Gov. Palin uses the rhetoric of the "First Amendment" in a way that's not uncommon (see here if the download from the other location doesn't work), but that I think is quite mistaken:
[Q, host Chris Plante:] ... Is the news media doing its job? Are you getting a fair shake, the Republicans getting a fair shake, this year?
[Palin:] I don't think they are doing their job when they suggest that calling the candidate out on their record, their plans for this country, and their associations is mean-spirited, or negative campaigning. If they convince enough voters that that is negative campaigning for me to call Barack Obama out on his associations, then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media. Look at Joe the Plumber, good old Joe the Plumber in Toledo, Ohio, he just asked a simple, straightforward question, and the media started investigating and attacking him. So, you know, there is some fear there, and in those terms, no, I don't think that they've been doing their job in that kind of context.
I recognize that legal terms such as "First Amendment rights" are sometimes used loosely, including to refer to freedom from private retaliation against speakers. (The First Amendment itself applies only to government action, either directly or via the Fourteenth Amendment.) And sometimes this loose usage might not much interfere with the force of the argument, for instance, if someone complains about a private college's violating its students' First Amendments by expelling them for their speech.
But here the looser usage just doesn't make much sense. The media is "attack[ing]" Palin simply by exercising its own First Amendment rights to criticize Palin's statements. Likewise, Palin herself is exercising her First Amendment rights in criticizing Sen. Obama's exercise of his First Amendment right to freedom of political association (and just as critics of Obama's links with Rev. Wright criticized Obama's exercise of his First Amendment right to freedom of religious and political association). If the media's "attack[s]" on Palin jeopardize "our First Amendment rights," then Palin's criticism of Obama equally jeopardize his First Amendment rights.
The better view, I think, is that our First Amendment rights aren't much at issue in this discussion. Obama is exercising his First Amendment rights, Palin is exercising hers, the media is exercising its, and no-one's First Amendment rights are in jeopardy. If Palin wants to argue that her statements are being mislabeled as negative campaigning or as mean-spirited, or that negative campaigning is being improperly maligned (a view that I generally take myself), that's fine. But that requires a substantive defense, not just an appeal to First Amendment rights.
Thanks to Victor Steinbok for the pointer.
"Look at Joe the Plumber, good old Joe the Plumber in Toledo, Ohio, he just asked a simple, straightforward question, and the media started investigating and attacking him." (Sarah Palin, quoted above)
Um...unless I'm missing something, Governor Palin isn't complaining about media attacks *on her*: she's suggesting that attacks by "Big Media" *on private citizens* who (unlike Palin) are not public figures have a chilling effect that has First Amendment implications.
BTW--I "get" that the Big Media are "private organizations": but when they are acting as they have here, I think it reasonable to suppose that they are invoking their (admittedly extra-constitutional) role as "the fourth branch of government."
Which in fact is Governor Palin's larger point.
She should have tied the First Amendment point to the state agency leaks of Joes' private information. Not sure how that would work, though, been too long out of law school.
Moreover, when the media decides that it is verbotten to ask a question which embarrasses The One and decries Palin's drawing attention to such facts as "hate speech," and when 'liberals' are often in favor of eliminating first amendment protection for "hate speech," it is perfectly reasonable to link the media tantrums against Palin and Joe with future undermining of the First Amendment.
And I also second David Hecht's point above.
I think you're wrong, David. She said this:
A fair and simple reading of that is that she fears for her First Amendment rights because she is criticized (rightly or wrongly) by the media.
unless I'm missing something, Governor Palin isn't complaining about media attacks *on her*
I think you missed this (my bolding), from Palin:
If they convince enough voters that that is negative campaigning for me to call Barack Obama out on his associations, then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.
Yes, she followed with a reference to Joe, but this sentence sure sounds to me like she's complaining about attacks on her.
I think it is a reasonable fear that a President Obama will use his office, however indirectly, with his allies in the media to silence dissent against his administration. This will be very easy if he uses any of the several "fairness doctrine" like devices discussed elsewhere on this blog.
Even if that doesn't technically meet a lawyer's definition of curtailing first amendment rights, it has the same effect, so it's "good enough for government work."
I seem to remember the Republicans doing the same sort of thing to a sick kid a couple of years ago, although the details escape me. If my memory is in error, please forgive and ignore me. If it is not, where were wooga and David Hecht and Sarah Palin then?
Do you think Palin's remarks might be grounded in Holmes's view of the First Amendment's purpose as a device for protecting the marketplace of ideas? Sure, she's no lawyer, and when we apply the mechanics of state action doctrine and the like, we find that she has not identified an actionable First Amendment right. But might she be saying that certain kinds of negative political speech are designed to increase the "noise" in the arena of political discourse, and, for that reason, undercut the point of having free speech protections in the first place (at least on one, much criticized view of the Amendment's purpose)?
LSM
Ok, I take the positive things I said about Palin back. If discussing topics like what people should bring up (not can, for fear of criminal prosecution) is an obstacle to "free (gratis?) speech," we are in for dark times....
If she were saying that -- and I agree with E.V. and Byomtov that she wasn't -- it would be pretty darn hypocritical of her, given the negative things she's said about Obama.
