They tried to order Time dawn to dusk,
Futile spreadsheets of manageable units,
Denying its nature to slow, to speed
To pause, to fly with thoughts, dreams,
Friends met, enemies loathed,
With pain and agony and anxiety,
With pleasure, gaiety,
With visions, prophecies, with
Feckless Fraud found out.
Ordered like railway ties
Clacking underneath our passing carriage
Carrying us toward the illusion,
Of rails merging beyond the horizon,
Combining before and after,
In front and behind our journey.
And We passalong the tracks, the self-same tracks
That transported circus animals to towns of laughing children,
And carried the Jews to the ovens
And passed in front of Einstein,
Standing on the platform,
And locked in our box cars through the slats we see
Tree limbs encased in ice, white
The beauty of the morning, breaking, falling,
The ache beyond our finger’s reach,
That we will never touch or hold,
Not for us to possess, to savor, to hoard.
Order beckons us away from the wide moment,
The joy of girls laughing,
The approval of a wife’s smile,
The grief of a widow,
Order leaves behind the town, back before crowds,
Bare feet skipping between the sticker burs,
Curbs free of cars up in the work day
Young boys delighted to run an errand,
The touch of smooth porcelain,
Birds chasing rabbits in the meadow
And the singing, singing, singing as we lament.
Sad, time will be there tomorrow, somewhere,
And was there, somewhere just yesterday
As we ride away, and disappear chasing the illusion
Of separate tracks merging beyond the hill.
And worst of all, unordered, Time quietly resolves,
Barely felt, it ends the longing, desire, ambition, hope,
the possibilities, When it ends, it ends
The dagger in the back of the Prince,
The speech of a President sending the nation to war,
A bullet in the chest of a Mother’s son,
The Preacher on Christ’s divinity, on God’s wrath, on God’s grace
The assassin’s bullet shattering the brain of his better, of our better,
The desperate search for a lost child,
Wandered off or taken?
Murdered by a Father or a Father’s mistress?
Getting lost in a picture of Micky Mantle
His halting, haunting, lumbering gait rounding the bases,
Country strong, country smile, innocent and lethal
Having a drink with his own nightmares,
A Father’s teaching,
A brother’s perfidy,
A sister’s betrayal,
A mother’s slap,
A daughter’s laugh, tickled, unrestrained,
A granddaughter’s tear, as life impinges on her innocence.
Our tear as she looks away from the horizon
Where the tracks maybe just might merge and stands shyly watching
The boy serving hamburgers and sodas at the counter.
In this week’s segment of Cline on the Constitution I’m once again get distracted by the latest shiny object. The interruption of my series on voting rights continues so I can discuss Justice Clarence Thomas surprising call for the Supreme Court to reconsider the famous New York Times v. Sullivan case, a case which gutted slander and libel laws. Because President Trump has made similar comments there has been much wailing, rending of garments, and gnashing of teeth over the danger to Freedom of the Press in News Rooms across the land. I’ve written about the subject before. It’s worth revisiting.
There are some threshold distinctions.
The Basics: Slander is the speaking of “base and defamatory words tending to prejudice another in his reputation, office, trade, business, or means of livelihood.” You know, like all the stuff we read on the internet!
First, slander and libel laws are not about suppressing freedom of speech. Freedom of Speech has never insulated the right to speak falsely of another. Slander laws protect against false statements. It is axiomatic that the Truth is an absolute defense to any suit for slander and libel.
Second, slander and libel are two sides of the same coin. Libel is merely the written form of slander.
Third, liability (money damages) attaches to not only the original person who utters the slander, but any person or organization that repeats (re-publicizes) the slander. Therefore, if I falsely accuse you of a crime, not only I am liable for the harm I caused you, but the person who repeats the slander is also liable for damages caused by his republication.
Now for the case.
The NYTimes case deals with public officials (and public figures, movie stars, athlete’s etc.)
Decided in 1964 (another 60’s case!) it held that false statements published by civil rights groups about an Alabama public official were protected first amendment expressions. It overturned a monetary award made to the public official libeled by the falsehood published by the New York Times. The brand-new rule fashioned by the Supreme Court in the case required public officials to show false statements made about them in the media were not only untrue but were made with malice, that is intentionally or with reckless disregard of their falsity. (Good movie about this rule: Absence of Malice with Paul Newman.)
This is a judicially created rule. It did not exist before 1964. Somehow the republic survived near 200 years without it.
And it has not been without controversy. Even among the Justices of the Supreme Court. Justice Byron White,in a 1974 opinion, criticized the reasoning in the New York Times case and wrote, “First Amendment values are not at all served by circulating false statements of fact about public officials.On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government.”
