In his final weeks in office, President George W. Bush was beset with what he describes in his memoir Decision Points as a “flood” of pardon requests submitted by people who “pulled me aside” to special plead for some friend, family member or former colleague. At first “frustrated” and then “disgusted,” Bush resolved “that I would not pardon anyone who went outside the formal [Justice Department] channels.”
It is a good story, but — as the New York Times reporter Charlie Savage notes — “incomplete.” In fact, as Savage wrote on the Times’ blog The Caucus, Bush granted a batch of 20 pardons on Dec. 23, 2008, including at least four who went outside the Justice Department channels.
As with the self-enhancing version of his pardons policy, so too with Bush’s description of one of the most momentous of his decision points: his personal authorization for CIA and military interrogators to use “waterboarding” on suspected terrorists. The four-page account (pp. 168-171) so oversimplifies the events before and after Bush’s directive as to be at the very least “incomplete” — and, for any lesson-drawing purposes, simply wrong.
Bush traces the origins of the CIA’s “enhanced interrogation techniques” to the capture in March 2002 of Abu Zubaydah, purportedly a close associate of al Qaeda leader Osama bin Laden, and his initial questioning by FBI agents. As Bush tells it, the FBI interrogation ran dry and the CIA proposed to take over in a secret location with additional techniques. “At my direction,” Bush writes, “Department of Justice and CIA lawyers conducted a careful legal review.” That review found all the techniques constitutional and lawful. Even so, Bush ruled out two that “went too far,” but approved the others, including waterboarding.
To Michael Scharf, a law professor at Case Western Reserve University in Cleveland who has studied and written extensively on the issue, the account hardly begins to tell the story. In Scharf’s account in a law review article and his forthcoming book, Shaping Foreign Policy in Times of Crisis, it was not Bush, but Vice President Dick Cheney and his lawyer, David Addington, who drove the legal review — determined to find the interrogation techniques lawful.
Cheney succeeded by the bureaucratic ploy of cutting out potential opponents. As Scharf explains, the interrogation program was classified “need to know” instead of merely “top secret.” The effect was to keep the plan from the top lawyers of each of the military services and, most significantly, the State Department’s legal adviser, the office most expert in interpreting the U.S.-signed treaties banning torture. The “careful” legal review that Bush describes was, in Scharf’s words, “completely one-sided.”
Unmentioned by Bush, the memos upholding the techniques — and twisting the previous view of waterboarding as torture — have been rescinded. Whatever its legal basis, Bush credits the waterboarding and other of the torture-like techniques used on Zubaydah with breaking his resistance. CIA interrogators supposedly gained pivotal information that led, eventually, to the capture of 9/11 mastermind Khalid Sheikh Mohammed in March 2003. And KSM provided information “vital to saving American lives” that “almost certainly would not have come to light without the CIA’s enhanced interrogation program.”
Nowhere does Bush mention the later downgrading of Zubaydah’s importance. In court filings, the government now disclaims any allegation that Zubaydah is a member of al Qaeda or played a role in the September 11 or other attacks on the United States. Nor does Bush acknowledge the sharp dispute about the supposedly invaluable intelligence gained from the enhanced interrogation techniques.
The most telling refutation comes from former FBI agent Ali Soufan, who helped interrogate KSM for three months (March-June 2002) before the CIA took over. In successive op-ed articles in the New York Times in April and September 2009 and comments elsewhere, Soufan labels the puffed-up accounts of the intelligence gained from the enhanced interrogation techniques as “false claims.” He says that KSM was providing “actionable intelligence” under traditional techniques and notes that KSM has boasted of providing false information to later interrogators. As for Zubaydah, Soufan similarly says no intelligence was gained that was not or could not have been gained from regular interrogations.
As with waterboarding, Bush is incomplete in describing some of the administration’s other post-9/11 legal policies. He describes his early decision to treat the Guantanamo detainees as outside the protections of the Geneva conventions (pp. 166-167) with no mention of the State Department’s position that in fact they were covered by the U.S.-signed international accords. He describes the creation of the “military commissions” to try Guantanamo detainees (p. 167) with no mention of the departures from the procedures for regular military tribunals. And after acknowledging the Supreme Court’s decision in Hamdan v. Rumsfeld (2006) striking down the military commissions, Bush claims that Congress solved the problem with legislation passed later that year (pp. 177-179). But he does not mention of the court’s later ruling, Boumediene v. Bush (2008), that found unconstitutional the critical provision in the law to limit judicial review of the reconstituted military commissions’ decisions.
Bush’s acknowledgment of having authorized waterboarding has prompted calls from human rights groups, including Amnesty International and the American Civil Liberties Union, to prosecute him for violating U.S. law against torture. An administration that has already given a pass to the lawyers who wrote the torture memos is hardly likely to take on a former chief executive. But the American people still deserve the complete torture story — and they have gotten nothing close to that from Bush’s first-person account.
Monday, November 22, 2010
Sunday, November 14, 2010
Mixed Reviews for First Post-Citizens United Election
The United States has just completed its first, post-Citizens United national election. Total cost: $4 billion, including nearly $300 million from independent groups that benefited from the Supreme Court’s decision freeing corporations and unions to spend unlimited sums in political campaigns. The reviews are decidedly mixed.
“We’ve just seen our first $4 billion election, and it wasn’t pretty,” says Arn Pearson, vice president for programs at Common Cause, the granddaddy of campaign finance reform groups. “I don’t think anyone believes voters were better served as a result.”
To the contrary, says Bradley Smith, chairman and co-founder of the deregulatory Center for Competitive Politics. “By most standards, this was one of the most issue-oriented campaigns ever,” Smith says. More races were competitive, he says, challengers were well-funded, and voter turnout was up.
As for independent expenditures, they amounted to less than 10 percent of the total, Smith points out. “Corporate and union spending did not drown out individual spending,” he says. There were “more voices, more people participating,” Smith says. “That’s a good thing.”
The clashing views show that no one has changed positions since the Roberts Court Jan. 21 decision in Citizens United v. Federal Election Commission to wipe out the century-long ban on direct corporate spending in federal elections. Like the Roberts Court’s conservative majority, Smith and other critics of campaign finance regulation view the ruling as a victory for the First Amendment. Like the liberal dissenters, Common Cause and other campaign finance reform groups say the decision will make elected officials all the more beholden to moneyed special interests, especially corporations.
The critics are especially concerned about what they calculate as about $138 million spent by independent groups with no obligation to disclose their donors. “It’s difficult to quantify the impact of that anonymity,” says Shelia Krumholz, executive director of the Center for Responsive Politics (CRP). “Anonymity has to be public enemy number one.”
One group stands out for the critics: Crossroads Grassroots Policy Strategies (Crossroads GPS), created by Bush White House political guru Karl Rove as an affiliate of American Crossroads, the so-called “Super PAC” that he helped found with former Republican National Committee chairman Ed Gillespie. As a political action committee, American Crossroads is subject to disclosure requirements, but Crossroads GPS is outside campaign finance laws because electioneering is (purportedly) not its “primary activity.”