If one believes that (1) an Obama presidency would be worst for the First Amendment than a McCain presidency (a reasonable position, with which I believe a number of Volokh bloggers would agree), and (2) the media's success in convincing voters that Palin engages in negative campaigning will increase the likelihood of an Obama presidency (a position that I find hard to disagree with), then it seems that Palin's question is a fair one.
Wooga has a valid point, when a government official, whether aiding the press or not, accesses confidential records in order to intimidate, punish, or harass citizens for speaking out then that is a violation of their first amendment rights, and likely a raft of criminal statutes as well.
A prominent example of that was when two Pentagon official funneled confidential information about Linda Tripp to the New York times to punish her for her role in the Lewinsky affair. The two officials got qualified immunity, but Tripp got $595,000 from the government.
Now there's a contest with world class competition.
I don't mean to pile on a woman who has turned out to be a great boon to the candidate I prefer, but that distinction is fundamental not just to the First Amendment, but to Con Law generally and our entire system of laws.
All that being said she still looks like an airhead.
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I just don't see any 1st amendment issue here. All that's going on is standard politics, modern style. Any privacy act or similar violations (looking up government records) stand on their own, independent of the 1st amendment. Material that is gained in violation of the law can be published by the press, that is not a legal violation.
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There is a tendency to cast the 1st amendment as somehow enforcing responsibility, but that interpretation is ludicrous. The 1st amendment protects irresponsibility. Responsible actions need no defense. Yet when the press participates in dirty politics, it's accused of not upholding "its 1st amendment duties." Preposterous.
IMO, the media can whizz in their own pool to an extent that some restrictions are favored by the general public, 1A notwithstanding.
Doing the dirty and standing behind the Noble First going "neenerneenercan'ttouchus" is not an attractive posse.
Joe the Plumber's 1st Amendment rights have been trampled like an American flag at Bill Ayer's house on the Fourth of July.
When speech government doesn't like leads to illegal audits of every aspect of a person's personal and business life, that's absolutely an assault on our 1st Amendment freedoms.
Barack Obama has no love for free speech. Look how he treated Milt Rosenberg. That's what we can all look forward to if his Chicago machine manages to steal this election.
Um, no.
Which government didn't like Joe The Plumber's speech?
You owe me a new keyboard. Audio snippet of the interview (mp3).
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When the press does it, it's just the press being a bully. No 1st amendment thing at all, libel, if untruthful and meeting ALL of the other elements of libel.
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When the government (or a private actor) reveals private information in violation of a privacy law, then there is a violation of privacy law, and no more.
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The 1st amendment is not a "thou shalt not bullshit" arrangement (except for libel), and it is not a "thou shalt not be a bully" limitation. Keep in mind, this "freedom" works in both direction, as Joe the Plumber, or any other private citizen for that matter, including candidates for office, is free to dump all over the press. "Freedom" doesn't mean "fair" or "honorable." That's the canard the press hides behind - we're practicing 1st amendment, therefore it's honorable conduct. I say to the press, "Kiss my ass." It doesn't take rocket science observation to figure out the press is not what it claims to be.
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There is nothing in the constitution that protects a person from a bullying press. The press can bully, and it does not affect any individual's right to continue speaking.
How could you possibly forgive her for this? A central idea of the party that she represents is the distinction between restricting government conduct (good) and restricting private parties from doing what they want with their own resources (bad).
Any supposed conservative that defends Palin on these comments is nothing other than a political hack willing to sacrifice the ideals for which they supposedly stand to back a political opportunist.
Joe the plumber loved the attention from the press more than Paris Hilton and has no more right to complain that it turned on him than she does.
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That reads like an expounding on the constitution being the creator of a government of limited and enumerated powers, and as no enumerated power is "to regulate the press," the freedom of the press part of the 1st amendment is superfluous.
Zarkov, when one private party sues another under a state-created cause of action (e.g. defamation), that's state action.
That's why there's First Amendment protections for suits alleging defamation (see New York Times v. Sullivan).
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Which is to say, he has every right. Let the public decide for itself which of them has the better argument. The press can't credibly assert that everything said under a freedom is honorable. The 1st amendment is not a shield against criticism and ridicule.
What they regard as an attack, most of us regard as reporting. Gov. Palin stated she stopped the bridge to nowhere, she did not. Gov. Palin stated she was anti-earmarks, she was not. Gov. Palin stated she negotiated a $40 billion pipeline. She did not. etc. etc. etc. The press has reported this, which Gov. Palin regards as an attack.
As for Joe the Plumber, the Press simply reported, accurately, that he did not have a plumber's license, he did not make $250,000, he was not worse off under Obama's plan, and he apparently wasn't even named Joe. This occurred after McCain decided to make Joe (or Sam) a part of his campaign. None of this is attacks, it is simply reporting.
Conservatives beleive that the freedom of the press is only the freedom to attack their enemies. The American people are smart enough to recognize when the press is operating unfairly, as when the NYT article on McCain went too far.
Ye, Joe can complain all he wants. And I can complain about how unfair it is that I didn't win the lottery.
Whether either of these complaints deserves much sympathy is a different matter.
