Another Suspect Prosecution

Prosecutors in the United States have ethical duties different from those of other lawyers. Although most lawyers' duty is to represent their clients zealously, within the bounds of the law, prosecutors' obligation is to convict only the guilty. Theoretically, they represent "the People" ("What a majority!" as the defendant in the joke says, as the case of "People vs." him is announced). "The People" want to convict only those found guilty beyond a reasonable doubt, obliging a prosecutor not to try the innocent. Moreover, loyalty to the system should limit a prosecutor's zeal to convict if only improper tactics, such as concealing evidence, appear likely to secure conviction.

Mike Nifong is District Attorney in Durham, North Carolina, where the would-be Harvard of the South, Duke University coexists uneasily with a heavily black town. Earlier this year, some Duke lacrosse players, all but one of them white, in the way of a certain kind of young men, hired two black strippers to perform at a party, where no doubt some of them drank too much. One of the strippers got hysterical and cried "Rape!"

Politics overlays any rape charge, and especially an interracial one. Two movements, the black civil rights movement and the women's movement, have made an issue of rape. At one time, false charges of rape of white women against blacks led to controversial convictions and causes célebres. The fear of race-mixing and the taking of white women by supposedly sexually powerful and animalistic black men was a theme in racial politics. Meanwhile, in the Old South, it was common for powerful white men to have their way, more or less secretly, with black women. An example is the late Senator Strom Thurmond's posthumously disclosed fathering of a child with a young black housemaid, a child he supported, to his credit, all his life.

The women's movement, on the other hand, developed a narrative that violence against women was one means of maintaining what they saw as inequality between the sexes, with rape being too common and insufficiently punished, in a number of ways. Susan Brownmiller was one of the first writers to argue these points, typically intensified to the frontiers of madness by the late Andrea Dworkin. This agitation led to legislation that restricted inquiry into accusers' sexual histories to invoke the "she got what she deserved" meme, and criminalized rape within marriage. The notion that even an unchaste woman should not be forced into sexual relations by violence became commonplace. Supposedly rampant "date rape" became the subject of endless agitation on college campuses.

The events in Durham invoked the concepts of both movements. Blacks were likely to regard the supposed rape as a throwback to the era of Jim Crow and unpunished white violence against black women, while the stereotypes of the drunken, privileged college athlete and the victimized young black girl led a rush to judgment. Some 88 Duke faculty members, mired in gender politics and multiculturalism, were quick to issue a statement. Duke's President, Richard Brodhead, suspended the lacrosse program and issued self-flagellating statements.

Meanwhile, DA Nifong was in a struggle to be elected to the office for the first time after his appointment. There was a rush to judgment, Nifong hyped the story and the press obliged him, and three lacrosse players were indicted. Nifong was narrowly elected.

The accusations began to unravel almost immediately. The accuser and her companion told conflicting and changing stories. It turned out the that accuser had cried rape before and then withdrawn her claims. The photo array used to identify the accused was fatally tainted--all the photos were of lacrosse players, including no non-suspects as is normally and properly done. Some of the players had ironclad alibis, casting doubt upon the chronology.

In recent days, it has come out that the DNA testing performed by a private laboratory revealed that the accuser had had sexual relations with a number of men in the days before the alleged rape, but NONE of them was a lacrosse player. Although it's theoretically possible that the accuser was busy with others, unprotected, before the party, while the rapists all wore condoms, the crucial fact is that the DA and the lab knew about these results for months, and the DA failed to disclose them to the defense, as constitutional criminal law requires.

As a result of this embarrassment and the severe doubts this evidence evoked, Nifong recently dropped the rape charges, while maintaining others not involving penetration. The credibility of the accuser, who didn't mention her numerous men friends, can't possibly stand up under minimally competent cross-examination.

Now it's DA Nifong who is in the sights. The State Bar has issued formal charges that Nifong breached ethics in his loud and false statements to the press early on, and may amend those charges to include other misconduct, including concealing evidence and misleading the court. The North Carolina association of DA's, a type of group that's normally rabidly pro-conviction and pro-punishment, called upon Nifong to withdraw from the case. Among other things, the pending misconduct charges against Nifong create a conflict with his duty to exercise discretion in whom he charges and prosecutes, and how he prosecutes them.