Justice White also said, “It is difficult to argue that the United States did not have a free and vigorous press beforethe rule in New York Times v Sullivan was announced.”
There is one further distinction that needs to be made.
It centers on the use of the phrase “freedom of speech” synonymously with the phrase “freedom of press.” The first amendment as it relates to speech has two separate clauses (three if you include Assembly, but we will put that aside for now).
Is Freedom of Speech and Freedom of Press actually the same thing? Or are they two different concepts?
The contrast in the writings of Justice Potter Stewart and Chief Justice Warren Burger elucidate the distinction. The difference between Freedom of the Press and Freedom of Speech is that one is institutional, and one is personal.
Justice Stewart noted the Press is the only organized private business given explicit protection by the constitution. He emphasized the business of the Press, as envisioned by the framers, is more about the dissemination of news than the expressionof ideas.
Chief Justice Burger, on the other hand stated:
“The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and belief, while the Press Clausefocuses specifically on the liberty to disseminateexpression broadly and comprehends every sort ofpublicationwhich affords a vehicleof information and opinion.”
Chief Justice Burger did not believe the two phrases, Freedom of Speech and Freedom of Press were a redundancy. Rather the Press clause merited special attention in the Bill of Rights because it had historically been the object of official restraints. The framers especially abhorred the licensing of the Press by the government that was done in the English system.
Which leads us to the final basic questions: Who is the Press? And why in the world should they be protected in negligently disseminating false information that hurts someone?
So, who are the Press? The trite image of a news room as a hive of activity manned by sweaty virtuous reporters is no longer true—if it ever was. Modernly, the Press is not just newspapers and T.V., not just periodicals and circulars. It includes the blogger, the commentator on YouTube, the purveyor of podcasts, Facebook, Instagram, and, of courage, Twitter. In fact, many reporters from media outlets use each of these platforms to report the news. It’s easy, it’s fast. And it is also often wrong. Plus it is extremely easy to introduce a totally false story into the news stream and have it be picked up and reported, and re-reported, and re-reported ad infinitum, by the mainstream media including the self-same NYTIMES.
Likewise, it cannot by gainsaid that the Press today are often run by large national, even multi-national corporations. Editorial polices and stories in most local newsrooms, including our own, are selected and driven by corporate headquarters in Washington, New York, Los Angeles, and Sacramento.
Which brings us to crux of the matter. Should these huge corporate entities be held to a standard of due care in putting out false information about people? Is it ok for them to be negligent? To damage people with false stories? Not to have to be careful? To check something out before publishing it and then having it published and republished forever? Because the internet is forever.
Because that is one other difference in modern times. The republication of false stories on Social Media platforms like Facebook, Twitter and the rest. Should they not held responsible for vicious lies about real people spread on their platforms? Because the NYTIMES case eliminated any restraints on their republication of false slander too. And remember we are talking about information that is demonstrably false. The truth is an absolute defense to Slander.
And, you know, it’s not like they can’t afford it.
Reminds one of the auto industry. Once upon a time that industry felt they could make their Billions on products we had to have and if the product was inferior and dangerous and hurt people because the corporate giants couldn’t be bothered to make cars safe, well, too bad. Fortunately, there were no NYTimes case to Shield them from being held responsible. The laws of liability for their negligence required they change their behavior and be more careful. And they did.
So should News organizations and Social Media platforms be held to a duty of due care before they publish false information?
When one trades in information, just like any other trade, there is a duty to be responsible in making an effort to insure the damaging information is not false.
The NYTimes case is a judicially created rule. Times have changed since the 1960s. Justice Thomas’s call for it to be re-considered is prudent and timely.
For more writings by Phil Cline, visit philcline.com
In this week’s segment of Cline on the Constitution, I decided to pause in my review of voting rights cases to consider the President’s recent actions concerning our Southern Border.
The President’s declaration of an emergency and his orders to transfer funds to construct barriers on the Southern Border has generated extensive commentary on the legality of his actions as well as whether they are constitutionally permitted.
How will the President’s orders fair in the Courts?
As has become routine anytime this President seeks to exercise his Executive Powers there has been a rush to the microphones and threats launch a battery of new lawsuits. California’s own Attorney General couldn’t wait. Instead of addressing the significant uptick of crime in our state, he consistently spends most of his time and huge sums of taxpayer dollars suing the federal government on behalf of non-citizens.
The usual shoving and pushing to get in front of T.V. cameras, aside there are two questions from a Constitutional perspective about emergency orders. First, does the President have authority to issue such an order.? The declaration is not the big thing, the orders made pursuant to the declaration are the issue. Second, and I think ultimately this is the most important, do federal district court judges have the authority to prohibit the actions before they are taken?
