Anyone who knows me knows that I am a loyal reader of the New York Post, in fact, I have read almost every New York Post ever printed cover to cover for the past 20-odd years.Calculating this, means I have spent more than $5,000 on the paper since the time I was in college. It also means that I am probably in a better analytical position than many of the editors, including the editor in chief, Col Allen, who is Australian and picked by the owner, Rupert Murdoch, also an Australian.
That being said, I was always aware of the point of view of the editor, and by default the perspective of the writers he has hired. I have often quipped, and again for those who know me, this is nothing new: I read the post as the antidote to the New York Times, and I read the New York Times, as the antidote to the New York Post. Most items I read, I am dispassionate about, and attribute any point of view to rhetoric. But then I saw yesterday's NY Post article titled: "NY Suer system sucks." And I could not help but to leave that without comment.
Basically the article piggybacked the political perspective that in order to make "healthcare reform" work: in shorthand: "tort reform" would need to be part of the equation. But the article was unfortunate in that, first of all it cited five cases over the last seven years as "abuses of the legal system."
However, none of the case supposedly proving the point, involved medical malpractice.
Additionally all of the cases that were cited as signs of abuse were thrown out of court, and none of the plaintiffs recovered a cent. Yet, the Post figured their readers were ignorant enough that they would be outraged by the filings of the suits that they would further the agenda of the editors. Again, I love the Post, but for my own reasons, I am a skeptic.
Yes, each of the Plaintiffs filed a suit, all were thrown out...So what is the problem? Unless the perspective is that Plaintiffs who are truly injured should not be entitled to seek redress for the injuries suffered, who can complain?
Leaving aside the merits of the lawsuits, the New York Post attempted to take five suits over seven years, all of which were thrown out by judges in New York Courts, and from them, extrapolate that the judicial system was out of control.
A careful reader would come to the exact opposite conclusion: It is only pertinent suits that will go to trial. The rest will be weeded out by judges who take the judicial system seriously. If anything, conservative advocates...including the New York Post, should be welcoming the "frivolous" lawsuits they cite...not only will they never be able to reach the determination of a jury...but the filing fees expended by the Plaintiff, will be paid into the budget without a cent recouped. A double win: It can be used as rhetoric as a prosecutorial win, and the fees can be used to reduce the state deficit.
Thursday, November 19, 2009
Thursday, October 29, 2009
An (Enhanced) Slap to the Head
I'm sure it comes as no surprise that if I punch you in the face in order to steal your wallet I am facing jail time. But it may come as a surprise that if I commit the same act while insulting your ethnicity, religion, sexual orientation or disability status I could face an additional 10 years. Welcome to the wonderful world of "hate crimes."
Last week the Senate passed the Local Law Enforcement Hate Crimes Prevention Act of 2007 also known as the "Matthew Sheppard" act. Yesterday President Obama signed the bill into law. The basic thrust of the law is that crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity or disability deserve special protection, and enhanced punishment.
The justification of hate crime legislation is that when a vulnerable person is victimized solely due to physical characteristics over which he or she has no control such a crime is an affront to American society and accordingly deserving of extra contempt.
In the abstract, I suppose it's hard to argue with this reasoning. However life is not lived in the abstract. Punishment requires the arbiter of sentencing to get inside the mind of the attacker. Personally, I fail to see how punching a 75-year old woman and stealing her purse is any less culpable than punching the same woman while calling her a stupid Jew.
Even the title of the law speaks to its silliness. in 1998, Matthew Shepard was a student at the University of Wyoming when he was attacked because he was perceived to be gay. His attackers had planned to rob him but ultimately the robbery resulted in Shepard's death. His attackers, Aaron McKinney and Russell Henderson pretended to be gay in targeting Shepard. They ultimately hanged him like a scarecrow, and left him to die. A hideous crime to say the least. However both of his attackers were prosecuted for the attack. While the prosecution could not present evidence as to the motivation of McKinney and Henderson, because Wyoming did not recognize hate crimes due to sexual orientation, both defendants were successfully prosecuted and are serving life sentences in Wyoming. In other words, even if it could be shown that the motivation for the attack was because of Shepard's sexual orientation, under the law, his attackers could not be punished any more than they have been.
This week we just had a group of bigots come to New Jersey and target Jewish institutions, including the Anti-Defamation League, who by coincidence was one of the main backers of enhanced hate crime legislation. This particular hate group thrives upon publicity and uses as ammunition any news which they can spin to show that minorities in America receive special privileges and protections at the expense of "true" -- read White Christian--- Americans.
While valid arguments can be made that at time minorities need, and deserve special privileges and protections, any such action should be made with the intention of putting minorities on equal footing, not in affording a special status of protection. A fist to the face is as menacing to a black, to a Jew to a gay as it is to a Christian White man and both should be prosecuted to the fullest, just as the crime committed to Matthew Sheppard was.
Once we get government involved in the business of not only the conduct of a criminal defendant, but also its motivation, we are no longer involved in a sphere that I believe is under the provenance of judicial law, but rather veering off into the realm of psychology and social science. In doing so, we undermine the basic proposition under which the American Experiment was founded: That is, that all people are created equal and that all people will be afforded equal protection under the law.