Together, the two groups spent nearly $39 million in the congressional races, but Crossroads GPS is not disclosing the donors for its $17 million share of that amount. It spent big on some key races, according to CRP, either to oppose Democratic candidates or support GOP contenders. Some spending paid off: $4.4 million in the Illinois race won by Republican Mark Kirk and $1.1 million in the Kentucky contest won by Republican Rand Paul. But some did not. The group invested $3.5 million in trying to defeat Democratic senator Patty Murray in Washington and more than $2.25 million in seeking to oust Senate Majority Leader Harry Reid in Nevada.
Smith, who had two years to put his deregulatory views into practice as member and chairman of the Federal Election Commission (FEC), scoffs at the disclosure issue. Critics talk about “the shadowy group founded by Karl Rove and Ed Gillespie,” Smith says. “How shadowy is that?”
“All of the ads have to identify who paid for them,” Smith notes, “but they don’t have to identify who gave the money to the organization that paid for them.” Some people want more disclosure, Smith acknowledges, “I don’t see that there would be a lot more gained if there were,” he says.
The election included some good news for critics of out-of-control campaign spending. The two most prominent profligate spenders went down to defeat in campaigns financed from their own pockets: Republican Meg Whitman, who spent $140 million running for governor of California, and GOP hopeful Linda McMahon, who spent $50 million in Connecticut’s Senate race.
Independent spending, on the other hand, does appear to have been effective in helping tilt some pivotal contests, according to a report by Public Citizen, the Nader-founded advocacy group. It found that the winning candidate enjoyed a nearly 3-to-1 advantage overall in unregulated third-party spending in 58 out of 74 party-shifting congressional races. Prime examples were the Illinois and Pennsylvania Senate races, contests won by Kirk and Pennsylvania’s Pat Toomey after outside groups poured millions into opposing Democratic nominees ($8 million in Illinois, $5.3 million in Pennsylvania).
Disclosure laws are the next target of campaign finance deregulators. In Citizens United, the Supreme Court upheld disclosure requirements, with only Justice Clarence Thomas dissenting. Even if broad constitutional challenges are rejected, the Crossroads GPS example illustrates the gaps — critics call them loopholes — in existing law.
At a post-election forum, Common Cause reiterated its stance for broader disclosure and for some form of public campaign financing. And it calls for a constitutional amendment if necessary to overturn Citizens United. The decision, Pearson said, “cannot stand.”
To Smith, now a law professor at Capital University Law School in Columbus, Ohio, the complaints are nothing more than “whining.” The elections, he says, “were not a catastrophe.” As for Citizens United, “more and more people will say we can live with this.”
“We’ve just seen our first $4 billion election, and it wasn’t pretty,” says Arn Pearson, vice president for programs at Common Cause, the granddaddy of campaign finance reform groups. “I don’t think anyone believes voters were better served as a result.”
To the contrary, says Bradley Smith, chairman and co-founder of the deregulatory Center for Competitive Politics. “By most standards, this was one of the most issue-oriented campaigns ever,” Smith says. More races were competitive, he says, challengers were well-funded, and voter turnout was up.
As for independent expenditures, they amounted to less than 10 percent of the total, Smith points out. “Corporate and union spending did not drown out individual spending,” he says. There were “more voices, more people participating,” Smith says. “That’s a good thing.”
The clashing views show that no one has changed positions since the Roberts Court Jan. 21 decision in Citizens United v. Federal Election Commission to wipe out the century-long ban on direct corporate spending in federal elections. Like the Roberts Court’s conservative majority, Smith and other critics of campaign finance regulation view the ruling as a victory for the First Amendment. Like the liberal dissenters, Common Cause and other campaign finance reform groups say the decision will make elected officials all the more beholden to moneyed special interests, especially corporations.
The critics are especially concerned about what they calculate as about $138 million spent by independent groups with no obligation to disclose their donors. “It’s difficult to quantify the impact of that anonymity,” says Shelia Krumholz, executive director of the Center for Responsive Politics (CRP). “Anonymity has to be public enemy number one.”
One group stands out for the critics: Crossroads Grassroots Policy Strategies (Crossroads GPS), created by Bush White House political guru Karl Rove as an affiliate of American Crossroads, the so-called “Super PAC” that he helped found with former Republican National Committee chairman Ed Gillespie. As a political action committee, American Crossroads is subject to disclosure requirements, but Crossroads GPS is outside campaign finance laws because electioneering is (purportedly) not its “primary activity.”
Together, the two groups spent nearly $39 million in the congressional races, but Crossroads GPS is not disclosing the donors for its $17 million share of that amount. It spent big on some key races, according to CRP, either to oppose Democratic candidates or support GOP contenders. Some spending paid off: $4.4 million in the Illinois race won by Republican Mark Kirk and $1.1 million in the Kentucky contest won by Republican Rand Paul. But some did not. The group invested $3.5 million in trying to defeat Democratic senator Patty Murray in Washington and more than $2.25 million in seeking to oust Senate Majority Leader Harry Reid in Nevada.
Smith, who had two years to put his deregulatory views into practice as member and chairman of the Federal Election Commission (FEC), scoffs at the disclosure issue. Critics talk about “the shadowy group founded by Karl Rove and Ed Gillespie,” Smith says. “How shadowy is that?”
“All of the ads have to identify who paid for them,” Smith notes, “but they don’t have to identify who gave the money to the organization that paid for them.” Some people want more disclosure, Smith acknowledges, “I don’t see that there would be a lot more gained if there were,” he says.
The election included some good news for critics of out-of-control campaign spending. The two most prominent profligate spenders went down to defeat in campaigns financed from their own pockets: Republican Meg Whitman, who spent $140 million running for governor of California, and GOP hopeful Linda McMahon, who spent $50 million in Connecticut’s Senate race.
Independent spending, on the other hand, does appear to have been effective in helping tilt some pivotal contests, according to a report by Public Citizen, the Nader-founded advocacy group. It found that the winning candidate enjoyed a nearly 3-to-1 advantage overall in unregulated third-party spending in 58 out of 74 party-shifting congressional races. Prime examples were the Illinois and Pennsylvania Senate races, contests won by Kirk and Pennsylvania’s Pat Toomey after outside groups poured millions into opposing Democratic nominees ($8 million in Illinois, $5.3 million in Pennsylvania).
Disclosure laws are the next target of campaign finance deregulators. In Citizens United, the Supreme Court upheld disclosure requirements, with only Justice Clarence Thomas dissenting. Even if broad constitutional challenges are rejected, the Crossroads GPS example illustrates the gaps — critics call them loopholes — in existing law.
At a post-election forum, Common Cause reiterated its stance for broader disclosure and for some form of public campaign financing. And it calls for a constitutional amendment if necessary to overturn Citizens United. The decision, Pearson said, “cannot stand.”
To Smith, now a law professor at Capital University Law School in Columbus, Ohio, the complaints are nothing more than “whining.” The elections, he says, “were not a catastrophe.” As for Citizens United, “more and more people will say we can live with this.”
Monday, November 8, 2010
The Campaign That Iowa's Justices Might Have Won
Jeffrey Neary drew the ire of social conservatives in 2003 when, without realizing, the Sioux City, Iowa, judge signed a divorce decree for a lesbian couple who had moved to the state after having formed a civil union in Vermont. Iowa did not recognize same-sex marriages at the time, so Neary revised the court document to show that he had dissolved the couple’s civil union.