Article II provides that “The Executive Power shall be vested in a President of the United States of America.” It was placed there to correct a weakness in the original Articles of Confederation. The constitution also specifies that the President “Shall take care that the laws be Faithfully Executed.” Taken together that is a very broad delegation of power.
The Supreme Court has recognized that in order to carry out the duties of his office the President has certain inherent powers. Executive orders are deemednecessary tools to execute the functions of the office.
In fact, they have the force of law if placed in the Federal Register.
There are limits. Executive orders may not impinge on the functions of the other branches of government, on the constitutional rights of citizens nor on the powers reserved to the States.
The most potential for conflict arises in the context of a National Emergency; those times when a President concludes an Executive Action is necessary to defend the country from an “existential” threat. One of the most famous (or infamous if you will) was President Roosevelt’s executive order requiring the internment of citizens of Japanese decent in internment camps during World War II.
During the Civil War, President Lincoln made wide use of Executive orders and regularly trampled individual liberties both in the South and the North. He justified his actions under what he maintained were broad presidential powers to put down an insurrection. Significantly, when his unconstitutional order to suspend habeas corpus was quashed by a court he adroitlyasked, “Is it possible to lose the nation and yet preserve the constitution?”
Though sometimes the language, tactics and lawlessness used by the radical left in this country at times take on the characteristics of an insurrection, we are not there. At least not yet.
But the question Lincoln asked encapsulates the dilemma facing the leaders of our country in times of great peril.
The Supreme Court’s approach to such questions of is to employ a formula from the Youngstown Steel case decided in the 1950s. During the Korean War President Truman seized steel mills whose production had been crippled by a strike. The Steel was necessary, he argued, to support the war effort in Korea. Congress had passed a resolution opposing his expected seizure of the mills.
In a concurring the opinion overturning the seizure, Justice Jackson (who had been a lead prosecutor during the Nuremberg Trials in Germany), wrote that the legality of a President’s actions is at the highest when he acts in accordance with powers granted him by the Congress or expressly by the Constitution. On the other hand “his power is at its lowest ebb”; when he acts against the express or implied will of Congress.
In 1976, the Congress granted the President the power to declare an emergency and the power has been used numerous times by President from both parties.
Significantly the Congress left it up to the President to determine what the definition of an Emergency is in a particular case. If, the President is acting in accordance with that legislation he would seem to be on solid ground. His position may have been stronger had he acted before agreeing to allow Congress to negotiate, however. Ironically, his waiting may have undermined his argument that an emergency required him to act.
The second question concerns how the matter will be handled by the Federal Courts.
As the President himself has stated, everyone expects some federal district court judge somewhere will grant a universal injunction stopping the Executive action unless and until it can be brought before the Supreme court.
There is a rather obvious problem. We have over 600 federal district court judges in the country. Is it now necessary to get pre-approval for any executive action by all 600? Not exactly how the framers envisioned the judicial role.
In Trump vs. Hawaii decided last year and which upheld the President’s “Travel Ban” Justice Thomas, in a brilliant concurring opinion, called on his fellow justices to put an end to the practice of lower federal court’s issuing universal injunctions.
“These injunctions”, he wrote, “are beginning to take a toll on the federal court system preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch.”
He went on to review the history of a court’s power to issue extraordinary writs that came down to us from the old equity courts of England. The matters were debated in the Federalists and Anti-Federalists’ papers ending with the conclusion of Hamilton that the “constraints” of their duty to only decide the cases that came before them obviated the danger the courts would grab too much power.
Justice Thomas pointed out that universal injunctions not only do not comply with the principles set out by the framers, but only emerged for the first time in the 1960s. (where have we seen that before?!) and “dramatically increasing in popularity only recently.”
In those years, he said, “some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of addressing those questions only insofar as they are necessary to resolve individual cases and controversies.” Which is, by the way, jurisdictional. Under the Constitution the courts are only allowed to decide cases and controversies before them, not general questions of policy. Universal injunctions, the Justice opined, “appear to conflict with the original understanding of the judicial role.”
After considering the various arguments made in their support, he concluded there is no constitutional authority for the use of universal injunctions. “But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. That at best “boil down to a policy judgement” about how powers ought to be allocated among our three branches of government.” But the people already made that choice when they ratified the constitution.”
He concluded “In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”
In the final analysis, whether the caravans of illegals being organized and directed toward our Southern Border constitute an “emergency” may not be the most important question for the court to decide. Instead it may be constraining the unconstitutional expansion of power by the federal courts. That may be the most important emergency of all.
