Tuesday, August 26, 2003


The Taliban Is Back

And they're gonna be trouble, or so says this report from Reuters about the rapidly deteriorating situation in Afghanistan.

You remember Afghanistan; it was our first victory-- excuse me, I meant, our first "end to major military operations."

The problem is that we already have our hands full in Iraq.

Well, at least it's a good thing the Bush Administration didn't stretch our resources thin by running huge deficits.

Oh wait, I think it did.

Friday, August 22, 2003


ACLU censors John Ashcroft

The New York Times reports that Ashcroft is getting entirely predictable flak, but with an interesting twist:

Representative John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee, told Mr. Ashcroft in a letter that he should either "desist from further speaking engagements" or explain why they do not violate restrictions on political activities by government officials.

Mr. Conyers said that the speeches in defense of the USA Patriot Act, as the antiterrorism law is known, appeared to conflict with Congressional restrictions preventing the use of Justice Department money for "publicity or propaganda purposes not authorized by Congress." He said they might also violate the Anti-Lobbying Act and its restrictions on grass-roots lobbying on legislative matters.

Lawyers with the American Civil Liberties Union raised similar concerns about Mr. Ashcroft's speaking tour, which began this week in Washington, Detroit, Philadelphia, Cleveland and Des Moines and will continue over the next three weeks. The message in all the speeches has been that despite rising criticism the Patriot Act has proved an essential tool in fighting terrorism.

Barbara Comstock, the Justice Department spokeswoman, said Mr. Ashcroft's speaking tour had been thoroughly reviewed by department lawyers and was "entirely appropriate" under federal law.

The proper criticism of Ashcroft is that the Patriot Act is a bad law and that he has overreached in using it, not that he is violating federal law for defending it. I think what Conyers and the ACLU are doing in these accusations is misguided and counter-productive. I, for one, would not interpret the Anti-Lobbying law [18 USC section 1913] to reach this sort of activity. It should not apply to speeches by the President or Cabinet members to drum up support for legislation through public speeches or personal appearances. What it should apply to-- at most-- are surreptitious attempts by lower-level government bureaucrats (i.e. those who are not appointed by the President and confirmed by the Senate) to induce private citizens to lobby Congress or write their Congressmen and Senators. It's possible that Ashcroft might fall afoul of other language designed to keep government servants from spending money to engage in self-aggrandizement or puffing of their achievements, but these laws really shouldn't apply to this case. Ashcroft is not going on a frolic and detour trying to puff himself up. He is doing Bush's bidding-- going on the stump on issues that Bush doesn't particularly want to face the public on.

I think there is some irony in the ACLU trying to keep John Ashcroft from speaking.


John Ashcroft's Dog and Pony Show

Both Phil Carter and The Rittenhouse Review, among others, have been discussing Attorney General John Ashcroft's traveling road show defending the Patriot Act.

What is the point of this public relations tour? I asked my Yale Law School colleage Michael Levine recently. His theory was intriguing. He suggested that the Administration wants to figure out how well its civil liberities policies are selling by sending out their most visible symbol and seeing how the public reacts to him. If Ashcroft can sway the public, then it will be more of the same, including the submission of the Patriot Act II, either before the election or shortly thereafter. But if Ashcroft's publicty tour doesn't sell well, then the Bush Administration will change its public face with respect to civil liberties (as opposed to its practices), in order not to lose moderate support in the upcoming election. Indeed, if Ashcroft does particularly poorly he may even be replaced in the next Bush administration.

In short, Ashcroft is being sent out as a miner's canary, in order to gauge the political consequences of Bush's civil liberties policies. The Bushies are worried that lots of communities have passed anti-Patriot Act resolutions and that the bill has generally gotten a bad press. It's one thing if it's just Beltway grumbling and objections by liberals and members of the chattering classes. It's quite another if it could actually cost them votes among independents and moderate voters.