Anti-gay activists saw Neary’s action as judicial activism and mounted a campaign to defeat him in the next election in 2004. Neary fought back, as reporter Greg Schulte of the Des Moines Register recalled in a story this year. Neary borrowed money and recruited two attorneys, one Republican and one Democrat, to run his campaign in the retention election, where voters cast “yes” or “no” ballots on keeping a judge in office.
Neary survived, with 59 percent of the vote. But, as he told Schulte during what proved to be a successful effort this year to defeat three of the state’s supreme court justices, the experience had an effect. For two years afterward, Neary said, he found himself looking over his shoulder when making decisions. “You did ask yourself,” the judge recalled. “Who’s going to care about this decision?”
With much more at stake this year, Chief Justice Marsha Ternus and two of her colleagues, David Baker and Michael Streit, all but sat on the sidelines as anti-gay groups targeted them for defeat because of the Iowa court’s 2009 decision recognizing same-sex marriages in the state. The three justices organized no campaign for themselves and turned aside requests for interviews. Only in the final weeks did Ternus “go public” in semi-earnest with civic club-type appearances touting the importance of judicial independence. But the speeches were no match for the no-holds-barred campaign against the justices.
Operating under the name Iowa for Freedom, the campaign against the justices spent upwards of $800,000, about $700,000 of the amount from out of state, according to Adam Skaggs, a lawyer with the Brennan Center for Social Justice at New York University Law School who followed the campaign. Financing came from such anti-gay national groups as the American Family Association, Family Research Council and National Organization for Marriage.
Without direct help from the justices, an in-state group that called itself Fair Courts for US raised about $400,000 to counter the campaign, according to Skaggs. But it bought no television or newspaper advertisements even as the anti-gay group was running TV and newspaper ads and organizing a highly visible bus tour in Iowa’s rural areas.
The justices stuck to the no-campaign stance even as polls in September and October showed that one or more of them were in trouble. The Register’s poll in October showed that 44 percent of respondents were planning to vote against at least one of the justices. Only 37 percent said they were in favor of retaining all three. By contrast, polls a year earlier had shown Iowans were essentially split down the middle on the gay marriage issue itself.
In the final days before the Nov. 2 voting, thousands of Iowans received robocalls at their homes urging a no vote on all three. Defeating the justices, the recorded messages said, would “send a clear message that we are taking back control of our government from political activist judges.”
The campaign worked. All three justices were defeated on Nov. 2 by roughly 55-45 margins. Leaders of the campaign claimed a victory against a court that had overstepped its bounds. The state’s gay rights leaders acknowledged the setback while noting that the court’s pro-gay marriage ruling still stands.
Iowa is one of 16 states that use judicial retention elections, the so-called Missouri plan named for the first state to adopt the system. No appellate justices had been defeated since Iowa adopted the system in 1962, but over the years Iowans had ousted four trial-level judges, all because of character or temperament issues.
As Neary’s experience in 2004 showed, a judge need not tie his hands behind his back when an ouster effort forms. Indeed, as Skaggs notes, even as the Iowa justices were going down to defeat, the chief justice in neighboring Illinois was surviving a comparable campaign because of his vote to strike down a law limiting damages in medical malpractice cases.
To counter the business-backed campaign against him, Chief Justice Thomas Kilbride raised $2.5 million to defend his seat. He won, with more than 60 percent of the vote. “The lesson for judges in the country,” Skaggs says, “is if we want to keep our jobs, we’re going to have to campaign like any other politicians, particularly in retention elections.”
That lesson for judges will be an unwelcome one for judicial independence advocates such as retired Supreme Court Justice Sandra Day O’Connor, who has been warning of the dangers of judicial elections. But only nine states dispense with judicial elections altogether. For better or worse, judges in the rest of the country serve in an electoral system — partisan or nonpartisan races or retention elections.
Could the Iowa justices have won? “Probably,” says Skaggs. “They didn’t fall short by that much of a margin.” But they chose the high road in the campaign — and paid for their high-mindedness with their jobs. The cost to judicial independence could be even greater if judges in future campaigns take the same approach.
Anti-gay activists saw Neary’s action as judicial activism and mounted a campaign to defeat him in the next election in 2004. Neary fought back, as reporter Greg Schulte of the Des Moines Register recalled in a story this year. Neary borrowed money and recruited two attorneys, one Republican and one Democrat, to run his campaign in the retention election, where voters cast “yes” or “no” ballots on keeping a judge in office.
Neary survived, with 59 percent of the vote. But, as he told Schulte during what proved to be a successful effort this year to defeat three of the state’s supreme court justices, the experience had an effect. For two years afterward, Neary said, he found himself looking over his shoulder when making decisions. “You did ask yourself,” the judge recalled. “Who’s going to care about this decision?”
With much more at stake this year, Chief Justice Marsha Ternus and two of her colleagues, David Baker and Michael Streit, all but sat on the sidelines as anti-gay groups targeted them for defeat because of the Iowa court’s 2009 decision recognizing same-sex marriages in the state. The three justices organized no campaign for themselves and turned aside requests for interviews. Only in the final weeks did Ternus “go public” in semi-earnest with civic club-type appearances touting the importance of judicial independence. But the speeches were no match for the no-holds-barred campaign against the justices.
Operating under the name Iowa for Freedom, the campaign against the justices spent upwards of $800,000, about $700,000 of the amount from out of state, according to Adam Skaggs, a lawyer with the Brennan Center for Social Justice at New York University Law School who followed the campaign. Financing came from such anti-gay national groups as the American Family Association, Family Research Council and National Organization for Marriage.
Without direct help from the justices, an in-state group that called itself Fair Courts for US raised about $400,000 to counter the campaign, according to Skaggs. But it bought no television or newspaper advertisements even as the anti-gay group was running TV and newspaper ads and organizing a highly visible bus tour in Iowa’s rural areas.
The justices stuck to the no-campaign stance even as polls in September and October showed that one or more of them were in trouble. The Register’s poll in October showed that 44 percent of respondents were planning to vote against at least one of the justices. Only 37 percent said they were in favor of retaining all three. By contrast, polls a year earlier had shown Iowans were essentially split down the middle on the gay marriage issue itself.
In the final days before the Nov. 2 voting, thousands of Iowans received robocalls at their homes urging a no vote on all three. Defeating the justices, the recorded messages said, would “send a clear message that we are taking back control of our government from political activist judges.”
The campaign worked. All three justices were defeated on Nov. 2 by roughly 55-45 margins. Leaders of the campaign claimed a victory against a court that had overstepped its bounds. The state’s gay rights leaders acknowledged the setback while noting that the court’s pro-gay marriage ruling still stands.
Iowa is one of 16 states that use judicial retention elections, the so-called Missouri plan named for the first state to adopt the system. No appellate justices had been defeated since Iowa adopted the system in 1962, but over the years Iowans had ousted four trial-level judges, all because of character or temperament issues.
As Neary’s experience in 2004 showed, a judge need not tie his hands behind his back when an ouster effort forms. Indeed, as Skaggs notes, even as the Iowa justices were going down to defeat, the chief justice in neighboring Illinois was surviving a comparable campaign because of his vote to strike down a law limiting damages in medical malpractice cases.
To counter the business-backed campaign against him, Chief Justice Thomas Kilbride raised $2.5 million to defend his seat. He won, with more than 60 percent of the vote. “The lesson for judges in the country,” Skaggs says, “is if we want to keep our jobs, we’re going to have to campaign like any other politicians, particularly in retention elections.”