For more writings by Phil Cline, visit philcline.com
In Abbott v. Perez, The Supreme Court slapped a federal district court with a much-needed douse of cold water in an attempt to wake them up, force them to embrace reality for once and have them return to their lane in the governance scheme set out in the Constitution. Abbott is the second case on voting decided by the Supreme Court last term I wanted to bring to your attention. It is one of a series of cases which seem destined to set up a blockbuster decision on Gerrymandering most scholars anticipate will be decided this term.
This case involved a redistricting plan. Under the Constitution re-drawing district lines for congressional offices is a power left to the States and not delegated to the Federal Government. However, the Equal Protection Clause of the Fourteenth Amendment passed after the Civil War, forbids “Racial Gerrymandering.” And under the express power to legislate enforcement of the Fourteenth Amendment the Congress passed the Voting Rights Act.
After the 2010 census, the Texas State Legislature set out to redraw district lines.
A plan was passed in 2011 but was tied up in court and never used. In 2013, after the Shelby decision (discussed in a previous post) invalidating part of the Voting Rights Act, the state legislature attempted to resolve the issue by approving a redistricting plan modeled on one the district court itself had approved. But, of course, that plan was also attacked. As the Supreme court said, “The Legislature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another.” Sadly, that is a modern truism about any attempts to govern by a legislative body. Somebody is going to sue, and some federal district court somewhere is going to figure they know better how to govern than those elected to do the governing.
In yet another example of overreaching arrogance by a lower federal district court where no action of a government ever seems to be satisfactory, this new plan was struck down because the federal court decided the State had not satisfied the court of their good intentions.
In an opinion crafted by Justice Alito, the Supreme Court did two things which to one unschooled in the law may seem minor, but which any lawyer will recognize as important.
First, it reversed the lower court’s assignment of the burden of proof. Instead of placing it on the government, it placed it back where it belongs with the plaintiff, the person or entity bringing the law suit. The lower federal court without any authority to do so had decided the government had to show that they had somehow “purged” and “cured” the taint of the 2011 plan, a plan that had been “alleged” to be discriminatory and a plan that wasn’t even used. The lower court went further and in a brazen display of judicial interference in the legislative sphere, it required the legislature to conduct its deliberations in a way the court approved. Reminds one of a court requiring a showing that the taint of a statement by a candidate in an election must somehow be cured before the court can even read, much less consider the actual legislation before it. It’s like federal courts see themselves as high priests requiring a trip to the confessional by the other supposedly co-equal branches of government for an expiation of sinful thoughts.
Second, the Supreme Court confirmed the principle that should always apply to official actions by those democratically elected to govern. That is that their acts are presumed to have been done in good faith. The federal court erred in ignoring the evidence that in fact the Texas state government had acted in good faith.
In applying the law to the case, the Court reiterated the general rules regarding redistricting challenges. It must be shown by the person or entity attempting to block the redistricting, 1) is a geographically compact minority population, that is a majority in the district. 2) There is political cohesion among members of the group and 3) bloc voting by the majority is taking place to defeat the minorities preferred candidate. And after all that, then the plaintiff must prove under the totality of circumstances the district lines dilute the votes of the minority group.
In the Abbott case, the tests were not met. And it was plaintiff’s burden to make the showing. In other words, to prove what they alleged.
In elections across the land, attempts to draw district lines face multiple challenges no matter what efforts the local government expends to do the redistricting in a fair way. Statistical models are used and provocative language about voter suppression and racism are inevitably pressed at every opportunity. That is all find and dandy. So be it.
But in Abbott the Court reaffirmed a basic principle. It is one we should be applying in our general public actions and statements. If you allege it, then, by God, prove it!
Don’t accuse a person of something and then adopt the presumption that it must be true. Don’t require a person prove they didn’t do the wrong or, worse, think the wrong thoughts at the wrong time. No. It’s your allegation. Prove it. It’s the legal equivalent of saying, “Put up or shut up.”
This Week’s segment of Cline on the Constitution
The process of casting a vote is changing. Who, when, and how is an accident of location. It can be vastly different from state to state.
The image of an adult citizen showing up at the polls on election day, being handed a ballot, retiring to the voting booth to cast his or her ballot is no longer accurate.
There is no real date to appear at the polls. Absentee ballots are counted weeks before and weeks after the election date. Nor is it required that one casts one’s own ballot. Anyone, and I mean anyone, may “harvest” a vote. They can pick up an absentee ballot from a voter and cast it for them. And, at least in California there is no interest or inclination to investigate voter fraud by the Attorney General or the Secretary of State at least as long as their party is in power.
