Precinct 333

Saturday, July 24, 2004

Libs Don't Understand Free Speech

The First Amendment prohibits government censorship of speech. That is pretty clear to anyone that can read. Apparently that category does not include liberals, who seem to believe that speech may never carry a personal cost, and that refusal to subsidize speech with which one disagrees is censorship. I could point to Whoopi, Ronstadt, or the Dixie Chicks as examples of this phenomenon. Government did not act against them. The offended merely snapped shut their wallets and refused to use their dollars to support folks whose message they opposed.

Which leads us to Silver City, New Mexico. Matt Runnels of KNFT radio decided to run a one hour program called "Radio Free Silver". Runnels saw it as balance for the conservative shows he broadcast, shows featuring Limbaugh, Savage, and O'Reilly. For what it is worth, I think it might have even been a good idea.

Station listener Jason Dobrinski didn't like the show. When he learned that the station placed ads in any show, regardless of the political objections of the advertiser, he spoke out. Even though there was no organized boycott, 20 to 25 advertisers threatened to pull their advertising from the station if the show remained on the station. They objected to the fact that their ads might run in a show that did not reflect their views and might offend potential customers. Faced with the loss of $10,000 in advertising dollars each month and unable to find new advertisers, Runnels fired host Kyle Johnson and cancelled the show.

The reaction of those involved is interesting. Runnels says:
"It wasn't like [the show] was preaching anarchy," Runnels said. "If you don't like what you hear, push the button. There's a lot of programming out there."

Johnson, the fired host and communications director for the Interhemispheric Resource Center, is even more incensed:
Johnson said the opponents' point was "not to debate, not to dispute, not to assert their point of view," but rather to silence those who didn't agree. "That indicates the intolerance and their lack of any ability to understand another viewpoint or to respect anyone else's right."

Dobrinski, on the other hand, paints it as the triumph of individual freedom:
"What has really occurred is that many people, acting independently, have exercised their rights to free speech in voicing their dislike of the program," he wrote.

I'll side with Dobrinski on this one. What Runnels and Johnson both miss is that it is legitimate to oppose a point of view that one disagrees with. It is proper to withhold one's support from an entity with which one disagrees. Therefore none of these businesses is required to advertise on KNFT, especially given their policy of placing ads of unsuspecting advertisers in the offensive show. The station owner has to make the best economic decision at that point. Does he limp along hemorrhaging money, or does he get rid of the cause of that injury? If he wants to stay in business, he had better dump the problem and give the people what they want to hear. ANd if he is as bothered by Rush Limbaugh as he claims to be, he is more than free to replace him in that slot -- much to his economic peril.

Given the whining of Runnels and Johnson, I hope that the advertisers still drop KNFT. The attack on these Americans for choosing not to be associated with speech they object to is a much bigger offense against free speech than their threat to withhold their business from the station.


Clinton Edits In Brit Bio Imply a Lie

We all know about Bill Clinton's political fantasy, My Life, which has had brisk sales in the US. The British edition is now out, and the way it has been subtly edited is quite telling. What does it tell? That Bill Clinton lied about Ken Starr in the American edition of the book.

What sort of things have been done?
Most of the changes center on what Mr. Clinton portrays as Mr. Starr's attempts to persuade potential witnesses to lie about the activities of the former president and his wife, Hillary Rodham Clinton, now the junior senator from New York.

For example, in the United States edition, published by Alfred A. Knopf, a division of Random House Inc., Mr. Clinton speaks of Mr. Starr's "continuing efforts to coerce people into making false charges against Hillary and me, and to prosecute those who refused to lie for him."

In the British edition, published by Hutchinson, also part of Random House Inc. and its German parent, Bertelsmann, the word false was deleted and the final clause was changed to "and to prosecute those who refused to tell him what he wanted to hear."