That lesson for judges will be an unwelcome one for judicial independence advocates such as retired Supreme Court Justice Sandra Day O’Connor, who has been warning of the dangers of judicial elections. But only nine states dispense with judicial elections altogether. For better or worse, judges in the rest of the country serve in an electoral system — partisan or nonpartisan races or retention elections.
Could the Iowa justices have won? “Probably,” says Skaggs. “They didn’t fall short by that much of a margin.” But they chose the high road in the campaign — and paid for their high-mindedness with their jobs. The cost to judicial independence could be even greater if judges in future campaigns take the same approach.
Sunday, October 31, 2010
Justices Still Saying No to Cameras in Courtroom
Anyone following the contentious arguments over immigration policy is in for a real treat on Monday: a carefully organized debate, broadcast nationwide on C-SPAN (9 AM PDT), over Arizona’s controversial new law aimed at cracking down on illegal aliens.
The participants will be two experienced lawyers: John Bouma, chairman of a big Phoenix-based law firm, representing Arizona, and Edwin Kneedler, a deputy U.S. solicitor general for the federal government. The forum will be a federal courtroom in San Francisco before a three-judge panel of the Ninth U.S. Circuit Court of Appeals.
One month later, the U.S. Supreme Court on Dec. 8 will be the forum for a similar debate over an earlier Arizona law that seeks to raise the penalties, for workers and employers alike, of hiring undocumented aliens. On that day, however, the only members of the general public who will be able to hear the arguments in real time will have to line up hours beforehand to claim one of the coveted 300 seats inside the courtroom.
Thirty years after the Supreme Court gave a green light to television coverage of state court trials, the court continues to close its doors to cameras. Whatever other courts may think about this no-longer-newfangled medium, the justices will have none of it, at least not yet.
The resistance continues despite the justices’ awareness of the interest in the issue across in the street in the U.S. Capitol. The Senate Judiciary Committee in June approved a bill (S. 446) that would require the court to allow television coverage of oral arguments. A companion resolution (S. Res. 339), approved by the same, bipartisan 13-6 vote, would skirt separation-of-power issues by expressing “the sense of the Senate” that the court should allow TV coverage.
Both measures were sponsored by Sen. Arlen Specter, the Pennsylvania Republican-turned-Democrat now in the final months of his 30 years in the Senate. Specter has been dogged on the issue for years and has raised it at confirmation hearings for Supreme Court nominees.
With their confirmations at stake, Supreme Court nominees profess open-mindedness on the subject. “I don’t have a set view on that,” the future chief justice, John G. Roberts Jr., told Specter during his confirmation hearing in September 2005. “It’s something that I would want to the listen to the views of — if I were confirmed — to my colleagues.”
Less than a year later, however, Roberts had listened to his camera-shy colleagues and come around. “There’s a concern about the impact of television on the institution,” Roberts said in July 2006 to a conference of federal judges. “We’re going to be very careful before we do anything that might have an adverse impact.”
In fact, the justices are not unanimous on the subject. Stephen G. Breyer says cameras will “inevitably” come to the court. Like Breyer, two other justices — Samuel A. Alito Jr. and Sonia Sotomayor — supported television coverage when they were serving on federal appeals courts.
The newest justice, Elena Kagan, voiced enthusiastic support for the idea in her confirmation hearing in June. “I think it would be a terrific thing to have cameras in the courtroom,” Kagan said. “When you see what happens there, it's an inspiring sight.”
With David H. Souter gone — he promised that television cameras would come in over his dead body — the avowed opponents on the court number three: Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. Kennedy fears some unstated negative effect on the court’s “dynamic.” Thomas too says it would be bad for the court without saying how. For his part, Scalia simply mocks the idea of open government by saying that the court’s arguments should not become fodder for “entertainment.”
Despite those views, the court opened the term with what seemed to be a major step into media sunshine. The court announced that audio recordings of oral arguments would now be available on the court’s Web site by the end of the argument week. Previously, recordings were available only through the National Archives after the end of the term.
The move turned out, however, to be a head-fake. Without saying so, the justices at the same time discarded the practice of making arguments in major cases available on the same day. That practice, which originated with Bush v. Gore in 2000, had allowed radio and TV news outlets to air expanded, same-day coverage of big cases just when the public was paying close attention.
Ostensibly, the justices wanted to skirt the problem of deciding which cases warranted same-day release. The effect, however, has been to eliminate any news media interest in excerpting arguments a few days after. One suspects that at least some of the justices are pleased with that result.
With a lame-duck congressional session approaching, a coalition of open-access groups led by the American Civil Liberties Union is urging Congress to move on the issue after the election. “Allowing cameras to broadcast Supreme Court arguments will bring a crucial part of our government’s proceedings to the vast majority of the American public for the first time,” says Michael Macleod-Ball, the ACLU’s legislative chief of staff and First Amendment counsel. With many other issues demanding lawmakers’ attention, however, the prospects for action this year seem very slim.
The participants will be two experienced lawyers: John Bouma, chairman of a big Phoenix-based law firm, representing Arizona, and Edwin Kneedler, a deputy U.S. solicitor general for the federal government. The forum will be a federal courtroom in San Francisco before a three-judge panel of the Ninth U.S. Circuit Court of Appeals.
One month later, the U.S. Supreme Court on Dec. 8 will be the forum for a similar debate over an earlier Arizona law that seeks to raise the penalties, for workers and employers alike, of hiring undocumented aliens. On that day, however, the only members of the general public who will be able to hear the arguments in real time will have to line up hours beforehand to claim one of the coveted 300 seats inside the courtroom.
Thirty years after the Supreme Court gave a green light to television coverage of state court trials, the court continues to close its doors to cameras. Whatever other courts may think about this no-longer-newfangled medium, the justices will have none of it, at least not yet.
The resistance continues despite the justices’ awareness of the interest in the issue across in the street in the U.S. Capitol. The Senate Judiciary Committee in June approved a bill (S. 446) that would require the court to allow television coverage of oral arguments. A companion resolution (S. Res. 339), approved by the same, bipartisan 13-6 vote, would skirt separation-of-power issues by expressing “the sense of the Senate” that the court should allow TV coverage.
Both measures were sponsored by Sen. Arlen Specter, the Pennsylvania Republican-turned-Democrat now in the final months of his 30 years in the Senate. Specter has been dogged on the issue for years and has raised it at confirmation hearings for Supreme Court nominees.
With their confirmations at stake, Supreme Court nominees profess open-mindedness on the subject. “I don’t have a set view on that,” the future chief justice, John G. Roberts Jr., told Specter during his confirmation hearing in September 2005. “It’s something that I would want to the listen to the views of — if I were confirmed — to my colleagues.”
Less than a year later, however, Roberts had listened to his camera-shy colleagues and come around. “There’s a concern about the impact of television on the institution,” Roberts said in July 2006 to a conference of federal judges. “We’re going to be very careful before we do anything that might have an adverse impact.”
In fact, the justices are not unanimous on the subject. Stephen G. Breyer says cameras will “inevitably” come to the court. Like Breyer, two other justices — Samuel A. Alito Jr. and Sonia Sotomayor — supported television coverage when they were serving on federal appeals courts.