In California and across the nation, the right to vote is being extended to felons, non-citizens, the mentally infirm, even prisoners. Which if one considers a local election for Sheriff, may indeed put the inmates in charge of the asylum. And election officials are severely restricted from asking for a valid identification. One must have identification to cash a check, but not to vote.
And with the changes are legal challenges to voting. Last term the Supreme Court issued a number of opinions concerning voting and some important cases on the issue are on the court’s docket this term, including a challenge that might finally end the time-honored practice of gerrymandering.
This post and the two to follow will report on the court’s decisions last term and make some modest predictions about where I think these issues will go.
First, the Basics:
The original Constitution drafted by our framers had no reference to the right to “vote.” Qualifications and other issues related to voting were left up to the individual States. Some States excluded non-landowners from voting, others restricted voting based on religious beliefs, gender, or race. By the middle of the nineteenth century, however, these arbitrary barriers to voting were being dismantled.
The Fifteenth Amendment prohibited denying the right to vote based on race; the Nineteenth Amendment did the same for gender; the Twenty-Fourth eliminated poll taxes, and the Twenty-Sixth insure the right to vote for persons over the age of eighteen.
The Supreme Court for many decades under the “political question” doctrine deferred the resolution of issues related to voting to the other branches of government. That began to change in the 1960s. The best known of these early cases was Gray v. Sanders in which Justice Douglas’s opinion overturned a county based primary system because it diluted the voting power of urban areas. He wrote: “the conception of political equality from the Declaration of Independence to Lincoln’s Gettysburg address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote.”
Within a short time, the Court issued over a half-dozen opinions striking down state drawn district lines. And in 1965, Congress passed The Voting Rights Act which protected voting rights, and put certain states and jurisdictions under a Federal pre-clearance requirement for any changes to local voting procedures. Part of this act was eventually (in 2013) held unconstitutional because Congress repeatedly failed to update which jurisdictions were subject to federal control even though demographic changes made the continuing federal oversight irrational. (for more on these issues see previous posts.)
Now for the cases decided last term:
The first of the cases was decided last term was Minnesota Voters Alliance v. Mansky.
It’s not unusual for the Supreme court to be behind the times when it comes to discussions of technology and changes in society. Given the rapid changes, in some ways, the Mansky case is quaint and antiquated.
It’s discussion centers on polling places and attempts by a State government to regulate conduct and speech at the polls. The traditional justification is to protect the voters from undue influence by banning the rough and tumble of politics from the sacred precinct where votes are cast. In the Court’s language, “an island of calm in which voters can peacefully contemplate their choices.”
Mansky was a 7-2 decision. The opinion was penned by Chief Justice John Roberts. The state sought to regulate the wearing of “political” apparel at the polling place.
The law was enacted in Minnesota in the 19thcentury in response to so-called “chaotic” conditions where “crowds would gather to heckle and harass voters who appeared to be supporting the other side.” Where polling places became “highly charged ethnic, religious, and ideological battlegrounds in which individuals were stereotyped as friend or foe, even on the basis of clothing.”
Hmmm. Sounds familiar.
It’s not difficult to conjure up modern examples of what would be prohibited. Make America Great Again hats for sure, rainbow flags, one would think. Tee shirts depicting aborted babies, pink pussy hats? But where is the line? And, always the question, who gets to say where the line is? Do we really want federal judges to do it and thereby become even more political than they already are?
Thankfully, the court in this instanced said No.
The Court struck down the law in Mansky as not being specific enough in its definition of what was banned by words like “political.” By banning political apparel, it impinged on Freedom of Speech. Consistent with First Amendment jurisprudence it ruled the State may regulate campaign activities, (or conduct) at polling places, but found the inclusiveness of the language violated freedom of speech.
So far, so good.
But in a couple of ways the case is another “judicial head in the sand” decision.
First, it gives too short shrift to the reasons the legislation was enacted. Things haven’t really changed. People still abuse other people, and improperly invade every public space in the most vulgar and vile manner. Hells Bells, even a group of Christian high school kids can’t gather in the Nation’s Capital to support the Right to Life movement, without being harassed by a group of Black adults spewing hatred and a nutty snaggle tooth man pounding his drum in a teenager’s face.
Second, in point of fact, developments in voting I outlined in my introductory paragraphs are harbingers of the future. And the inevitability of online voting. As we move closer to what many said was impossible: “Direct Democracy” in which the voting public can decide in an instant whether to approve or disapprove a proposition, an initiative, even a candidate, indeed any law.