These young men have been grievously abused, and their troubles aren't over. If they hadn't had parents with money to pay lawyers, they might be headed for prison for a crime they did not commit.

Duke has suffered. The reflexive, ideological stupidity of its faculty, and the knee-jerk abandonment of its students by President Brodhead will undoubtedly tarnish its reputation and scare away applicants, even though most faculties and our large, prestigious institutions might very well behave similarly. If I were a Trustee, I'd want to fire the man immediately.

These events also demonstrate the racial inversion that has taken place in this country. If events occur that seem to support the concept that white racism and anti-black violence are commonplace, the press jumps on them. The Jesse Jacksons and Al Sharptons ride into town and the marches follow.

In reality, black-on-white violence is far more common nowadays than the reverse, and the same is true of rape. Black racism toward whites today seems more marked than white racism toward blacks, the public expression of which is not only taboo, but in many places, such as universities, leads to an orgy of self-flagellation. Discrimination against whites in favor of blacks, misnamed "affirmative action" is seen as a sacred duty in some quarters.

One hopes that we will learn something from these events. I doubt we will.

For more information about the Durham events, see LaShawn Barber's blog; this one, especially dedicated to the case; the inimitable Captain Ed; and Mary Katherine Ham's video tour of all the places in Durham where things did not happen.

A Suspect Prosecution

(Originally posted June 24, 2006)

Steve Yagman is a flamboyant Venice, California lawyer who handles police abuse cases and gets into scrapes with federal judges. He got into long disciplinary fights over his accusations against Judges Manuel Real and William Keller. He's had scrapes with the Bar over his fees.

He's also won some major victories.

Now, the feds are prosecuting him for alleged income tax and bankruptcy shenanigans.

I don't know the facts, but I smell a rat. Yagman recently won a big case against the IRS. Now they're trying to send him to prison.

Of course, being a defense or police abuse lawyer, even a crusading one, should not earn one a "Get Out of Jail Free" card.

But is this a vengeful or selective prosecution? If so, it wouldn't be the first. i don't know the facts, but--inquiring minds want to know.

What Roe Is All About II (Incorporation and Privacy)

This piece is reproduced from my personal blog. It was written in October 2005, and is second in a series, still incomplete, on Roe vs. Wade, looked at from a legal, not a political or moral perspective. My earlier discussion is here.

I

Remember that we ended the Introduction with a discussion of the Fourteenth Amendment's ban on the states acting against the newly-minted ex-slave citizens, or any citizens by Denying them the privileges and immunities of citizens Depriving them of life liberty or property without due process of law; or Denying them the equal protection of the laws. All of this sounded good, and to the Radical Republicans who enacted the Fourteenth Amendment, had a clear intent of protecting the ex-slaves.

Within a few years, however, interest in affording much protection to the ex-slaves waned, and with the compromise arising out of the disputed 1876 election, Rutherford Hayes was allowed to carry Florida in exchange for a promise to end Reconstruction and give the white South a free hand with respect to the Negroes, who were relegated once again to a condition of subordination.

By 1896, the Supreme Court held in Plessy v. Ferguson that a state could enforce racial segregation in railroad cars, provided the facilities provided to each race were equal. In other areas, however, the Supreme Court found that certain rights of individuals and of corporations (fictitious legal "persons") under the federal constitution applied, under the Fourteenth Amendment, also to the states. The key case for this principle is Lochner v. New York. Lochner held unconstitutional a law of New York that forbade employers from making bakers work more than 60 hours in a week. The court held that a "freedom of contract" that the Fourteenth Amendment imposed upon the states trumped the states' inherent police power, and made it unconstitutional for a state to regulate the hours of work of bakers, even though restrictions on the hours of work of miners and others by other states had been upheld on health and safety grounds. The Supreme Court held that no such restriction on the work of bakers was justified by such health considerations.

