prohibit voter intimidation, as our record reflects.” . . .
But:
Since the division was created in 1957, most of its cases have been filed on behalf of minorities. But there has not always been agreement about that approach.
Civil rights officials from the Bush administration have said that enforcement should be race-neutral. But some officials from the Obama administration, which took office vowing to reinvigorate civil rights enforcement, thought the agency should focus on cases filed on behalf of minorities.
“The Voting Rights Act was passed because people like Bull Connor were hitting people like John Lewis, not the other way around,” said one Justice Department official not authorized to speak publicly, referring to the white Alabama police commissioner who cracked down on civil rights protesters such as Lewis, now a Democratic congressman from Georgia.
Before the New Black Panther controversy, another case had inflamed those passions. Ike Brown, an African American political boss in rural Mississippi, was accused by the Justice Department in 2005 of discriminating against the county’s white minority. It was the first time the 1965 Voting Rights Act had been used against minorities and to protect whites.
Coates and Adams later told the civil rights commission that the decision to bring the Brown case caused bitter divisions in the voting section and opposition from civil rights groups.
Three Justice Department lawyers, speaking on the condition of anonymity because they feared retaliation from their supervisors, described the same tensions, among career lawyers as well as political appointees. Employees who worked on the Brown case were harassed by colleagues, they said, and some department lawyers anonymously went on legal blogs “absolutely tearing apart anybody who was involved in that case,” one lawyer said.
“There are career people who feel strongly that it is not the voting section’s job to protect white voters,” the lawyer said. “The environment is that you better toe the line of traditional civil rights ideas or you better keep quiet about it, because you will not advance, you will not receive awards and you will be ostracized.”
The 2008 Election Day video of the Panthers triggered a similar reaction, said a second lawyer. “People were dismissing it, saying it’s not a big deal. They said we shouldn’t be pursuing that case.”
I don’t see anything here we didn’t know already, but the fact that this is finally breaking into the mainstream media could be a very big deal. Yes, the ran the story on a Saturday, and yes, the key information was buried on page 3, but still, it’s out there now.
A woman in Michigan is being sued for seeking a Christian roommate:
A civil rights complaint has been filed against a woman in Grand Rapids, Mich., who posted an advertisement at her church last July seeking a Christian roommate.
The ad “expresses an illegal preference for a Christian roommate, thus excluding people of other faiths,” according to the complaint filed by the Fair Housing Center of West Michigan.
The woman should have a bulletproof case based on freedom of religion (if the courts still respect that kind of thing), but I hope she doesn’t rely exclusively on that. The right to choose with whom we wish to live shouldn’t be restricted to religious motives.
This is interesting. The Washington Post ran this AP story yesterday:
Republican Senate nominee Christine O’Donnell of Delaware on Tuesday questioned whether the U.S. Constitution calls for a separation of church and state, appearing to disagree or not know that the First Amendment bars the government from establishing religion.
In fact, what happened was nothing of the sort. O’Donnell was making the point, popular among some on the right, that the Constitution never uses the phrase “separation of church and state”. The Constitution does forbid Congress from making any law “respecting an establishment of religion”, but many people, including O’Donnell, argue that the modern notion of separation of church and state goes far beyond the Constitution’s establishment clause.
One may disagree with O’Donnell’s thesis, but it is an argument to be disagreed with. Alas, to Chris Coons (O’Donnell’s Democratic opponent), to the audience at the no-name law school where the debate was held, and to the Associated Press, it was a ridiculous statement, worthy of mockery, not debate. Of course, everyone knows that the First Amendment establishes a separation of church and state.
In fact, as I understand it, the separation of church and state did not enter US case law until 1878 in Reynolds v. United States. Moreover, that decision cited not the text of the First Amendment, but a letter that Thomas Jefferson wrote to the Danbury Baptist Association. The Supreme Court justified using it to interpret the First Amendment because Jefferson was one of the amendment’s chief advocates.
Now, I’m not sure that the court was wrong to do so. It strikes me as a defensible piece of originalist analysis. (ASIDE: However, the ultimate decision in Reynolds v. US was to deny Mr. Reynolds the right to practice his religion, which all-too-often is also the result of Establishment Clause litigation today.) But there is a serious argument to be made that the separation of church and state, identified indirectly nearly a century after the amendment was adopted, is bad jurisprudence.
The Associated Press belatedly recognized this, which is why their current article now bears no resemblance to the one quoted above. Without issuing a correction, the AP revised their story to open:
Republican Christine O’Donnell challenged her Democratic rival Tuesday to show where the Constitution requires separation of church and state, drawing swift criticism from her opponent, laughter from her law school audience and a quick defense from prominent conservatives.
Close. It should read:
Republican Christine O’Donnell challenged her Democratic rival Tuesday to show where the Constitution requires separation of church and state, drawing swift criticism from her opponent, bad reporting from the Associated Press, laughter from her law school audience and a quick defense from prominent conservatives.
It seems like only yesterday (it was), that I criticized PBS’s Gwen Ifill’s reflexive mockery of Sarah Palin (regarding a point of history on which Palin was right):
I suppose assuming your opponents are stupid can save you time and effort, if you’re right. If you’re wrong, you look like an idiot.
So charges a lawsuit against the Cincinnati Public School. I don’t know the facts of the matter, but the district’s denial is so delicately worded, I’d bet that the charges are true in essence.
Delaware Republican Senate nominee Christine O’Donnell has posted to her website a response to a question about recent U.S. Supreme Court decisions that she objects to, an answer she didn’t give at a debate Wednesday. . .
In a posting late Wednesday, she praises the newly shaped court of the last couple years that has added conservatives Chief Justice John Roberts and Justice Samuel Alito. “[T]here is no longer a laundry list of recent disappointing decisions that stray from America’s founding principles,” O’Donnell said in the statement.
She then mentions three cases: “Consequently there are no recent Supreme Court decisions with which I vigorously disagree, with the exception of Boumediene v. Bush in 2008, Hamdan v. Rumsfeld in 2006 and Kelo v. City of New London in 2005. The court’s strong record in recent years proves the tremendous importance of appointing constitutionally based judges and Supreme Court Justices.”
The current court may the best in recent memory, but one doesn’t have to go back to 2008 to find an objectionable decision. One merely has to go back to the final day of the last term to find Christian Legal Society v. Martinez in which the court ruled that a public institution may suppress minority opinions by requiring groups to accept all comers.
Also, that same day, there was Free Enterprise Fund v. PCAOB, in which the court recognized that Sarbanes-Oxley was unconstitutional, but decided merely to tweak it rather than throw it out.
A federal inspector general is looking into whether the Obama administration used confidential taxpayer information in an effort to attack a political opponent, Koch Industries. . .
Charles and David Koch, brothers who control the Kansas-based company, are libertarians who have used some of their wealth to fund conservative groups and causes that oppose much of President Obama’s agenda. Mr. Obama has singled out the company for criticism in speeches.
In an Aug. 27 briefing with some reporters on calls to restructure the corporate tax code, an unidentified administration official cited Koch Industries, a major privately held energy company, by name, and then seemed to indicate that the company didn’t pay any corporate income tax, according to the Wall Street Journal. . .
White House officials have told reporters that the information was publicly available, including in testimony to the President’s Economic Recovery Advisory Board and on Koch’s website. But an attorney for Koch said in a statement last month that the company does pay corporate income taxes and that information about its structure and tax liability are not publicly available.
Confidentiality is nothing to these people. They dug through confidential records on Joe the Plumber, after he asked a question that embarrassed Barack Obama. Obama’s two toughest opponents in his 2004 Senate race were driven out of the race after their sealed divorce proceeding became public. And that’s just off the top of my head.
(Via Instapundit, who adds “But don’t worry — your health information under ObamaCare will be completely confidential.“)
In the fraudulent legal action by Ecuadorean plantiffs against Chevron, the plaintiffs argue that fraud is simply the way things are done. Fortunately for Chevron, they have no assets in Ecuador, so the plaintiffs have to seek damages in US court, which does not agree:
While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.
What I find most remarkable about the story is this comment:
The buyers of the first house are allowed to retain the house under Australian federal law. This law is designed to protect innocent third parties who are not responsible for questionable practices or illegal activity. They conducted a transaction in good faith and are not to be held accountable or fiscally responsible for the action.
The gentleman in question, Mr. Mildenhall, will be compensated from a fund set aside by the government to settle the dispute.