Why, you may ask, has the post-presidential prevaricator made these changes? Is the meaning of "is" different in England? Do the British define "sex" in some other manner than does the average American? The answer is simple -- British libel law. Clinton doesn't want to face a suit in which he must testify and which he will certainly lose.

Our British brethren have strikingly different libel laws. Not only does the Sullivan test not apply (public figures required to prove actual malice to win a libel case) like it does in the US, in England the burden is on the author to prove that the published information is true. Clinton knows that he cannot meet that burden because his statements are untrue. Therefore he has removed his accusations against Ken Starr.

In short, the fear of facing Ken Starr in open court has again cause Bill Clinton to admit that he is a liar. Perhaps we need a class action suit to bring justice to all those who believed they were buying a non-fiction book when they purchased the American edition of My Life. Paging John Edwards!


Dems Close Down Businesses, First Amendment Rights In Boston

Mark F. Pasquale owns Halftime Pizza, just across from the Fleet Center in Boston. He had hoped to make some money off the Democrat Convention -- but discovered that delegates will be fed by special interest groups during the convention, effectively cutting out the small business owners in the neighborhood from any share of the convention dollar. More infuriating to this Republican, restrictions on pedestrian and vehicle traffic will make it impossible to conduct his regular business. That means that the economic impact of the convention will be red ink for one of the closest businesses to the convention venue, since he is being forced to close.

His response in the best tradition of the First Amendment, is a protest banner -- 24 feet long and 4 feet high. It reads "Say DNC Thanks for Nothing! Go Bush." Now the city of Boston has cited him for hanging an unlicensed banner and covering a door that is always locked and gated. Pasquale is one of a dozen businessmen so cited in the neighborhood.

It strikes me that we have a classic violation of the First Amendment of the US Constitution here. This is not commercial speech, subject to government regulation. It is political speech, directed at the activities and actions of one of the major political parties as it nominates its presidential candidate. As such, the citation appears invalid on its face.

The Massachusetts GOP has expressed support for Pasquale, who indicates the sign will stay up and he will fight the citations. Are there any Boston lawyers out there who are interested in fighting for the little guy?


NYTimes -- Exercise of Constitutional Power Undermines Constitution!

The House of Representatives has passed legislation removing cases involving gay marriage from the jurisdiction of the federal courts. This, opines the editorial staff of the New York Times, is "an outrage," and threatens the rights of every member of any minority group. They also go to great lengths to associate the action with racist Democrats during the civil rights era (though they do not, to be sure, note that the opponents of civil rights were Democrats).

What they do not say is that the move is unconstitutional. It is not. The relevant case is Ex Parte McCardle, 74 US (7 Wall.) 506 (1869). In it, the Supreme Court explicitly acknowledged the ability of the Congress to limit the appellate jurisdiction of the Supreme Court (and of the complete jurisdiction of the lower federal courts). For a substantive analysis of the case and the validity of such an exclusion, consider this article by William W. Van Alstyne in the Arizona Law Review (15 Ariz. L. Rev. 229 (1973)).

What would be the outcome? Each state court system could decide on the matter of the constitutionality of the federal DOMA and the legality of homosexual marriage (and validity of those performed in another state) within its borders, but there would be no national precedent. This would provide what advocates of homosexual marriage claim they support: that no state will be forced to accept homosexual marriages in defiance of its own laws. Why, then, are advocates for homosexual marriage so outraged that Congress is acting to guarantee what they have said they support? Could it be that this reveals their real agenda -- forced recognition of homosexual marriage everywhere via the decision of a handful of unelected judges, despite the opposition of the majority of Americans?


Friday, July 23, 2004

Clinton Administration Official Arrested

No, not Sandy Berger, though he probably outght to be sent to Guantanamo Bay for his theft of documents.

This time it is Hazel O'Leary, former Energy Secretary who was recently named president of Fisk University.

Seems Hazel's plane was diverted due to bad weather, and then delayed on the tarmac. Her response? Cause a scene on the plane and attempt to enter the cockpit to demand that she be allowed off of the plane.