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Exactly. It's a rough cruel world out there. Joe can point to the press requesting information to be retrieved in contravention of law, to their decision to elevate facts about him as more important than discussing policy proposals, and otherwise attempt to cast them in a light that makes the press look petty, intemperate, wrong on the facts, and mean-spirited. After they conclude exchanging blows, the public either walks away bored, or picks a winner.
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But no way is it a 1st amendment issue.
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But that's exactly what "freedom" is, freedom to attack enemies. That's the whole darn point of the 1st amendment, to protect saying bad things about others.
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-- The American people are smart enough to recognize when the press is operating unfairly --
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Like the press, the American people choose sides. Truth is a casualty in this battle of sound bites and shallow invective. You give the public much more credit than I do. See "man on the street" interviews. The American public wouldn't know "truth" or "fair" if it bit them on the ass. Not that they don't BELIEVE they are perfect judges of those qualities. Most people are fully invested in their opinions and beliefs.
Yes, if she would have suggested making a civil rights claim against the papers for infringing upon rights that would be stupid, but merely making the suggestion that the relevance of the First Amendment may change in the future due to action by the media is absolutely not a ridiculous claim to make.
When the media plays up accusations that you are a racist, or when my.barackobama.com sends out millions of e-mails calling you an extremist and encourages followers to shout you down whenever you try to speak to people that actually want to hear what you have to say, then they are undermining the relevance of your first amendment rights.
Was Maureen Dowd's first amendment right infringed upon when the McCain campaign kicked her off their campaign plane? She suggested that their actions showed their lack of respect for the 1st amendment. But she's a super smart fancy pants writer for the New York Times who is waaaaaaaaaaaaaaay smarter than Governor Palin.
If you think that anyone, liberal or otherwise, gave a crap that Maureen Dowd was booted off the plane, you don't know much about her readership.
There's also an interesting question: as I understand most of the commentators, if an executive official responds to a critic by illegally releasing damaging information from government files, or, for that matter, by selectively prosecuting the critic, that doesn't violate the First Amendment. It is merely a statutory violation. So it doesn't necessarily create a private right of action, and, if the official or his superiors decides not to prosecute the statutory violation, the citizen has no redress. I think that is totally wrong. (Not just wrong in a Platonic sense, I mean, that is not the law as actually applied by the courts.)
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The possibility of redress depends on the presence of a right of action, and on the ability to identify the perp. Hatfill just settled a case where the government decided it would rather settle, than have the press compelled to say who, in the government, disclosed details that were illegal to disclose. Technically, there was a Privacy Act violation, and the Privacy Act includes a right to a civil cause of action. You are right that a statutory violation by an official does not necessarily give rise to a cause of action, but I think in most cases there is the theoretical possibility of obtaining damages.
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As for selective prosecution, there is no cause of action. You either follow the law, or you risk being charged for violating it. There is such a thing as prosecutorial misconduct (See Nifong), but that is a fringe activity, far removed from selective prosecution.
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But none of that has anything at all to do with the 1st amendment -- well, except for the claim by the press that it had no duty to help the court figure out who, in the government, disclosed about Hatfill. Funny thing about press shield, it can work in either direction, to the government's benefit (the government wanted the press to stonewall in the Hatfill case), or to the government's detriment (identifying people who leak embarrassing information, etc.)
Whoa, so poor Yick Wo loses?! After all, the law forbids operating laundries in wooden buildings, and the law is clear. It's true that the government only prosecutes Chinese for violations, but that is no excuse for the defendant.
That just isn't the law.
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One needs to separate the discussion into the two separate causes of action represented in my statement. There is the underlying charge, which Yick Wo may win or lose, and then there is the question of whether or not Yick Wo can recover damages by charging the prosecutor with "selective prosecution."
While, from a technical standpoint, the media has every right to disseminate information that it receives, this takes on an eerie aspect, when coupled with the fact that the investigations were triggered by a private citizen's question to a politician.
The "First Amendment" was in the same sentence as a reference to media attacks on her, but the very next sentence was, "Look at Joe the Plumber." Those ideas are connected, There is a First Amendment issue if government employees are using their positions to launch character attacks on those who question politicians. There is also a First Amendment issue when the press acts not as a watchdog, but a henchman: a free press is predicated on independence from the government and action on behalf of the people, not the other way around. Yes, there can be a negative underside to our cherished constitutional rights - they do not guarantee a utopia, and are not immune from abuse.
Suppose that I attend a Barack Obama rally (undoubtedly a First Amendment protected activity), and my boss fires me for it. A private employer, of course, cannot violate the First Amendment, and limiting his ability to fire me violates general freedom of contract in at-will employment. But most people would probably find such a firing pretty offensive.
Now suppose that instead of being fired, I am forced to listen to our hour everyday to sermons from my boss praising John McCain. Again, most people would probably find indoctrination at work pretty offensive, especially if it was targeted retaliation against my speech away from work. This remains so even though my boss surely has a First Amendment right to speak at work, in that the government can't stop him (his boss may be able to, but that is another matter). Nor am I, strictly, speaking, a captive audience, in that I surely could just resign and thus avoid listening.
Now, the response may be that we trust the market and the corporate hierachy to impose appropriate restrictions, and that if I sign up to work at a company where indoctrination is part of the deal, that is my freedom also. But maintaining absolute freedom to conduct a retaliatory response against speaker A's speech, as long as the retaliation itself is also "speech," leads to extremes that are occasionally troubling.