If this commenter is to be believed (and no one has contradicted him), Australia has decided that buyers of stolen property get to keep it. I find that amazing. Another commenter puts it well:
Having a law that “protects innocent 3rd parties” when they buy what amounts to stolen goods seems like a bad idea. If the purchaser loses some/all of their money when stolen property is reclaimed and returned to the original owner, then purchasers have an incentive to make sure they are purchasing legally-obtained goods from a legit seller. Australian law seems to encourage everyone to remain as ignorant of the circumstances as possible, so that they can buy things on the sly.
The Black Panther scandal has hit the big time, with the Washington Post deigning to cover Christopher Coates’s devastating testimony before the US Commission on Civil Rights:
A veteran Justice Department lawyer accused his agency Friday of being unwilling to pursue racial discrimination cases on behalf of white voters, turning what had been a lower-level controversy into an escalating political headache for the Obama administration.
The owner of the Las Vegas Review-Journal has for the first time been hit with a counterclaim over its online copyright infringement lawsuit campaign, with attorneys for the Electronic Frontier Foundation accusing the newspaper of entering a “sham” relationship with the Review-Journal’s copyright enforcement partner Righthaven LLC — and accusing Righthaven of copyright fraud.
The EFF is also recruiting attorneys to represent Righthaven’s victims free of charge.
Dahlia Lithwick, Slate’s legal writer, not only thinks that legislators should ignore the question of whether their bills are constitutional, she thinks that to do otherwise is simply bizarre:
I have been fascinated by Christine O’Donnell’s constitutional worldview since her debate with her opponent Chris Coons last week. O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?
Lithwick is also apparently ignorant of basic constitutional case law, the very subject she presumes to write about. The concept of judicial review does not appear explicitly in the Constitution; it was introduced by the Supreme Court in Marbury v. Madison.
I’ll give Lithwick this though; she has summarized the left’s take on the Constitution perfectly. To wit: flagrantly disregard it, and see if anyone ever reels you in.
New documents obtained by Judicial Watch prove that, contrary to statements made the Justice Department (some of which were under oath), the decision to dismiss the voter intimidation case against the Black Panthers was made by political appointees, not career staff.
RELATED: Glenn Fine, the DOJ inspector general, will investigate Eric Holder’s voting rights record. However, Fine is a Clinton appointee, so don’t be shocked if he come back with a whitewash.
David Bernstein spots a remark that is somewhat less reassuring today than it might have been in 1866:
From the concurring opinion of four Justice in Ex Parte Milligan (1866), arguing that Congress has the power to establish domestic military tribunals for certain crimes during wartime:
We have no apprehension that this power, under our American system of government, in which all official authority is derived from the people, and exercised under direct responsibility to the people, is more likely to be abused than the power to regulate commerce, or the power to borrow money.
The Department of Justice has decided not to enforce the Military and Overseas Voter Empowerment Act.
People occasionally try to tell me that it’s not true that the military votes predominantly Republican. This refutes that, even in the absence of other evidence. Would Eric Holder show such disdain for military voting rights if they were a Democratic constituency?
It’s hard to read this and come to any conclusion other than the Democrats support voter fraud:
The “Motor Voter” law was passed in 1993 to promote greater voter registration in the United States. . . A lesser-known provision also obliged the states to ensure that no ineligible voters were on the rolls — including dead people, felons, and people who had moved. Our current Department of Justice is anxious to encourage the obligations to get everyone registered, but explicitly unwilling to enforce federal law requiring states to remove the dead or ineligible from the rolls.
In November 2009, the entire Voting Section was invited to a meeting with Deputy Assistant Attorney General Julie Fernandes, a political employee serving at the pleasure of the attorney general. The purpose of the meeting was to discuss Motor Voter enforcement decisions.
The room was packed with dozens of Voting Section employees when she made her announcement regarding the provisions related to voter list integrity:
We have no interest in enforcing this provision of the law. It has nothing to do with increasing turnout, and we are just not going to do it.
Jaws dropped around the room. It is one thing to silently adopt a lawless policy of refusing to enforce a provision of federal law designed to bring integrity to elections. It is quite another to announce the lawlessness to a room full of people who have sworn an oath to fairly enforce the law.
Fortunately, the law provides a private cause of action, so individuals can do what the Justice Department refuses to do.
Michigan’s fake Tea Party has extensive ties to Democrats:
Despite blanket denials from top Michigan Democratic Party officials, the elusive group that wants to call itself the Tea Party on the November ballot has been linked repeatedly to Democrats since it emerged in May, a Free Press investigation shows.
From the group hired to collect signatures, to party activists who found candidates and the candidates themselves, the Michigan Tea Party has many ties to Democrats.
The Democratic effort to siphon votes from Republican candidates is not just dishonest and sleazy, it’s also criminal. Fortunately, the Michigan Supreme Court has tossed the fake party off the ballot.
During Hurricane Katrina, New Orleans police stole $4.6 million worth of cars. It’s not the worst crime committed by New Orleans police during the Katrina disaster (that would be the Danzinger Bridge shootings and cover-up), but this one is unique because the chief of police defended the thefts:
When reports first surfaced last month that officers may have taken the cars, New Orleans Police Superintendent Warren Riley said it was not considered looting because the officers used the cars to patrol the city.
“There were some officers who did use Cadillacs,” he said. “Those cars were not stolen.”
Montgomery, Alabama has discovered a loophole in a state law limiting eminent domain. City officials are sending bulldozers to demolish properties they want to take over, in some cases properties in which eminent domain has already failed in court. Then, rather than compensating the owners for their loss, the city bills them for the demolition. If the owner can’t pay, they city then seizes the property and sells it to developers.
Police in Salisbury, North Carolina arrested a woman for watching a traffic stop from her front porch. She is now being prosecuting for resisting arrest.
The Salisbury Police chief, defending the arrest, says that “resisting arrest” applies to any person that hinders a police officer in the performance of his duties. Since that hindrance evidently can be imaginary, such as watching from one’s own property, it seems that there’s very little limit on the power of North Carolina police to order people around.
A Democratic operative in Michigan has been caught submitting fraudulent candidate filings (warning: annoying auto-play video) to put bogus Tea Party candidates on the ballot.
The lawsuit against health care nationalization has passed its first hurdle. The judge hearing the case found:
The guiding precedent [on the Commerce Clause] is informative but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.
(Emphasis mine.) This is just what Randy Barnett has been saying.
Peter Kirsanow, a member of the US Commission on Civil Rights, has a piece discussing the Commission’s investigation of the Black Panther scandal. Its findings so far are damning.
The Allegheny County district attorney’s office has agreed to settle a federal lawsuit against it by redistributing a memo explaining that it is not against the law to videotape a police officer in the course of doing his duty.
The unusual settlement — which includes no financial terms — came about after a Hill District man was charged with violating state wiretap laws in April 2009. . .
Though it has not yet gone out, the memo will be sent to the Allegheny County police chiefs association, as well as to its local prosecutors.
The ACLU of Pennsylvania agreed to the settlement after determining that the assistant DA did not approve the charges. Unfortunately, the charges against the officer in question — one Nicholas Mollo of the University of Pittsburgh police — were dismissed despite him being guilty of false arrest, and (apparently) of filing a false affidavit. Mollo claimed on the affidavit that the assistant DA did approve the charges.
POSTSCRIPT: I’ve often been critical here of the ACLU for its poor sense of priorities in civil rights, but the ACLU of Pennsylvania actually does a lot of good work, at least in Allegheny County.
Adams notes that the DoJ website has an entire section for felons looking to recover their voting rights, but nothing at all on MOVE. Their information on military voting pre-dates MOVE and is now inaccurate, Fox News reports, and the DoJ doesn’t appear to consider fixing that a priority.
The Interior Department’s inspector general is investigating the falsification of the expert review of President Obama’s drilling moratorium:
In response to a request from Republicans on the House Natural Resources Committee, the Department of Interior’s acting Inspector General, Mary Kendall, announced she is opening an investigation into whether a Department of Interior report recommending an offshore drilling ban was manipulated to appear as if the ban was endorsed by seven experts from the National Academy of Engineers.
The report endorsed a six-month ban on deepwater drilling in the Outer Continental Shelf, and explicitly stated “the recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.” The National Academy of Engineers experts responded to the report by noting that their views had been misrepresented and that a drilling ban “will not measurably reduce risk further and it will have a lasting impact on the nation’s economy which may be greater than that of the oil spill.”
It doesn’t look good for the Justice Department’s lawsuit against Arizona:
“Why can’t Arizona be as inhospitable as they wish to people who have entered or remained in the United States?” U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler. Her comment came during a rare federal court hearing in the Justice Department’s lawsuit against Arizona and Gov. Jan Brewer (R).