That Congress has engaged, and prioritized this exercise in social engineering, and that President Obama signed the legislation yesterday and hailed it as an expansion of freedom leads me to question the Congress and the Administration's s priorities. Our servicemen remain stuck in the Middle East seemingly without conclusion. By even the most optimistic estimates our economy will fall further behind over the next ten years. Health care is still a mess; but at least we can feel good that people who attack minorities while engaging in slurs will be facing an extra 10 years of jail time....Meanwhile the bigots out there, who would like to do the attack, have a new bullet point in their literature to raise money, and recruits....Pun most definitely intended.
Last week the Senate passed the Local Law Enforcement Hate Crimes Prevention Act of 2007 also known as the "Matthew Sheppard" act. Yesterday President Obama signed the bill into law. The basic thrust of the law is that crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity or disability deserve special protection, and enhanced punishment.
The justification of hate crime legislation is that when a vulnerable person is victimized solely due to physical characteristics over which he or she has no control such a crime is an affront to American society and accordingly deserving of extra contempt.
In the abstract, I suppose it's hard to argue with this reasoning. However life is not lived in the abstract. Punishment requires the arbiter of sentencing to get inside the mind of the attacker. Personally, I fail to see how punching a 75-year old woman and stealing her purse is any less culpable than punching the same woman while calling her a stupid Jew.
Even the title of the law speaks to its silliness. in 1998, Matthew Shepard was a student at the University of Wyoming when he was attacked because he was perceived to be gay. His attackers had planned to rob him but ultimately the robbery resulted in Shepard's death. His attackers, Aaron McKinney and Russell Henderson pretended to be gay in targeting Shepard. They ultimately hanged him like a scarecrow, and left him to die. A hideous crime to say the least. However both of his attackers were prosecuted for the attack. While the prosecution could not present evidence as to the motivation of McKinney and Henderson, because Wyoming did not recognize hate crimes due to sexual orientation, both defendants were successfully prosecuted and are serving life sentences in Wyoming. In other words, even if it could be shown that the motivation for the attack was because of Shepard's sexual orientation, under the law, his attackers could not be punished any more than they have been.
This week we just had a group of bigots come to New Jersey and target Jewish institutions, including the Anti-Defamation League, who by coincidence was one of the main backers of enhanced hate crime legislation. This particular hate group thrives upon publicity and uses as ammunition any news which they can spin to show that minorities in America receive special privileges and protections at the expense of "true" -- read White Christian--- Americans.
While valid arguments can be made that at time minorities need, and deserve special privileges and protections, any such action should be made with the intention of putting minorities on equal footing, not in affording a special status of protection. A fist to the face is as menacing to a black, to a Jew to a gay as it is to a Christian White man and both should be prosecuted to the fullest, just as the crime committed to Matthew Sheppard was.
Once we get government involved in the business of not only the conduct of a criminal defendant, but also its motivation, we are no longer involved in a sphere that I believe is under the provenance of judicial law, but rather veering off into the realm of psychology and social science. In doing so, we undermine the basic proposition under which the American Experiment was founded: That is, that all people are created equal and that all people will be afforded equal protection under the law.
That Congress has engaged, and prioritized this exercise in social engineering, and that President Obama signed the legislation yesterday and hailed it as an expansion of freedom leads me to question the Congress and the Administration's s priorities. Our servicemen remain stuck in the Middle East seemingly without conclusion. By even the most optimistic estimates our economy will fall further behind over the next ten years. Health care is still a mess; but at least we can feel good that people who attack minorities while engaging in slurs will be facing an extra 10 years of jail time....Meanwhile the bigots out there, who would like to do the attack, have a new bullet point in their literature to raise money, and recruits....Pun most definitely intended.
Thursday, October 22, 2009
Sometimes Congress Shall Make A Law....But Can They?
Over the past few weeks we've explored several First Amendment cases on this session's Supreme Court docket. Today we will preview what may end up become the most important of these cases. Citizens United vs. Federal Elections Commission is a case that squarely attacks the Bipartisan Campaign Reform Act, more commonly known as the McCain-Feingold Law.
The purpose of McCain-Feingold is to regulate and restrict financing of political campaigns. It specifically targets two methods of advocacy: 1) Limiting the amount of money that can be raided for political action committees and 2) Restricting "issue advocacy adds" so that they can generally not be used to attack individual candidates within at least 30-days from an election.
The main ideas of McCain-Feingold are 1) since restrictions were already in place for how much money could go to individual candidates, groups got around the restriction by not raising money for individuals but for Political Action Committees (or PACs) which in turn would support a particular candidate using the money raised and 2) Issue-advocacy ads are generally used as "attack" ads and therefore not informative. Accordingly there are time restriction on when these ads can be run.
Critics, however, point out 1) there is no evidence that raising money for a PAC has proved to be by itself a direct source of corruption and 2) Politicians, like those which passed the law, have a self-serving interest in stopping attack ads since it is usually the incumbent with a record who is most vulnerable to attack.
But perhaps most importantly, critics argue that the law on its face is in direct violation of the First Amendment's directive that "Congress shall make no law...abridging the freedom of speech... or of the the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It has been held as to become a basic foundation of law, that Political Expression is the very essence of Freedom of Speech.
The butting of the First Amendment with McCain-Feingold became crystalized when former Deputy Solictor General Malcolm Stewart, representing the FEC before the Supreme Court argued last March that under the provisions of McCain-Feingold, the government has the "power to ban books," if those books expressly advocacated for a candidate during the restricted period. The general reaction to the Solicitor's concession was one of shock. If there is one provision that has essentially remained undisturbed in the history of American jurisprudence is that it is only in extremely rare and exceptional circumstances that the Government has the power to ban books.