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In this case, the press did act independent from the government. Yes, it received information that was illegally disclosed, but that's common, see classified information being given to the press.
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The press is perfectly within its right to perpetrate character attacks on those who question politicians. This is not a 1st amendment violation. The 1st amendment protect doing bad things.
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The false meme of the press role as a watchdog is the press proclaiming itself some sort of savior -- great, until you figure out that it decides what to ignore, and what to watch. It sucks as a watchdog, and history shows that it is amenable to being in cahoots with government plans to manipulate public opinion. See Operation MINARET.
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The only legal cause of action in the Joe the Plumber case is against the government for disclosing protected information. That violation exists if the information is never published, or if it makes the front page worldwide. The only time publication is illegal is if it is false (and then some, in the case of public figures), or if it is in a narrow set of properly classified information (See Espionage Act). Otherwise, the 1st amendment protects the press being as much of a cad as it wants to be.
Joe is being treated like a public figure because McCain made him one. And McCain did this with Joe's enthusiastic support and cooperation.
McCain and Joe both started out by saying this: 'Look at Joe!' And now that we're looking at Joe, they are doing what? Blaming us for looking at Joe. How pathetic.
By the way, Palin does exactly the same thing with her kids. She presents them as campaign props (much more than other candidates have typically done), and then tells us how outraged she is that we're actually talking candidly about her family life and not being impressed by everything we see.
It even works the same way with McCain's military record. He runs his campaign as Mr. noun-verb-POW, but no one is allowed to ask any questions about all the planes he crashed, under conditions that suggest recklessness and impulsiveness.
So the operative principle is this: 'take a good look at this campaign prop I'm presenting to you, but you have to promise to close your eyes as you soon as you start noticing things that are incongruent with the narrative I'm pitching.'
It was barely a year ago. See "The Swift-Boating of Graeme Frost."
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The rub is easily resolved. If it's not actionable as defamation or illegal publication of classified information, then it it protected. The media has no legal obligation to be accurate, fair, or honest, except for the afore mentioned limitations.
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There is no positive right against "unfair attack." The only right that is purely "speech" related is the right to sue for defamation. Joe was not defamed. Truth is a complete defense.
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The press holds itself out as having "good moral character," and urges the public to believe, with all its heart, that the press is only a force for good. It's BS. If you believe that, you might as well believe in Santa Claus. The press is just a bunch of half-educated hacks with agendas and an axe to grind, just like all the petty friends, neighbors and enemies that most adults have accumulated in their lives.
wolfefan: you know nothing about me, so--for all you know--I said the same thing about that kid. And in fact I did--just not in a public forum: I told my conservative friends that we should be above that sort of thing.
However: on a more substantive level, the kid was *the Democratic Party's spokesman* in response to the SOTU: not exactly like a guy minding his own business on his front lawn, right? ISTM if you're going to volunteer to be a spokesman for a major party in response to a major presidential address, that kinda puts you in the arena--which then makes you a fair target.
But in any event, if you thought it was wrong when the Repubs did it, then you obviously must agree it's wrong when the Dems do it--right?
And the people behind Yes on Prop 8 in California are doing just that, (threatening to print the names of businesses who gave money to the other side) and they are not progressive at all, and in fact are religious reactionaries. So I guess they are 'completely undermining' the 1st Amendment as well.
Who knew conservatives could do such a thing!
Why wouldn't you think she would try to curtail those rights for the press, or any other dissent? Especially in light of her record, which is clear that she tried to remove books in a public library that she didn't like. I would say we have far more to fear from her than from Obama -- why doesn't the right realize that?
As Biden owns the Kinsley gaffe (raising my estimation of him), I'm dubbing statements such as this the "Palin Flub", where she says things that lend themselves to unflattering interpretations while nonetheless managing to air concerns that are uncommonly on point and candid for a politician.
Those concerns are well-identified upthread. The claim that she would expect a first-amendment right to be free from criticism is at odds with her behavior, such as appearing on SNL, and by all accounts being gracious about it. Fey has likely done more damage to Palin than any number of media stories.
Bush/Qualye's misspeaking wasn't nearly this interesting.
The short version is this: Obama and his followers have a documented history of retaliating against those who oppose him. And this retaliation does not take the form of substantiative discussion or argument; no, instead it's publically dragging the opponent through the mud.
If Obama is elected (God save us), you can expect to see the "Politics of Personal Destruction" raised to a fine art. Let's hope Obama never says, "Will no one rid me of this troublesome (fill-in-the-blank)?"
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Pair of jumbo-size ears
I've been really stunned by Obama saying things like "my opponent is a genuine war hero who served his country but he supports the wrong economic policies." I mean, some forms of discourse should simply be off-limits in a civilized society.
I'd be careful, Chem_geek, about posting on the internet, even anonymously. You're leaving a trail and Obama's going to get you. On the other hand, I have a lot of respect for your courage and bravery.
Today, in Seattle a progressive paper/website published photos of homes displaying GOP signs - along with their addresses. An effort to chill speech if ever I saw one. But everyone can rest assured that these folks with their homes and addresses publicized in a left-wing rag still have a fundamental right of free speech. Only non-lawyer rubes would think otherwise.