This doctrine in Lochner has been labeled "substantive due process." In other words, it is not a case of a right being taken away without proper notice and procedures ("procedural due process"), but the content of the law itself the Court found offensive to the Constitution. In the economic sphere, substantive due process survived little more than 30 years. It was tossed out during the New Deal, when government regulation of the economy, in the face of the Great Depression, once again became fashionable. But Lochner is most emphatically not dead in non-economic spheres. Increasingly, the court has held, whether or not the focus is the Fourteenth Amendment's original one of race that the rights enumerated in the first ten amendments, much, if not all, of the "Bill of Rights" now applies to the states because the Fourteenth Amendment makes it so. Reams of paper have been covered with arguments as to which aspects of the Bill of Rights are "incorporated" or applied to the states under the Fourteenth Amendment.

II.

The other abstract concept needed to understand the legal arguments about Roe is the "right of privacy." In American jurisprudence, the concept of a "right of privacy" is generally traced back to an article by later Supreme Court Justice Brandeis and his law partner Samuel Warren in the Harvard Law Review. Brandeis and Warren wrote not about highfalutin' constitutional law, but about the law of torts, a tort being a civil wrong not arising out of a contract, for which suit may be brought. Brandeis and Warren argue that there is ample justification for the common law, as it does from time to time, to create a new tort, whereby damages and more rarely, an injunction, could be obtained for unauthorized publication of private facts, even if truthful. The article does not address the question of whether the constitution itself contains (or does not contain) an implied right of privacy. Brandeis and Warren's "privacy" deals more with protection against the likes of paparazzi than against state legislation:

Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

As we shall see, it is this concept of privacy, brought into the constitutional law and imposed on the states through the Fourteenth Amendment "incorporation" doctrine, that provided the initial rationale for Roe. Whether "privacy" can be found in the Bill of Rights, whether "incorporation" applies a right of privacy to the states, and whether abortion is within the scope of any such right of privacy, are all questions which must wait for further posts.

Drawbridge Politics, or Zoning for BoBos

(Originally published March 5, 2006)

Courtesy of blogger Jane Galt, I had a chance to look at an article in the New York Times Magazine (free subscription) about the work of a Harvard economist, Edward Glaeser. Glaeser’s ideas confirmed much of what I have believed for some time about supposedly “liberal” planning and zoning restrictions. Such controls are particularly strong in places where affluent political liberals reside, what David Brooks called “BoBos in Paradise,” “BoBos” standing for “Bohemian bourgeoisie.”

In my own life, I’ve seen this phenomenon at work in two Southern California beach
cities, Santa Monica and Laguna Beach. In ‘80s Santa Monica, I served one term on the City Council of what then and now is often called the “People’s Republic” of Santa Monica, because of the affinity of the political leadership to certain kinds of left-wing nostrums like rent control for the benefit of retired communists and ex-graduate students and “inclusionary zoning.” In Laguna, an arbitrary and tyrannical Design Review Board stands athwart every property owner’s plans to remodel or build a home. All this in the name of protecting the environment. 


The Times Magazine article summarizes some of Glaeser’s ideas this way: Glaeser has come to believe that changes in zoning regulations may be the most important transformation in the American real-estate market since the mass acceptance of the automobile. In his view, these regulations have essentially created a "zoning tax" that has pushed prices far above construction costs. Very, very far above construction costs. It is not a perspective shared by all housing analysts; some economists have been far more inclined to blame high prices on high demand (spurred by low interest rates) or on rampant speculation. Others agree with Glaeser in emphasizing supply but not necessarily fixing on zoning. Karl Case, for instance, an economist at Wellesley College who counts himself a fan of Glaeser's, agrees that lack of supply has led to steep prices in the Boston area, but he attributes the housing shortage not just to zoning but also to the nature of the construction business and the scarcity of large desirable tracts of land. Still, among the half-dozen leading economists who study housing supply, there seems to be wide agreement that regulations have had a tremendous effect on prices. "I think the evidence is overwhelming," says John Quigley, an urban economist at Berkeley who has looked specifically at the effects of regulation on the California market. As Glaeser says: "It's so easy to forget the world that we were living in around 1970, when basically almost all of the value of houses was in the physical infrastructure. That was actually the cost. There was some land, and it was worth something, but it wasn't worth more than 20 percent of the value of the house."