Bolton, a Democratic appointee, also questioned a core part of the Justice Department’s argument that she should declare the law unconstitutional: that it is “preempted” by federal law because immigration enforcement is an exclusive federal prerogative.
“How is there a preemption issue?” the judge asked. “I understand there may be other issues, but you’re arguing preemption. Where is the preemption if everybody who is arrested for some crime has their immigration status checked?”
I know, there’s a lot of competition, but this one has to be up there. A New Jersey judge rules that Moroccan Muslims are allowed to rape their wives:
This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
This wasn’t even a criminal case. The judge was denying a restraining order. Fortunately, sanity prevailed on appeal.
A patent troll is a firm that does no research, makes no products, and whose business is based solely on buying up patents and suing for infringement. Patent trolls are generally defined by three attributes: (1) nearly all their employees are lawyers, (2) nearly all their assets are patents, and (3) nearly all their revenue comes from litigation. (This is distinct from a patent dealer, who buys patents and resells them to other firms that might actually produce the products.)
Now, an enterprising shyster, Steve Gibson of the new firm Righthaven, has come up with the idea to use the same model for newspaper content.
To be fair, copyright trolling isn’t as bad as patent trolling. You’re safe from copyright trolls if you don’t use the content, which can’t be said for patent trolls. But both of them are parasites on creativity: patent trolls exploit innovations that look vaguely like their patents, while copyright trolls exploit derivative works.
Worse, in at least one case, the shyster sued the original author, on behalf of a derivative work:
Copyright enforcement outfit Righthaven has filed some questionable lawsuits in the past, but really outdid itself in a case against Anthony Curtis, publisher of the Las Vegas Advisor.
That lawsuit, one of several filed on Friday, alleges that Curtis infringed copyright by reposting an article from the Las Vegas Review-Journal. Problem is, that article was itself based on an annual survey conducted by Curtis of ticket prices for entertainment shows.
Yes, Curtis went to the trouble of fielding a survey and then shared his findings with the newspaper, only to find himself sued for posting portions of the ensuing article on his own blog.
Anyway, the only good way to fight back against this is to boycott Righthaven’s clients and send them no traffic. Righthaven won’t say who they are (after all, the point isn’t to prevent copyright infringement, but to exploit it), so we only know the one that has already been revealed in litigation, Stephens Media. The boycott won’t be hard: Stephens Media owns the Las Vegas Review-Journal and a much of small-town papers you haven’t heard of.
Last month, the Supreme Court ruled in Free Enterprise Fund v. PCAOB that a provision in Sarbanes-Oxley that insulated the Public Company Accounting Oversight Board from influence was unconstitutional. The provision said that PCAOB members could only be dismissed for cause by the board of the SEC, who themselves could also only be dismissed for cause. The Court found that two levels of for-cause dismissal leave the president unable to oversee the board, which violates the Constitution’s separation of powers.
Since Sarbanes-Oxley did not include a severability clause, Free Enterprise Fund sought to have the entire law struck down. The Court did not do so. In the constitutional equivalent of awarding $1 in damages, the Court struck down the for-cause dismissal provision, but left the rest of the law intact.
How did the Court rule that the provision was severable in the absence of a severability clause? The Court said (p. 28):
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.”
So, despite popular understanding to the contrary, a severability clause is not required for the remainder of the law to remain intact. Instead, they look at the law and see whether it makes sense without the unconstitutional provision (p. 29):
The remaining provisions are not “incapable of functioning independently,” . . . and nothing in the statute’s text or historical context makes it “evident” that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will.
I’ll concede that this reasoning seems defensible. Nevertheless, I think it assigns to the Supreme Court more editorial control than it ought. Faced with an unconstitutional law and no explicit indication (such as a severability clause) of how to correct it, the Court is taking on the job of determining what constitutional law the Congress would have written. In so doing, I think the Court is usurping the Congress’s legislative role. It would be better to send the bill back and let the Congress decide explicitly what it should say, rather than the Court guess what the Congress would decide.
The Court seems to recognize the danger (p. 29):
In theory, perhaps, the Court might blue-pencil a sufficient number of the Board’s responsibilities so that its members would no longer be “Officers of the United States.” Or we could restrict the Board’s enforcement powers, so that it would be a purely recommendatory panel. Or the Board members could in future be made removable by the President, for good cause or at will. But such editorial freedom—far more extensive than our holding today—belongs to the Legislature, not the Judiciary. Congress of course remains free to pursue any of these options going forward.
but the Court believes that it is okay for it to exercise editorial freedom as long as it is not “extensive”.
Naturally it is the judiciary’s job to make judgement calls, but every judgement call makes the outcome less predictable, and predictability is the very essence of the rule of law. Where possible, the judiciary ought to make predictable, bright-line distinctions, and limit judgement calls to the bare minimum. Here the Supreme Court indulged in a judgement call it did not need to make.
But it seems that precedent going back at least to 1932 already establishes that the Court should make such a judgement call. Not one of the nine justices held out for my position.
Now let’s consider another piece of dreadful legislation without a severability clause: health care nationalization. The individual mandate appears to be unconstitutional. If the Court agrees (a big if, granted), the next question is whether the individual mandate will be held to be severable from the rest of the law.
As noted above, the question is whether it is “evident” that Congress would not have passed the law without the mandate. I think it is. The law is a delicately assembled Rube Goldberg machine. Without the mandate, the preexisting-condition provision will quickly bankrupt health insurers. Thus, the preexisting-condition provision must surely go as well. Furthermore, the mandate is the mechanism by which the law coerces changes in required health coverage (such as preventative care).
Would Congress have passed Obamacare without preexisting conditions, and without changes in required health coverage? Certainly not. It only barely passed as it was. Moreover, even if we imagine that it might have passed, the process of excising the unconstitutional provisions and all the other provisions that depend on them is exactly the sort of “blue-pencil” exercise that the Court is saying here is outside its power. I’m not a lawyer, but experts seem to agree: if the mandate falls, the whole bill will fall.
The Bush administration’s Justice Department’s actions were inappropriately political, but not criminal, when it fired a U.S. attorney in 2006, prosecutors said Wednesday in closing a two-year investigation without filing charges.
The decision closes the books on one of the lingering political disputes of the Bush administration, one that Democrats said was evidence of GOP politics run amok and that Republicans have always said was a manufactured controversy.
This was perfectly obvious from the first day of the supposed scandal: US Attorneys are political appointees who serve at the pleasure of the president, and they can be dismissed at any time for nearly any reason. The only way the dismissals could have been illegal was if the firings were intended to influence a case improperly, and no evidence ever surfaced to suggest that was the case.
Randy Barnett has been saying for some time that the Obamacare health insurance mandate, which institutes a penalty for inactivity, would be an unprecedented use of Congress’s interstate commerce power. At first his contention was mocked by Democratic legislators and law professors alike, but Barnett now seems to have won the argument without it ever seeing the inside of a courtroom.
Defenders of Obamacare have been shifting from the commerce clause to Congress’s taxation power to defend the law. Now the Obama administration is following along. The New York Times reports:
When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.” . . .
Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.
As the NYT notes, this is a significant shift from politicians who swore that the individual mandate was absolutely not a tax. Here’s President Obama (literally) mocking George Stephanopoulos for calling the individual mandate a tax (cue to 3:00):
Whether these statements will hurt the administration’s argument in court, I don’t know, but I’m sure they’ll be mentioned.
However, even if the court eventually finds that the mandate is a tax, not a penalty, Obamacare isn’t out of the woods yet. A new paper argues that the individual mandate is also unconstitutional as a tax. Their argument is as follows:
The Constitution, as amended, provides for three sorts of taxes: (1) direct taxes, which must be apportioned by population, (2) excise taxes (also called indirect taxes in the legal literature, although the term does not appear in the Constitution), which must be uniform, and (3) income taxes, which must be on “derived income” (a term of art in the legal literature).
The mandate is not an excise tax, as it taxes no particular activity and also is not indirect (i.e., it is not passed on to another party).
If (counterfactually) it is an excise tax, it is unconstitutional because it is not uniform.
It is not an income tax because it does not tax derived income.
If it is a direct tax, it is unconstitutional because it is not apportioned by population.
Stephen Bainbridge, who teaches law at UCLA and blogs at ProfessorBainbridge.com, has a great essay lauding the limited liability corporation, among other topics. It’s clumsy to download, so I’m reprinting the material on corporations after the jump.
Is it too much to hope that the Supreme Court police would be familiar with the First Amendment? Apparently so:
A group of Christian students was ordered to stop praying outside the U.S. Supreme Court building on May 5 because a court police officer told them it was against the law.
