Today's newspapers carry the obituary for the somewhat accidental civil rights pioneer Mildred Loving, who died last Friday at 68. Loving and her late husband Richard were the plaintiffs in one of the most important civil rights cases ever to reach the Supreme Court. Their exquisitely- and aptly-named case, Loving v. Virginia, brought what was essentially an "equal protection of the law" challenge to a Virginia state law that not only banned but also criminalized interracial marriage. The court unanimously declared that Virginia's anti-miscegenation law was unconstitutional because it violated the Fourteenth Amendment's requirement that state laws not discriminate on the basis of race.

The Supreme Court's decision in Loving was a triumph for not only the Lovings, but for the rights and freedoms of all citizens: it determined that states could not prohibit people from marrying whomever they loved just because they happened to be of a different race. Though the Lovings lived in Virginia, they got married instead in Washington D.C., which did not have an anti-miscegenation law. However, Virginia's law provided that out-of-state interracial marriages were invalid in Virginia. Several weeks later, on July 11, 1958, the New York Times reports, they were arrested in bed for having violated Virginia's Racial Integrity Act. After they pled guilty, they moved to Washington to remain together, but eventually "could stand the ostracism no longer." The ACLU brought their case to the Supreme Court -- and, nine years after they were arrested, the Lovings won.

The entire nation owes a huge debt to Mildred Loving, an unassuming litigant who wanted to marry and live with the man she loved -- and to do so in the community she called her home. Several years ago, at the height of the controversy centering on the Massachusetts Supreme Judicial Court's decision declaring marriage (including gay marriage) a right protected by the state's constitution, I wrote in the Boston Phoenix that the road to equal marriage rights in Massachusetts was paved by Mildred and Richard Loving. The Supreme Court was right in 1967 to ensure marriage rights to interracial couples, and the Massachusetts SJC was right in 2004 to ensure marriage rights to same-sex couples. Our society has come a long way since the time of anti-miscegenation laws, but anti-same-sex-marriage laws like the federal Defense of Marriage Act infringe gay Americans' rights just as fundamentally as Virginia's old law once did. And when one group of citizens is treated differently under the law from others, for no demonstrable reason based in logic and experience, equality under the law cannot be said to prevail. I predict that someday courts all throughout the country will recognize that these laws raise very similar constitutional questions as did the law challenged in Loving v. Virginia. For that, the Lovings will again – or still – merit our thanks. May these modern-day heroes for liberty and equality rest in peace.

If you doubt that Alice in Wonderland is the best primer available for understanding the legal system, you might read Tony Mauro's latest piece in the Legal Times. The Supreme Court just denied certiorari in the case challenging the government's warrantless wiretapping program, meaning that though it didn't make a decision as to the merits of the case, it couldn't muster four judges who wanted to consider the legal questions. As a result, according to the federal Ninth Circuit Court of Appeals, you cannot bring a lawsuit to redress unconstitutional government eavesdropping on your phone conversations if you cannot prove that they listened in on you. But of course, you cannot prove they listened in because the evidence that would support your case is secret! It's a complete circle!

Actually, Alice in Wonderland isn't the only piece of fiction that sheds light on the legal system. Charles Dickens likewise hit the nail on the head in Oliver Twist: "The law is a ass, a idiot." But there's reason behind this judicial and executive branch madness -- to keep We the People ignorant of what's being done to us in the name of "protecting" us. With more protection like this, our democracy will be undone.

I received a few e-mails yesterday from civil libertarian colleagues grumbling about the interview Antonin Scalia gave to BBC radio yesterday in which the Supreme court justice seemed to advocate mild forms of torture in a “ticking time bomb” scenario. Reuters has a good wrap-up here. Some have gone as far as to call for the associate justice’s impeachment for discussing in the news media matters either before the court or likely to arise in the near future.

Scalia’s conversation with the BBC seems to me, frankly, a reasonable, or at least arguably acceptable interview for a SCOTUS justice. He uses the term “so-called torture.” Some have taken umbrage, including me. But it’s technically true that some call, for example, waterboarding torture, and so, yes, it’s “so-called” by some. His views might be extreme, but the great American conversation surely has room for extreme constitutional views. He makes a distinction, for example, between pain inflicted as punishment, and pain inflicted coercively in order to get allegedly life-saving information out of a captive. It’s not a view most of us would like to see associated with American constitutional values, but it’s not beyond being laid on the table.

There is considerable controversy, and disagreement, over the extent to which a SCOTUS justice should lay out for public consumption his or her views on the great questions of the day, except in a formal, published court opinion. But, on the other hand, we want our public officials, including out judges, to be more transparent – hence, for example, the quest (thus far rejected by the justices) for television cameras in the Supreme Court argument chamber. On balance, I’m in favor of our getting to know our justices better.