The controversy began when Citizens: United produced a film called Hillary:The Movie which was essentially an attack ad by the group, a Conservative Non-Profit advocacy organization against Hillary Clinton who at the time was running for President. The FEC banned the movie as an "electioneering communication which had no purpose other than to advocate against a candidate." The CU argued the film was fact-based and that they were non-partisan. A Federal District Court ruled against them.
The case was appealed, however, and reached the Supreme Court where Stewart made his statement. But then, after argument, something extraordinary happened. The Supreme Court directed an order that the case be reargued, and in fact, was placed as the first case on the Court's calendar this session. In fact, it was the first formal argument that took place in front of newly instally Justice Sonia Sontomayor.
This time, representing the FEC, was the Obama-administration's newly appointed Solicitor Elena Kagan who took a more conciliatory tone. She suggested that it may have been wrong to restrict Citizens United. What the Supreme Court should not do, she said, is overrule the law entirely. In other words she was throwing her sword down on the case to try to save the law.
Chief Justice John Roberts spotting the tactic asked Kagan outright “So you want to give up this case, change your position, and basically say you lose solely because of the questioning we have directed on re-argument?”
Kagan replied that she was not giving up the case but, “If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes.” In other words, she doesn't want to lose but concedes defeat.
Although a decision has not been issued yet, it is clear that even if the government is agreeing that Citizens United should not be censured, they are going to lose the case. The questions however remain, with the defeat of the case, what will be the shape of the Campaign Finance Reform laws after the Supreme Court has its say and will whatever decision rendered, be, in any way compatible with the McCain-Feingold law or will campaign-finance regulations ultimately die despite the best of intentions?
The purpose of McCain-Feingold is to regulate and restrict financing of political campaigns. It specifically targets two methods of advocacy: 1) Limiting the amount of money that can be raided for political action committees and 2) Restricting "issue advocacy adds" so that they can generally not be used to attack individual candidates within at least 30-days from an election.
The main ideas of McCain-Feingold are 1) since restrictions were already in place for how much money could go to individual candidates, groups got around the restriction by not raising money for individuals but for Political Action Committees (or PACs) which in turn would support a particular candidate using the money raised and 2) Issue-advocacy ads are generally used as "attack" ads and therefore not informative. Accordingly there are time restriction on when these ads can be run.
Critics, however, point out 1) there is no evidence that raising money for a PAC has proved to be by itself a direct source of corruption and 2) Politicians, like those which passed the law, have a self-serving interest in stopping attack ads since it is usually the incumbent with a record who is most vulnerable to attack.
But perhaps most importantly, critics argue that the law on its face is in direct violation of the First Amendment's directive that "Congress shall make no law...abridging the freedom of speech... or of the the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It has been held as to become a basic foundation of law, that Political Expression is the very essence of Freedom of Speech.
The butting of the First Amendment with McCain-Feingold became crystalized when former Deputy Solictor General Malcolm Stewart, representing the FEC before the Supreme Court argued last March that under the provisions of McCain-Feingold, the government has the "power to ban books," if those books expressly advocacated for a candidate during the restricted period. The general reaction to the Solicitor's concession was one of shock. If there is one provision that has essentially remained undisturbed in the history of American jurisprudence is that it is only in extremely rare and exceptional circumstances that the Government has the power to ban books.
The controversy began when Citizens: United produced a film called Hillary:The Movie which was essentially an attack ad by the group, a Conservative Non-Profit advocacy organization against Hillary Clinton who at the time was running for President. The FEC banned the movie as an "electioneering communication which had no purpose other than to advocate against a candidate." The CU argued the film was fact-based and that they were non-partisan. A Federal District Court ruled against them.
The case was appealed, however, and reached the Supreme Court where Stewart made his statement. But then, after argument, something extraordinary happened. The Supreme Court directed an order that the case be reargued, and in fact, was placed as the first case on the Court's calendar this session. In fact, it was the first formal argument that took place in front of newly instally Justice Sonia Sontomayor.
This time, representing the FEC, was the Obama-administration's newly appointed Solicitor Elena Kagan who took a more conciliatory tone. She suggested that it may have been wrong to restrict Citizens United. What the Supreme Court should not do, she said, is overrule the law entirely. In other words she was throwing her sword down on the case to try to save the law.
Chief Justice John Roberts spotting the tactic asked Kagan outright “So you want to give up this case, change your position, and basically say you lose solely because of the questioning we have directed on re-argument?”
Kagan replied that she was not giving up the case but, “If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes.” In other words, she doesn't want to lose but concedes defeat.
Although a decision has not been issued yet, it is clear that even if the government is agreeing that Citizens United should not be censured, they are going to lose the case. The questions however remain, with the defeat of the case, what will be the shape of the Campaign Finance Reform laws after the Supreme Court has its say and will whatever decision rendered, be, in any way compatible with the McCain-Feingold law or will campaign-finance regulations ultimately die despite the best of intentions?
Thursday, October 15, 2009
Congess Shall Make No Law...
It is generally agreed that on a panel of very smart people, Justice Antonin Scalia stands out for his intelligence. Even his critics, and there are many, point out to the point of cliche that it is not his reasoning that they disagree with, but his conclusions. But Scalia during oral argument last week in Salazar v. Buono proved that occasionally even very smart people can say very stupid things.
Salazar v. Buono is another First Amendment case, being heard at the opening of this year's term. But rather than dealing with the First Amendment guarantee of Free Speech it deals with the issue of the prohibition against the of government's establishment of religion. Part of religious establishment is the prohibition for government to favor one religion over another.