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Bill of Rights: Alexander Hamilton, Federalist, no. 84, 575--81.
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And the rest, goes the saying, is history. A bit off the beaten path of what the 1st amendment represents, then again, maybe not. What is the power of the Federal Government to regulate the press? There is NONE expressed in Article I.
She had a limited space to craft a sound-bite and she did some editing to get the story told in a fashion that wouldn't put the reader or listener to sleep.
(sigh). Well, if we are going to look at the actions of a few irresponsible followers, then perhaps we should look at what's going on in Virginia. Leaflets have been found distributed that state the Republicans vote on Tuesday, and Dems vote on Wed.
Clear evidence of voter fraud, and the FBI is currently investigating to find out who.
Then there is the sabatage of the No on Prop. 8 website, whereby the website was hacked for almost two days, prevening people from donating money to the cause. Again, that's illegal, and the FBI is investigating the matter.
So if you want to tally up which side is actually doing illegal acts in order to change the outcome of a vote, then you have to concede that the Republicans are guilty. What sort of country will we have if they win?
I happen to know. It will look like Bush's country. and we all know how popular that is....
I don't know, the Democratic Secretary of State of Ohio is doing her best to prove her absolute contempt for a fair election in Ohio.
And please, anyone who actually believes "Republicans vote on November 4, Democrats vote on November 5" really is too stupid to register to vote in the first place--or even walk and chew gum at the same time.
I see the logic of your argument, but it still really boils down to two potential issues:
A) The press is interfering with Palin's 1A rights.
B) The press is interfering with Joe's 1A rights.
When you say, in the context of this discussion, that "an Obama presidency would be worst for the First Amendment than a McCain presidency," you have to be talking about either A and/or B. In other words, when Palin tells us to be afraid of what Obama will do to 1A, she has to be talking about A and/or B. Because while people can and do imagine other issues (like FD), that's not what she references in her statement.
In other words, your problem is that Palin did not say this:
She didn't say that, and her words can't possibly be construed that way. They can only be construed in terms of A and/or B, above.
The problem with B was very clearly expressed by cboldt:
(cboldt, you're making a bunch of statements in this thread that I think capture the legal issues very clearly and correctly. Like this statement of yours that I just cited.)
The press can say what they like about Joe, as long as they don't defame him. And they cannot defame him if nothing they say is false. And there's certainly no proof they've said something false about him.
And the problem with A is basically the same, but even worse (for Palin). The press is certainly free to attack politicians, candidates and government officials (under constraint only by the law of defamation, which is not a strong constraint). In fact, that's the key function of a free press. Palin seems to be saying that politicians are entitled to "ask questions without fear of attacks by the mainstream media." That statement is terrifyingly wrong.
Exactly.
I think you might be right, but I also think that democracy has no future if you're right.
See also Judith Miller.
See also NYT holding Risen's FISA story until after the election simply because Bush asked them to. That darn liberal NYT.
But thank goodness we have bloggers, who are nothing like that at all! (Doing my cheap imitation of the incomparable sarcastro.)
The government employees who did that did wrong. They should be punished, and there are signs that they are being punished. But this issue is being exploited to direct attention away from the other issues. It's a bit like the way Rather's TANG documents served Bush by directing attention away from Bush's very real TANG issues.
Your "predicated" is a key word, and I believe it's incorrect. The key facts about Joe (like the fact that he is not licensed) were going to come out one way or another, whether or not government employees were improperly snooping on him.
And cboldt made a point that's important and correct: even if certain information was obtained via this bad behavior by government employees, the press is still free to publish it.
Take a look at this person:
It disappoints me greatly to notice that VC never wrote about this (as far as I can tell).
Something else that VC never wrote about, as far as I can tell.
But various people (especially cboldt) have explained that the press has a perfect right to "go after an ordinary cit like Joe the Plumber." As long as they don't defame him, which has a specific legal meaning. And the freedom of the press to "go after" him is expanded if he has willingly become a public figure, and Joe has indeed done so.
Wrong. Joe went far beyond just being just "a guy minding his own business on his front lawn," when McCain adopted Joe as the official campaign mascot. With Joe's enthusiastic consent.
A key event was McCain using Joe as a central prop in the debate. Most of the media spotlight on Joe happened after this event, not before.
In both situations, there were certain acts that are defensible, and certain acts that are not. For example, with Joe, it is clearly wrong for government employees to violate statutes in order to snoop on him.
In the Frost situation, a complication is that the target was a 12-year old. For example, Rush said this: "They send the kid out to lie… They filled this kid's head with lies." Is that a fair thing to say about a child, especially in the absence of clear proof? I don't think so.
Malkin personally got close enough to their house to write about a bumper sticker they had on their front door. Is that pretty close to physical stalking, and an invasion of privacy? Yes, I think so. Especially if she went onto their property, and I think she did. If she didn't, then maybe it's OK.
Malkin also personally visited the father's place of business, and interviewed people. Is that obnoxious? Yes. Do we notice any lefty bloggers walking up to Joe's front door? Or interviewing his customers and business associates? I don't think so.
