What in the World
What in the world- my question following the Kavanaugh hearings, but in an attempt to put a finer point on it, asked otherwise- can I sue for say defamation of character, on behalf of another, as I guess one citizen for another? Thinking, Justice Kavanaugh certainly can’t sue on his own behalf, from the bench.
The answer to my question turns out to be, no, and in very clear terms. As will be evident, I’ve gone so far as to seek this clarification in extant law: 206 Ariz. 520, Arizona Supreme Court. Dec. 4, 2003. “This court has, as a matter of sound judicial policy, required persons seeking redress in the courts first to establish standing, especially in actions in which constitutional relief is sought against the government . . . In Sears [v. Hull], we denied standing to citizens seeking relief against the governor because they failed to plead and prove palpable injury to themselves.” Federal case law in the Ninth Circuit Court of Appeals takes an almost identical approach. (I had help with this information).
Clear enough? Yes, I think so. What I might extrapolate from it is that mere embarrassment for the actions of our senators in the confirmation hearings, will not qualify any citizen for “standing.” Embarrassment would not be considered palpable, personal injury; which makes a kind of unassailable sense. Embarrassment will not even attract judicial notice. Nor should it, I suppose. The court goes on to say in the above citation, “A contrary approach would inevitably open the door to multiple actions asserting all manner of claims against the government.” I won’t argue with that.
But I remain troubled. Whether any of our sitting senators would willingly subject themselves to an interrogation of the sort Justice Kavanaugh has had to endure, is very much in doubt, reaching as it did into adolescent experience. Would the ranking minority member, for example, want to tell us about her first experience in the back seat of a car? No, at least I hope not, nor would any other members of the senate judiciary committee. Because it’s personal, very old stuff, and while some of our own reflections of this period of our lives may make us wince, we go on, most of us, to lead productive lives. We grow, up.
Some senators will still resist, want to re-explore adolescence as if it were really legitimate investigative ground, at least for senatorial blessing’s sake. Our own senator Flake insisted on one more investigation into the adolescent behavior of our newest justice, which redirected our FBI on yet another panty raid mission.
Most of us have come to understand that American government has become politics, and that politics, particularly in recent years, have gravitated to no holds barred war. Someone in government said as much, not long ago. I forget who. Well even war has a few rules which pertain to decency; a Geneva Convention, other moral considerations regarding civilian populations. Decency, perhaps where decency might be loosely defined as some level of appropriateness supporting at least some consideration for others.
The senate purports to have rules, rules of order certainly, but not so certainly rules of decency. A senator from somewhere might be given five minutes to try to destroy someone’s reputation by reference to vague adolescent incidents beyond clear, complete memory, and by filling in blanks with innuendo. And then that same senator might yield some of his time to someone who’s got some more artfully dirty questions, to which there can be no convincingly clean or dignified answers.
A hearsay rule is a provision of decency for both sides of dispute, but particularly, I think, for people who find themselves in circumstances of their own defense. When hearsay is permitted, and the accuser, absent any factual basis or corroborating evidence, is urged on in her remarks and commended again and again for courage, any prevailing atmosphere of decency evaporates. Hearsay in the Kavanaugh hearings took the form of testimony, testimony so blurred by youthful assessment, alcohol, and by the passage of time that the name ‘testimony’ hardly applies to what amounts to little more than self- assembled hearsay. I’m not sure there are any hard rules for inadmissibility in the senate chambers, but if there were, there would have been no substance or reason for a hearing of this sort. It couldn’t have taken place. No chance for a partisan grilling.
Apparently anything goes in the senate. How is it that our senators are allowed to operate below the law, below the belt, and beyond redress? What in the world? Well, somehow we picked them, oh for their political views yes, but trusting perhaps in an underlying presumption of their judgment, and in this instance their judgment as to what kinds of things are appropriate for their official consideration, especially as a senate judiciary committee. And shame on us I suppose, for supporting their offices in these pursuits.
The camera and the microphone were on, revealing as it was of America’s top tier representative house in action. Maybe the nation needs to call some of these senators home for a little old fashioned upbringing, a little schooling in what many of us would want to call common decency or respect for our fellow man. I don’t want people around the world to think democracy has lost its helm, or that in September we lost our minds, our moral compass, and our dignity in one senatorial swoop.
What can I do? No courtroom remedy, is there, for just a red face. And I’m certainly not going to be invited to testify before the senate. (Maybe I’m not so certain of this). The answer though has been right in front of me all the time, hasn’t it; this next month coming, is November.
