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The AP on the Boston Herald and Gesturegate:

The AP writes about Justice Scalia's response to the Boston Herald story:

Scalia said in the letter, written to Executive Editor Kenneth Chandler, that the reporter leapt to conclusions that it was offensive because he initially explained his gesture by saying, 'That's Sicilian.'"

"From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene -- especially when made by an 'Italian jurist.' (I am, by the way, an American jurist.)," he wrote.

The Herald had referred to him as an "Italian-American jurist."

Funny that Justice Scalia would have misquoted the Herald story that he was criticizing that way, no? Except that here's a quote of the Herald story from the Boston Herald Web site:

"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged.

The NEXIS version of the story says "Italian-American," and perhaps the print version said the same. But it seems wrong to implicitly fault Justice Scalia for misquoting the story when he quoted one version (quite likely the most easily accessible one) correctly. ("The Herald had referred to him as an 'Italian-American jurist,'" in context, seems like an assertion that it had referred to him as that rather than as what Scalia quoted -- an assertion that proves to be incorrect.)

Bruce:
Pwned!
3.29.2006 2:19pm
Christopher C (mail):
I think I liked the Duck hunting opinion by Scalia (where he explains why he wouldn't recuse himself in the case involving Cheney's Energy Commission) much better. He is an entertaining writer.
3.29.2006 2:35pm
llamasex (mail) (www):
It is weird that you are focusing on this story as opposed to


Newsweek

April 3, 2006 issue - The Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to try Guantánamo detainees in special military tribunals with limited rights for the accused. But Justice Antonin Scalia has already spoken his mind about some of the issues in the matter. During an unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was "astounded" at the "hypocritical" reaction in Europe to Gitmo. "War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts," he says on a tape of the talk reviewed by NEWSWEEK. "Give me a break." Challenged by one audience member about whether the Gitmo detainees don't have protections under the Geneva or human-rights conventions, Scalia shot back: "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." Scalia was apparently referring to his son Matthew, who served with the U.S. Army in Iraq. Scalia did say, though, that he was concerned "there may be no end to this war."

The comments provoked "quite an uproar," said Samantha Besson, a member of the Freiburg law faculty who had invited Scalia to give his talk, which was mostly about his "originalist" interpretation of the Constitution. This isn't the first time Scalia has commented on matters before the court: two years ago he recused himself from a Pledge of Allegiance case after making public comments about the matter. "This is clearly grounds for recusal," said Michael Ratner of the Center for Constitutional Rights, a human-rights group that has filed a brief in behalf of the Gitmo detainees. "I can't recall an instance where I've heard a judge speak so openly about a case that's in front of him—without hearing the arguments." Other experts said it was a closer call. Scalia didn't refer directly to this week's case, Hamdan v. Rumsfeld, though issues at stake hinge in part on whether the detainees deserve legal protections that make the military tribunals unfair. "As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court," said Stephen Gillers, a legal-ethics expert. A Scalia recusal (it's entirely up to him) would create problems; Chief Justice John Roberts has already done so in Hamdan because he ruled on it as an appellate judge. A Supreme Courtspokeswoman said Scalia has no comment.


Not that did he or didn't he flick a bird isn't interesting, it just doesn't seem to have any real value as a focus of discussion.
3.29.2006 3:04pm
te (mail):
Ahh, some Scalia revisionism that is worthy of Clinton.

In the original stories I read, he was described as flicking his fingers back from under his chin. Which, as you probably know, basically means "fuck you". Pretty much the equivalent of the middle finger. If you were to do that in many parts of Italy to somone on the street, you'd be asking for a fight.

Now Clinton (I mean Scalia) tells us that he was actually waving his fingers back and forth slowly under his chin. A different (and much more rare gesture) that is much more mild - a sort of "leave me out of this" gesture.

Where is the videotape when you need it?

And, also, applause to the poster above who pointed out that the real obscenity is Nino hearing a case in which he has publicly ridiculed one of the arguments he expected to hear.
3.29.2006 3:16pm
Andy Freeman (mail):
> And, also, applause to the poster above who pointed out that the real obscenity is Nino hearing a case in which he has publicly ridiculed one of the arguments he expected to hear.

Hmm. He tells them what kind of argument won't fly and they complain?
3.29.2006 3:31pm
te (mail):

Hmm. He tells them what kind of argument won't fly and they complain?