The issues in Salazar stem from a large memorial cross that was erected in California's Mojave Desert as a war memorial honoring fallen American soldiers. It was first erected by the Veterans of Foreign Wars in 1934. The original cross has been replaced several times, most recently in 1998. The cross has been a regular gathering place for Easter worshippers over the years.
A year after the most recent cross was erected a request was made to the National Park Service to erect a Buddhist memorial on land near the cross. That request was denied. Two years later, Frank Buono, a Park Services employee filed suit in Federal District Court claiming that the cross violated the Constitution's Establishment Clause. The Court issued an injuction ordering that the “Defendants, their employees, agents, and those in active concert with Defendants, are hereby permanently restrained and enjoined from permitting display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”
While the case was appealed, and pending, Congress acted with three pieces of legislation: The first was to pass an appropriations bill which included a section designating the Sunrise Rock cross as a “national memorial.” The second was to pass an appropriations bill barring the use of federal funds “to dismantle national memorials commemorating United States participation in World War I.” And the third was to pass another appropriations bill that included a land exchange agreement regarding the Sunrise Rock cross in which an acre of land containing the cross was conveyed to the Veterans Home of California— Barstow, Veterans of Foreign Wars Post #385E in consideration for five acres of land.
The purpose of the transfer was to remove the land in question from public ownership. If the land was owned by a private entity the private organization, in this case the local VFW, could do what it wanted with the land and the First Amendment would not apply. However, there was a catch: The government retained a reversionary interest in the property subject to a condition that the recipient maintain the conveyed property as a memorial commemorating United States participation in World War I and honoring the American veterans of that war. In other words, if the cross was removed, the land would belong to the Federal Government once more. The intent of the legislation was blatantly obvious. It was an end run around the Courts, and more cynically, considering the legislature was made up of a majority of Senators and Congressmen demanding "Judges who would interpret the Constitution, not legislate from the bench," a method of disallowing Judges from making a basic interpretation of Constituiton's Establishment Clause to achieve a result that the majority of the then existing Republican Congressional majority desired.
Despite Congress' mechinations the Ninth Circuit Court of Appeals affirmed the District Court's injunction. Despite the Court's decision in 2005, the Congress went forward in initiating the land exchange to the VFW. Despite Congress' action the Ninth Circuit Court of Appeals ruled that the land exchange was intended to promote a relgious purpose and unlawful under the Establishment Clause.
Which brings us to today: Buono is still arguing, eight years later, to the Supreme Court that a cross first erected in 1934, but not formally complained about for 67 years, violates the First Amendment. The Department of the Interior seeks a judicial determination in its favor on procedural grounds. The government, interestingly enough, is not arguing that the cross is not an establishment of religion, but rather that Frank Buono cannot bring a lawsuit under the doctrine of Standing. Standing is a technical rule which requires that in order to maintain a lawsuit, a Plaintiff must show that he has a personal stake in the matter. The government is arguing that Buono has sustained no injury and will not suffer any personal harm if the Court rules against him, and accordingly does not have standing. Apparently the Government does not want a fight on the actual merits of Buono's claim.
In last week's oral argument Peter Eliasberg, Buono's lawyer said that it is clear that the cross violates the First Amendment. "Such a memorial," argued Eliasberg, "signifies Jesus is the son of God and died to redeem mankind for our sins. There is no coherent construction of the cross that could present it as a secular memorial."
Justice Scalia questioned whether Eliasberg would prefer "Some conglomerate of a cross, a star of David and a Muslim half-moon and star?"
Eliasberg responded "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."
Scalia scoffed, "I don't think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that's an outrageous conclusion."
What is outrageous is that Scalia articulated that a Christian cross can somehow be construed a universal secular memorial symbol from a bench which includes two Jewish Justices.
Salazar v. Buono is another First Amendment case, being heard at the opening of this year's term. But rather than dealing with the First Amendment guarantee of Free Speech it deals with the issue of the prohibition against the of government's establishment of religion. Part of religious establishment is the prohibition for government to favor one religion over another.
The issues in Salazar stem from a large memorial cross that was erected in California's Mojave Desert as a war memorial honoring fallen American soldiers. It was first erected by the Veterans of Foreign Wars in 1934. The original cross has been replaced several times, most recently in 1998. The cross has been a regular gathering place for Easter worshippers over the years.
A year after the most recent cross was erected a request was made to the National Park Service to erect a Buddhist memorial on land near the cross. That request was denied. Two years later, Frank Buono, a Park Services employee filed suit in Federal District Court claiming that the cross violated the Constitution's Establishment Clause. The Court issued an injuction ordering that the “Defendants, their employees, agents, and those in active concert with Defendants, are hereby permanently restrained and enjoined from permitting display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”
While the case was appealed, and pending, Congress acted with three pieces of legislation: The first was to pass an appropriations bill which included a section designating the Sunrise Rock cross as a “national memorial.” The second was to pass an appropriations bill barring the use of federal funds “to dismantle national memorials commemorating United States participation in World War I.” And the third was to pass another appropriations bill that included a land exchange agreement regarding the Sunrise Rock cross in which an acre of land containing the cross was conveyed to the Veterans Home of California— Barstow, Veterans of Foreign Wars Post #385E in consideration for five acres of land.