Why is Ashcroft in particular being sent out? Well, for one thing, he's expendable. He's not a long-time Bush loyalist, and so not so much loyalty is owed to him. It's true that he's an important liason to the Christian Right, but it's my sense that George Bush himself is now seen as a major political figure in (or major political ally of) much of the Christian Right, so Ashcroft is not as necessary as he once was. And there are many other people who could replace him as Attorney General, and thus put a kinder, gentler face on the Administration's policies.

It's not a good sign, however, that Ashcroft has been speaking mostly in front of friendly audiences of law enforcement officials and conservative groups. The real test of Ashcroft's publicity tour will come when he faces the sort of voters who might ditch the Republican Party in 2004.

Thursday, August 21, 2003


Chief Justice Moore As Administrator, Not Judge

Atrios raises an interesting point when he suggests that it's important that Chief Justice Moore is a judge rather than a legislator. He says

one thing [Balkin] doesn't address (note he's the really smart lawyer and I am not) is that even if one thinks, as [Alan] Keyes does, that states do still have the right [to establish religion], that would seem to be the job of the state legislature and not a lone judge.

Well, yes and no. Atrios is making the familiar argument that judges shouldn't make policy or otherwise exercise legislative functions; quite apart from Moore's misinterpretation of the Constitution, what Moore is doing is institutionally improper because he's a judge and the decision to promote religion, if permitted, should be left to the Alabama Legislature.

But one thing that's been overlooked in the Chief Justice Moore Controversy is that when Moore put up his monument he was not acting in his capacity as a judge. He was acting in his capacity as chief administrator of the Alabama courts. Moore has decided no case that says that he has the right to put up the Ten Commandments in the state court house. He could not do so anyway, because as a party to the controversy he would have to recuse himself from deciding it. Rather, he is acting as an administrative functionary, like a member of an administrative agency. And administrative agencies do make policy. They make it all the time. (It's also true but irrelevant that Chief Justice Moore is an elected official; although judges are elected in Alabama, they are elected to be judges. The important point is that as Chief Justice, Moore has the additional responsibilities of maintaining the courthouse and administering the Alabama judicial system.)

That's important for two reasons. First it is precisely because Moore is acting in his capacity as administrator that his actions can be considered by a *lower federal court.* Decisions of state supreme courts are appealed to the Supreme Court, not the lower federal courts, and in most cases (except for federal habeas corpus proceedings), lower federal courts have no power to review decisions by state courts. So the only reason that Judge Thompson could order Moore to move the monument is because Moore is not acting as a judge but as an administrator.

Second, even though Moore is not acting as a judge, but as an administrator, he still has an independent obligation to interpret and obey the U.S. Constitution. That is true of legislatures, members of the executive branch, and judges. All of them are sworn to uphold the U.S. Constitution as required by Article VI. So whenever a legislature or an administrative agency makes a decision concerning religion, they must independently assess whether what they are doing violates the Establishment Clause. They should not simply leave it up to the courts to decide. Often legislatures don't do this (no matter what portion of the Constitution is involved), because they are pandering to their constituents. They think that it is ok to let the courts take the heat instead of voting against popular legislation or engaging in executive action that they know (or should know) is unconstitutional. When they do so, they are violating their obligations under the Constitution and their oaths of office.

Chief Justice Moore, in this case, *is* engaging in independent constitutional interpretation. His interpretation is wrong, but at least he is making a claim about what the Constitution really means. Having made his interpretation, and having had it rejected by the courts, he should bow to their decision. This is not a case where the Court says that Moore may do something and in his heart he knows that the best interpretation of the Constitution means that he should not. In that case he may disregard the Court's more lenient interpretation and refuse to violate the Constitution as he interprets it. Rather, this is a case in which a court has told Moore that a specific action he has taken violates the Constitution, regardless of his interpretation to the contrary. In that situation, after having had his day in court, he should follow a direct order by the courts.