Even in New York City, Glaeser says, the price of an apartment back then was essentially the cost of building the next floor. In researching New York City's housing prices, in fact, Glaeser and Gyourko discovered that over the past 30 years, the average height of new residential buildings in Manhattan decreased in size. "That's crazy," he insists, especially in light of how much the demand to live in New York has increased. "You know, if prices in Manhattan are skyrocketing, you should be building more and more at 50 stories, rather than at 30. Not the reverse." So is it his contention that Manhattan could build far more than it has recently? "Oh, for sure," he says. "Technologically? Certainly. No reason why you couldn't." Let's go back to Manhattan in the 1920's, Glaeser says. "New York in the 1920's is a pretty developed place, a pretty mature place. But they're producing a hundred thousand units a year. They're tearing up swaths of Manhattan and building higher buildings."

That would be legally and politically impossible today, but as he and Gyourko see things, it is precisely those legal and political roadblocks to "tearing up" the city that have made the place so expensive. Actually, in 2004, the two men took a close look at Manhattan and estimated that one half or more of the value of condominiums in the borough could be thought of as arising from some type of regulatory constraint preventing the construction of new housing. In short, zoning and other building restrictions are major factors in increasing house prices.

My own town, Laguna Beach, has become one of the most expensive cities in Orange County, as far as housing prices go. If the free market were allowed to function, its pleasant climate and coastal amenities would no doubt lead to the construction of high-rise condos as in Ipanema and the Barra de Tijuca in Rio de Janeiro. Zoning and design controls have made such an evolution impossible; Proposition 13 has reduced the pressure of market-driven property taxes to create the “highest and best use” of residential properties. The result has been to drive both the working class and industries that rely on working class labor out of Orange County, and to a degree, out of California. In a 1926 case called Village of Euclid, the US Supreme Court approved municipal zoning as a proper exercise of the police power, limited by later cases only to the extent that zoning must not deprive an owner of all economic use of his property. The phrase “Euclidean zoning” thus refers to the case, not to the logical nature of the process.

Nowadays, zoning and planning rules have become arbitrary and unpredictable, a different but related issue. What cannot be gainsaid is that they help them as has, and exclude them as would like to have--”God bless the child that has his own.” At least, following Glaeser, we should understand that despite the veneer of liberalism, the effect of most zoning is to exclude the young, the poor, and the aspiring, in favor of the old and the lucky, all of whom use zoning, environmentalism, and design controls to protect their turf against interlopers. “I’ve got my share of the castle. Let’s pull up the drawbridge!” Less hypocrisy. More understanding. Who knows where it will lead? But it’s a beginning.

The Polygamous Judge and the Future of "Privacy"

Under pressure from the Utah Supreme Court, which in turn was responding to an anti-polygamy group made up largely of women, Judge Walter Steed, who has three wives and no less than 32 children, has resigned. Steed is a member of one of a number of Mormon sects that rejected the deal by which the mainstream Mormons abandoned polygamy (polygyny, really, because a woman cannot take more than one husband at a time) in exchange for statehood.

Notable is the Utah Supreme Court’s careful distinction between the constitutional questions, which are very much alive, and the issue on which it ruled, a judge’s obligation to follow the law even if he disagrees with it: "In the case of a sitting judge, it is of little or no consequence that the judge may believe a criminal statute is constitutionally defective," the court said. "A judge ignores the clearly stated clearly stated criminal prohibitions of the law at his or her peril." "Civil disobedience carries consequences for a judge that may not be applicable to other citizens," the court said. When judicial officers violate or ignore laws, "the stability of our society is placed at undue risk."