It's not exactly that she's claiming a universal, flat, "first-amendment right to be free from criticism." What she seems to be saying (via her words and actions) is more like this:
It's painfully ironic that certain 'libertarians' are up in arms about how Obama will allegedly kill 1A via FD, while Palin is showing various signs of being a much greater threat to 1A.
In a word: bullshit. Take a close look at VC threads here and here.
Like, say, accusing your opponent of being anti-American, and a socialist? Or being a traitor who would rather lose a war than lose an election? Is that what you mean by "dragging the opponent through the mud?"
jem:
See above.
randy:
But in this instance there isn't even any evidence of acts by "irresponsible followers." What happened is a reporter made shit up, and then a bunch of "irresponsible" bloggers decided to run with it. And some are still running, as we can see.
It's beyond odd to claim that someone who puts a sign in their yard is interested in hiding their political preference from the general public.
I'd also love to see you draft the statute which makes it illegal for that paper to do what they did. See if you can draft that statute without violating 1A.
By the way, do you know that here you can enter your zip code and find out the names of your neighbors who gave money to certain candidates? Should this information be hidden? Is there a problem if someone prints this information in a newspaper?
Speaking of astroturf, what ever happened to McCain's effort to get people to spread his talking points on blogs?
English translation: 'it's too painful to contemplate the reality of what she said, so let's just pretend that what she meant was something quite different.'
By the way, her priorities are messed up if she thinks that entertaining her audience (and making sure they stay awake) is more important than speaking clearly and correctly about 1A.
And your claim about "limited space" is a fantasy you've invented. She was doing an interview. No one was rushing her or editing her. The words she spoke are the responsibility of exactly one person: her.
Prove it.
That's arguable. And even stupid people have a right to vote. Someone who suggests otherwise is something worse than stupid.
But when you read the police interviews, where this threat was described by Sarah and Molly (Sarah's sister), we find out certain important facts. We find out that Sarah had no personal knowledge of such a threat. Only Molly heard this alleged threat. And more importantly, Molly admitted it was a political threat, not a threat of violence:
In other words, Molly alleged that Wooten threatened to say bad things about Sarah, that would hurt her politically. It's obvious that he has a 1A right to do this, right? It's also clear that Palin used the power of her office to punish him for doing this, or for (allegedly) threatening to do this.
Why are libertarians not screaming bloody murder about this? And this detail of Troopergate, which I think is pretty important, is completely overlooked in the press (and in the world of both lefty and righty blogging, for that matter).
It would interest me greatly if anyone can find a single instance of this fact being mentioned in the press or on a blog: the fact that Palin routinely accuses Wooten of threatening her, even though Molly admitted it was a threat of political speech, rather than a threat of violence. And that Palin used her office to punish and/or silence someone for (in part) threatening to speak against her politically.
I think her first choice would be Ashley Todd. I think her second choice would be this guy. Or maybe this guy.
13 posts in a row. Thank goodness for you this is not a Bernstein thread--particularly since they all appeared after David Bernstein's warning.
As to your critique of my post--I think the evidence is fairly clear regarding the Ohio Secretary of State and her actions this year. I am certainly entitled to my opinion on the matter and I believe the utter contempt she has displayed toward the electoral process speaks volumes.
As for the remainder of my comment, you quote me as saying:when I actually saidContext is everything, which is something you willfully ignore--and selective editing is a favorite tool of yours.
Oh, and I never even suggested that stupid people shouldn't be allowed to vote, but thanks for the sneering strawman argument. I was actually commenting on the idiocy of Randy R's overwrought concern.
Whenever I hear someone say this, I know that person is a partisan nitwit who lets Moveon.org do his critical thinking for him.
Joe goes by his middle name. So does my son. So did my grandfather. So does Senator Ben Nelson. So did Woodrow Wilson. So does Paul McCartney. So do tens of millions of people in this country.
You guys trot this argument out as some kind of "gotcha!" that negates the significance of Joe's question to Barack, and Barack's hugely stupid answer to that question. Sorry, it means nothing except that you are a partisan asshole for even bringing it up.
The nit-pickers here are technically correct that intimidation tactics by the media are not First Amendment issues. But they are legitimate free speech issues.
If her primary audience was a pack of lawyers looking for legal laser-precise definitions, then I'd consider her way of speaking on this a failure.
But most voters can and will conflate specifically first amendment issues with the more general idea of free speech. And to such a person her statements make perfect sense.
Of course it goes without saying that if the media were this willing to go after fine legal distinctions like this when Obama was the target, not even his lawyer training would save him from the unblinking stare of the gaffe-light. But fortunately for him the opposite is true.
She was clearly referring to herself in the sentence quoted. And if her argument is as you set it out, she gets an F in logic:
Premise: It's bad that the press goes after a public figure for doing A.
Conclusion: Therefore it's really bad when the press goes after a private figure for doing A.
How does the one follow from the other?
Because what amount of scrutiny is reasonable differs based on weather the person is a public or a private figure. This distinction is real and even has a well-established legal foundation.
I think you might be right, but I also think that democracy has no future if you're right. --
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"A Republic ma'am, if you can keep it." When a government conforms to democracy, its future is a loss of self-government by the people. That the American public is ignorant of this bodes ill for their heirs.