Most everyone is getting their taxes hiked by this administration, but trial lawyers are getting their own special tax cut:
After years of filling Democratic coffers with massive campaign donations, trial lawyers are cashing in their chips with a sweetheart deal from the government that will save the industry billions of dollars over the next few years.
According to a Legal Newsline report from the annual meeting of the American Association for Justice, the nation’s lobbying arm for trial lawyers, the industry may get a tax break from the U.S. Treasury Department that would give trial lawyers the ability to write off expenses involved in contingency fee cases much in the same way businesses write off expenses. But unlike businesses, lawyers will benefit from the tax write-off in addition to the fee they charge clients.
“They’re trying to get the best of both worlds,” said Christopher Appel, an attorney in the public policy group at the Washington-based law firm Shook, Hardy, and Bacon. “It’s not really a business expense. It’s a loan made to the other person the attorney fully expects to get back.”
Congress shot down a similar provision in 2009 that would have given trial lawyers a tax break on contingency fee lawsuits. An analysis of the bill at the time concluded that such a measure would ensure the government pays up to 40 percent of the costs involved in filing lawsuits. Now, it appears the group will get the tax break without having to go through the legislative process.
This is an outrageous payoff for reliable Democratic supporters. It’s terrible from a public policy standpoint too: Our society is too litigious already, we should be trying to encourage a reduction in litigation, not subsidizing it.
Also, the Treasury department can give trial lawyers a tax cut that Congress refused them? How does that work?
Never one to let the court have the last say, the Obama administration is trying yet again to impose a drilling moratorium, an even broader one this time.
J Christian Adams is an attorney until recently with the Justice Department’s Civil Rights Division who resigned in disgust over the DOJ’s dismissal of the Black Panther voter intimidation case. Adams alleges that DOJ officials have made numerous inaccurate statements (some under oath) regarding what transpired. More broadly, he says that the Civil Rights Division is openly hostile toward race-neutral enforcement of civil rights laws.
Adams was ordered by his superiors at DOJ to disregard a subpoena from the US Civil Rights Commission. Now a private citizen, he has agreed to testify.
This story broke early in the Internet Scofflaw hiatus, so a lot has transpired:
Adams has a piece at Pajamas Media on the Civil Rights Division’s disdain for the civil rights of non-minorities.
Pajamas Media has collected statements from other former DOJ employees corroborating Adams’s allegations.
There is a video of Adams speaking to Fox News here.
Pajamas Media has copies of documents that attest to Adams’s good service at the DOJ, refuting the department’s efforts to smear him since he went public.
Adams alleges that Assistant Attorney General Thomas Perez lied under oath.
Finally, the Washington Times marvels that the mainstream media is ignoring this huge scandal.
A federal appeals panel in New Orleans on Thursday denied the federal government’s bid to reinstate a six-month moratorium on offshore deepwater oil drilling issued by the Department of Interior, as part of the Obama administration’s response to the ongoing BP oil spill in the Gulf of Mexico.
Another basic civil right discarded by the defunct Blair-Brown government: the right to trial by jury. For the first time in 400 years, four men have been convicted of a crime without a jury trial:
Four men were jailed for between 15 years and life after being found guilty today of carrying out a £1.75m robbery in the first English criminal trial to be heard without a jury in 400 years. . .
Blake was sentenced to life in prison with a minimum term of 10 years and nine months, Twomey got 20 years and six months; Hibberd 17 years and six months; and Cameron, 15 years. . .
The four were tried, convicted and sentenced by Mr Justice Treacy after the previous three armed robbery trials collapsed, the last two amid allegations that the jurors had been “compromised” or tampered with. . .
The “hallowed principle” of trial by jury was set aside by the court of appeal in June last year, in the first case using powers under the Criminal Justice Act 2003, but campaigners called the decision a dangerous precedent.
The six-month election recount that turned former “Saturday Night Live” comedian Al Franken into a U.S. senator may have been decided by convicted felons who voted illegally in Minnesota’s Twin Cities.
That’s the finding of an 18-month study conducted by Minnesota Majority, a conservative watchdog group, which found that at least 341 convicted felons in largely Democratic Minneapolis-St. Paul voted illegally in the 2008 Senate race between Franken, a Democrat, and his Republican opponent, then-incumbent Sen. Norm Coleman.
The final recount vote in the race, determined six months after Election Day, showed Franken beat Coleman by 312 votes — fewer votes than the number of felons whose illegal ballots were counted, according to Minnesota Majority’s newly released study, which matched publicly available conviction lists with voting records. . .
“We aren’t trying to change the result of the last election. That legally can’t be done,” said Dan McGrath, Minnesota Majority’s executive director. “We are just trying to make sure the integrity of the next election isn’t compromised.”
Just think of all the votes, notably health care nationalization, for which Franken was the deciding vote.
Meanwhile, the US Justice Department is doing its part to make sure it does happen again:
The so-called Motor Voter Law of 1993 (a time when the Democrats controlled both houses of Congress and the Presidency) . . . requires the states to purge their voter rolls of the dead, felons, people who have moved, and others not eligible to vote.
According to J. Christopher Adams, who recently resigned from the DOJ and has been testifying in front of the U.S. Civil Rights Commission — which the department had forbidden him to do when he was an employee, despite a subpoena — the Deputy Assistant Attorney General Julie Fernandes told the Voting Rights Section at a meeting that, “We have no interest in enforcing this provision of the law. It has nothing to do with increasing turnout, and we are just not going to do it.”
Columbia University came up with a creative scheme to steal land from its neighbors. It bought up neighboring land, allowed it to fall into disrepair, and then prevailed on the government to condemn the whole neighborhood as blighted. Last December a state court blocked the scheme, but alas the New York Supreme Court has overruled the decision.
Supreme Court nominee Elena Kagan told her confirmation panel Tuesday that the landmark decision extending gun rights to all 50 states is “binding precedent,” despite a senator’s suggestion that the 5-4 ruling was on shaky ground. . .
The nominee said that unless the circumstances that led to a decision change or some other significant grounds can be found to challenge, “the operating presumption of our legal system is that a judge respects precedent. … You assume that it’s right and that it’s valid going forward.” . . .
Such answers could help to assuage Republicans’ concerns that Kagan would advance her political views, which they claim to be liberal, on the high court.
Well, it could assuage those concerns, but it shouldn’t. Sotomayor said the same thing at her confirmation hearing, then reneged the first chance she got:
The Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”
Contrast that with her Senate testimony: “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans.”
Yet her McDonald opinion shows her “understanding” that those many, many Americans are completely wrong to think they have a meaningful individual right.
To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported that Sen. Mark Udall, Colorado Democrat, “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”
So by “settled,” she apparently meant “not settled; should be overturned immediately.”
Sotomayor lied. Why should we believe Kagan is any different?
In addition to McDonald (a big win), we have three other cases. In Christian Legal Society v. Martinez, the court ruled that it is legal for a public university with an “all comers” policy to require religious groups to include non-believers as a condition for recognition. I think we’ll see a lot of all-comers policies now. In Bilski v. Kappos the court ruled 9-0 against bogus patents. In Free Enterprise Fund v. PCAOB, the court ruled that the Public Company Accounting Oversight Board is unconstitutional, but declined to stop it from operating, which seems like the constitutional equivalent of awarding $1 in damages.
So call it a 2.25/4 record today with a big win in McDonald, which I suppose is pretty good. Kennedy was in the majority for all four decisions.
UPDATE: Apparently Bilski v. Kappos did not categorically rule against business methods patents. I won’t have a chance to read that decision any time soon, but I’ll link an analysis when I see a good one.
The Second Amendment is fundamental to the Nation’s system of ordered liberty, rules the court. Chicago’s gun ban is remanded to the lower court, but its fate seems sealed by this decision. Only Thomas was inclined to resuscitate the Privileges and Immunities clause. At a glance it doesn’t look as though the court settled the level of scrutiny, so gun rights will almost certainly be coming back to the Court one more time before all is said and done.
UPDATE: I’m glad to see the opinion discuss the racist roots of gun control. It was clearly relevant to the authors of the 14th Amendment, and even if it weren’t, it’s valuable to see the rug pulled out from under the gun-control advocates’ pretenses to the moral high-ground.
UPDATE: Plaudits for Thomas’s brilliant concurrence.
“The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium,” Feldman said in his 22-page decision. “The blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.”