I fear we may be dealing with a knee-jerk situation here. Many civil libertarians loathe Scalia because of his conservative stances on abortion and gay rights, but their animosity is somewhat misguided. As Scott Turow pointed in his thought-provoking New York Times Magazine piece “Scalia the Civil Libertarian?":

“In Kyllo v. U.S (2001), Justice Scalia, writing for the court, deemed police use of heat-seeking technology to detect whether marijuana was being grown inside a house a violation of the Fourth Amendment’s prohibition on unreasonable searches. In a 2004 opinion, Scalia spoke for a court majority in finding unconstitutional the widespread practice of using recordings or prepared statements to the police as a substitute for the testimony of unavailable witnesses. And last term, supported by the court’s four more liberal justices, Scalia held that a defendant wrongly deprived of the lawyer of his choice gets a new trial, no matter how overwhelming the evidence of his guilt.”

In truth, what irks me about interview is not Scalia’s statements on torture, but rather the continued discussion of the “ticking time bomb” fallacy. This is an utterly unrealistic (has it ever happened?) theoretical scenario that makes it sound like the use of torture is really justified. In fact, as I suggested a few years ago in a Boston Phoenix column in which I take on Professor Alan Dershowitz’ similar argument, it’s a bogus example with a much more sensible solution than the institutionalization of judicially-authorized “torture warrants.” So my problem with Scalia’s mouthing off on torture is not his giving the public a better idea of his views, but my difficulty in getting him to debate me, because he’s simply wrong.

By Harvey Silverglate

Sometimes, as Sigmund Freud put it, a cigar is just a cigar. And, likewise, sometimes words in the Constitution actually mean what they say. Much brainpower, however, has been expended trying to argue that the First Amendment, which admonishes that “Congress shall make no law…abridging the freedom of speech, or of the press” [emphasis added], actually doesn’t mean what it appears to say. And, similarly, we are now in the midst of a national (and judicial) debate over whether the Constitution’s protection of the writ of habeas corpus – a cornerstone of the historic rights of Englishmen and of Americans – really means what, in quite clear terms, it says.

Yesterday the Supreme Court heard arguments in the combined cases Boumediene v. Bush and Al Odah v. Gates, which touch on this momentous question: Can the United States government escape the seemingly clear language of the Constitution’s habeas corpus guarantee by shipping people to the gulag at Guantanamo Bay and then providing so-called “combatant status review tribunals,” run entirely by the military, as a supposed substitute for habeas corpus hearings conducted by the federal courts?

Article I, Section 9 of the Constitution seems pretty clear: “The Privilege of the Writ of Habeas Corpus shall not be suspended, except when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas Corpus, under ancient English law inherited and adopted by this country, guarantees that any prisoner has the right and opportunity to petition a court to seek a release order. The court is then obligated to order release unless the jailer is able to show the court that the incarceration is lawful. This is what makes any prison system operated by our government subject to the rule of law – the jailer has to come into court and explain under what lawful process and charge the prisoner is being held. It distinguishes American prisons from the gulags found in dictatorships around the world. In the England of old, habeas corpus limited even the power of the king to arbitrarily lock up those in royal disfavor.

Well, Congress and the Bush Administration take the position that the right of habeas corpus should not be made available to prisoners at Guantanamo, even those already held without trial as long as six years and still counting, because the military tribunals provided them somehow are an adequate substitute for habeas corpus. What is the legal justification for this argument that kangaroo court military hearings are an adequate replacement for real judicial hearings in a real court? The Supreme Court foolishly ruled in 1977 in Swain v. Pressley that the writ of habeas corpus does not need to be made available to detainees so long as they have an “adequate and effective” substitute allowing them to raise similar claims, even if not wholly within the formal habeas petition structure. So the question is whether the military tribunal system cooked up by the Bush Administration furnishes such a reasonable substitute in the Guantanamo enclave.

In its brief for yesterday’s arguments, the Administration argued that the kangaroo court system provided by the 2005 Detainee Treatment Act is an “adequate and effective” substitute, which it is plainly not. Of course, the government also argues – and Justice Scalia will undoubtedly agree – that habeas does not extend to Guantanamo, even though the court definitively settled that the answer to that question is “yes it does” in 2004’s Rasul v. Bush. These two curious arguments are further explained in this online write-up of the case.

Besides the administration’s bad faith interpretation of the law of habeas, the answer to the central question posed in Boumediene would appear to be quite simple to any citizen with an IQ at least as high as his or her age. But, from all reports, the Supreme Court is close to being divided on this question. For those of us who take seriously the Constitution – and the plain meaning of the words of the English language, in which the Constitution is written – these petty squabbles about what the phrase “shall not be suspended” means are quite remarkable. There may be some vague language in the Constitution, but the habeas corpus clause does not seem to be an example. How can it be, then, that the conservatives on the high court, who normally can be found bleating about liberals’ failure to follow the “strict construction” of the “plain language” or “original intent” of our founding document, are suddenly going out of their way to twist and turn in order to escape the obvious import of the habeas corpus clause? It seems to me, to use a syllogism, that combatant status review tribunals are to habeas corpus, as Hustler Magazine is to real sex – a rather pale imitation.