The newest justice, Elena Kagan, voiced enthusiastic support for the idea in her confirmation hearing in June. “I think it would be a terrific thing to have cameras in the courtroom,” Kagan said. “When you see what happens there, it's an inspiring sight.”
With David H. Souter gone — he promised that television cameras would come in over his dead body — the avowed opponents on the court number three: Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. Kennedy fears some unstated negative effect on the court’s “dynamic.” Thomas too says it would be bad for the court without saying how. For his part, Scalia simply mocks the idea of open government by saying that the court’s arguments should not become fodder for “entertainment.”
Despite those views, the court opened the term with what seemed to be a major step into media sunshine. The court announced that audio recordings of oral arguments would now be available on the court’s Web site by the end of the argument week. Previously, recordings were available only through the National Archives after the end of the term.
The move turned out, however, to be a head-fake. Without saying so, the justices at the same time discarded the practice of making arguments in major cases available on the same day. That practice, which originated with Bush v. Gore in 2000, had allowed radio and TV news outlets to air expanded, same-day coverage of big cases just when the public was paying close attention.
Ostensibly, the justices wanted to skirt the problem of deciding which cases warranted same-day release. The effect, however, has been to eliminate any news media interest in excerpting arguments a few days after. One suspects that at least some of the justices are pleased with that result.
With a lame-duck congressional session approaching, a coalition of open-access groups led by the American Civil Liberties Union is urging Congress to move on the issue after the election. “Allowing cameras to broadcast Supreme Court arguments will bring a crucial part of our government’s proceedings to the vast majority of the American public for the first time,” says Michael Macleod-Ball, the ACLU’s legislative chief of staff and First Amendment counsel. With many other issues demanding lawmakers’ attention, however, the prospects for action this year seem very slim.
Sunday, October 24, 2010
Remembrances of Things Past, Best Forgotten
“The past is never forgotten; it’s never even past.”
Clarence Thomas is a Supreme Court justice with a long, but selective, memory. Apparently, the same is true of his wife, Virginia Thomas, who made front-page news this month not only as a Republican/Tea Party activist but also as a loyal spouse seeking vindication for her husband nearly two decades after accusations of sexual harassment nearly derailed his appointment to the high court.
In interviews and in his memoir, My Grandfather’s Son, Justice Thomas can recall slights as far back as his childhood. But he conveniently forgets the role that his unappreciated Yale law degree and the Republican Party’s racial politics played in advancing his career from Senate staffer to head of the Equal Employment Opportunity Commission (EEOC) and eventually as the second African American to serve on the Supreme Court.
Similarly, Ginni Thomas apparently still feels the pain from having listened in October 1991 to law professor Anita Hill accuse her husband of sexual harassment while she worked for him at the EEOC. But in her bizarre voice mail message this month [Oct. 9] asking Hill to recant, Ginni Thomas conveniently forgets that Hill’s accusation before the Senate Judiciary Committee was buttressed by significant, if admittedly circumstantial, corroborating evidence.
The recapitulation of evidence by two reporters-turned-columnists who covered the hearing — Ruth Marcus of the Washington Post and Bloomberg’s Ann Woolner — provides a good reminder that this is no “he said, she said” swearing contest. Yes, as Marcus writes, only Thomas and Hill can know “the full truth” of what happened between them. But Marcus and Woolner both make clear that this is a “he said, they said” swearing contest with the weight of the evidence supporting Hill’s explosive accusation.
Hill, then in her mid-30s at the University of Oklahoma’s College of Law and now at Brandeis University, had more to lose than to gain from coming forward, reluctantly, with her allegations against Thomas after the presumed close of his confirmation hearing. Under oath, she testified that while working as Thomas’s assistant at the EEOC, he made a variety of sexually provocative and tasteless remarks to her, including the infamous reference to a pubic hair in a Coke can. Thomas, also under oath, vehemently denied the allegations and provocatively labeled himself as the victim of a “high-tech lynching.”
Thomas’s supporters then and now point to the difficulty of proving a negative. It was also difficult, of course, for Hill to prove an affirmative about events that only the two of them witnessed. But corroborating evidence was in fact produced. Two of Hill’s friends, Ellen Wells and Susan Hoerchner, testified that Hill told them about the alleged sexual harassment in 1982. John Carr, a boyfriend in a long-distance relationship in 1983, also testified that Hill told him of the alleged conduct. And Joel Paul, a law professor at American University, testified that when the school was recruiting Hill in 1987, she cited sexual harassment as the reason for her resignation from the EEOC.
As Woolner points out, prosecutors often use evidence of “outcry” to support rape accusations in a criminal case. In addition, another of Thomas’s employees at EEOC, press secretary Angela Wright, told the Senate staff that he had pressured her for dates, to the point of an uninvited late-night appearance at her apartment. She did not testify publicly because the then-Senate Judiciary Committee Chairman Joe Biden limited testimony to Thomas’s conduct in the workplace. Biden also ruled out as an invasion of privacy any evidence about Thomas’s reported interest in pornography.
As Marcus recounts, journalist-authors found more supporting evidence afterward. Jane Mayer (now at the New Yorker) and Jill Abramson (now news managing editor of the New York Times) include in their book, Strange Justice, accounts from two others at the EEOC of similar pubic hair/Coke can remarks. In their biography, Supreme Discomfort, the Washington Post’s Kevin Merida and Michael Fletcher quote a college classmate of Thomas’s as describing “an almost identical episode.”
History must judge the episode as inconclusive. Thomas won confirmation, with several pivotal senators saying before the 52-48 vote that they had to disregard the allegations as unproven. With interest renewed by Ginni Thomas’s phone call, however, one more corroborating witness has emerged. Lillian McEwen, a now retired government lawyer who dated Thomas for five years in the 1980s, told the Washington Post that Thomas constantly sized up female employees as “potential partners.” In the interview and in a forthcoming memoir, McEwen also describes Thomas as avidly interest in pornography.
Ginni Thomas has previously called on Hill in interviews to recant and apologize, but the phone message at Hill's office unnerved her enough to turn it over to campus police. Ginni Thomas’s motivation is unknown, beyond her stated belief that it was time for Hill to pray about doing the right thing; she reportedly canceled some scheduled media interviews last week, avoiding questions. In his memoir three years ago, Justice Thomas again denied wrongdoing and depicted the accusations as a politically motivated attack on him as a black conservative.
Hill and many of us who covered the hearing believe with her that she has nothing to apologize for. Hill’s supporters have been forced to get past it, but for Clarence and Ginni Thomas the past is not forgotten; it is not even past.
— William Faulkner
Clarence Thomas is a Supreme Court justice with a long, but selective, memory. Apparently, the same is true of his wife, Virginia Thomas, who made front-page news this month not only as a Republican/Tea Party activist but also as a loyal spouse seeking vindication for her husband nearly two decades after accusations of sexual harassment nearly derailed his appointment to the high court.
In interviews and in his memoir, My Grandfather’s Son, Justice Thomas can recall slights as far back as his childhood. But he conveniently forgets the role that his unappreciated Yale law degree and the Republican Party’s racial politics played in advancing his career from Senate staffer to head of the Equal Employment Opportunity Commission (EEOC) and eventually as the second African American to serve on the Supreme Court.