Much to the government’s discomfort and this Court’s uneasiness, the Summary also states that “the recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.” As the plaintiffs, and the experts themselves, pointedly observe, this statement was misleading. The experts charge it was a “misrepresentation.” It was factually incorrect. Although the experts agreed with the safety recommendations contained in the body of the main Report, five of the National Academy experts and three of the other experts have publicly stated that they “do not agree with the six month blanket moratorium” on floating drilling.
ACORN may have become synonymous with underage prostitution and human trafficking, but its bread and butter is voter fraud. Judicial Watch recently obtained FBI notes from its investigation into ACORN voter fraud activities. Daniel Foster has a handy summary.
POSTSCRIPT: Incidentally, ACORN is not dead; it is merely rebranding itself. Presumably they will continue their criminal activities under their new names.
The story of how the Black Panther voter intimidation case came to be dismissed is becoming more clear. It’s worth reading in its entirety, but I’ll highlight a few key points after the jump.
Clearly, South Carolina Democrats nominated a weak candidate to oppose Sen. Jim DeMint this fall. But Jim Clyburn (D-SC), the third-ranking House Democrat, isn’t taking the Democratic voters’ decision lying down. He wants a criminal investigation of the race.
Clyburn wants the US Attorney to investigate whether someone paid the filing fee for Alvin Greene, who won the Democratic nomination for US Senate. (I suppose a criminal investigation of the voters was out of the question.) Clyburn says that would be illegal under state law, if Greene’s candidacy is intended to hurt another candidate. As far as I can tell, Clyburn did not explain what role the US Attorney has in enforcing state election law.
The real purpose of such an investigation should be clear. The purpose here is to create a chilling effect, to deter people not favored by the Democratic machine from running in Democratic primaries. If you run, and you happen to win, you face a criminal investigation. Best to stay out.
POSTSCRIPT: Incidentally, I’m pretty sure this situation is not the one envisioned by the South Carolina law. If I understand it correctly, the scenario the law is trying to prevent is where candidate A pays the filing fee for candidate B, so B can draw support from candidate C, thereby allowing A to beat C. Since Greene won, this clearly isn’t a situation where he was in the race to help someone else win. (Moreover, I have to add that that sort of political gamesmanship should be legal anyway. It’s called democracy. Deal with it.)
UPDATE: PPP, a left-leaning but respectable polling agency, dismisses GOP chicanery in Greene’s victory. PPP attributes the outcome to random chance. We’ll see if that makes a difference to Clyburn. I doubt it will. (Via the Corner.)
UPDATE (7/10): An investigation found that Greene really did have the money to pay the filing fee. That’s right, South Carolina actually did conduct an investigation. Wow.
If you harbored any doubts over whether the Chrysler bankruptcy was a disaster, doubt no longer:
Chrysler entered and exited bankruptcy in forty-two days, making it one of the fastest major industrial bankruptcies in memory. It entered as a company widely thought to be ripe for liquidation if left on its own, obtained massive funding from the United States Treasury, and exited via a pseudo-sale of its main assets to a new government-funded entity. The unevenness of the compensation to prior creditors raised concerns in capital markets, which we evaluate here. We conclude that the Chrysler bankruptcy cannot be understood as complying with good bankruptcy practice, that it resurrected discredited practices long thought interred in the nineteenth- and early twentieth-century equity receiverships, and that its potential for disrupting financial markets surrounding troubled companies in difficult economic times, if the decision is followed, is more than small.
It’s the new model for business in the United States: advance the interests of the politically well-connected at the expense of everyone else, and the law be damned.
The Justice Department has brought a case against a group of Idaho doctors for refusing to do business at government-mandated prices. In a development that might make George Orwell blush, it’s the doctors that are being charged with price fixing:
This case is a watershed for two reasons:
First, until now the Federal Trade Commission, not the Justice Department, has taken the lead in prosecuting physicians. Since 2000, the FTC has brought about three dozen cases against physicians (all but one of which settled without any trial). But the FTC only has civil and administrative jurisdiction; the Antitrust Division has civil and criminal jurisdiction. The Sherman Act makes no distinction between civil and criminal “price fixing,” so in a case like this, it’s entirely a matter of prosecutorial discretion whether to charge the doctors with a civil or criminal offense.
Based on the descriptions in the Antitrust Division’s press release, there’s certainly no reason they couldn’t have prosecuted the doctors criminally and insisted upon prison sentences — and there’s little doubt such threats were made or implied to obtain the physicians’ agreement to the proposed “settlement.”
The second reason this is a landmark case is that the Justice Department has unambiguously stated that refusal to accept government price controls is a form of illegal “price fixing.”
An Army intelligence analyst has been arrested for leaking classified documents to WikiLeaks. The analyst is allegedly responsible for the helicopter attack video that WikiLeaks misleadingly promoted a couple of months ago, and various other breaches, including a leak of 260,000 (!) classified diplomatic cables.
They need to lock this guy up and throw away the key. Whether it was his purpose or not, he gave aid and comfort to the enemies of the United States.
In the Supreme Court’s decision in Berghuis v. Thompkins, Sonia Sotomayor (in dissent) makes an argument that I find quite frankly bizarre. The case arises from an interrogation in which a suspect (Thompkins) remained largely silent for nearly three hours before confessing to the crime (a homicide). By a 5-4 vote, the Court found the confession admissible.
Sotomayor argues that by not speaking two hours and forty-five minutes, Thompkins had shown that he had not waived his right to remain silent. That’s sounds reasonable, except that, to Sotomayor, “not waiving” doesn’t mean what you think. She argues that not waiving the right is just as good as invoking it, in that any subsequent statements are inadmissible. She summarizes thusly:
The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak.
Well, that’s one way you could guard that right, I suppose. But Sotomayor misses the obvious way in which you can guard your right to remain silent: by remaining silent!
The whole case arises from the fact that Thompkins eventually broke his silence and confessed. If he had actually remained silent, there would have been no case.
Apparently, Sotomayor and the other three liberal justices want to divorce the concept of a right to remain silent from its commonsense meaning. Most people understand the “right to remain silent” simply to mean that you aren’t required to speak to the police. But to Sotomayor and the liberals, the “right to remain silent” is a legal thing in itself that you must specifically waive in order to speak to the police. Bizarre.
A day after a federal judge ordered a New York middle school to reinstate Hosier, a seventh-grade who was suspended for wearing the religious symbol, the 13-year-old Schenectady boy is proudly displaying the symbol in memory of his younger brother who died while clutching it following an accident in 2005. . .
Chantell Hosier confirmed that Raymond wore the beads to Oneida Middle School on Wednesday after Judge Lawrence Klein ordered the boy to be reinstated pending a hearing on June 11 into whether the suspension violated his civil rights.
District officials did not return requests for comment, but they contend Hosier violated a policy banning gang-related clothing such as rosary beads, which are sometimes worn as gang symbols. That led the American Center for Law and Justice to file a lawsuit on Tuesday in U.S. District Court contending Raymond’s suspension last month violated his rights to free speech and religion.
Anyone who hoped that James O’Keefe would be cowed by his prosecution for entering federal property under false pretenses must be disappointed. A court ordered that O’Keefe’s video of Sen. Mary Landrieu’s (D-LA) office be destroyed, so we’ll never see that one, but he has a new hidden camera investigation. In his latest he uncovers waste and fraud at the Census Bureau.
Maine and Virginia are the only two states to stand up for the First Amendment. All other 48 states and the District of Columbia joined a brief arguing that individual speakers are entitled to less First Amendment protection than the institutional media.
Agreed, Fred Phelps is an execrable human being, but we should not toss out one of our most cherished freedoms in order to punish one man.
UPDATE: Maine and Virginia’s Attorneys General have issued statements.
Elena Kagan, as dean of Harvard Law School, removed constitutional law from the required curriculum and replaced it with courses on international law. That’s an ominous indicator of the sort of jurisprudence she would bring to the high court.
A major factual error in the Supreme Court’s Graham v. Florida decision underlines the fact that the court should limit itself to questions of law, and should leave the gathering of facts to those who are qualified to do it.
The AP breathlessly reports that James O’Keefe has pled guilty to a misdemeanor:
Four conservative activists accused of trying to tamper with the phones in Sen. Mary Landrieu’s office pleaded guilty Wednesday to misdemeanor charges of entering federal property under false pretenses.
We all know that criminals who plead guilty to lesser charges are very often guilty of the more serious charges. That certainly seems to be what the AP is trying to insinuate by leading its story with the original charges against O’Keefe. Would you guess from this story that O’Keefe was actually exonerated of trying to tamper with the phones?