Stay tuned for whether language, not to mention common sense and the lessons of history, has any real meaning in our age, and whether, to paraphrase the late Lillian Hellman (commenting on the tendency of some leftists during the McCarthy period to denounce friends and associates as Communists), the plain and tested meaning of ancient laws is to be tailored to meet the fashions of the day.

By Harvey Silverglate

The media has been abuzz today with the Senate Judiciary Committee’s discomfort with Attorney General nominee Michael Mukasey – and his refusal to opine whether waterboarding (the interrogation technique widely reported as used by CIA interrogators to wring information out of suspected terrorists) is illegal or unconstitutional. Whether waterboarding works – that is, provides accurate and reliable information – is immaterial to questions about its illegality; nonetheless, it is abundantly clear to everyone outside the administration that waterboarding is, in fact, illegal.

Mukasey has a strong professional interest in not answering the question. Back in the summer of 2004, I wrote in my Boston Phoenix “Freedom Watch” column that the infamous “torture memos” had been drafted to allow interrogators to defend themselves, if they are prosecuted under the statutes that criminalize torture, by claiming they had relied on the good faith advice of counsel. (Such prosecutions would only occur if the immunity Congress has granted to interrogators – in the Military Commissions Act and the Detainee Treatment Act, according to Yale Law professor Jack Balkin – were revoked sometime in the future when the country comes back to its senses and its adherence to the rule of law.) The argument that the memos were written solely to give interrogators the operative cover of an advice of counsel defense was recently given additional credence in the memoir written by Harvard Law Professor and former Department of Justice lawyer Jack Goldsmith, The Terror Presidency.

By not taking a stand on whether waterboarding is torture, Mukasey is trying not to undermine any defense the interrogators might have. While interrogators could still rely on such a defense, a proclamation after the fact by the incoming Attorney General, to the effect that John Yoo’s advice of counsel was incorrect, would raise questions about whether it was made in good faith. An advice of counsel defense is valid only if the advice was given by the lawyer, and received by the client, in good faith.

But Mukasey’s evasions aren’t solely based on concerns over future liability for CIA interrogators. They are more transparent and laughable than the news media portray them, because he actually has effectively conceded – in not so many words – that waterboarding is torture. And he may not even know that he has done so.

He insists that he would define “torture” as conduct that “shocks the conscience.” Presumably he has deployed that vague definition so that the Bush Administration – and Republican Senators who must vote to confirm him – will figure that the legalities pose little threat to CIA torturers. After all, whose conscience are we talking about, anyway? Dick Cheney’s?

But here’s the rub: behavior that “shocks the conscience” is not as open-ended as it might appear. The formulation comes from a 1952 Supreme Court opinion, Rochin v. California, in which Justice Felix Frankfurter declared unconstitutional the harsh treatment lavished by California authorities on a suspect who swallowed his stash of morphine as he was arrested during a raid at his home. The officers took Mr. Rochin to a hospital, where, in the Court’s words,

"at the direction of one of the officers a doctor forced an emetic solution through a tube into Rochin’s stomach against his will. This ‘stomach pumping’ produced vomiting. In the vomited matter were found two capsules which proved to contain morphine."

The court determined that stomach pumping – a medical procedure commonly performed when someone attempts suicide by pills, or when a child accidentally swallows poison – violates the requirement that citizens be accorded “due process of law” as guaranteed by the Fourteenth Amendment to the Constitution. The court found that when done by police in search of evidence rather than doctors acting out of medical necessity, stomach pumping was too invasive to withstand constitutional standards of decency. Certain principles are inherent in the concept of “due process”, and stomach pumping crosses the line:

"We are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience…. this course of proceeding by agents of the government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation."

In Rochin, stomach pumping involved emptying the defendant’s stomach in order to retrieve morphine capsules. Similarly, waterboarding involves strapping the victim to a board – a rack? – and filling the victim’s lungs with water (producing the sensation, and eventually the reality, of drowning) in order to get him to answer questions.

So the Judiciary Committee should be putting this question to Mukasey: if stomach pumping “shocks the conscience,” can waterboarding be far behind? Are you really unable to decide if inducing the sensation of drowning by filling the detainee’s lungs with water shocks the conscience any less than making a prisoner throw up?

(Thanks to James F. Tierney for his assistance in preparing this blog entry.)