Judge Steed did not abandon his belief that the practice of polygamy is constitutionally protected: "I am hopeful that the court will eventually consider the issue of polygamy as an aspect of personal privacy, marital rights and religious freedom," Steed said. "I am proud of my effort to bring the issue before the court and the people of Utah."

This story is more than a bit of Utahn exoticism. Opponents of gay marriage have long argued that there is no principled basis for saying that gays have a privacy-based right to marry, while sincere polygamists do not. Sen. Rick Santorum was pilloried for making just this point, as Stanley Kurtz points out. If in fact the basis for claim the Constitution prohibits the states from forbidding gays to marry if it allows the same privilege to mixed couples, is the doctrine that the state may not interfere in the liberty interest that consenting adults have in ordering their sexual and marital lives without state restraint, it is hard to see why only gays can benefit from such privacy claims. Such claims are being asserted on behalf of at least three groups: Polygamists, such as the good judge,who based their practice on pre-Admission Mormon doctrine. In many foreign non-Muslim countries, the sharia-based claim to a right to polygamy is now at least on the agenda. The more New Age-y “polyamorists” who advocate not only polygamy, but various forms of group marriage.

Although there is a loud and influential gay community that has promoted gay marriage, perhaps accounting for its prominence as a public issue, there are at least as good constitutional arguments in favor of polygamy. Unilike gay marriage, it furthers a public policy interest in favor of reproduction. Moreover, it is supported by religious texts that are meaningful to the supporters of the practice, unlike gay marriage, which must depend either upon a rejection of the dominant monotheistic traditions, or upon a tortured reading of their texts.

The question of whether any of these practices should be sanctioned as a result of democratic debate and legislation is a different one that whether the fads and fashions of a couple of decades should be enshrined in constitutional law. By starting with a weak theoretical basis (”penumbras” from the Bill of Rights as applied to the states under the Fourteenth Amendment), the groundwork was laid for the justices to impose the fads of Cambridge and Manhattan’s élites on the country by fiat, and claiming a constitutional mandate for doing so. What follows from this tortured reasoning is a doctrine that contains no principled basis for imposing practices even more repugnant to the values of the majority. The gradual extrapolation from these doctrines, created for the nonce to justify a desired result, will lead us no one knows where. Let us be thankful that no one (yet) has found in the Constitution a basis for giving a rat the same civil rights as a boy as PETA’s famous slogan would seem to urge.

Another View of David Irving

(Originally posted February 22, 2006)

The oddly-named Neo-neocon pulls together various views of the David Irving case. She quotes Roger Boyes, who thinks Irving deserves jail, points to the differing histories of Austria and Germany, and the perceived danger of a Nazi revival, but in the end, comes down on the libertarian side of the debate:

The Irving-is-a-chump school describes him as a "fringe academic addressing a group of loopy far-right radicals wearing silly hats in a basement in Vienna". Jailing the man is supposed to award him an undeserved importance. This is a truly parochial view, given that the problem is not strange, skinheaded Austrians in lederhosen (though I worry a bit about them, too) but bearded men in turbans who have never made their peace with Israel. The European input has always been important to the development of anti-Semitism in the Middle East. The widespread Arab hatred of Jews does not derive from the Koran: it stems from the need of national liberation movements for hate figures.

European anti-Semites have fed them from the start. Palestinian nationalists aligned themselves with Nazi Germany, identifying Zionism as the enemy. As the state of Israel took shape, Arab writers (borrowing heavily from European deniers) presented the Nazi gas chambers as a flimsy myth designed to justify a land-grab.

An interesting point. But, in the end, an irrelevant one. Because the sad truth is that the damage has already been done. The horse is out of the barn, the cat is out of the bag, Humpty Dumpty has fallen off his wall and all the king's horses and all the king's men and all the jailers in Austria will not undo the influence of the European anti-Semitism that has been tainting the Arab world for much of this century.

So it seems to me that the only remedy is free speech in the theater of ideas. We must believe in the ability of truth to ultimately triumph, and in our ability to wage war against those who would preach hate and follow through on it with destruction. If Irving and his ilk have influenced Iran, the damage is long done, and the remedies lie elsewhere--unfortunately.