O’Keefe has always maintained that he was trying to orchestrate a conversation for a new hidden camera video, and had no intention of tampering with the phones in any way. What the AP doesn’t want you to know is that the government’s investigation confirmed O’Keefe’s story. The Assistant US Attorney, Jordan Ginsberg, conceded in court that:
In this case further investigation did not uncover evidence that the defendants intended to commit any felony after the entry by false pretenses despite their initial statements to the staff of Senatorial office and GSA requesting access to the central phone system. Instead, the Government’s evidence would show that the defendants misrepresented themselves and their purpose for gaining access to the central phone system to orchestrate a conversation about phone calls to the Senator’s staff and capture the conversation on video, not to actually tamper with the phone system, or to commit any other felony.
Again, O’Keefe was exonerated in court of any intent to tamper with the phones, or commit any other felony. But the Associated Press doesn’t think the reader need to know that.
And it’s not just the AP. Despite signing the document, Ginsberg tried to avoid reading the key paragraph in court. O’Keefe’s attorneys were forced to insist. And Ginsberg also left out of his press release the minor fact that O’Keefe had been exonerated of all the serious charges.
Why don’t the AP and the US Attorney’s office want the public to know that O’Keefe was exonerated? (Yes, that’s a rhetorical question.)
UPDATE: O’Keefe gives a full account of what happened.
I don’t usually play the Imagine-if-a-Republican-had-said-it game, because frankly it’s usually just too obvious. But occasionally something really stands out: Can you imagine the outcry if a Republican had proposed revising Miranda?!
Attorney General Eric Holder said that Congress should “give serious consideration” to updating the Miranda warning which requires law enforcement officials to inform suspects of their rights – including the right to remain silent.
In an interview on “This Week,” Holder said that the U.S. needs to exam whether the current rules regarding Miranda warnings give law enforcement agents the “necessary flexibility” when dealing with terrorism cases.
Holder’s proposal is both right and wrong. I think it’s right to revise Miranda, because it goes much too far. For example, under Miranda, if you fail to read a suspect his rights, it’s assumed he doesn’t know them and any questioning is assumed coercive, even if that suspect is, say, a criminal law professor. That’s just silly.
But that’s an argument for revising Miranda in general. Revising it in the manner that Holder seems to be proposing is a very bad idea. Law enforcement personnel should not be able to set aside constitutional rights (and that’s what we’re assuming Miranda is, if we aren’t willing to revise it in general) in certain sorts of cases. That’s the sort of reasoning we see in the UK, where Parliament has been whittling away citizens’ rights to the point where they have hardly any left.
We can obtain the information we need while protecting the integrity of law enforcement by recognizing that there are two different sorts of agents: law enforcement and intelligence. Law enforcement abides by rules to ensure that the rights of suspects in civilian court are not violated. Intelligence obtains the information we need to protect the country, but that information might not be admissible in civilian court.
When the terrorist in question is a US citizen (such as Shahzad), there are still some problems, to be sure. These are matters that Congress needs to take seriously and try to craft a solution to. One idea would be to establish a “Chinese wall” between intelligence and law enforcement in such cases to prevent the proceeds of interrogation from tainting a prosecution. But we have to concede that we might sometimes have to forgo prosecution in order to protect innocent lives.
Unfortunately, the Obama administration can’t contemplate a course such as this, because they are fully invested in applying the law enforcement paradigm to terror cases. Holder’s own proposal implicitly acknowledges that the law enforcement approach is inappropriate for terror cases, but unfortunately he is compounding the problem by compromising the integrity of law enforcement rather than reversing his fundamental error.
If I’m understanding this WSJ story right, the FCC really is going to go ahead and claim that the internet is a telephone system so they can regulate it.
I like Joe Lieberman and Scott Brown, but their Terrorist Expatriation bill is a very, very bad idea. It would allow the government to strip Americans of their citizenship if it can show by a preponderance of the evidence (not beyond a reasonable doubt) that they provided material support for terrorism.
To lower the evidential bar is a terrible idea on general principles (and is certainly unconstitutional), but it’s particularly troubling in light of the government’s recent behavior in the Hutaree militia case. In that case, it appears that the government arrested several people for nothing more than discussing their fantasies about overthrowing the government. Unless the government has more evidence in reserve, this people will probably go free. But, if the government needed to show only a preponderance of the evidence, that would be another matter entirely. They might be able to make their flimsy case stick.
We need a bright-line distinction between citizens and noncitizens to reduce the temptation of political abuse. This blurs that distinction, which is a bad thing.
Supporters of Obamacare are not so confident of its constitutionality as they pretend:
A”tell” in poker is a subtle but detectable change in a player’s behavior or demeanor that reveals clues about the player’s assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month’s health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate’s defenders changed the argument—now claiming constitutional authority under Congress’s power to tax.
This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.
The ACLU’s old position on restrictions on campaign contributions (as quoted in a WSJ op-ed) was:
Limitations on contributions or expenditures made by individuals or organizations for the purpose of advocating causes or candidates in the public forum impinge directly on freedom of speech and association. Their implementation poses serious dangers to the First Amendment. They should be opposed in candidate as well as referenda elections.
That position was right. “Campaign contributions” is simply like-minded people pooling their money to fund their speech. Limits on campaign contributions are no more or less than a limit on free association and speech.
That position put the ACLU at odds with the bulk of the liberal establishment, who want to limit free speech. In fact, liberal politicians tried to cap expenditures as well as contributions (that is, the actual speech, and not just the free association to fund speech) but was blocked by the Supreme Court.
That probably made for awkward moments at dinner parties. Anyway, whatever the reason, the ACLU Board of Directors has voted to reverse its position. The ACLU is now officially okay with limits on free speech.
Some liberals have urged the FCC to reclassify the Internet as a “telecommunications service” in order to circumvent the court ruling barring the FCC from imposing network neutrality. Larry Downes says it’s not so simple.
Yet another ethics complaint against Sarah Palin has been dismissed. She has been cleared 26 times, with 1 complaint still outstanding. Palin said:
My reaction upon reading the opinion in this matter was not what I expected. Though I’m always pleased with the results of these investigations that prove the false allegations wrong, and I appreciate the detailed reasoning set forth in this recent opinion, I was primarily disappointed that the State of Alaska, the Attorney General’s office, and others, still have to spend time and resources addressing the abusive onslaught of frivolous complaints directed against me—even after I left office.
After the iPhone video of McKenna’s beating emerged, investigators subpoenaed 60 hours of surveillance video from the College Park campus police. The only video police couldn’t manage to locate was the one from the camera aimed squarely at the area where McKenna was beaten. Funny how that works. Campus police claimed that a “technical error” with that particular camera caused it to record over the footage of the beating. As public pressure mounted, police later found what they claimed was a recording of the lost video. But two minutes of that video were missing. Coincidentally, those two minutes happened to depict key portions of McKenna’s beating. The kicker? The head of the campus video surveillance system, Lt. Joanne Ardovini, is married to one of the cops named in McKenna’s complaint.
This looks really really bad.
Meanwhile, elsewhere in Maryland, officials tried to prosecute a man for recording a police officer making an overly aggressive traffic stop. (Don’t they realize how bad this looks?) And it turns out that they had no case:
In fact, under Maryland law what Graber did isn’t actually a crime. For a recording to be illegal, one of the parties being recorded must have a reasonable expectation of privacy. A cop, acting as a cop, with his gun drawn, while standing alongside a public roadway, has no such expectation. On April 15th, Graber was released and the charges against him were dropped. As he told Miller, “The judge who released me looked at the paperwork and said she didn’t see where I violated the wiretapping law.”
But that didn’t stop the police from jailing the man for over a day and searching his home. Worse:
Graber was harassed, intimidated, illegally arrested, and jailed for an act that clearly wasn’t illegal. According to Graber, the name of the judge who signed off on the raid of his parents’ home doesn’t appear on the warrant. As Graber told Miller, “They told me they don’t want you to know who the judge is because of privacy.” If true, that statement is so absurd it’s mind numbing. A judge issued an illegal warrant for police to invade the private residence and rummage through the private belongings of a man who broke no laws, and we aren’t permitted to know the judge’s name in order to protect the judge’s privacy?
The U.S. Court of Appeals for the Second Circuit has issued a stay on the December 2009 injunction by Clinton-appointed Judge Nina Gershon that declared the Association of Community Organizers for Reform Now (ACORN) funding ban was unconstitutional.
The result of the stay is that the Congressional funding ban will go back into effect, and ACORN will not receive taxpayer dollars while the court reviews the case.
One of the lawsuits against health care nationalization raises an interesting argument against it: the individual mandate requires that people disclose private health information to insurance companies. The privacy argument might have more sway with the courts than the enumerated powers argument. (Not that it should, but we have the courts we have.)