Similarly, Ginni Thomas apparently still feels the pain from having listened in October 1991 to law professor Anita Hill accuse her husband of sexual harassment while she worked for him at the EEOC. But in her bizarre voice mail message this month [Oct. 9] asking Hill to recant, Ginni Thomas conveniently forgets that Hill’s accusation before the Senate Judiciary Committee was buttressed by significant, if admittedly circumstantial, corroborating evidence.
The recapitulation of evidence by two reporters-turned-columnists who covered the hearing — Ruth Marcus of the Washington Post and Bloomberg’s Ann Woolner — provides a good reminder that this is no “he said, she said” swearing contest. Yes, as Marcus writes, only Thomas and Hill can know “the full truth” of what happened between them. But Marcus and Woolner both make clear that this is a “he said, they said” swearing contest with the weight of the evidence supporting Hill’s explosive accusation.
Hill, then in her mid-30s at the University of Oklahoma’s College of Law and now at Brandeis University, had more to lose than to gain from coming forward, reluctantly, with her allegations against Thomas after the presumed close of his confirmation hearing. Under oath, she testified that while working as Thomas’s assistant at the EEOC, he made a variety of sexually provocative and tasteless remarks to her, including the infamous reference to a pubic hair in a Coke can. Thomas, also under oath, vehemently denied the allegations and provocatively labeled himself as the victim of a “high-tech lynching.”
Thomas’s supporters then and now point to the difficulty of proving a negative. It was also difficult, of course, for Hill to prove an affirmative about events that only the two of them witnessed. But corroborating evidence was in fact produced. Two of Hill’s friends, Ellen Wells and Susan Hoerchner, testified that Hill told them about the alleged sexual harassment in 1982. John Carr, a boyfriend in a long-distance relationship in 1983, also testified that Hill told him of the alleged conduct. And Joel Paul, a law professor at American University, testified that when the school was recruiting Hill in 1987, she cited sexual harassment as the reason for her resignation from the EEOC.
As Woolner points out, prosecutors often use evidence of “outcry” to support rape accusations in a criminal case. In addition, another of Thomas’s employees at EEOC, press secretary Angela Wright, told the Senate staff that he had pressured her for dates, to the point of an uninvited late-night appearance at her apartment. She did not testify publicly because the then-Senate Judiciary Committee Chairman Joe Biden limited testimony to Thomas’s conduct in the workplace. Biden also ruled out as an invasion of privacy any evidence about Thomas’s reported interest in pornography.
As Marcus recounts, journalist-authors found more supporting evidence afterward. Jane Mayer (now at the New Yorker) and Jill Abramson (now news managing editor of the New York Times) include in their book, Strange Justice, accounts from two others at the EEOC of similar pubic hair/Coke can remarks. In their biography, Supreme Discomfort, the Washington Post’s Kevin Merida and Michael Fletcher quote a college classmate of Thomas’s as describing “an almost identical episode.”
History must judge the episode as inconclusive. Thomas won confirmation, with several pivotal senators saying before the 52-48 vote that they had to disregard the allegations as unproven. With interest renewed by Ginni Thomas’s phone call, however, one more corroborating witness has emerged. Lillian McEwen, a now retired government lawyer who dated Thomas for five years in the 1980s, told the Washington Post that Thomas constantly sized up female employees as “potential partners.” In the interview and in a forthcoming memoir, McEwen also describes Thomas as avidly interest in pornography.
Ginni Thomas has previously called on Hill in interviews to recant and apologize, but the phone message at Hill's office unnerved her enough to turn it over to campus police. Ginni Thomas’s motivation is unknown, beyond her stated belief that it was time for Hill to pray about doing the right thing; she reportedly canceled some scheduled media interviews last week, avoiding questions. In his memoir three years ago, Justice Thomas again denied wrongdoing and depicted the accusations as a politically motivated attack on him as a black conservative.
Hill and many of us who covered the hearing believe with her that she has nothing to apologize for. Hill’s supporters have been forced to get past it, but for Clarence and Ginni Thomas the past is not forgotten; it is not even past.
Monday, October 18, 2010
Lady Justice’s Blind Eye Toward Prosecutorial Misconduct
Tea Party types who want to strike a blow against governmental abuse and constitutional violations need not travel to Washington, D.C., to find a target for their protests. They can go instead to the nearest state or federal courthouse, where prosecutors are quite likely to be committing negligent mistakes or willful misconduct far more often than commonly acknowledged.
The incidence of prosecutorial misconduct is unknown and unknowable. Even more than police, prosecutors commit their wrongdoing — most commonly, withholding evidence from defense lawyers — behind closed doors. This much is known: The few offending prosecutors who are caught are rarely punished in any meaningful way.
These conclusions reflect long-held beliefs among defense lawyers, civil libertarians and many criminal justice experts. They gain confirmation now from two critical studies: a six-month investigative project covering federal prosecutors by USA Today and a decade-long review of state cases in California by the Northern California Innocence Project at Santa Clara University Law School. Both find statistical evidence of prosecutorial wrongdoing, often linked to wrongful convictions, with hardly any of the errant D.A.’s suffering any form of punishment.
The two studies were published in September just as the U.S. Supreme Court was preparing to hear arguments in a notorious case of prosecutorial misconduct, Connick v. Thompson. John Thompson spent 14 years on death row in a Louisiana prison — and came within hours of execution — for a murder that he did not commit. He was convicted in part because a prosecutor knowingly withheld crucial evidence from the defense lawyer, evidence that the prosecutor was ethically and legally obliged to turn over.
Now freed from prison, Thompson wants some compensation for the years of freedom that the criminal justice system wrongfully took from him. But the Supreme Court has made it virtually impossible to sue an individual prosecutor. Prosecutors are immune for any official actions directly related to a criminal trial. In any event, the trial prosecutor, who surreptitiously removed forensic evidence from the storage room, died a few years back. He had confessed his misconduct to a colleague, but had taken no other action to right his wrong.
With personal liability foreclosed, Thompson instead is trying to hold the New Orleans district attorney’s office itself responsible for failing to train assistant D.A.’s properly about the so-called Brady rule. The rule, established by the Supreme Court in Brady v. Maryland (1963), requires prosecutors to turn over any potentially exculpatory evidence to the defense.
Thompson’s federal civil rights lawsuit runs into an obstacle. The Supreme Court's decision in another case, Monell v. Dep’t of Social Services of New York (1978), allows a municipality to be held liable for a constitutional violation by one of its officials only if the plaintiff proves “deliberate indifference” on the municipality’s part. In Supreme Court arguments on Oct. 6, the justices got tied up in knots over the question of whether a single egregious instance could show “deliberate indifference.” They also pressed the former inmate’s lawyer to specify exactly what training the district attorney’s office should have been required to provide to new prosecutors.
Legally, it may be a close case. In real-world terms, it is not. New Orleans’ longtime district attorney, Harry Connick Sr., appears to have fostered a lopsided attitude toward Brady in the office: Disclose nothing unless you absolutely have to; don’t worry about being called on the carpet for withholding. The training manual for the office actually misstated the Brady rule.
Impunity for Brady violations and other prosecutorial misconduct appears to be the rule in other jurisdictions. In the USA Today package, reporters Brad Heath and Kevin McCoy documented 201 federal criminal cases since 1997 in which judges “blasted prosecutors for ‘flagrant’ or ‘outrageous’ misconduct” such as “hiding evidence,” “lying to judges or juries,” or breaking plea bargains. (Disclosure: Heath is a former student of mine at Georgetown University Law Center.)