David Irving Is Sentenced

(First posted February 20, 2006)

I know very little about David Irving, except that he is a historian who downplayed some aspects of the Nazi mass murder of European Jews, and lost a libel trial in England to Deborah Lipstadt.

Now Mr. Irving has been convicted and sentenced to three years' imprisonment in Austria under a law that makes denial of Nazi villainy a criminal offense, for remarks he made some time ago. This conviction illustrates some differences between the European and US conceptions of freedom of speech, as I discussed in this post. In Europe and Canada, deviation from conventional wisdom on the Nazi era can be a crime. In the United States, freedom of speech extends to statements that others consider outrageous and offensive.

The Americans have the better of this argument. We have a tradition of rough-and-tumble, even scurrilous debate over politics and other matters, and are none the worse for it. In part this reflects a belief that the truth will emerge from free debate, and in part from an unwillingness to trust government to decide what speech is too dangerous or too offensive to be heard. Therefore, even though Holocaust denial is sometime associated with very unpleasant anti-Jewish sentiment, the American view of free speech leads to the conclusion that it is wrong (not to say hypocritical in the land of Kurt Waldheim) to jail Mr. Irving for his deviant views on Nazi genocide. Although Mr. Irving's views may not be worthy of defense, his right to express them is. Therefore, like him or not, like it or not, I am forced to say "Free David Irving."

The Culture Wars Go to Court (Yet Again)--The University of California vs. Christian Schools

(Originally published February 15, 2006)

An important First Amendment dispute is winding its way through the courts in Riverside County. In California, the University of California (Berkeley, UCLA, etc.) sets admissions standards. If it refuses to approve certain courses, or requires others, there is a ripple effect throughout the high schools, public and private, whose more qualified graduates often apply to UC.

Although UC has approved high school courses on theme such as feminist approaches to literature, it has recently refused to approve courses offered by Christian schools, such as Christian approaches to literature. The dispute also extends to science classes--physics and biology. The Calvary Christian schools contend that UC is disapproving the courses because of the points of view they espouse, not because the courses are of inferior quality or don’t cover important and challenging literature. UC says it's enforcing scientific and intellectual standards, not discriminating against faith-based institutions.

The U.S. and California constitutions forbid such discrimination, but don't bar a state university from setting academic standards. Because UC is a state institution, the First Amendment would prevent it from discriminating against a course because its viewpoint is influenced by religion (or anti-religion, for that matter).

If the standards of the course are too lax, its a different story. There could be a different story in the case of science classes. A biology class that didn't cover evolution, or a physics course that didn't address the Big Bang would be in violation of generally accepted scientific standards. A biology class that presented the theory of evolution thoroughly, but criticized evolutionary theory on empirical or religious grounds would be a closer question. Is it enough to explain the theory and express skepticism about it, or must it be taught as truth? These questions aren't easy. The outcome may well turn on the specifics of the courses, and the University's record on similar courses whose orientation is less likely to offend the liberal mind. Judges hate to second guess academic decisions, if only because they want to discourage lawsuits on these matters, but when a constitutional issue is joined, the courts have no choice but to decide it. Watch this space.

Hat tip: Al Mohler, who cites an article by Charles Haynes of the First Amendment Center

Free Speech--or Safe Speech?

Within the worldwide rioting and controversy over a few cartoons published in a small Danish newspaper lurks a distinction between two approaches to freedom of speech. In the United States, there are few limits on speech about matters of public controversy. Even the libel laws have been weakened because it seemed more important to allow robust debate, at least about "public figures" than to suppress speech. Two examples illustrate the point.

In 1978, a small group of neo-Nazis decided to conduct a march through the Chicago suburb of Skokie, Illinois, which had a large Jewish population. Even though the march was highly offensive and could have provoked a violent reaction, in the end, the courts held that the authorities could not ban it. The ACLU (American Civil Liberties Union), notwithstanding the many liberals of Jewish origin in its ranks, took the "First Amendment absolutist" position that however offensive, the First Amendment forbade a ban on the march.