The purpose of the transfer was to remove the land in question from public ownership. If the land was owned by a private entity the private organization, in this case the local VFW, could do what it wanted with the land and the First Amendment would not apply. However, there was a catch: The government retained a reversionary interest in the property subject to a condition that the recipient maintain the conveyed property as a memorial commemorating United States participation in World War I and honoring the American veterans of that war. In other words, if the cross was removed, the land would belong to the Federal Government once more. The intent of the legislation was blatantly obvious. It was an end run around the Courts, and more cynically, considering the legislature was made up of a majority of Senators and Congressmen demanding "Judges who would interpret the Constitution, not legislate from the bench," a method of disallowing Judges from making a basic interpretation of Constituiton's Establishment Clause to achieve a result that the majority of the then existing Republican Congressional majority desired.
Despite Congress' mechinations the Ninth Circuit Court of Appeals affirmed the District Court's injunction. Despite the Court's decision in 2005, the Congress went forward in initiating the land exchange to the VFW. Despite Congress' action the Ninth Circuit Court of Appeals ruled that the land exchange was intended to promote a relgious purpose and unlawful under the Establishment Clause.
Which brings us to today: Buono is still arguing, eight years later, to the Supreme Court that a cross first erected in 1934, but not formally complained about for 67 years, violates the First Amendment. The Department of the Interior seeks a judicial determination in its favor on procedural grounds. The government, interestingly enough, is not arguing that the cross is not an establishment of religion, but rather that Frank Buono cannot bring a lawsuit under the doctrine of Standing. Standing is a technical rule which requires that in order to maintain a lawsuit, a Plaintiff must show that he has a personal stake in the matter. The government is arguing that Buono has sustained no injury and will not suffer any personal harm if the Court rules against him, and accordingly does not have standing. Apparently the Government does not want a fight on the actual merits of Buono's claim.
In last week's oral argument Peter Eliasberg, Buono's lawyer said that it is clear that the cross violates the First Amendment. "Such a memorial," argued Eliasberg, "signifies Jesus is the son of God and died to redeem mankind for our sins. There is no coherent construction of the cross that could present it as a secular memorial."
Justice Scalia questioned whether Eliasberg would prefer "Some conglomerate of a cross, a star of David and a Muslim half-moon and star?"
Eliasberg responded "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."
Scalia scoffed, "I don't think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that's an outrageous conclusion."
What is outrageous is that Scalia articulated that a Christian cross can somehow be construed a universal secular memorial symbol from a bench which includes two Jewish Justices.
Thursday, October 8, 2009
Don't Kill the Messenger
A flurry of First Amendment cases initiated this year's Supreme Court term which began this week. Among them are another review of the McCain-Feingold act limiting political expression by lobbyists, at least a portion of which is expected to be declared unconstitutional. Additionally there is a case from California regarding the Federal Government's decision to sell publicly owned land to a private foundation. No problem there, except that on the specific land a war memorial was erected. No problem there, except that the war memorial was in the form of a large cross. Muddying up the waters is that the cross was erected in 1952 and the first formal complaint did not come till 40 years later. We will get to these issues in later columns but today let's draw attention to a case argued this past Tuesday.
It involves a 1999 Federal Law prohibiting "commercial trafficking in animal cruelty" which prohibits "audio and video depctions in which a living animal is intenitonally maimed, mutilated, tortured or wounded or killed if the conduct was illegal where the depiction was sold." The purpose of the law was to prohibit the distribution of "crush videos" which are videos involving a certain, apparent, sexual fetish of watching women wearing high heels stepping on and killing small animals.
Defenders of the legislation say that the law is necessary and akin to legislation prohibiting the distribution and possession of child pornogrophy. Which, of course, is outside the scope of First Amendment protection. Sounds good on paper. Problem is, as skeptical Justices pointed out, the statute could for all of its good intentions decide what is legal or not depending on the whim of a overzealous prosecutor.
Justice Ginsburg asked if the law means that a documentary depicting cockfighting could be banned?
Justice Stevens, the oldest judge on the Supreme Court rumored to be retiring at the end of the term, sharply questioned whether a film depicting hunting with a bow and arrow could be subject to prosecution?
Justie Breyer asked about videos depicting the fattenting of geese in preparation of making foie gras. A food regularly targeted as inherently cruel by animal-rights activists.
Then the Court's ultimate original constructionist, Justice Scalia asked proposed, "What if I am an afficianado of bullfights, and I think contrary to the animal cruelty people, they ennoble both beast and man?"
The Solicitor General defending the law, countered that the pupose of the legislation was not to stamp out any potential hypothetical case within the imagination of creative justices but was targeted to deal with a real-life situation. Crush videos, which are, to understate it to most people, despicable.
The problem is, that like any well-intentioned but poorly drafted legislation, it is possible that the application gets away from the purpose. Robert J. Stevens is a self-described dog lover. Stevens also is a film distributor. The thing is, his films depicted blood thirsty pit bulls fighting eachother to the death. It was not alleged that he owned pitbulls showed in his fim, or even that he was instumental in causing the fighting. Merely that he filmed and distibuted the combat. He was prosecuted based on the 1999 law and was found guilty by a Pittsburgh jury. Subsequently he was sentenced to a 3-year jail term, which incidentally is longer than Pro-football player Michael Vick served who did own and cause pit bulls to fight to the death.