Q (by some Congresscritters, apparently): “Can fake news be regulated?”
A (me): No. Next question?
All you have to do is read this blog to know that under the First Amendment, the government cannot prohibit the exhibition of Nazi symbols. It’s really pretty simple, and well settled law. So it’s inexplicable to me why a New York TV station would think that they have to go to “experts” to say that someone flying a Nazi flag “is protected because the flag is on private property.” Maybe it’s not that inexplicable, however, in light of the fact that, according to the same item, “More than 400 people have signed a petition asking town officials to do something about the Nazi flag.” What do they think the town officials can do about it? Order the person displaying it to take it down because it’s offensive? Tell that to Supreme Court, who just last year said that the government couldn’t prevent The Slants from trademarking their name, even though many people find the name offensive.
MESSAGE TO MUNICIPAL GOVERNMENTS - DON’T THREATEN TO SUE YOUR CITIZENS FOR MAKING DISPARAGING COMMENTS ABOUT YOUR TOWN
Remember that town in Iowa whose attorney threatened a citizen with a slander of title claim for making disparaging comments about the town? The town got smacked down by a federal judge and agreed to apologize, pay damages to the citizen, and pay the citizen’s legal fees.
A welcome, but not too surprising, outcome.
Nice try, attorney representing a town that tried to silence a critic. Unless the law in your state is vastly different from the law everywhere else that I have ever heard of on this topic, slander of title has a specific meaning: doing something that affects title to or an interest in a specific parcel. Negative comments that allegedly diminish the value of all property in a municipality do not constitute slander of title, unless the municipality owns or has a mortgage on all the property within its boundaries. The fact that the municipality taxes all property within its boundaries based on the value of each parcel doesn’t give the municipality an interest in the property.
That’s without even mentioning the obvious violation of the critic’s First Amendment rights.
If you are a public official, it’s usually not a good idea to send to your constituents a letter threatening them with sign code enforcement because they put up signs criticizing your official actions. And don’t have another public official do it for you, either, such as a selectman having the building code inspector do it.
If you’re thinking about trying to regulate a sign because of what it says, you may want to think twice.
I don’t remember who it was, but a commentator who writes about First Amendment cases, noting the frequency with which government agencies (whether well-intentioned or not) attempt to restrict free speech, said something like: what part of “make no law … abridging the freedom of speech” don’t they (those attempting to restrict free speech) understand?
I have said it before: the government cannot restrict speech based on its content. That means if a t-shirt maker doesn’t want to make a t-shirt with your slogan on it, the government can’t force him to, or penalize him if he refuses, no matter what your slogan is.
It’s the Nazi parade scenario in reverse: no matter how beneficial you think your message is, the government can’t force the t-shirt maker to say it, and no matter how detrimental you think someone else’s message is, the government can’t force the t-shirt maker to not say it.
I have been interested in First Amendment law since I was in law school. Very few lawyers in private practice get to work on cases involving First Amendment law, and I am no exception. I still enjoy reading about First Amendment cases, however, and particularly free speech cases.
In a recent case decision by the U.S. Supreme Court on whether an Asian American dance band, The Slants, could trademark their name, the justices unanimously ruled that under the First Amendment, the government can’t ban offensive speech. The concept is that the First Amendment prohibits restricting speech based on the viewpoint expressed. This statement by Justice Kennedy expresses the idea very clearly:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
My take on it? The logic is pretty easy to see. If the First Amendment means that the National Socialist Party of America had a right to have a parade and hand out leaflets in Skokie, Illinois, in 1977 (the Supreme Court decided that in the case of National Socialist Party of America v. Village of Skokie), then the First Amendment must also mean that the government can’t prohibit a racially offensive phrase as a trademark. Allowing the government to prohibit either one would be allowing the government to restrict speech based on its content.
The trademark case is Matal v. Tam. The Court’s decision was released on June 19.
As a follow-up to my post earlier this week, an op-ed appeared in the L.A. Times recently that gives a good summation of what kinds of expression can and cannot be limited without violating the First Amendment.
The author of that op-ed is a lawyer whose blog, Popehat, I think I have linked to in the past. He occasionally writes posts about First Amendment cases that are worth reading.
The contents of this blog, this web site, and any writings by me that are linked here, are all my personal commentary. None of it is intended to be legal advice for your situation.