Maybe, some might even begin to question the need for legislatures and legislators. Afterall, we all can with a push of a button, (or rather the click of a mouse) make the decisions instantaneously. And of course, oldsters like me, might ask but what of representative democracy? And the new generation might answer: But, do we have that now? A dysfunctional Congress, corrupt and mindless state legislatures, all in the hands of a few legislative and committee leaders? Who secure their sinecure by raising and disbursing campaign donations?
Uh, . . . maybe someone should listen while the Supreme Court is busy answering questions no one may be asking anymore.
For earlier posts or more writing by Phil Cline visit philcline.com
Is poetry a public or private thing?
One’s love of country could be deliciously stirred by the magic of poetry:
“This happy breed of men, this little world,
This precious stone set in the silver sea,
This blessed plot, this earth, this realm, this England . . .”
Historically western poetry concerned itself with very public matters. In verse we found Kingdoms and Kings, Gods and Fate, Destiny and Mysteries, and Mankind and his cities. Poetry strutted on the vast stage of great events from Ulysses to Oedipus the King, to Dante’s Divine Comedy to Shakespeare and the souls of his flawed Princes struggling in the midst of cruel happenstance.
But that all began to change last century. One wag said, “the poet has no more part in society than a monk in domestic life.”
That sentiment has become debilitating in the age of Political Correctness. Perhaps it is one reason why so much of modern American poetry is a desert of the inane, the mundane and the profane. Most modern poetry says nothing important that you cannot find canned on the cable T.V. channel of your choice. But does it have to be this way?
Could it have an impact on the public politics it once had?
Archibald MacLeish (1892-1982), an American poet who studied law at Harvard and dipped his toe in the political world, said, “The very last qualification for appointment to public office by and with the advice and consent of the Senate – and I am speaking with some personal knowledge – is, in the eyes of the senators, the practice of the art of verse.”
By contrast, Shakespeare’s most memorable characters included a Moor, a Jew, a conniving and murderous woman, a crippled man,
“I, that am curtailed of this fair proportion,
Cheated of feature by dissembling nature,
Deformed, unfinish’d, sent before my time
Into this breathing world, scarce half made up,
And that so lamely and unfashionable
That dogs bark at me as I halt by them.“
And, even more shockingly, he made fun of cross dressing, bestiality and shrewish women. One can just here the gasps!
Could a modern-day Shakespeare be expected to explore in verse his musings on the State of the State? Would his plays be boycotted, his poetry banned from the public-school system. (oops, I guess that has already been done at some colleges.)
When a man cannot become a judge because he is Catholic and member of a charitable organization as innocuous as the Knights of Columbus, when a comic is pilloried because in the past he did what comics do, make fun of groups of people, how can a poet, be expected to take a risk and hope to be published?
Poetry (and to a large extent Art) has been relegated to the private realm. And to regions safe, secure and is not allowed to deal with the messy unpredictable life of the public arena. One cannot explore the many sides of mankind, not in the public square, not ever, not in real flawed life ever, not without being crucified, if not now, at some future day, by someone, somewhere who will find offense?
As William Butler Yeats, (1865-1939), an Irish poet intensely involved in the politics of Ireland said,
“The daily spite of this unmannerly town,
Where who has served the most is the most defamed,
The reputation of his lifetime lost
Between the night and morning.”
How many men and women has that happened to of late?
It is a supreme irony that we all now live more in the public sphere than ever before. As MacLeish said, “We no longer worry much about our private souls. We worry about the soul of America or about the soul of mankind-the condition of mankind-the human condition.” Yet no longer can anything dangerous ever be publicly ventured about the condition of humankind, the basis of poetry and art.
Lastly, for the person who steps forward, lives his or her art in public, it takes extraordinary courage. And maybe we, living our private lives, should better appreciate all those brave souls who take to the public stage and make the poetry of their lives public for all to see.
“The drunkards, pilferers of public funds,
All the dishonest crowd I had driven away,
When my luck changed and they dared meet my face,
Crawled from obscurity, and set upon me
Those I had served and some that I had fed;
Yet never have I, now nor any time,
Complained of the people.”
For more writings by Phil Cline, visit philcline.com
At the window he credited Fear,
Regretted his temper drive,
And looked to gloomy vistas
This morning again arrived.
Secrets of giggly girls,
Potent Innocence fails
Divers of missing pearls
Bartered from greasy nails.
Christmas lights harken End,
Heralded toys broken fine,
Discarded in the snowy mud
Cheered by crows atop a line.
Don’t hurry to turn away
Rush to doubt of all beliefs
Enrichments but a brief delay,
Days too few; hours too brief.
Where Boys Walk
Raised above, hovering,
Before down the hit.
