Sheridan: Con-Law

STAYING THE COURSE

In a post yesterday I noted that the shape of the nation seemed more or less the same after the close of the term on Monday, two days ago.

On second thought, this does not give justice to what actually happened, and I may want to switch the metaphor from shape to course, as in the course a ship takes.  We play with metaphors a lot in Con Law.

In order to understand the significance of retaining our shape, or staying the course, it would be helpful to know what course we were on and what storms buffeted the ship, left and right, and whether we went up on the rocks to the left or were stranded on the shoals to the right.  We seem headed straight down the middle, which is where I want to be in the channel or a fairway headed toward a green.  Yup.  Another metaphor.  We're not all sailors, or good golfers.  But we can sling metaphors to try to make a point.

When the City of New London, Connecticut decided it would be a good idea to convert an old neighborhood where some of the homes seemed rundown, a place where the neighborhood wasn't producing a lot of tax revenue to pay for the police and fire protection it may have enjoyed, into an upscale new industrial park featuring the Pfizer Pharmaceutical Company's new research campus, designed to house scientists, technicians, and executives, all driving new SUVs, no doubt, it must've seemed to represent one of the maximum goods in our world, something we call "Progress."

One man's Progress is another's Purloined Property, taken (some would say stolen) using the power called "eminent domain."   In Con Law we give names to everything, especially if they're invisible.  This way we can see them, we think.  We call the Supreme Court's power to amend the Constitution every year, with every Con Law case they decide, without going through the formal Amendment Process, that is the power to nullify acts of Congress, the President, and the States, to declare them null and void as being unconstitutional, the Power of Judicial Review, not to be confused with the right to appeal, which is when the power is exercised usually, on appeal.

The Forces of the Right rallied in defense of property.  The Forces of the Left rallied in favor of Progress.  The Ship of State was being buffeted in a storm.  The trusty pilot was not the president, ordering his men to sail between Scylla and Charybdis, but a big committee, the piloting committee, called, you guessed it, the Supreme Court.  This time the justices, by a narrow margin, steered a bit to the left during a storm blowing from the right.  My guess is that they probably didn't do all that much damage in real life, on the ground, in the world of real estate deals, despite the worst-fear thinking of the doomsayers. 

However I'm not all sure about this conclusion either.  I'll bet there are more than a few real estate developers plotting as we speak, in virtually every city in the land, to redevelop (meaning condemn, meaning to use the snatch'n'grab, the takings power of eminent domain) one neighborhood or another to attract the next George Lucas or Bill Gates into building a new campus in some not quite as upscale neighborhood as you and I might like to live in but don't.  Our own neighborhood, in other words.

Oh, we might get paid something, but the developers are the ones who will really make out, not us little ones.

I'll leave it up to you to decide whether the ship has made a big lurch to the left or a small one, on this issue.

Regarding the Ten Commandments, the country is faced with an evangelical problem.  An important belief of some Christians is that they have found the Answer and have a duty to share it.  So they'll ring your doorbell or hand out literature or hold up signs at sporting events that say "John 3:16").  This is supposed to attract followers, or at least let 'em know they're out there pitching for the Lord.

Some of the rest of us think this is the height of arrogance, that since I wouldn't think of shoving my religion, such as it is, down your throat, where do you get off trying to shove yours down mine.  Like that.  It tick's us off.  And we certainly don't want government siding with the religious throat-shover-downers.  Hence the battle over monuments featuring the Ten Commandments.  Regardless whatever else he was, such as a lawgiver, Moses is a religious figure, just as Jesus and Mohammed are religious figures.  Once we decide that government stays out of religion, why start putting monuments to Moses's handiwork (or God's, if you will), on the public lawns?  Unless you're prepared to put up a statue to the New Testament or the Koran on the city hall lawn, how about forgetting about it?

This is not the way evangelical christians operate however.  Nor, I guess, in a town that is predominantly Jewish.  I can see the group getting together for a discussion that goes like this:

You know, Sam, the Christians in the next town over always put up a Christmas tree on the city hall lawn every year.  And they decorate it with a manger scene, a little Baby Jesus, etc.  Why don't we do something like that on our city hall lawn.  Maybe a little scene of Moses being rescued from the basket in the Nile.

And they vote on this and next thing you know we have a Jewish theme in one town and a Christian theme in another.

Can you see how polarizing this can become if allowed to flourish?

Is this country a theocracy hospitable only to Christians and Jews?

We do have many varieties of each, do we not?  I won't go into it.  We do.

Each considers themselves to have more of the correct Answer than the competing branches.

So we have this problem in this counrty.  Wonderful country, but full of people.  American people.  Americans who'll cut your throat if you don't see things their way.

We depend on our Supreme Court to please keep us from harming one another.  We expect the Court to tell the Christians and Jews, and the rest, to mind their own business.  Practice your religion with your fellows, but leave the rest of us out of your concerns, please.  This, of course, drives some folks nuts.