Rather than accept the sentence, Stevens challenged the law. Stevens said his purpose, as a "dog lover," in distibuting the video was to provide information about pit bulls, specifically to educate the public. Perhaps picking up his line of reasoning, the newest Justice, Sonia Sontamayor, asked the Government's lawyer David Kaytal about a documentary regarding pit bulls: "Off the Chain" which was widely regarded as an expose of dog fighting. Sontamayor noted that the documentary had "much, much more footage on the actual animal cruelty" then Stevens' film.
The 1999 law does exempt materials with "serious religious, political, scientific, educational, journalistic, historical or artistic value." The problem is Stevens is claiming educational value just as Roma's documentary had uncontroverted journalistic value. Who is to determine that it does not?
Justice Breyer seemed to sum up the skepticism of the Judges when he asked Kaytal if the Congress' purpose was to ban "crush videos" why not draft legislations specifically addressing Crush videos?
The thing with legislation which conflicts with conduct certainly protected by the First Amendment, especially in this Country which prides itself on its "freedoms," is that restrictions to those freedoms have a real effect. Legislation which may be popular in the abstract have consequences to not just society, but real living people: all of us. The Court, by its skepticism seemed to indicate that no one is defending puppy crushers. But in punishing those that do wrong, we should be mindful not to kill the messenger along with the message.
It involves a 1999 Federal Law prohibiting "commercial trafficking in animal cruelty" which prohibits "audio and video depctions in which a living animal is intenitonally maimed, mutilated, tortured or wounded or killed if the conduct was illegal where the depiction was sold." The purpose of the law was to prohibit the distribution of "crush videos" which are videos involving a certain, apparent, sexual fetish of watching women wearing high heels stepping on and killing small animals.
Defenders of the legislation say that the law is necessary and akin to legislation prohibiting the distribution and possession of child pornogrophy. Which, of course, is outside the scope of First Amendment protection. Sounds good on paper. Problem is, as skeptical Justices pointed out, the statute could for all of its good intentions decide what is legal or not depending on the whim of a overzealous prosecutor.
Justice Ginsburg asked if the law means that a documentary depicting cockfighting could be banned?
Justice Stevens, the oldest judge on the Supreme Court rumored to be retiring at the end of the term, sharply questioned whether a film depicting hunting with a bow and arrow could be subject to prosecution?
Justie Breyer asked about videos depicting the fattenting of geese in preparation of making foie gras. A food regularly targeted as inherently cruel by animal-rights activists.
Then the Court's ultimate original constructionist, Justice Scalia asked proposed, "What if I am an afficianado of bullfights, and I think contrary to the animal cruelty people, they ennoble both beast and man?"
The Solicitor General defending the law, countered that the pupose of the legislation was not to stamp out any potential hypothetical case within the imagination of creative justices but was targeted to deal with a real-life situation. Crush videos, which are, to understate it to most people, despicable.
The problem is, that like any well-intentioned but poorly drafted legislation, it is possible that the application gets away from the purpose. Robert J. Stevens is a self-described dog lover. Stevens also is a film distributor. The thing is, his films depicted blood thirsty pit bulls fighting eachother to the death. It was not alleged that he owned pitbulls showed in his fim, or even that he was instumental in causing the fighting. Merely that he filmed and distibuted the combat. He was prosecuted based on the 1999 law and was found guilty by a Pittsburgh jury. Subsequently he was sentenced to a 3-year jail term, which incidentally is longer than Pro-football player Michael Vick served who did own and cause pit bulls to fight to the death.
Rather than accept the sentence, Stevens challenged the law. Stevens said his purpose, as a "dog lover," in distibuting the video was to provide information about pit bulls, specifically to educate the public. Perhaps picking up his line of reasoning, the newest Justice, Sonia Sontamayor, asked the Government's lawyer David Kaytal about a documentary regarding pit bulls: "Off the Chain" which was widely regarded as an expose of dog fighting. Sontamayor noted that the documentary had "much, much more footage on the actual animal cruelty" then Stevens' film.
The 1999 law does exempt materials with "serious religious, political, scientific, educational, journalistic, historical or artistic value." The problem is Stevens is claiming educational value just as Roma's documentary had uncontroverted journalistic value. Who is to determine that it does not?
Justice Breyer seemed to sum up the skepticism of the Judges when he asked Kaytal if the Congress' purpose was to ban "crush videos" why not draft legislations specifically addressing Crush videos?
The thing with legislation which conflicts with conduct certainly protected by the First Amendment, especially in this Country which prides itself on its "freedoms," is that restrictions to those freedoms have a real effect. Legislation which may be popular in the abstract have consequences to not just society, but real living people: all of us. The Court, by its skepticism seemed to indicate that no one is defending puppy crushers. But in punishing those that do wrong, we should be mindful not to kill the messenger along with the message.
Thursday, October 1, 2009
William Safire, an appreciation
I admired William Safire. When he died last week it saddened me. I, of course, did not know him personally or even as anything about him other than his writing and basic biography but I appreciated him nonetheless and was saddened by his passing.
There have been countless obituaries, and I won't repeat most of his credentials; they are easy enough to look up. But I will talk about one. He was a speech writer for Richard Nixon, and when Nixon's vice president Spiro Agnew was under investigation for tax fraud, he went on the offensive calling those who were attacking the Vice President "Nattering nabobs of negativism." Agnew ultimately resigned proving his critics correct, but regardless, Safire's illustrative articulation of alliteration became an icon and even though he was acting as an advocate, Safire's critics could not avoid appreciation at his facile use of English language.