What I love is the difference in viewpoints between Hazel and the flight crew.

"I regret the unfortunate misunderstanding that occurred," she said in a statement. "The situation was resolved. At no time was I rude or disrespectful to anyone."

Flight Crew:
The United Airlines crew told police that O'Leary was "getting loud and abusive" after the flight was diverted to Richmond, Va., because of storms Thursday night, said Cpl. Frank Donkle of the Richmond International Airport Police.
A flight attendant restrained O'Leary when she tried to get into the cockpit, Donkle said, and she was escorted off the Nashville-to-Washington flight and questioned by the FBI.

The sad thing is that no charges seem to have been filed, despite the fact that the FBI had to intervene to remove her from the plane and question her. We would be rotting in a hole somewhere.


Thursday, July 22, 2004

I Have NO IDEA What To Make Of This

The Houston Chronicle reports

Five teenage boys are under investigation in the shooting of two other boys with a pellet gun at a vacation Bible school, Montgomery County Sheriff's deputies said Wednesday.

Neither victim was seriously injured in the July 15 attack.

Deputies said four of the boys are accused of blocking doors at The Fellowship of The Woodlands while the fifth fired the air gun at the victims while quoting Bible verses

Really, I have no idea.


The Challenge of National Myths, Part II

Spain, as most educated folks know, spent some eight centuries occupied (in whole or in part) by the Moors, Muslim invaders from North Africa. Since 844, the patron saint of Spain has been St. James the Moor Slayer (not to be confused with Buffy the Vampire Slayer), who is said to have appeared during a battle to spur n the Spanish troops. Many Spanish churches have statues of St. James, surrounded by dead Muslims to commeorate the event -- not exactly the most ecumenical move.

Terrorist fears following the 3/11 bombing in Madrid led church officials at the the Cathedral of Santiago de Compostela to decide to remove the statue from the premises. Public outrage has caused the decision to be reversed. Apparently the Spanish are not prepared to surrender their faith as quickly as they surrendered their governemnt following the attacks.


The Challenge of National Myths, Part I

I love The King and I. I have ever since I was a teenager, when I was blessed to see Yul Brenner in the a revival of the play during the late 1970s. I became fascinated with that fascinating figure, King Mongkut/Rama IV.

As a prince, he is credited with the discovery of the three-foot tall stone obelisk known as "Inscription One". It allegedly dates to the reign of King Ramkhamkaeng. Now a British scholar, Michael Wright seeks to debunk that claim, alleging that the monument is, in fact, a forgery made at the command of Mongkut.

This has caused an uproar in Thailand, and there is talk of criminal charges being filed. Wright and Thai colleague Piriya Krairiksh, the director of the Centre for Thai Literary Studies at Thammasat University, have also been ritually cursed
Residents of Sukhothai gathered to protest at a statue of King Ramkhamkaeng amid the ruins of his capital. In imitation of a ceremony described in the inscription, they rang a bell to attract the king's attention and told him of their grievances. They then carried out a cursing ritual, burning chillies and salt and the names of the two men written on scraps of paper.

All-in-all, I would find that preferable to a Katie Couric interview.


Wednesday, July 21, 2004

Stop enforcement of non-existent laws!

Photographers around the country are being harassed by police and Homeland Security officials for violating the law against photographing government buildings and facilities. One slight problem -- there is no such law. This isn't about national security -- it is more a sign of paranoia on the part of a few law enforcement folks.

Frankly, there are lots of places open to the public which provide a wide-open view of sensitive facilities. I live less than two miles from a sensitive industrial area, and cross the Houston Ship Channel daily. I could be to Johnson Space Center in less than fifteen minutes -- under ten if I just slip on my sandals and catch every traffic signal. All these places can be observed from public streets and parks, and easily photographed. What's more, there isn't anything particularly suspicious about doing so, absent some other thing to flag the activity. To harass people for taking pictures in public places is absurd.