So when the Court divides over two Ten Commandments cases, allowing a display of one, but not another, you can figure that the ship of state has weathered a storm.  If the ship happens to be pointing in the same direction after the storm as it was headed before the storm, that is an accomplishment worthy of noting on a blog here.  So noted.  Because the Court was buffeted by strong winds coming from across the land. 

I'll bet that the next time a religious group decides to put up a Christmas display on city hall grounds, or the Ten Commandments, or some other scene from the bible, the question will be:  Is this for a religious reason we're doing this or a secular?  And if it turns out that it seems to be a religious reason, guess what, the decision will be struck down the moment someone protests enough to bring a case in federal district court.

That was a pretty good storm we just went through, and the piloting committee kept the ship headed the same way, right down the middle of the channel.  Good for them.  We owe them a vote of thanks, except if we're evangelicals who apparently think we should all agree with them on spiritual matters.

I'd rather go to hell myself.

At least I'll be with friends...

HAS THE SHAPE OF THE NATION CHANGED?

Yesterday was the last day of the 2004-2005 Term of the Supreme Court.  Terms begin each year on the First Monday in October and continue until done, sometime around now each year.  The Nine Mice then scurry off for a rest I guess.

Meanwhile the country rolls on.

So what has changed over the past year, Con-Law-wise, as we like to say in New York?

You still can't steal, or provide transportation for known stolen goods.  Grokster.

We still have separation of church and state as we've had, meaning you can't have admitted religious practices or installations on public property, implying an endorsement of religion in general over irreligion, or a particular religion, like the one originated by the Jews and adopted by the Christians with a modification here'n'there.  You can have secular displays that refer to religious themes or icons, but you may not, if you're the gummint, shove my religion down your throat, and vice versa.

So the Supreme Court can still open with a "God Bless this honorable Court," invocation, and can still have a frieze or painting of great lawgivers, including Moses, who got his from the Big Guy himself, as Moses liked to tell the story.

We may have a little shape-shifting going on here, but hey, this country was not built on purity in anything, much less religion, so it looks like we're going to let some things slide a bit in order to keep the peace for a while longer.

Is your property safe?  Perhaps not as safe as you previously thought, but if you thought it was safe you were probably optimistic anyway.  You know the old saying, "Your money and property are not safe as long as the legislature is in session."  Add to that the Supreme Court, which didn't make it any more difficult for the legislature to steal your property because your neighbor has a better idea of what to do with it.  That would be Kelo v. New London.  We'll have to see whether there'll be a big land grab by big developers.

The police still have discretion not to execute immediately, with impunity, arrest warrants, even if you or your kids are murdered by the person who should have been arrested.  Poor Joshua.  Castle Rock, yesterday,  and DeShaney v. Wisconsin (1989).

The Court refused to take up the civil contempt citation of reporters Miller and Cooper, so it looks like the hoosegow for these folks.  Adam Liptak in the New York Times today opines that the issue was whether journalists pursuing the right to gather news may refuse to identify sources to a prosecutor with impunity.  The leading case from 1972 is called Branzburg v. Hayes, which says that the reporters have no privilege to refuse to answer questions when subpena'd or hauled before the grand jury.

Aren't journalists protected by something like an attorney-client privilege to refuse to divulge information?  No, said Branzburg.  Even though some 43 states provide this protection by statute, that's all it is, statute law, not constitutional law.  The U.S. has no statute protecting the sources of journalists from disclosure.  Hence the civil contempt (read jail) from the U.S. District Judge.

You still can't smoke (possess, transport, sell, grow) marijuana without risking federal prosecution, although that didn't seem to deter the young lady I saw smoking a joint on Broadway in San Francisco the other day.  A little brown roach, it was, which she tossed.  In San Francisco her biggest worry was a possible littering violation unless the president was in town and the place flooded with federal agents.

So the country looks to me as though it's remained pretty much the same.  I don't see any radical change this term, do you?  Maybe I left something out, but I don't see another case the size of Lawrence v. Texas,  Affirmative Action or abortion this term.

The so-called Marijuana case, Gonzales v. Raich, is interesting because it represents the short course on the Commerce Clause and State vs. Federal Rights, in a marijuana haze sort of context.

Check here for the New York Times's editorial board opinions on the Ten Commandments cases, Grokster, and the Reporters' cases.

Further regarding the Court's declining to accept the request of the two reporters who have been held in civil contempt, who are now subject to being jailed for refusing to reveal sources, this.  Although newspapers like to say that they are a fourth branch of government, the one that keeps the others honest, etc. and thus deserve the protection of a legal privilege for reporters' sources, it is very hard to see where a newspaper exists and an individual begins.

What I mean by that is this.  We'd all like a privilege not to have to disclose information when asked by the government when it suits our purposes, but we have no such privilege, except in a few special cases.  We have a recognized attorney-client privilege, but that is reserved to the client (meaning that the attorney is gagged) and is limited to prevent disclosures of past wrongdoing revealed to an attorney in the course of attempting to get legal help.  Statements of present intent to injure or commit crime or of future purpose mean that the attorney may be duty bound to pick up the phone and call the police or victim to warn or deter.