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I agree completely. When the audience has been conditioned to use the wrong meaning, or to accept certain incorrect "connections" (e.g., 1st amendment is chilled if the press is a bully), then you use the [incorrect] terminology that is the common vernacular. If she adopted a technically-correct form, the message would be corrupted.
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She's conducting a casual conversation, and scoring points against a press that is hackish, and a Democratic opponent who will use public discomfort to stifle individual will to speak out. Her audience gets those points, and that's all that matters in the exchange. I chalk that up as "success."
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As for her substantive point, the bullying is similar to blackmail - "If you tell such and so (if you publicly oppose me), then I'll make your life miserable (using only legal tools)." I say similar to blackmail, because the threat, and carrying it out, are perfectly legal. And because the threat, and carrying it out are not government action, there is no 1st amendment violation. In politics (indeed, in much of life), the tough asshole wins, and the timid good guy loses. Not fair, but that's life.
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The press is also under no obligation to obtain accuracy or to be honest. I've had more substantive interactions with press than I care to admit, and of that (several at least), the press got the report correct ZERO times. All that to say that being biased or sensational or whatever it takes to sell words, all that dishonesty is fair game - including adopting a politically partisan approach while denying it. Would you trust a rattlesnake in your sleeping bag? If not, why trust the press to form your beliefs and opinions? Use skepticism, and where the issue is important to you, use caution.
The nit-pickers here are technically correct that intimidation tactics by the media are not First Amendment issues. But they are legitimate free speech issues.
If her primary audience was a pack of lawyers looking for legal laser-precise definitions, then I'd consider her way of speaking on this a failure.
But most voters can and will conflate specifically first amendment issues with the more general idea of free speech. And to such a person her statements make perfect sense."
This seems to be a pretty good argument as to why Palin should have been more precise (if, in fact, she had any idea of what she was talking about).
If she misspeaks in front of lawyers, most of her audience can judge the accuracy of her statements for themselves. If, however, she does it in front of those who do not have the ability to discern, they are likely to make the reasonable assumption that she, as a candidate for the Vice Presidency, knows the basics of the Constitution and therefore they will be misled by her statement.
There's always the chance that her goal was to mislead, but I think it more likely that she doesn't understand what the First Amendment means.
If we love our democracy and freedom then more of us better get upset with how poorly we are being served by the press. As it stands now, most of the MSM is pissing on our legs and they are telling us its raining.
Thats just my two cents... but what do I know..... I only have a GED.
i recall the same thing with abortion doctors and clinic employees. where was the conservative outrage then?
Here a simple question was asked and a simple answer given, the answer is parsed to death by people who have never met or even talked with the speaker, and then numerous and voluminous conclusions/opinions are prounded about the ignorance and lack of qualifications of one who is not an attorney or legal scholar steeped in constitutional law.
Give me a break. Exercise your First Amendment right, but for God's sake try and keep things in perspective.
To answer your rhetorical question: I don't like many of the anti-abortion tactics, although I'm pro-life. Many of them, like the one you cited, don't do a thing to stop abortion, are not aimed at bringing the underlying evil of the procedure to light, and only engender more opposition to abortion.
Without more specifics (such as where the anti-abortion protesters got the names and addresses of abortionists), I won't say anything aside from: stupid, cruel, unnecessary, and counterproductive.
There is an issue with Joe the Plumber that is not present in the abortionist scenario, though: Joe is exercising the most fundamental of rights in a free society: questioning a government official. The action taken against a private citizen who is a threat to a presidential candidate was also done by the government - i.e. snooping through his records. Only then did private action come in again, when the media reported on it. Unlike in the abortion situation, there are a lot of issues of the government bullying private citizens.
"Palin has no understanding of the first amendment and as such is unqualified for office."
Actually, I think her evident understanding (in this case, at least) is an illuminating illustration of the extent to which "chilling effect" and "hostile environment" interpretations of the 1st Amendment have seeped into the vernacular.
Hopefully persons who would turn Roberts or Alito into the swing vote.
Fixed it for you.
So by using your same standards, should I now proceed to prove Obama is a socialist? Or is this a case of double standards being twice as good?
"She doesn't understand, like millions of Americans who have no business running for federal political office, that the Constitution only regulates (with rare exceptions) state actors."
I agree that if this is the premise one starts with, one can read her statement to further confirm it. If not, there are other construals readily at hand. It is safe to say that she needn't concern herself with any ABA endorsements in the near future.
The government employees who did that did wrong. They should be punished, and there are signs that they are being punished. But this issue is being exploited to direct attention away from the other issues. It's a bit like the way Rather's TANG documents served Bush by directing attention away from Bush's very real TANG issues.
I don't think the issue of Joe's records being access is being exploited. The issue ofJoe's plumbing status has been discussed and will continue to be discussed if people so choose. But the issue of public employees in Ohio accessing Joe's records is also newsworthy in its' own right.
And cboldt made a point that's important and correct: even if certain information was obtained via this bad behavior by government employees, the press is still free to publish it
Agreed. And the press seems to be doing a very good job of following the conduct of government employees. For example, the press is now reporting that the employee who did the child-support check on Joe the Plumber was told by a supervisor "the man [Joe] had contacted the state agency about his case." Of course, that reason appears to conflict with the reason given by Ohio Department of Job and Family Services Director Helen Jones-Kelley:
"Our practice is when someone is thrust quickly into the public spotlight, we often take a look" at them...."