UPDATE: The administrative nature of Chief Justice Moore's action is clear from the order issued by the other members of the Alabama Supreme Court, ordering that the Building Manager of the Alabama Judicial Building remove the monument. (Link via Howard Bashman via Findlaw)

Wednesday, August 20, 2003


Keep Alabama Baptist

At a rally in support of Judge Roy Moore's installation of a 5,300 pound granite copy of the Ten Commandments, former Republican presidential candidate Alan Keyes endorsed the idea of allowing states to establish their own religions, and impose religious tests for office as long as they did not otherwise violate "the fundamental rights of individuals":

Contrary to popular belief, state-sanctioned churches and religious tests are not unconstitutional and do not run counter to what the nation's founders believed, former presidential candidate Alan Keyes said at a rally Aug. 16.

Arguing for a radical shift in constitution interpretation, Keyes said that the founders wanted states to make their own laws in matters concerning religion. Keyes, a Catholic, was speaking at a rally supporting Alabama Chief Justice Roy Moore, who has placed a 5300-pound granite monument of the Ten Commandments inside the state judicial building. . . .

If religious tests and established churches were unconstitutional, Keyes said, then they would have been abolished prior to the First Amendment's passage. Such a state-sanctioned church would be sanctioned not by the federal government but instead by an individual state, he said.

With such a change in American thought, there would be no controversy over a Ten Commandments monument in Alabama, Keyes said. Of course, that would mean that people of a particular faith might decide to avoid living in certain parts of the country. For instance, a Baptist might decide not to live in Mormon-dominated Utah, which logically could have Mormon-controlled schools. . . .

The founders believed that local people "in their states and localities have the right to live under institutions they would put together to govern themselves according to their faith," he added.

Federal courts today, Keyes said, are "imposing a uniform national regime of disbelief and atheism on the people of this country." . . .

In the civil rights movement in the 1960s government officials were defying federal court orders in an attempt to violate the individual rights of blacks, Keyes said.

"[But] today it is the courts that are seeking to violate that basic principle, and the people of Alabama are demanding that it be respected," he said.

Keyes is partly right about the original understanding. The Establishment Clause was designed to prevent the establishment of a national church, and Article VI of the Constitution states that "no religious test shall ever be required as a qualification to any office or public trust under the United States." That suggests that the concern was not with state establishments of religion but national establishments. Hence the Establishment Clause states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It says nothing about the states.

That's all well and good, but what Keyes omits is the subsequent history of the country, and in particular the effect of the Fourteenth Amendment. The states abandoned their established churches before the Civil War, and because territories of the United States could not have an established church, when new states entered the Union they did not have established churches either. Eventually, courts recognized that an important function of the Fourteenth Amendment was to apply basic liberties in the Bill of Rights to state governments. One lesson of the civil war was that states could violate people's liberty and equality every bit as much if not more than the national government could. The Fourteenth Amendment was passed to prevent states from infringing on basic liberties, and those liberties included many of the provisions of the Bill of Rights. (In fact the modern doctrine of incorporation should have been unnecessary but for the Supreme Court's misinterpretation of the Fourteenth Amendment in the Slaughterhouse Cases, but I'll leave that story to another day).

Once the First Amendment was applied to the states through the Fourteenth Amendment, the interpretation of the Establishment Clause as merely a federalism provision made no sense. To apply the First Amendment-- including the Establishment Clause-- to the states meant that the same principles of non-establishment that bound the federal government must also apply to state governments. And the substantive values that the Establishment Clause protects-- preserving religious equality and preventing non believers or members of minority religions from being treated as second class citizens-- had to apply to the states as well as to the federal government.

So what Keyes is arguing for is what we might call disincorporation-- holding that portions of the Bill of Rights no longer apply to state governments. In particular he is arguing that the Establishment Clause should be disincorporated and should no longer apply to state governments. Quite apart from the fact that this position has been rejected by federal courts, I think it is a particularly bad idea. There is good reason to think that religious factions will be more oppressive to non-believers and people of other religions at the state level than they will be at the national level: This is just another version of Madison's famous argument in Federalist 10. At the national level, religious groups need to form coalitions with people of other religions to get things done, and this will tend to temper their excesses; at the state and local level they will be less restrained and therefore will be more likely to overreach.