A 1949 case, Terminiello v. Chicago, addresses that question: can the authorities ban speech that arouses the anger of others and thus is likely to cause a public disturbance. Terminiello was an extremist who sought to deliver a speech to the Christian War Veterans of America. A hostile crowd gathered, and the authorities arrested Terminiello, who was convicted of disorderly conduct. The case found its way to the U.S. Supreme Court, which overturned the conviction, holding: Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. The job of the police, therefore, is to protect the speaker from those angered by his speech, not to arrest the speaker, even if his ideas are outrageous, to protect the public peace.

There is another view, that finds currency in Europe, and also in corners of this country, for example, some colleges and workplaces. This view is that the social harm (not to say danger of disorder) caused by speech that offends racial, religious, or other minorities, outweighs any benefit in allowing such speech, and therefore the law can prohibit or punish certain kinds of speech. An example of this kind of law is the prohibition in Canada and many European countries, on public denial of the Holocaust, and the German ban on displaying Nazi symbols.

This approach finds its strongest echoes in this country in colleges where campus codes prohibit "racist" and "sexist" speech, and workplaces where employers, fearing "hostile environment" discrimination lawsuits, prohibit certain kinds of remarks and expressions of opinion. These restrictions are often not directly imposed by government, and so are a bit different than the European and Canadian laws.

The vice in this kind of law is not only that it will lead to standardization of ideas by dominant groups, but it is likely to best protect those minorities, such as radical Muslims, who are most easily offended and most likely to react violently to opinions, words, or even cartoons they dislike. The more sensitive the minority and the more severe its reactions when offended, the more likely the law is to cater to its prejudices. For this reason, retreat from the American principle that freedom of speech and the press includes the right to say things that will offend others would be most dangerous. In our society, almost anything one might say other than "Have a nice day!" is likely to offend someone.

A society that starts suppressing ideas just to avoid hurting people's feelings, is well on its way to losing its freedom altogether. This danger is not imaginary. In Sweden, a minister was prosecuted for expressing the view that the Bible condemns homosexual conduct. In Italy, Oriana Fallaci is being prosecuted for her polemics against Islam. And so on, down the slippery slope. That is not to say that people should act in a way that offends others, or that tests the limits of free speech and the patience of the public, just to prove in the most puerile way possible that speech is free--only that the law should not prohibit speech just because some find it offensive or even infuriating.

What Roe Is All About--Introduction

(First posted February 14, 2006)

Last October, on my personal blog, when the Supreme Court appointments began to be an issue, I began a series, still unfinished, about the legal issues in the endless battle about Roe v. Wade, the case in which the Supreme Court found that the Constitution forbids the states from making it a crime to interrupt a pregnancy, especially in its early stages.

I thought to focus on the constitutional issues, as opposed to the moral and political aspects of the issue. I’ve slightly revised this post for my law blog, and I’ll be posting the remaining sections from time to time. Nevertheless, I do think it’s important to begin by saying that if I were a legislator, I'd vote in agreement with what most Americans believe. It would be a mistake for the government to forbid all abortions, when there is no consensus among the people. However, abortion should be regulated, especially in the later stages of pregnancy when a premature birth might result in a baby capable of survival.

I don't think abortion in the early stages of pregnancy is the same as murder. That's a theological or philosophical debate to which I don't have much to contribute, but before I begin discussing the Constitutional aspects of the issue, it's best to lay at least that much on the table.

This approach--allowing abortion but restricting it-- would probably be the law in most states if the Supreme Court had never been involved in the issue, and the noise of the controversy would be far less loud. Why? Because the political process would have taken effect, and changing public attitudes would be reflected in law. No doubt Utah and a few Bible Belt states would outlaw abortion entirely, and others would restrict it. Others, like California, have put a "right of privacy" into their constitutions that was intended, among other things, to limit the state's ability to interfere with abortion. As Justice Ginsburg long ago observed, the effect of the Roe decision was to cut short the political conflict.