Psychiatrists have a privilege, subject to similar exceptions and duties.  See, e.g. the Tarasoff case, California Supreme Court.

Priests and ministers of religion or their penitent parishioners have a privilege, and duty, to keep secret matters disclosed in confidence in the confessional.  Here's a place where the state gives protection to religious exercises.  Is this a law respecting religion?  The establishment of religion?  Religions get tax free treatment for certain revenue generating activities.  School vouchers redeemable at parochial schools have been held to be not an impermissible mixture of church and state.

Husbands and wives have a privilege not to be called to testify against one another, except where they're trying to kill each other, as in domestic violence, not that spouses would ever actually do such a thing.  But there is this privilege, nonetheless.

Now back to the newspapers.  Suppose I like to gossip over the backyard fence to get, and give, the latest news. Gossiping must be the first example of the newspaper ethic:  If you can think it, you can talk it. 

What's the fastest news medium in the world?

Telephone?

No.

Telegraph?

No.

Tell a woman?

Ba-Dum!

Okay, suppose this woman, in tell-a-woman, decides to go blogging, or to write a neighborhood newsletter.  Should she have a legal privilege not to reveal sources?  How is she different than the New York Times?

Or to reverse the example, how is the NYT different than tell-a-woman?

Both perform a valuable civic function.

Both are subject to inventing and repeating lies.  See the Jason Blair affair at the Times.

Woodward and Bernstein of the Washington Post brought down Nixon.

The Times and The Post published the Pentagon Papers, informing the country we'd been fed.

Informing the country takes risk.  The news companies that take the risk, may break the law, or publish information that someone else (such as Daniel Ellsberg of Pentagon Papers fame) obtained by theft.  Ellsberg was prosecuted but the case was dropped when the government's hands were so dirty as not to permit the case to withstand scrutiny in court.

His the Supreme Court supposed to draw a line between the New York Times and the Washington post, for example, on the one side, and a more or less avowedly partisan paper or other media outlet, whose journalistic standards are even less worth of respect?

The public may benefit from news media, but it didn't elect them and exercises no supervisory control over their practices.

So for the media to proclaim itself the people's representative smacks of patting itself on the back.

If you, or I, want to publish the latest news, or commentary thereon, we're free to do so, but we'd look pretty foolish claiming we're representing anyone other than ourselves, no matter how many copies are sold or viewed.  Where do the big boys get off claiming to represent the people who didn't elect them and the many who refuse to buy or tune in because they don't like what they see?

This, I think, helps explain, perhaps, the Court's reluctance to accept the invitation of Cooper and Miller to lay down a constitutional principle of protection of reporters' sources as essential to the survival of a free press.

Could that change some day?

Perhaps in a better case, one that provides a clearer model for establishing the principle, one that most people could salute, rather than the one growing out of the Plame affair, which seems convoluted, if not confused.

In Plame, someone in government leaked to a reporter that Ambassador Wilson, who was on the White House S-list for revealing the president to be fulla beans about yellowcake in Niger, had a wife, Valerie Plamel, who was a secret spy for the CIA.  Oops!  Revealing that is a crime.  The act of revealing that secret information was a felony.  Who knew the identity of the person commiting that crime?  The reporter.  Slap.  Subpena to testify before a federal grand jury.  Tell us all you know about that.  Nope.  Contempt.  Jail.  Appeal to Supreme Court.  Denied.  Really facing jail now.

Is this a good vehicle for the Court to use to lay down a broad principle of respecting a claim by the news media that it needs a legal privilege to run a free press, even though it has managed so far?

How about this?  Recently Mark Felt, the #2 guy at the FBI during Watergate, revealed himself as "Deep Throat," the guy who leaked the info to Woodward and Bernstein that brought down Nixon as a crook involved in the coverup if not the actual Watergate burglary itself.  The Plumbers from CREEP (the committee to re-elect the president, i.e. Nixon) were trying to steal the Democratic Party's secret, or at least private, campaign plans, as though the Democrats were capable of coming up with meaningful plans.

Suppose the president subpena'd Woodward and Bernstein to ask who Deep Throat was so they could get rid of an embarrassing leak, in the name of national security, say.

Would that have been a better case in which the Supreme Court might recognize a reporter's privilege?  Looking back with 20-20 hindsight at Watergate, I'd say, yeah, this would be a better vehicle.  But Watergate was over 30 years ago, and the bloom is off that rose.  Newspapers have their good days and their bad.  Watergate was a good day, Jason Blair was a bad one that helps highlight the difference between a newspaper at its best and its worst.

The Supreme Court bailed out the Times, and the country, in 1964 in NYT v. Sullivan.  It wasn't ready to take a swing at this latest pitch, however.  The Court took a pass.  No doubt it will have a better opportunity over the next three decades, and when it does, it will be a dilly of a mess we're in,  no doubt.