Prince George’s prosecutors have begun a criminal investigation of three county police officers who beat an unarmed University of Maryland student with their batons after a basketball game last month in an incident that was caught on video and surfaced publicly Monday, authorities said.
County police also ordered an internal affairs investigation of the three officers, Maj. Andy Ellis said. Ellis said the inquiry would also focus on a county officer who filed official charging documents that are contradicted by the video. . .
Charging documents say McKenna and Donat provoked the beating by attacking officers on horseback. The video clearly shows the officers rushing McKenna and beating him, although the teenager had not touched any of the mounted units.
The charging documents also say that the horses injured McKenna and Donat and make no mention of the beating by the officers. The video shows no aggression by the horses.
The unprovoked beating under cover of authority is bad enough, but then they fabricated a story to justify their attack. These people need to go to prison. The other officers that stood by and watched it happen need to be fired too, but there’s no way that will happen.
UPDATE: This incident proves that we should be recording the authorities all the time. Nevertheless, in the very same state (Maryland that is), a man is being prosecuted for recording the police. (Via Instapundit.)
The Court of Appeals for DC has ruled unanimously that the FCC does not have the power to impose network neutrality:
A federal appeals court ruled Tuesday that the Federal Communications Commission lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.
The ruling by the U.S. Court of Appeals for the District of Columbia is a big victory for Comcast Corp., the nation’s largest cable company. It had challenged the FCC’s authority to impose so-called “net neutrality” obligations on broadband providers.
The ruling also marks a serious setback for the FCC, which is trying to officially set net neutrality regulations.
This is a good thing for technology, as I explain here and here. It’s obviously a good thing for property rights, and it’s also good for the rule of law, as the FCC had no authority to do what it was trying to do:
Because the FCC “has failed to tie its assertion” of regulatory authority to any actual law enacted by Congress, the agency does not have the authority to regulate an Internet provider’s network management practices, wrote Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.
Gilbert, Arizona is in the process of repealing its unconstitutional ban on bible studies in the home, but a California town is standing by its ban:
For the second time in six months, the city has ordered a group of Christian worshippers who meet inside homes to get a permit or shut down.
It’s the latest incident in which religious groups in Southern California have been targeted by cities for home gatherings, though many of those groups were eventually allowed to meet without obtaining permits.
Rancho Cucamonga is trying to halt Friday night meetings at a home after receiving a complaint in February from a neighbor that 40 to 60 people were gathering weekly in the San Bernardino County location.
Officials said the homeowner needs a conditional use permit by Good Friday, April 2, to operate a church in a residential area.
Pacific Justice Institute, a nonprofit legal defense group that specializes in conservative Christian issues, said the meetings were actually a Bible study group that usually draws about 15 people.
The permit requires public hearings, traffic studies and other costly procedures. Requiring one would be “manifestly absurd and unjust,” according to a statement Tuesday from Brad Dacus, president of the Sacramento-based institute.
The city doesn’t require permits for similar-sized gatherings, “everything from birthday parties to the weekend beer bash,” added Matt McReynolds, an institute attorney.
These folks should go ahead with their meetings without a permit. There’s no way that the town’s effort to shut them down will stand up in court.
I’m pretty sure this won’t pass constitutional muster:
The national Alliance Defense Fund says a town code that bars religious assemblies in private homes in the Arizona community of Gilbert is unconstitutional.
The Oasis of Truth church began meeting at Pastor Joe Sutherland’s house in November and rotated homes several times a week for Bible study and fellowship.
A Gilbert code compliance officer hit the church with a violation notice after seeing a sign near a road advertising a Sunday service.
A zoning administrator told the church that Bible studies, church leadership meetings and fellowship activities are not permitted in private homes.
According to Michael McConnell, a former federal judge. I think he’s right, it terms of what the Constitution says, but I’m skeptical that the Supreme Court would throw the law over this. Alas, that’s what matters.
Also seemingly relevant would be INS v. Chada (1983), which rejected the position that a section 7 cases present a non-justiciable political question. The practice at issue in Chada, the one-house veto, was far more established by practice and by statute than is the Slaughter Solution of “deeming” an unenacted bill to have been enacted.
Last week, in a late Friday information dump (the traditional way to release information you don’t want people to pay attention to), the Obama administration released a memorandum from David Margolis. Margolis is an associate deputy attorney general who was tasked with reviewing the DOJ’s Office of Professional Responsibility’s work investigating the so-called torture memos. (Margolis is a career lawyer who has had the job of reviewing OPR findings since the early in the Clinton administration.) The OPR’s draft reports and draft reports, which were leaked and widely splashed throughout the media, found that Yoo and Bybee engaged in professional misconduct and recommended that their findings be referred to the bar for disciplinary action.
Margolis’s 69-page memo absolutely shreds the OPR’s work. He finds numerous problem with the work, but perhaps this one is the most telling (p. 6):
In a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR’s own standard analytical framework. . . This departure was not insignificant. I have held my current position within the Department for nearly seventeen years. During that time, I have reviewed almost every OPR report of investigation. OPR developed its framework over a decade ago and to the best of my knowledge has applied it virtually without exception since that time.
Amazingly, the OPR admitted (p. 8) that it did not apply the framework “in an effort to facilitate public release of the report.” Margolis also notes (p. 8) that that the OPR’s use of the framework in its final report does not exonerate them. Indeed, he quotes approvingly Yoo’s response that by retrofitting the framework onto an existing finding, OPR engaged in exactly the sort of “ends-driven legal reasoning” that the OPR criticized in Yoo and Bybee’s work.
Apropos to that criticism, Margolis also rejects (p. 65) the OPR’s finding that Yoo deliberately tried “to accommodate the client”, which was central to the OPR’s finding of intentional misconduct on Yoo’s part.
This whole mess must be laid at the door of Attorney General Holder. It’s true that much of the OPR’s shoddy work was done during the Bush administration, but the OPR deliberately stalled its report in hopes that it would find a more receptive audience with the new administration (which, of course, it did). Consequently, on the last day of the Bush administration, Attorney General Mukasey sent a 14-page memo to the incoming administration noting significant problems with the OPR’s work. As Yoo now points out, it would have been easy for Holder to concur with the assessment of his predecessor, and doing so would have shown that DOJ was above politics. But Holder did the opposite, so he now owns the mess.
With the release of the Margolis memo, the books are now almost closed on the sorry mess. All that remains is to investigate the OPR’s own misconduct both in failing to observe proper procedure and — more importantly — in all the leaks. (Although it is possible that the leaks came not from the OPR but from Holder’s own office.) I’m sure that Holder will get right on that.
POSTSCRIPT: There’s a media failure angle to this story as well. The news reports I’ve seen or heard on this (e.g., in the Washington Post, and on NPR) omit any mention of the OPR’s misconduct. Instead they focus on the only aspect of Margolis’s memo not damaging to the Obama administration, which is his assessment that Yoo and Bybee “exercised poor judgement”. It’s barely true. Margolis did conclude that Yoo and Bybee should have foreseen that the torture memos would eventually be exposed to a broader audience, and so the memos should have contained more nuance than was necessary for the memos’ intended audience. That finding was in the penultimate paragraph of a 69-page report of which the first 67-1/2 pages were dedicated to the OPR’s shoddy work.
I’m at a loss to explain why the Democrats can be perceived by many as the defenders of civil liberties. They’re awful, not only on the rights they oppose, like the Second Amendment, but also on the ones they supposedly support, like the Fourth:
Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. . . The Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.
Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.
I can’t figure these guys out. According to the Democrats, an intelligence agency conducting surveillance on a foreign terrorist overseas should stop listening whenever they call someone in the United States, or even route a communication through the United States. But on the other hand, they think the government should be free electronically to track the movements of US citizens at home. What is wrong with these guys?
The White House is trying to assert copyright over the work of the official White House photographer. They are attaching this notice to each photo on the White House Flickr account:
This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.
I’m not sure what the law is regarding the unauthorized use of a photo to imply an endorsement, but the rest of this is garbage. US Government work is in the public domain. In fact, each page of the White House Flickr account includes a link to a page at US.gov that explains exactly that:
A work that is a United States Government work, prepared by an officer or employee of the United States Government as part of that person’s official duties, is not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.
So, in honor of the White House’s ham-handed effort illegally to limit the use of its photos, here’s a photo of the back of the president’s head:
POSTSCRIPT: The White House may be skirting the law even by claiming this copyright. The US Copyright code says:
Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.
I imagine that the “fraudulent intent” proviso gets them off-the-hook though.