The debate has now metastasized into a debate not only about constitutional law, but about the role of the Supreme Court and how justices should be selected. Our Constitution gives the federal government limited powers, and the Bill of Rights, the first ten amendments to the Constitution, places specific restrictions on the feds' ability to do things like promulgate a state religion and tell newspapers what to print. Originally, these restrictions did not limit the powers of state governments, which were sovereign. After the Civil War, a Congress purged of rebels passed three constitutional amendments. One, the Fourteenth, was designed to insure that freed slaves became full citizens, and thus provided that persons born or naturalized in this country were citizens of the states where they reside. It also did other post-war things, such as invalidate the Confederate debt, that are rarely spoken of today.

The language of the Fourteenth Amendment relevant to our discussion is this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For the first time, the Constitution limited what the states could do. The original idea was to protect the freed slaves. As we shall see, that ideas has stretched quite a bit beyond that intention since. What were the "privileges and immunities" so protected, what were the protected "life, liberty, [and] property" and what was "equal protection of the laws"? The language is general, and when language is general, lawyers prance, preen and saunter. Where this legal horsing around has led our constitutional law, is something I’ll take up in a later post in this series.

UPDATE: My views on the moral questions involved have evolved somewhat. I am becoming persuaded that the moral criticism of abortion holds weight, as do the "slippery slope" and demographic concerns many express about a socially permissive view. This doesn't necessarily change either the constitutional analysis or the political question.

The Angels Jury Decides

(Originally published February 12, 2006)


Last week an Orange County jury slapped down the City of Anaheim, and its lawyer, Andy Guilford, who is soon to be a federal judge, if the Senate cooperates. The jury found that the Angels’ new owner, Arte Moreno, did not breach a contract that the former owners, the Disney Company, made with the City of Anaheim, by changing the name of the team from the “Anaheim Angels” to the “Los Angeles Angels of Anaheim.”

The jury deliberated for only four hours, a relatively short time for a major case. The new name of the team is silly. Although they are in the same TV market, Orange County does not consider itself a suburb of Los Angeles, and Los Angeles tends to think of events occurring here as “behind the Orange Curtain.” The judge found that contract was ambiguous on the point, requiring merely that the name “Anaheim” appear in the title of the team.

Was Moreno within his rights in trying to link the team to a wider area the and a larger demographic by making the rather awkward name change. When a written contract is unclear, “parol evidence” about what the parties said and intended, if it doesn’t contradict the written part of the contract, can be received in a trial so the meaning of the ambiguous term can be discovered. “Parol” is Law French, deriving from the French term for “word,” going back to the Norman French conquest of England in 1006. Perhaps the jury decided that if the parties had meant that only the name “Anaheim” could appear in the team name, that’s what they would have written down.

There’s a lot more that can be said about this case, but for now I’ll just make two points:

• It’s important that contracts be clear. People write their contracts so they will know what to expect. If a contract is sloppy or unclear, the parties are giving an unknown group of 12 people the right to decide what their business deal meant. Skimping at the contract writing stage can turn out to be very expensive.


• Attorney’s fee clauses in contracts increase the risks of litigation. Under the normal “American Rule,” the party that wins a trial and the party that loses each pay their own lawyers. Parties to a contract can repeal the “American Rule” and agree to make the loser pay not only its own attorney fees, but the winner’s. Anaheim may get hit for $ 6 million!

UPDATE: Now the OC Register’s Frank Mickadeit says there isn’t an attorney’s fee clause in the agreement. Mickadeit was confident the city would win, so I guess his face is doubly red. He’s still my favorite columnist in the paper. The result also calls into question the practice of cities spending cash and devoting land to attract or keep professional sports teams. Why the taxpayers should subsidize a profit-making enterprise like a sports team is beyond me, but apparently there’s a myth that the team will bring in swells who will spend money, and make the city famous. It never paid off and it never will. Fill the potholes, arrest the crooks, fix the schools, and lower taxes. Boring, but the true business of cities, and better calculated to bring in business than subsidizing millionaires who think it’s fun to run a team. "