The supporters of Judge Moore's monument, who are encouraging his defiance of a federal court order, should not, I think, be equated with George Wallace, who resisted federal civil rights law in order to maintain a racist regime. I'm not particularly in favor of having the government promote religious values or religion in general, but limited recognition of religion in public life is not particularly harmful to the body politic and may actually do considerable good. However, that is an argument about the proper scope of the Establishment Clause, not an argument that the Establishment Clause should be completely disregarded by state governments. The latter argument is quite troubling, and would cause all sorts of mischief.

The reason I believe this is that I take the concerns of Judge Moore's most vocal supporters quite seriously. Many of these supporters are people who are very much devoted to their cause. One can see this from the sincere passion with which they state their demand that God and God's laws be returned to government, and the genuine anger with which they denounce the federal courts' enforcement of the principle of non-establishment. They are quite sure that they are right and that other people with different views are wrong-- so wrong, in fact, that those who disagree with them are leading the country down the path to perdition. God must be returned to a prominent role in government if the country is not to be lost. Thus, for Judge Moore's supporters something quite serious is at stake and it is something quite important to fight for and to impose by law even on those who are misguided and unwilling. Thus, their version of religious establishment is unlikely to be the rather modest and toothless version we find in some European countries, like Great Britain, where the established church is unable to generate very much religious fervor. Rather, it is likely to be much pronounced and thus much more intrusive on the ordinary citizen's liberty and equality. Even though Keyes insists that fundamental rights of religious minorities and non-believers would be protected under his theory of state establishments, I think that there is a strong possibility that they would not be in practice.

Thursday, August 14, 2003


The Top Ten Theories About What Caused the East Coast Power Blackout

10. Governor Gray Davis wanted to show that California's mess wasn't really his fault: see, there were blackouts on the East Coast too!

9. Overstressed computers in West Coast attempting to tabulate all the candidates for California Governor.

8. Osama bin Laden and his compatriots check into a motel in New Jersey and turn up the air conditioning *really* high.

7. All innocent persons on death row in Texas prison system electrocuted at once.

6. Justice Antonin Scalia seeks return to original conditions when Constitution was written.

5. Department of Homeland Security seeks to confuse terrorists by hiding location of New York City.

4. Liberal paranoia comes true as country is returned to Dark Ages.

3. Latest new excuse by Bill Clinton to explain to Hillary why he can't make it home for dinner.

2. President Bush attempts to divert electricity from middle class to the wealthiest 1 percent.

1. Fox News sues Con Edison for trademark infringement for using the word "con."

UPDATE: As a former member of the U.T. Austin law faculty, I am of course, aware that Texas uses lethal injection instead of electrocution. Texas formally switched over (pardon the pun) around 1977, but didn't execute anyone that way until 1982, I believe. But please remember that Top Ten Lists are not supposed to be taken seriously as statements of fact, as opposed to, say, Fox News. Well, ok, maybe I should have picked a better example....


More on Fox News v. Franken

The complaint in the case appears here (via Talk Left). Floyd Abrams will represent Franken's publisher, Penguin Books, suggesting that a first amendment defense is likely. The complaint argues that the book cover might mislead consumers into thinking that Franken is associated with Fox News (not very plausible) or that the book cover might tarnish Fox's mark and its good will (more plausible).