Me thinks that Joe the Plumber will be contacted to see if he requested his records be checked. If he did not request that check, then the person who indicated that Joe the Plumber had requested the check (who I believe is Carrie Brown, assistant deputy director for child support) is going to be in a world of hurt, so to speak.
The Ohio executive branch controlled by Democrats did some deep digging into Joe's files. Here is the story. It looks like it might be developing into a illegal activity and cover-up story by government officials.
David Hecht wrote, wolfefan: you know nothing about me, so--for all you know--I said the same thing about that kid. And in fact I did--just not in a public forum: I told my conservative friends that we should be above that sort of thing.
However: on a more substantive level, the kid was *the Democratic Party's spokesman* in response to the SOTU: not exactly like a guy minding his own business on his front lawn, right? ISTM if you're going to volunteer to be a spokesman for a major party in response to a major presidential address, that kinda puts you in the arena--which then makes you a fair target.
But in any event, if you thought it was wrong when the Repubs did it, then you obviously must agree it's wrong when the Dems do it--right?
No, David, I know nothing about you. That's why I asked. There are others here whom I wouldn't have had to ask about. When it happened to the kid, you complained privately to your conservative friends. When it happened to the grown man, you complained here in a public forum. (That's not a dig - I haven't searched the archives to see if there was a thread on the kid here for you to complain on and I don't think it was incumbent on you to search for such a forum. Just a statement.) I'm glad that you have consistent standards.
I take your question to me seriously. I agree- when one agrees to let oneself be used in these ways, one is open to legitimate investigation. I hope we agree that while the 12-year old was the face of the argument, he should not be held accountable in the same way a grown man is. I don't expect the kid to know the family's financial circumstances. The kid's parents, who allowed him to be used in this way, are fair game. (I'm not sure Joe's just a guy minding his own business, but that's a minor quibble. If McCain elevated him as he did without Joe's permission, I would have serious trouble with that, and I hope you would too. FWIW, Joe doesn't seem to be complaining.)
Where the cases diverge for me is that based on the link posted above, the original reports on the kid were a) from anonynous bloggers and b) essentially incorrect or incomplete. Mark Steyn didn't check and ran with the original, incomplete version, which gave it credence beyond what it deserved. (I don't know if he ran a retraction or not; I doubt it, as Steyn strikes me as one of those guys who is never wrong.) Joe the Plumber's stuff has been from reporters with bylines that allow for accountability, and have correctly shown that Joe is not as he presented himself (or perhaps more accurately, he is not as McCain presented him.) Joe himself appears to confirm this, saying that he would not in fact pay more under Obama's tax proposals.
I agree with the general principle that those who allow themselves to become spokespeople or examples of a particular situation are opening themselves to appropriate investigaton. The results need to be reported fairly and accurately and by people who can be held accountable. This seems to have happened in Joe's case but not in Graeme's.
Thanks for answering, and for the opportunity to respond.
It was 43 pages long.
Good strategy, changing the subject when you're so obviously losing the argument. Of course, Palin is obviously a socialist too, redistributing the oil companies money to Alaskan residents.
Back in 1803 the pages were small and the typeface was large.
Actually the opinion itself is about 9K per my handy, dandy word counter in MS Word.
In contrast, and though I readily admit that comparing case lengths is not and never can be a true "apples to apples" comparison, Buckley v. Valeo runs about 90K (and this was before the advent of word processing software). Heck, even contemporary run-of-the-mill opinions oftentimes make Marbury look positively "sparse".
Not that I can prove it, but I suspect that as technology advances people will long for the day when opinions were only as long as Buckley.
By the way, with my default MS Word page settings Marbury comprises about 19 pages, whereas Buckley is somewhere in the neighborhood of about 150 pages.
"MLS: Marbury was over 15,000 words long."
But they were extraordinarily short words.
BTW, I have ordered a set of the commemorative plates, the ayers freshener, a fine-gold necklace, and a rogue t-shirt.
Yes, Buckley is a tad long. I can only wonder, however, what would have been the length of Kelo had Justice Marshall of Marbury fame written the opinion back in the early 1800's? I rather suspect it would have comprised a short recital of the facts, an answer to the legal question before the court simply consisting of the words "Of course not", and concluding with "reversed". Doubtless the opinion would have been unanimous.
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See too, the contrast between Miller and Heller, both in length, but more importantly (as with Kelo), in substance.
I think that means you've managed to not stumble across some of my lamer jokes and puns.
I appreciate your hospitality, and I also appreciate you speaking up and offering this very reasonable suggestion. I will take it.
It turns out that a few people have said they like the way I batch my comments. Example:
I think I've heard this both from people who like the way it makes my comments easier to read, and also from people who like the way it makes my comments easier to skip.
However, I think your observations about the downside are quite correct. So I will try to be more sensitive and moderate in my use of this technique.
Not my overwrought concern. It is Republicans who keep howling about voter fraud as though only Democrats do it. My point was merely that Rebpulicans are capable to committing voter fraud as well. You may disagree that their tactics are effective ( not knowing that you can't vote on a Wednesday) but that hardly excuses the attempt to influence the outcome of an election unfairly.