After Nixon resigned, Safire became a columnist at the New York Times. Not a cozy spot for a conservative commentator, yet Safire was able to earn admiration from New York Times loyalists even though he regularly did not spout the company line. Perhaps the greatest benediction regarding Safire's commentary was articulated by Kenneth Davis a New York Times reader from Scotch Plains in his September letter to the editor published in the Times: "William Safire will be sorely missed." Davis wrote, "Although I often disagreed with his politics, I always enjoyed reading his column...While reading his work, I felt the intellectual pleasure of having my views challenged by a worthy opponent."
Safire was a political minority inside an ethnic minority...a Jewish Conservative. But he never towed the party line and he always gave his readers something to think about. As someone who has a bit of a contrarian streak myself, I admired Safire as a thoughtful iconoclast. Politically, I agreed with him more than I differed with hin. Religiously, it was the reverse.
I did have one personal encounter with Safire. He was the featured commencement speaker at my graduation from Syracuse University in 1990. In a long line of boring speeches his stood out. He spoke about the virtues of editing and till today I remember the topic: the ten, scratch that, nine rules of Speaking. Always speak as briefly as possible was the main subject. When fewer words will do, don't add extra. Classic Safire. If I received no other words of wisdom that day, that was enough. I took Safire's advice to heart. And to this day I try to get my point across in the most precise manner possible.
Many have noted the demise of benevolent debate for the sake of thoughtful argument, without personal rancor. His manner would not fit with today's preferential manner of political argumentation espousing I win if you lose. Saifire was not a proponent of zero sum gain. He was more likely to view success if he could persuade you rather than beat you in submission. It is a lesson that perhaps we should all take to heart. While the true believer may not be turned on by his low key reasoned manner of political persuasion. Safire's articulation of argument is still more like to persuade the great muddle that is the middle of American political thought. We are all more likely to win as a society not when a small majority believes they have beat the minority into submission, but when a plurality believes that the resultant outcome allows all sides to be heard and comes to a consensus taking as many accounts, as reasonable, into consideration.
There have been countless obituaries, and I won't repeat most of his credentials; they are easy enough to look up. But I will talk about one. He was a speech writer for Richard Nixon, and when Nixon's vice president Spiro Agnew was under investigation for tax fraud, he went on the offensive calling those who were attacking the Vice President "Nattering nabobs of negativism." Agnew ultimately resigned proving his critics correct, but regardless, Safire's illustrative articulation of alliteration became an icon and even though he was acting as an advocate, Safire's critics could not avoid appreciation at his facile use of English language.
After Nixon resigned, Safire became a columnist at the New York Times. Not a cozy spot for a conservative commentator, yet Safire was able to earn admiration from New York Times loyalists even though he regularly did not spout the company line. Perhaps the greatest benediction regarding Safire's commentary was articulated by Kenneth Davis a New York Times reader from Scotch Plains in his September letter to the editor published in the Times: "William Safire will be sorely missed." Davis wrote, "Although I often disagreed with his politics, I always enjoyed reading his column...While reading his work, I felt the intellectual pleasure of having my views challenged by a worthy opponent."
Safire was a political minority inside an ethnic minority...a Jewish Conservative. But he never towed the party line and he always gave his readers something to think about. As someone who has a bit of a contrarian streak myself, I admired Safire as a thoughtful iconoclast. Politically, I agreed with him more than I differed with hin. Religiously, it was the reverse.
I did have one personal encounter with Safire. He was the featured commencement speaker at my graduation from Syracuse University in 1990. In a long line of boring speeches his stood out. He spoke about the virtues of editing and till today I remember the topic: the ten, scratch that, nine rules of Speaking. Always speak as briefly as possible was the main subject. When fewer words will do, don't add extra. Classic Safire. If I received no other words of wisdom that day, that was enough. I took Safire's advice to heart. And to this day I try to get my point across in the most precise manner possible.
Many have noted the demise of benevolent debate for the sake of thoughtful argument, without personal rancor. His manner would not fit with today's preferential manner of political argumentation espousing I win if you lose. Saifire was not a proponent of zero sum gain. He was more likely to view success if he could persuade you rather than beat you in submission. It is a lesson that perhaps we should all take to heart. While the true believer may not be turned on by his low key reasoned manner of political persuasion. Safire's articulation of argument is still more like to persuade the great muddle that is the middle of American political thought. We are all more likely to win as a society not when a small majority believes they have beat the minority into submission, but when a plurality believes that the resultant outcome allows all sides to be heard and comes to a consensus taking as many accounts, as reasonable, into consideration.
Thursday, September 24, 2009
Choose Life: Whose Decision is it Anyway?
When discussing health care, rationing has become a dirty word. By using the term rationing people generally mean the decision as to when to provide or withhold medical care. It has become one of the key criticisms of President Obama's plan to reform health care that, by necessity, care which is now provided will be withheld for those who are very sick, or not quite sick enough. it may come as a surprise to some that decisions to provide or withhold care are already made on a daily basis. Insurance companies and medical practitioners sometimes have gone to Court to enforce their decisions not to provide care.
One recent example is a case that is currently working its way through the New Jersey state courts. Ruben Betancourt, was a 73 year old man from Elizabeth, He went to Elizabeth's Trinitas Hospital for an opeartion to remove a malignant tumor. During the procedure he slipped into unconsciousness, and remained in a vegitative state for the next 14 months. He was treated at a variety of hospitals until July 2008 when he was readmitted to Trinitas for treatment associated with kidney failure. At that time, against the family's wishes, Trinitas doctors made the decision to take him off of life support.