The Justice Department’s internal watchdog investigates such cases: 42 in 2001, 61 last year. But the department refuses, on privacy grounds, to say whether any of the prosecutors was punished. Using state bar records, however, Heath and McCoy found that since 2001 only one federal prosecutor has been suspended even temporarily from law practice because of misconduct. In the flagrant example they used to start the story, the federal prosecutor who concealed unfavorable information about the government’s major witnesses got a slap on the wrist: a one-day training session on ethics.
In the California study, the Santa Clara law school project combed state appellate court decisions from 1997 through 2009 and identified 707 cases in which courts “explicitly found that prosecutors committed misconduct.” The vast majority of convictions (548) were nevertheless upheld: no harm, no foul, apparently.
More troublingly, an examination of state bar records found public disciplinary actions against only 10 state prosecutors during the period, only six of them for trial-related violations. As Professor Kathleen Ridolfi and visiting journalist Maurice Possley conclude, judges, prosecutors, and the California State Bar are “casting a blind eye to prosecutors who place their thumbs on the scales of justice.”
The Supreme Court could play a role in changing the lax attitude toward errant prosecutors, but the justices’ questions in Thompson’s case point in the opposite direction. One more sign of the justices’ solicitude toward government attorneys came today (Oct. 18) when they agreed to hear former Attorney General John Ashcroft’s appeal in a case, Ashcroft v. Al-Kidd, testing whether he can be held individually liable for alleged misuse of the federal material witness statute during the post-9/11 roundup of hundreds of wrongfully accused individuals.
The incidence of prosecutorial misconduct is unknown and unknowable. Even more than police, prosecutors commit their wrongdoing — most commonly, withholding evidence from defense lawyers — behind closed doors. This much is known: The few offending prosecutors who are caught are rarely punished in any meaningful way.
These conclusions reflect long-held beliefs among defense lawyers, civil libertarians and many criminal justice experts. They gain confirmation now from two critical studies: a six-month investigative project covering federal prosecutors by USA Today and a decade-long review of state cases in California by the Northern California Innocence Project at Santa Clara University Law School. Both find statistical evidence of prosecutorial wrongdoing, often linked to wrongful convictions, with hardly any of the errant D.A.’s suffering any form of punishment.
The two studies were published in September just as the U.S. Supreme Court was preparing to hear arguments in a notorious case of prosecutorial misconduct, Connick v. Thompson. John Thompson spent 14 years on death row in a Louisiana prison — and came within hours of execution — for a murder that he did not commit. He was convicted in part because a prosecutor knowingly withheld crucial evidence from the defense lawyer, evidence that the prosecutor was ethically and legally obliged to turn over.
Now freed from prison, Thompson wants some compensation for the years of freedom that the criminal justice system wrongfully took from him. But the Supreme Court has made it virtually impossible to sue an individual prosecutor. Prosecutors are immune for any official actions directly related to a criminal trial. In any event, the trial prosecutor, who surreptitiously removed forensic evidence from the storage room, died a few years back. He had confessed his misconduct to a colleague, but had taken no other action to right his wrong.
With personal liability foreclosed, Thompson instead is trying to hold the New Orleans district attorney’s office itself responsible for failing to train assistant D.A.’s properly about the so-called Brady rule. The rule, established by the Supreme Court in Brady v. Maryland (1963), requires prosecutors to turn over any potentially exculpatory evidence to the defense.
Thompson’s federal civil rights lawsuit runs into an obstacle. The Supreme Court's decision in another case, Monell v. Dep’t of Social Services of New York (1978), allows a municipality to be held liable for a constitutional violation by one of its officials only if the plaintiff proves “deliberate indifference” on the municipality’s part. In Supreme Court arguments on Oct. 6, the justices got tied up in knots over the question of whether a single egregious instance could show “deliberate indifference.” They also pressed the former inmate’s lawyer to specify exactly what training the district attorney’s office should have been required to provide to new prosecutors.
Legally, it may be a close case. In real-world terms, it is not. New Orleans’ longtime district attorney, Harry Connick Sr., appears to have fostered a lopsided attitude toward Brady in the office: Disclose nothing unless you absolutely have to; don’t worry about being called on the carpet for withholding. The training manual for the office actually misstated the Brady rule.
Impunity for Brady violations and other prosecutorial misconduct appears to be the rule in other jurisdictions. In the USA Today package, reporters Brad Heath and Kevin McCoy documented 201 federal criminal cases since 1997 in which judges “blasted prosecutors for ‘flagrant’ or ‘outrageous’ misconduct” such as “hiding evidence,” “lying to judges or juries,” or breaking plea bargains. (Disclosure: Heath is a former student of mine at Georgetown University Law Center.)
The Justice Department’s internal watchdog investigates such cases: 42 in 2001, 61 last year. But the department refuses, on privacy grounds, to say whether any of the prosecutors was punished. Using state bar records, however, Heath and McCoy found that since 2001 only one federal prosecutor has been suspended even temporarily from law practice because of misconduct. In the flagrant example they used to start the story, the federal prosecutor who concealed unfavorable information about the government’s major witnesses got a slap on the wrist: a one-day training session on ethics.
In the California study, the Santa Clara law school project combed state appellate court decisions from 1997 through 2009 and identified 707 cases in which courts “explicitly found that prosecutors committed misconduct.” The vast majority of convictions (548) were nevertheless upheld: no harm, no foul, apparently.
More troublingly, an examination of state bar records found public disciplinary actions against only 10 state prosecutors during the period, only six of them for trial-related violations. As Professor Kathleen Ridolfi and visiting journalist Maurice Possley conclude, judges, prosecutors, and the California State Bar are “casting a blind eye to prosecutors who place their thumbs on the scales of justice.”
The Supreme Court could play a role in changing the lax attitude toward errant prosecutors, but the justices’ questions in Thompson’s case point in the opposite direction. One more sign of the justices’ solicitude toward government attorneys came today (Oct. 18) when they agreed to hear former Attorney General John Ashcroft’s appeal in a case, Ashcroft v. Al-Kidd, testing whether he can be held individually liable for alleged misuse of the federal material witness statute during the post-9/11 roundup of hundreds of wrongfully accused individuals.
Wednesday, October 13, 2010
No First Amendment Exception for Military Funerals
A cardinal tenet of First Amendment law teaches that any regulation of speech or the press is likely to deter some forms of expression on the legal side of the restriction. This “chilling effect” requires that executive officials, legislative bodies, and, above all, courts take care to regulate First Amendment-protected expression only with lines that are either so clear or so stringent that speakers will not risk punishment by accidentally straying across them.
Supreme Court justices seemed to have forgotten this teaching during parts of the arguments last week (Oct. 6) in the case that pits the family of a deceased U.S. serviceman against the pastor and other members of the fundamentalist Westboro Baptist Church of Topeka, Kan. Driven by the emotions of the case, the justices appeared to be looking for a way to rule against the Rev. Fred Phelps and his family member congregants for demonstrating at Matthew Snyder’s funeral to voice their belief that U.S. war deaths are divine punishment for America’s tolerance of homosexuality.