Cringed below, a boy child’s
And fear. And Humiliation.
Hands, kind, reach,
Stretch, pat on’a back,
Rest on’a shoulder,
A smile, a nod, he said “good job.”
Eyes open, breath released, hope.
And will. And defiance.
And between the two places
Back and forth, to and fro
And despite it all,
I am back with a new segment of Cline on the Constitution.
Took a little hiatus to explore the Mississippi via Paddle Boat. Great trip.
I then monitored the resumption of hearings on Justice Kavanaugh. Much has been discussed about Due Process and the Presumption of Innocence. I won’t repeat the various arguments.
But a couple of the images did stick with me. The first was of a cadre of the clueless actually clawing at the doors of the Supreme Court. I was put in the mind of an army of the undead, like a movie ready made for the approaching Halloween called “Zombies and the Law”.
The second image was of Senators ducking out of the hearing to give fiery speeches to the Mob pressing in on the steps of the Capitol.
It reminded me of Brutus addressing the Mob after joining with other senators in the assassination of Caesar. These Senators rushing to the microphones after engaging in their own assassination (of character) seemed unaware of the lesson that the Mob may very well turn on them next. As they did on Brutus and the others when Anthony, in one of the most famous speeches in Western literature, put in their mind where their own self-interest lay. As Anthony put it after teasing the Mob with the wealth they might gain from dead Caesar’s will: “Now let it work. Mischief, thou art afoot, take thou what course thou wilt!”
It didn’t end well for Brutus and his henchmen. Not may it for those Senators.
But back to work,
Justice Kavanaugh is still in his early fifties, a virtual baby in Supreme Court Justice years. He and the other youngster, Justice Gorsuch, also in early fifties, may be the closest thing we can hope for as far as a youth movement on the Court that may be prepared to align Constitutional interpretation with modern technology.
Let’s talk about that.
In my last segment, I lay some groundwork for a direction I believe the Supreme court may take to find its way out of the Katz case “expectation of privacy” quicksand in which they are mired.
As you will recall, it was the Katz case which found that a listening device attached to the outside of a telephone booth to capture the conversation of a number’s runner violated a person’s “reasonable expectation of privacy” and therefore, his rights against illegal search and seizure under the Fourth Amendment. The “expectation of privacy” test was a creation of the Court. And has been in use for fifty years or so.
My discussion was based on Justice Scalia’s attempt in U.S. v Jones (government surreptitiously attached GPS device to suspect’s car) to “return to the future” in Fourth Amendment analysis by reintroducing the concept of “property rights.” The “trespass” to property rights as a basic underpinning for the Fourth Amendment was in turn discussed by individual justices in last term’s seminal case on privacy rights, Carpenter v. United States.
Carpenter was suspected of committing a string of robberies in Detroit. The FBI used a court order (not a Search Warrant) similar to a subpoena to gain access to data about his cell phone use from service providers. Congress had, through legislation, prescribed this method for obtaining telephone records. They had attempted to balance the interests of privacy with the need of authorities to conduct investigations. What Congress is supposed to do.
The Feds were able to obtain 13,000 of Carpenter’s location points over a 127-day period. He was convicted. He appealed contending his rights under the Fourth Amendment were violated. The appellate court rejected his appeal finding he had no “expectation of privacy” in the data because he had willingly given the information to his carriers.
And that is the rub. The “expectation of privacy” test becomes problematical when the information is shared with others. If you willingly give information to strangers how can you say you have a reasonable expectation of privacy?
The Fourth Amendment protects the rights of citizens to be secure from unreasonable searches of “. . . their persons, houses, papers and effects.” As I have noted before, the crafters of the Constitution and the Bill of Rights were master wordsmiths. It pays to closely consider the words they used.
On its face those words protect a personal right (“their”) and a citizen’s physical integrity (“person”) and his or her property, (“houses, papers and effects.”) But what of location data continuously transmitted to a third-party carrier from one’s cell phone?
The Carpenter opinion, crafted by Chief Justice Roberts, begins by noting that in our nation of 326 million people there are 396 million cell phone users. It acknowledges “While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters and other potentially revealing locales. . . Nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”
The court then dramatically observed, “Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phones’ user.” Furthermore, it can go back in time to retrace a person’s location for as long as the carrier retains the records, normally five years.
The constitutional problem, as noted above, is that none of the words of the Fourth Amendment applies. Neither does the “expectation of privacy” test as it had been interpreted prior to the Carpenter decision. The information sought by the FBI was in the possession of a third party. It had been willingly given over. It is not property.
Or is it?
Chief Justice Roberts did acknowledge what Justice Scalia had argued in Jones.