Amazing. In response to a call for his office to investigate the Justice Department’s dismissal of voter intimidation charges against the Black Panthers, the Justice Department’s inspector general says unfortunately he has no power to investigate the incident. In the Justice Department, unlike other departments, all internal investigations answer to the Attorney General. By law, there is no one that can conduct an independent investigation of DOJ wrongdoing. So what is the DOJ IG for then?
You might not be shocked to learn that the rule was put into place by Janet Reno. It was codified in law in 2008.
But they won’t face any consequences, the London Times reports:
The university at the centre of the climate change row over stolen e-mails broke the law by refusing to hand over its raw data for public scrutiny.
The University of East Anglia breached the Freedom of Information Act by refusing to comply with requests for data concerning claims by its scientists that man-made emissions were causing global warming.
The Information Commissioner’s Office decided that UEA failed in its duties under the Act but said that it could not prosecute those involved because the complaint was made too late, The Times has learnt. The ICO is now seeking to change the law to allow prosecutions if a complaint is made more than six months after a breach.
From the president’s State of the Union address last night, one whopper in particular is getting a lot of attention:
With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people.
This bit has gotten a lot of attention because Justice Alito’s silent but barely visible objection, shaking his head and mouthing the words “not true”.
Alito is right. First, Citizens United v. FEC reversed Austin v. Michigan Chamber of Commerce, which was decided in 1990. For those without a calculator handy, that was 20 years ago. So Citizen United reversed two decades of law, not a century. (Furthermore, Austin itself overruled a series of cases going back to 1936 — over 50 years of precedent.)
Second, the decision did not open the door for foreign corporations to spend in American elections. The decision invalidated 2 USC §441b, which forbids corporate spending in elections (see page 50 of the opinion), but the decision said nothing about §441e, which forbids foreign spending. (Via the Corner.)
Third, not only was §441e not at issue in Citizens United, but the decision expressly disclaims any conclusion regarding foreign contributions (pp. 46-47):
We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process. . . Section 441b . . . would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.
In short, President Obama’s statement is completely false, which, as a scholar of constitutional law, he must be perfectly aware.
A week before Citizens United, the Supreme Court settled another interesting case in Hollingsworth v. Perry. It did so on a 5-4 decision, and the liberal dissent gave an interesting window into the thinking of the liberal justices and their disdain for the rule of law.
The matter at issue was whether the federal court of the Northern District of California has acted properly in amending its rules to allow broadcast of the court proceedings in the legal battle over California’s proposition 8, which bans same-sex marriage. Ed Whelan puts the rule change into context, as part of Judge Walker’s aim to turn the proceedings into some kind of show trial. For my part, I have no strong opinion about what the outcome of the trial ought to be, but I am very concerned by the judge’s failure to follow proper procedure.
The court manifestly did not follow proper procedure in amending its rules. Federal law requires that the court “give appropriate public notice and an opportunity for comment” when changing its rules, except when presented by “immediate need”. Legal precedent establishes that “appropriate” notice is no less than thirty days. The court failed to do so:
It first announced the rule change on December 17 with no advance notice or comment period whatsoever. Some interested parties complained that doing so was illegal.
On December 31, the court removed the announcement of the rule change, and replaced it with an announcement of a proposed rule change. Public comments were to be submitted by Friday, January 8. (The alert reader will note that 8 is less than 30.) The date was not arbitrary; the trial was due to open the following Monday, January 11.
On January 4, the court set aside even its abbreviated comment period and announced that the rule change was in effect, using the “immediate need” exception.
On January 6, the court decided — with no surprise to anyone — that the Prop. 8 case would be broadcast.
After an appeal, the Supreme Court then issued its ruling, which barred the proceedings from being broadcast on the grounds the rule change enabling the broadcast was invalid. It noted that:
Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.
This, however, seems to be the central point of disagreement.
Justice Breyer, in the liberal dissent, raises various technical objections to the ruling, including the remarkable argument that the Supreme Court has no business “micromanag[ing] district court administrative procedures”. (If a lower court violates its procedures, the liberal justices believe that the wronged party has no legal recourse?!) As to the central issue, he says that the court did provide sufficient opportunity for comment, because the possibility of broadcasting the trial had been discussed for months before the rule change was officially proposed. (He makes no effort to defend the lower court’s invocation of “immediate need”.)
In other words, Breyer argues the letter of the law need not be observed because the considerations that motivated the law were addressed in another way. This is a dangerous viewpoint for justices of the nation’s highest court to take.
My department operates on what we call the “reasonable person principle”, which says that we will try to do what a reasonable person would do, rather than tie ourselves down in legalistic rules. In a small, friendly environment, this is a good system. (It may even be a good system in the large, mostly friendly environment my department has now.) However, it is not at all a good system in an adversarial environment.
In an adversarial environment, such as a court or election (or sporting competition), the rules must be set down precisely and enforced punctiliously. This is essential so that all parties can plan strategy and act with the confidence that they know the rules of the game. In a friendly situation it may be beneficial to all to deviate from the rules, but in an adversarial situation any deviation has a winner and a loser.
This goes to the essence of the rule of law. As Friedrich von Hayek put it in The Road to Serfdom:
[The rule of law] means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.
When the court sets aside its rules in favor of nebulous principles whose application cannot be reliably predicted, we are no longer under the rule of law. Alas, this is the arrangement that four justices of the Supreme Court believe we should adopt. Fortunately, it’s only four.
The Supreme Court’s decision in Citizens United v. FEC is a big victory for free speech. Unfortunately, it was a 5-4 decision, with the “liberal” justices opposing free speech. (How badly screwed up is our political nomenclature when the preceding sentence makes sense?)
The liberals complain that corporations are not real people, and thus are not entitled to free speech rights. Of course, no one says that a corporation is a real person: they can’t vote, serve on juries, etc. But who exactly, do the “liberals” think make up a corporation? Androids? Ghosts? Aliens? No, corporations are made up of people, just as are all other organizations. The “liberal” position is that a person should go to prison for speaking about a candidate during an election, if that speech was part of the activities of a corporation. Make no mistake, the “liberals” want to send real people to prison for engaging in speech.
But only certain people. The “liberals” want to criminalize the speech of some but not others: If you’re part of a sole proprietorship or a partnership, you’re good. If you’re an individual who extracted his wealth from a corporation, you’re good. If you’re part of certain corporations (those that have a media component), you’re good. But certain people that work for certain organizations (i.e., corporations without a media component) should go to jail for speaking. And keep in mind, it’s not just big for-profit corporations, it’s also (as the court’s opinion notes) groups like the Sierra Club, NRA, or ACLU whose members could be sent to jail for speaking about a candidate during an election.
The “liberals” also complain about how radical the decision is. In fact, the decision merely reverts to the precedent that was in play until fairly recently. For example, in its 1978 First National Bank of Boston v. Bellotti decision, the court ruled (as quoted in Citizens United):
We thus find no support in the First . . . Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. . .
In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.
It was not until 1990 that the free-speech train went off the rails in the Austin v. Michigan Chamber of Commerce decision. That decision invented a flimsy new government interest (antidistortion) that the Obama administration didn’t even bother to defend. Even more bizarrely, Austin somehow found that a complete ban on political speech by corporations was narrowly tailored to address the antidistortion interest. Citizens United is a good decision, and one that never should have been necessary.
One cannot help but think that the real reason the left is so upset about Citizens United is that they think it will hurt them. In that regard, I think that they are worrying for nothing, for two reasons:
First, Citizens United unshackles labor unions in addition to corporations. True, corporations have more money, but labor unions are much more political. We can expect that labor unions will use their new freedom much more than corporations typically will.
Second, large corporations obviously have more money to throw around than small corporations, and while small business overwhelmingly tends to support small government (and therefore the GOP), big business often supports big government. While excessive regulation strangles small businesses, large businesses have the resources to survive it. In fact, large businesses often lobby for regulation because it drives out their smaller and more nimble competition. Plus, businesses love it when the government buys things with tax money that individuals weren’t interested in buying on their own.
So I don’t think that the post-Citizens-United landscape favors the GOP as much as the left fears it does. In fact, I think it favors the Democrats in the long term. In the short term, however, the Democrats have been so flagrantly anti-business that they probably will take a hit. They deserve it.
Finally, one prediction. Citizens United exacerbates an already strange political situation in which the politicians have the weakest voice in politics. Fund-raising limitations put severe burdens on politicians and parties that others who spend their own money don’t have. Since politicians make the rules, I would be surprised to see them remain disadvantaged for long. Expect very soon to see proposals to raise or even to remove limits on campaign fund raising.
Posted by K. Crary 
Internet Scofflaw 
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