Snyder’s father, Albert, won an $11 million award from a federal court jury in a suit against Phelps and his church for, among other claims, intentional infliction of emotional distress. The judge cut the award down to $5 million, including $2.9 million in punitive damages, but the federal appeals court in Richmond, Va., threw the case out on First Amendment grounds.
Hearing Snyder’s appeal, the justices left no doubt about their disgust with Phelps’ tactics. They recoiled at Phelps’ targeting of a Marine killed at age 20 in Iraq only to be vilified at his funeral as an evil doer. “God hates you,” one of the Phelps’ signs read. Another: “You’re going to hell.”
The Supreme Court’s rule in the case, however, will be the rule not only for the Westboro Baptist Church but also for other unpopular speakers in the future. As Phelps’ lawyer-daughter Margey Phelps put it, Snyder was asking to punish the Phelps’ “little church” because “they came forth with some preaching that [he] didn’t like.”
The court faced an analogous situation some 50 years ago when Alabama courts were using libel suits by public officials to punish civil rights groups and national news media for agitating or writing about conditions in the racially segregated South. The New York Times faced so many trumped-up libel suits in Alabama that the newspaper pulled its reporters from the state for a while to avoid being served with papers in the cases.
The Supreme Court stopped the litigation-driven intimidation in its tracks with one of its most important First Amendment rulings ever: New York Times v. Sullivan. Under the ruling as later expanded, a public official or public figure can recover damages for libel only if the defendant published or uttered a false, defamatory statement knowing that it was false or with reckless disregard as to its truth or falsity. That strict rule, the justices said, was necessary to afford the breathing space that the First Amendment requires.
The temptation in Snyder’s case, of course, is to think that military funerals could be carved out as one small exception to what the court in Times v. Sullivan called the “profound national commitment” to “uninhibited” debate on public issues. The actual facts in Snyder’s case belie that solution, however. Albert Snyder did not actually read any of the signs at the funeral, in part because Phelps’ group was standing 1,000 feet away from the entrance to the church — as approved by the local police. Phelps actually read the signs only afterward; it was also afterward that he saw the Phelps’ Internet production that depicted Matthew Snyder as having been raised in a godless home.
Even if the facts supported the jury’s verdict, however, the military-funeral exception is one the First Amendment cannot comfortably countenance. Anti-war activists might choose to protest at military funerals that service members are dying in vain in an unjust war. Free speech would suffer if the courts were free to punish such a protest because the message is upsetting to the survivors. Justices complained to Margey Phelps that other venues were available for the church’s protest and that the funeral was picked solely to maximize publicity. As Phelps aptly responded, all speakers want maximum exposure for their message — and are entitled to seek just that.
In her questioning, Justice Elena Kagan, the court’s newest member, emphasized the inevitable subjectiveness of the tort of intentional infliction of emotional distress. As one of the elements, the plaintiff must prove “outrageousness” on the defendant’s part. That ill-defined term would invite jurors to impose liability on speakers simply because they dislike the speaker’s point of view.
The law is not powerless to protect the sensitivities of the families of the fallen. Maryland’s legislature is one of many that have enacted laws requiring protesters to keep a minimum distance away from a military funeral. As long as the speech-free zone is not too extensive, those are probably constitutional. Targeted, individual stalking also may be punishable either civilly or even criminally. But the ruling that punishes the Phelpses today may punish more worthy speakers tomorrow. As Justice Oliver Wendell Holmes Jr. put it 80 years ago, the First Amendment requires “freedom for the thought that we hate.”
Supreme Court justices seemed to have forgotten this teaching during parts of the arguments last week (Oct. 6) in the case that pits the family of a deceased U.S. serviceman against the pastor and other members of the fundamentalist Westboro Baptist Church of Topeka, Kan. Driven by the emotions of the case, the justices appeared to be looking for a way to rule against the Rev. Fred Phelps and his family member congregants for demonstrating at Matthew Snyder’s funeral to voice their belief that U.S. war deaths are divine punishment for America’s tolerance of homosexuality.
Snyder’s father, Albert, won an $11 million award from a federal court jury in a suit against Phelps and his church for, among other claims, intentional infliction of emotional distress. The judge cut the award down to $5 million, including $2.9 million in punitive damages, but the federal appeals court in Richmond, Va., threw the case out on First Amendment grounds.
Hearing Snyder’s appeal, the justices left no doubt about their disgust with Phelps’ tactics. They recoiled at Phelps’ targeting of a Marine killed at age 20 in Iraq only to be vilified at his funeral as an evil doer. “God hates you,” one of the Phelps’ signs read. Another: “You’re going to hell.”
The Supreme Court’s rule in the case, however, will be the rule not only for the Westboro Baptist Church but also for other unpopular speakers in the future. As Phelps’ lawyer-daughter Margey Phelps put it, Snyder was asking to punish the Phelps’ “little church” because “they came forth with some preaching that [he] didn’t like.”
The court faced an analogous situation some 50 years ago when Alabama courts were using libel suits by public officials to punish civil rights groups and national news media for agitating or writing about conditions in the racially segregated South. The New York Times faced so many trumped-up libel suits in Alabama that the newspaper pulled its reporters from the state for a while to avoid being served with papers in the cases.
The Supreme Court stopped the litigation-driven intimidation in its tracks with one of its most important First Amendment rulings ever: New York Times v. Sullivan. Under the ruling as later expanded, a public official or public figure can recover damages for libel only if the defendant published or uttered a false, defamatory statement knowing that it was false or with reckless disregard as to its truth or falsity. That strict rule, the justices said, was necessary to afford the breathing space that the First Amendment requires.
The temptation in Snyder’s case, of course, is to think that military funerals could be carved out as one small exception to what the court in Times v. Sullivan called the “profound national commitment” to “uninhibited” debate on public issues. The actual facts in Snyder’s case belie that solution, however. Albert Snyder did not actually read any of the signs at the funeral, in part because Phelps’ group was standing 1,000 feet away from the entrance to the church — as approved by the local police. Phelps actually read the signs only afterward; it was also afterward that he saw the Phelps’ Internet production that depicted Matthew Snyder as having been raised in a godless home.
Even if the facts supported the jury’s verdict, however, the military-funeral exception is one the First Amendment cannot comfortably countenance. Anti-war activists might choose to protest at military funerals that service members are dying in vain in an unjust war. Free speech would suffer if the courts were free to punish such a protest because the message is upsetting to the survivors. Justices complained to Margey Phelps that other venues were available for the church’s protest and that the funeral was picked solely to maximize publicity. As Phelps aptly responded, all speakers want maximum exposure for their message — and are entitled to seek just that.
In her questioning, Justice Elena Kagan, the court’s newest member, emphasized the inevitable subjectiveness of the tort of intentional infliction of emotional distress. As one of the elements, the plaintiff must prove “outrageousness” on the defendant’s part. That ill-defined term would invite jurors to impose liability on speakers simply because they dislike the speaker’s point of view.
The law is not powerless to protect the sensitivities of the families of the fallen. Maryland’s legislature is one of many that have enacted laws requiring protesters to keep a minimum distance away from a military funeral. As long as the speech-free zone is not too extensive, those are probably constitutional. Targeted, individual stalking also may be punishable either civilly or even criminally. But the ruling that punishes the Phelpses today may punish more worthy speakers tomorrow. As Justice Oliver Wendell Holmes Jr. put it 80 years ago, the First Amendment requires “freedom for the thought that we hate.”
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