Sunday, July 18, 2004

OK -- Here's the Trial Details

We finished up the case Friday, after about two weeks of testimony and arguments.

And there was much rejoicing. At least among us jurors, and perhaps by the defendant, his family, and his lawyer.

The plaintiff, needless t say, was somewhat less pleased by the outcome.

Oh -- you want to know what the case was about.

Try here, then here.

Upon reflection, there are a number of things I could say about the case.

First, I believe Barbara Markham got screwed when she was fired by the Chambers County Narcotics Task Force. I believe that her boss, later fired for his own wrong-doing and eventually jailed for still more, wanted to clear her out because she "knew where the bodies were buried." That said, I didn't see either of her underlying claims of sex discrimination or whistle blower retaliation as particularly valid. The evidence arguably suggested that she committed the act for which she was fired (perhaps accidentally), trivial though it was. That act (reloading computer games on task force computers) probably doesn't justify firing, but does provide cover for firing an employee in Texas, which is an "employment at will" state.

That said, I understood Blair Brininger's strategy of following a path that would lead to mediation. He didn't have a lot to work with, so he made an attempt to get his client what he could. He saw mediation as the best way to get his client the best result. He also planned on a "trial by ambush" strategy if they did get into court, taking only one deposition (despite client suggestions) and holding all witness testimony until the time of trial, so that he might be able to surprise the lawyer for Chambers County with evidence she could not rebut. Both elements are acceptable strategy in the legal community. Still, I think he should have taken depositions from every single cop Barbara suggested as a witness. After all, cops regularly die in the line of duty (Blair looked like that thought had never crossed his mind before when I mentioned that to him after the trial was over).

Did Barbara hear a threat of criminal prosecution during the first mediation session? I think she probably did, but that this was subjective interpretation on her part and not what an objective observer would have heard. That said, she eventually signed a settlement after negotiating some changes and waited nearly four weeks to even begin to raise the issue. It makes it hard to believe that she was really all that intimidated -- she is one tough cookie. I understand Blair's refusal to raise the issue with the Court, though I disagree with it. And since he still had a contract permitting him to direct legal strategy and decide how to proceed, I understand his decision.

Had I been Barbara Markham, I would have fired Blair Brininger at this point. Correction. I would have fired him when he didn't take the depositions the previous fall. But for all her talk with other lawyers and voluminous email correspondence with Blair, she didn't do so. She gave him her documents and authorized sending them in exchange for the settlement check. He sent them, shortly before she changed her mind again. And so he completed the process by accepting a settlement check his client no longer wanted and followed bar association rules by depositing it in a trust account (where the money still sits today, five years later). Barbara finally fired Blair two weeks later.

Quite bluntly, I came to the conclusion that there were multiple "right ways" to handle this case, and that Blair Brininger used one of them. He got a sure result, but not the best outcome available. And I believe he and Barbara Markham were never on the same page as to what would be accomplished by a "file purge" of the charges against her. The result was an unhappy client who never embraced the settlement, never fully followed its terms, and who was certain to be unhappy when she didn't feel she had gotten justice (probably the thing she values most highly in this world). That has led to a couple of additional suits involving Chambers County, a renegotiated settlement agreement on better terms (with a different attorney) and this suit. But in the end I just couldn't find it to be malpractice, though I was one of those who began the deliberations siding with Barbara and against Blair.

My impression of the parties? I think Barbara Markham has what it takes to be a good cop, and I hope she can get back into the field. I think Blair Brininger is not the guy I would want to litigate for me in most matters, with the exception of the ERISA cases that are his specialty. I'd hire either of their attorneys, but won't tell you which I'd call first. And as for our judge, Tad Halbach, I'll definitely support his reelection, and also any pursuit of higher judicial office. I was very impressed.

But I'm glad it is over.


Creative Commons License
This work is licensed under a
Creative Commons License.