The hospital's notes indicated that Betancourt "does not respond to pain or move his extremities and only makes reflexive eye movements." However Betancourt's family protested and said that Betancourt responded to "external stimuli" and they pointed to other medical notes indicating theat Betancourt was "awake."
The family made an emergency petition to the Union County Superior Court and Judge John Malone ruled that "life-support decisions should not be made by care givers or courts but in accordance with a patient's rights." If the patient was not able to express his wishes it is his immediate family that must make the decision for the patient based upon what the patient would want.
Judge Malone's decision was based upon the principle that just as a patient has the right through either the use of a conscious declaration, a living will, or a representative surrogate to make the decision to withhold heroic life saving measures, the patient has the right to insist upon all measures available which will extend the patient's life.
Ruben Betancourt died shortly after Judge Malone's decision was rendered. Normally that would be the end. But Trinitas made a somewhat surprising decision. Trinitias reasoned that the scenario that occurred with Betancourt would likely to reoccur and they appealed.
The crux of Trinitas' argument is that the determination of life and death is a conclusion that legally only belongs to a medical provider. Betancourt's condition was futile. Just as a doctor is not required to infinitely provide CPR to a patient whose heart will not start on its own, when life is only being sustained mechanically, Trinitas argued, a hospital can decide to withdraw artifical measures of life sustenance.
In other words because Betancourt was in a grave condition, even though he was alive, keeping him on life-support, when doctors determined he would not recover is a waste of resources. This is a cost based rationale, the very definition of rationing, and even without healthcare-reform, and private insurance available, Trinitas is asking for New Jersey Appellate Courts to rule in its favor.
As an Appellate level case, whatever decision is made could have a precedential effect and as such it has attracted the attention of external interested parties. The New Jersey Hospital Association, the Catholic HealthCare Partnership of New Jersey and the Medical Society of New Jersey will be submitting briefs in favor of the hospital which according to its mission statement is "a Catholic hospital sponsored by the Sisters of Charity." Additionally there will be briefs supporting the family submitted by two Jewish groups: Agudath Israel of America and the Rabbinical Council of America. While Ruben Betancount was not Jewish, the Jewish groups, with Betancourt's family's blessing, sought to have their opinion heard to further the principal under Jewish law that places the importance of existing life above all external factors.
The case will be heard this Autumn by the New Jersey Appellate Division. The decision should make an interesting side note to the debate regarding the nature of healthcare in this country. What it is, what we want from it and the shape it should ultimately take.
One recent example is a case that is currently working its way through the New Jersey state courts. Ruben Betancourt, was a 73 year old man from Elizabeth, He went to Elizabeth's Trinitas Hospital for an opeartion to remove a malignant tumor. During the procedure he slipped into unconsciousness, and remained in a vegitative state for the next 14 months. He was treated at a variety of hospitals until July 2008 when he was readmitted to Trinitas for treatment associated with kidney failure. At that time, against the family's wishes, Trinitas doctors made the decision to take him off of life support.
The hospital's notes indicated that Betancourt "does not respond to pain or move his extremities and only makes reflexive eye movements." However Betancourt's family protested and said that Betancourt responded to "external stimuli" and they pointed to other medical notes indicating theat Betancourt was "awake."
The family made an emergency petition to the Union County Superior Court and Judge John Malone ruled that "life-support decisions should not be made by care givers or courts but in accordance with a patient's rights." If the patient was not able to express his wishes it is his immediate family that must make the decision for the patient based upon what the patient would want.
Judge Malone's decision was based upon the principle that just as a patient has the right through either the use of a conscious declaration, a living will, or a representative surrogate to make the decision to withhold heroic life saving measures, the patient has the right to insist upon all measures available which will extend the patient's life.
Ruben Betancourt died shortly after Judge Malone's decision was rendered. Normally that would be the end. But Trinitas made a somewhat surprising decision. Trinitias reasoned that the scenario that occurred with Betancourt would likely to reoccur and they appealed.
The crux of Trinitas' argument is that the determination of life and death is a conclusion that legally only belongs to a medical provider. Betancourt's condition was futile. Just as a doctor is not required to infinitely provide CPR to a patient whose heart will not start on its own, when life is only being sustained mechanically, Trinitas argued, a hospital can decide to withdraw artifical measures of life sustenance.
In other words because Betancourt was in a grave condition, even though he was alive, keeping him on life-support, when doctors determined he would not recover is a waste of resources. This is a cost based rationale, the very definition of rationing, and even without healthcare-reform, and private insurance available, Trinitas is asking for New Jersey Appellate Courts to rule in its favor.
As an Appellate level case, whatever decision is made could have a precedential effect and as such it has attracted the attention of external interested parties. The New Jersey Hospital Association, the Catholic HealthCare Partnership of New Jersey and the Medical Society of New Jersey will be submitting briefs in favor of the hospital which according to its mission statement is "a Catholic hospital sponsored by the Sisters of Charity." Additionally there will be briefs supporting the family submitted by two Jewish groups: Agudath Israel of America and the Rabbinical Council of America. While Ruben Betancount was not Jewish, the Jewish groups, with Betancourt's family's blessing, sought to have their opinion heard to further the principal under Jewish law that places the importance of existing life above all external factors.
The case will be heard this Autumn by the New Jersey Appellate Division. The decision should make an interesting side note to the debate regarding the nature of healthcare in this country. What it is, what we want from it and the shape it should ultimately take.
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