Sauce for the Gander

John Jenkins wants to know whether I believe that a trademark suit by CNN against Ann Coulter claiming that Coulter's new book "Treason" infringed or diluted a CNN trademarked slogan would raise the same first amendment issues and whether I would also criticize CNN for suing Coulter to suppress her book. Well, of course it would raise the same issues, John, and of course I would also criticize CNN, who, like Fox News, should know better. I don't much like prior restraints against books, period, whether they are conservative books or liberal books. My point has been that mass media corportations, whether tilting to the left or to the right, simply have taken intellectual property rights much too far, and in the process, they have infringed on basic liberties of freedom of expression. The growing conflict between intellectual property and free speech is not (as far as I am aware) a left/right issue, and it is an issue about which many liberals and libertarian conservatives alike are quite concerned.

Wednesday, August 13, 2003


President Bush Criticizes Fox News Lawsuit Against Al Franken

"The unpredictability of our liability system means that even frivolous cases, even what we call junk lawsuits, carry the risk of enormous verdicts." Bush told a crowd in Greensboro, N.C.

Oh, wait, I have been informed that this was a speech about misusing the legal system to harass doctors, not misusing the legal system to harass critics of conservative news organizations.

Balkinization apologizes for the error.

No, wait, the White House did come out in favor of legislation that "would help prevent abuse of the legal system and help curb the growing problem of frivolous lawsuits in the United States.''

Ooops, no, it turns out that was a bill to prevent abuse of the legal system to shut down gun manufacturers, not abuse of the legal system to shut down critics of conservative news organizations.

Once again, Balkinzation apologizes for the error.


A Fair and Balanced Attempt at Censorship

Fox News is suing Al Franken in the New York courts, attempting to enjoin sales of his forthcoming book, "Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." Fox claims that Franken may not use the expression "Fair and Balanced" because it has been trademarked by Fox News. According to the New York Times' report of the case, the court papers are particularly colorful, describing Franken as a "parasite," "shrill and unstable," and a person whose "views lack any serious depth or insight." It also accuses him of being either "intoxicated or deranged" at a press correspondents' dinner in April 2003.

Because Franken's obvious purpose is political parody, and, in particular, parody of Fox News itself, among others, Fox's lawsuit should not succeed. That is true even if Franken is selling his book to make money. Fox may well argue that the parody tarnishes its business and its mark, but the whole purpose of political parody is to poke fun at people one disagrees with. If Franken may not use the expression "fair and balanced" in a book to accuse Fox News of failing to be "fair and balanced," there is something seriously wrong with trademark law under our First Amendment. And if Fox can get an injunction preventing the sale of the book, we can be sure that the expansion of intellectual property rights has gone too far.

The most troubling aspect of the lawsuit politically is its attempt to harass a political opponent through the use of intellectual property laws. Fox News v. Franken is merely one episode in a much larger conflict between freedom of speech and intellectual property. Trademark, like copyright, has now become a general purpose device for private parties to use the state to suppress speech they do not like. And they can suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements as well. This is a misuse of trademark, which is designed to protect ongoing commercial interests, and it is a misuse of copyright, which is designed to promote progress in ideas, not inhibit robust debate about ideas.

We can only hope that Fox receives the bad publicity it deserves for filing this lawsuit; first, for being on the wrong side of this free speech controversy, and second, for trying to suppress people who disagree with its coverage of the news. It is particularly upsetting for a news organization to try to use the courts to suppress the speech of its political critics.

In 1964, at the height of the civil rights movement, an Alabama commissioner, L.B. Sullivan, tried to use the state's libel laws to shut down the New York Times for its publication of an advertisement that criticized racial discrimination in the South. The Supreme Court wisely decided that the interest in reputation had to yield to the promotion of "uninhibited, robust, and wide-open" debate in a democracy. Its decision in New York Times v. Sullivan established that free speech is protected even if it includes "vehement, caustic, and sometimes unpleasantly sharp attacks." Now Fox News is trying to circumvent that rule by claiming not that Franken is defaming it but that Franken is stealing and misusing the words "fair and balanced" that Fox News claims to own. But no one should own the words necessary to engage in public protest. It is high time for the courts to consider whether trademark law, like defamation law before it, needs greater constitutional boundaries to protect robust debate about public issues from those who would abuse their rights in intellectual property.

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