Uh, yeah. Statement like that certainly suggest that Scalia had made up his mind about an argument (that was made yesterday in the Court) before he heard the oral argument. We like to at least maintain the illusion that our judges and justices don't make up their minds before they hear arguments.
3.29.2006 3:47pm
Italian-American non-Jurist (mail):
In the AP's defense, I know most Italian-Americans refer to themselves and each other as "Italians" without adding the last part of the hyphenation. The reporter followed common colloquial usage.
3.29.2006 4:38pm
dunno:
Professor Volokh:
Newspapers are part of what is called the "print media." Some newspapers provide versions of their stories on their website. The New York Times, for instance, often (though obviously not always) even employs different writers for the online versions of its stories. Some newspapers place hyperlinks in the online version of their stories, and, believe it or not, they don't do the same thing in the print version. Whatever a paper's practice is, the website, being a service of the newspaper, is not dispositive of content that appears in the print format, that is, the actual content of the paper, the content that is sent to Lexis. Your citation from bostonherald.com is worth precisely nothing in this debate.
3.29.2006 4:48pm
Starboard Attitude (mail):
dunno:

That is the most ridiculous argument I've ever heard!

The fact that the Herald got it right on paper does not excuse their flub published to the much wider world audience over the Internet. Both versions were published by the Herald, and the erroneous version was likely disseminated to a far broader audience. How are they exonerated by the electronic nature of the bigger evil?
3.29.2006 6:12pm
dunno:
Starboard Attitude:

the electronic nature

I don't believe I said anything about "electonic nature[s]", though if you are willing to entertain notions of the "exonerating" capacity of such "nature[s]," be my guest.

the bigger evil

Yes, not publishing the word "American" is indeed a great "evil."

Let me try again. The Boston Herald is a business. It is paid by subscribers to provide a product. This product is known in popular parlance as a "newspaper," owing to the fact that it consists of news printed on paper. Some papers choose to offer services auxilliary to the product they are actually in the business of producing and disseminating. One such auxilliary service is web publishing. Most papers, the Herald among them, do not charge for this auxilliary service. As a result, they are disincentivised from exercising the same rigors in producing web content as they do in producing print content.

The fact that "the much wider world audience" (are you sure? How many unique visitors does their site have, and what percentage of readers of bostonherald.com are not also subscribers?) is subject to being misinformed is irrelevant. That audience is not the one for which the Herald is produced. The Herald owes them, from an economic exchange point of view, jack diddley.
3.29.2006 7:09pm
guest:
"We like to at least maintain the illusion that our judges and justices don't make up their minds before they hear arguments." On the contrary. The rate at which oral argument changes judges' minds is known (by anyone who cares to know) to be low. I'm not sure when briefing was completed in the case, but I would be flabbergasted if it was after the Justice spoke in Freiburg.

There are namby pamby hand-wringing jurists who like to make it look like they are struggling with their deliberations, complimenting counsel and patting each on the head as they finish argument. These guys are pansies. The best judges, like the one I clerked for, recognize there is no value in letting a party think he's got a better chance of winning than he actually has. If the argument is stupid, tell him it's stupid. He should be honest enough to end his argument early and save his client some dough.
3.29.2006 7:14pm
another guest:
dunno


Most papers, the Herald among them, do not charge for this auxilliary service. As a result, they are disincentivised from exercising the same rigors in producing web content as they do in producing print content.
...
The Herald owes [online readers], from an economic exchange point of view, jack diddley.


Except, they do charge for some bostonherald.com content. True, most articles on the site are free of charge (for seven days), but it appears that most columnists are not (a la Times Select). In addition, the site contains a not insubstantial number of online advertisements. In this age of ever declining newspaper circulations, it sounds plausible, if not likely, that the revenue the Herald derives from it's dotcom site is (or will be) sufficiently important for the company to want to attract a devoted readership to the site. And, of course, those readers want accurate and properly edited content. So, there are economic incentives at play here — if bostonherald.com produces good content, readers will visit the site, and the Herald will get revenue (either through subscription fees, or advertisement revenue, or both).
3.30.2006 12:28am
Andy Freeman (mail):
> If the argument is stupid, tell him it's stupid. He should be honest enough to end his argument early and save his client some dough.

In this case, they have time to change their argument from a presumed loser to something else. Why isn't that opportunity a good thing?
3.30.2006 1:42pm