“For much of our history,” Justice Roberts wrote, “Fourth Amendment search doctrine was ‘tied to common-law trespass’ and focused on whether the Government was physically intruding on a constitutionally protected area.” But, he added, the Katz case held that the Fourth Amendment protected the privacy of “people, not places.”
Chief Justice Roberts opinion went on to conclude that the location data was protected under the “expectation of privacy” doctrine. But it was a struggle for him to arrive at such a conclusion. Two Supreme court cases from the modern era had held information in the possession of a third party was not covered by the “expectation of privacy” test. These had to be overruled.
And he even went to find that the order obtained pursuant to the legislation passed by Congress was not based upon the Probable Cause standard required by the Fourth Amendment.
Four separate and strong dissents were penned by Justices Kennedy, Thomas, Alito and Gorsuch. And in these opinions the constitutional basis of the Katz “expectation of privacy” test is challenged and a different pathway to the future is hinted at.
Many of the Justices expressed concern over how the law will keep abreast of rapidly changing technology.
Justice Roberts quoted a Justice from early in the last century who, when considering innovations in airplanes and radios, wrote the Court must tread carefully to ensure they do not “embarrass the future.”
Justice Kennedy, however, in response said, “perhaps more important, those future developments are no basis upon which to resolve this case. . . the court risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. The judicial caution, prudent in most cases, is imperative in this one.”
Justice Kennedy went on to argue the traditional position that there is no “expectation of privacy” in material in the hands of third parties.
Both Justice Kennedy and Alito worried over the impact on investigations of corruption and Terrorism. They said, “The court’s new and uncarted course will inhibit law enforcement and keep defendants and judges guessing for years to come.”
And Kennedy noted, “this case should be resolved by interpreting accepted property principles as the baseline for reasonable expectation of privacy.”
Justice Clarence Thomas, in a brilliant opinion, did an exhaustive historical analysis of the Fourth Amendment and called for the overruling of Katz test. “Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence.” He went on to relate how Jurists and commentators, have called the Katz cases, “an unpredictable jumble,” a mass of contradictions and obscurities;” “all over the map,” “riddled with inconsistency and incoherence,” among other descriptions.
It is also historically significant, he pointed out, that the Katz decision was issued in the interim between the Griswold case in 1965, the first case recognizing an implied Right to Privacy and Roe v Wade in 1973 extending that newly recognized right to abortion. Privacy was, as Justice Thomas noted, “the organizing constitutional idea of 1960s and 1970s.” He went on to say, however, that “The organizing constitutional idea of the founding era, by contrast, was property.”
He and the other justices criticized how Judges frequently use the looseness of the Katz test to impose their own views on society. The cases, Thomas wrote “bear the hallmarks of subjective policymaking instead of neutral legal decision-making.” The application of the Katz test about societies expectations of privacy, “bear an uncanny resemblance to those expectations that this Court considers reasonable.” He said, “self-awareness of eminent reasonableness’ is not really a substitute for democratic election.” In other words, the Court once again walks into the trap of substituting their own personal views instead of deferring to the democratic process.
Justice Alito elaborated on this theme by criticizing Robert’s opinion and its easy willingness to emboss new standards on the subpoena process.
“By departing from these fundamental principles, the Court destabilizes long-established Fourth Amendment doctrine. We will be making repairs – or picking up the pieces- for a long time to come.”
Going all the way back to the Judiciary act of 1789 Justice Alito traced the origins of the subpoena power and established that never before had it been subject to Fourth Amendment analysis. It was never about the government trespassing on property. Rather, it was about the ability to investigate crime by requiring the production of records.
“The desire to make a statement about privacy in the digital age does not justify the consequences that today’s decision is likely to produce.”
In sum, Justice’s Kennedy, Thomas, Alito, and Gorsuch each in separate dissenting opinions criticized the use of the Katz case and the “expectation of privacy” test. They either argued that it does not apply or should be dispensed with completely. And each returned to the original “property/trespass” based foundations of the Fourth Amendment.
But in the last segment it was Justice Gorsuch who may have pointed a possible way to the future.
He argued that data even in the hands of a third party like a carrier can still be “your” property. He detailed all the different property interests one can have in property held, even voluntarily, by another and that your Fourth Amendment protections can apply, not to sustain an amorphous “expectation of privacy”, but as a property interest which is protected from government intrusion.
His opinion provides a road map away from the monster Katz “expectation of privacy” test and a way forward.
By looking back.
We will have to wait for future decisions to see if the court follows his direction.
For more Cline on the Constitution and other writings by Phil Cline, visit philcline.com