            Any publication that devotes itself to promoting liberty, like this blog, must stop for a moment to take note of the passing of one of the giants in the never-ending battle for freedom. Connecticut attorney Catherine Roraback died last week at the age of 87. While she left no survivors other than a sister who announced her death, she did leave an enormous legacy for which we all should be grateful.

            “Katy,” as she was known to friends and colleagues, was the brilliant legal strategist behind the test case Griswold v. Connecticut, which challenged a Connecticut statute banning the sale of contraceptives. The Supreme Court heard the case in 1965 and found by a 7-to-2 vote that the antiquated Connecticut law was an unconstitutional violation of a newly-conceived zone of personal, intimate privacy.

Griswold v. Connecticut announced the right of married couples to obtain contraceptives from their physicians. Roraback represented Estelle Griswold, the executive director of Planned Parenthood in Connecticut, as well as Dr. Charles Buxton, the head obstetrician/gynecologist at the Yale School of Medicine. After years of trying to engineer a strategy for testing a mid-19^th century statute criminalizing both the prescription and use of contraceptives, Griswold and Buxton, with Katy at their side, engaged in civil disobedience and opened a birth-control clinic in New Haven – this, in a heavily Catholic state and at a time when few would have dreamed that  the “due process of law” clause of the Fourteenth Amendment would include such a right.

            Katy’s Griswold strategy was brilliant, and successful, because it used as the opening wedge into the “zone of intimate privacy” area of the due process clause not only a married couple who wanted to enjoy sex without procreation, but also a clinic and a reputable physician who were fighting for the right to treat their patients without the state looking over their shoulders (or into the bedroom, as the case may be). This successful strategy was replicated later, through a series of high court opinions that legalized the prescription of contraceptives for unmarried couples, then the right of a woman to get, and a physician to give, an abortion, and, then, the right of same-sex couples to engage in intimate relations without the storm troopers bursting into the bedroom. As we in Massachusetts know, all of this groundwork led the Supreme Judicial Court of Massachusetts to declare same-sex marriage a constitutional right under the nation’s oldest state constitution.

            We can trace all of these rights in large measure to the brilliance, persistence and courage of this remarkable lawyer, who graduated from Mount Holyoke College in 1941 and was the only woman in her Class of 1948 at the Yale Law School.  Katy was a mentor as well to younger lawyers, particularly women trial lawyers who had a hard time breaking into certain legal fields traditionally closed to women, most notably criminal defense, civil liberties, and civil rights. Tough as nails, Katy represented not only establishment types like the head of obstetrics at Yale, but also the head of the radical Black Panther Party, Bobby Seale, tried in 1971 for the murder of another party member suspected of disloyalty (resulting in a mistrial).

            Katy Roraback will be deeply missed by many, but her legacy is constantly with us to remind us of what a single brilliant, courageous and persistent person can accomplish in a single lifetime.

Once again, the news media faces a “prior restraint against publication” imposed by the courts, yet few in that industry or elsewhere seem to understand the nature and impact of prior restraints and the true threat they pose. Contrary to common belief, prior restraints pose a more serious threat to Sixth Amendment rights (i.e., the right to a jury trial in a criminal cases) than to First Amendment press freedoms. Here’s why.

First, a basic definition: a prior restraint is a court order prohibiting a news reporter or media organization from reporting a particular story or publishing a certain document and, in the process, disclosing information deemed private or classified. In a typical case, publication of the information is prohibited by law (classified national security information, for example, may be protected from disclosure by the espionage laws); in theory, reporters and editors understand that, if they decide to publish, they risk breaking the law. But when the news organization accepts the risk and seeks to publish anyway–either because it believes the statute does not prevent it from publishing the information, or because it believes it has a duty to indulge the public’s right to know–some party may decide to seek a court order preventing publication. That party is often the government, or in some instances a private party, such as the fireman’s union in the imbroglio I describe below.

If the court issues the order, the court essentially says that it has (1) reviewed the statute, (2) reviewed the document about to be published, and (3) decided that, not only is the document covered by the statute, but also that publication would have a seriously deleterious effect on a vital, indeed overriding, public interest. Only if these conditions are met would the court be logically justified in issuing an injunction preventing the news organization from publishing or broadcasting the information.

This does not mean that, in the absence of a prior restraint order issued by the court, the news organization would be free of risk in publishing the information in dispute; instead, publishing it could still constitute a crime and expose the news organization, editors, and reporters to indictment, followed by a criminal jury trial. But the media, in the absence of a prior restraint injunction, would not be in violation of a judge’s order and hence would not be committing the additional crime of “contempt of court” by going ahead and publishing the information. It would be up to a prosecutor to decide whether to indict the media. The judge would have no control over whether a criminal charge is brought, and a jury, not a judge, would sit in judgment of the media at such a trial.

I am always suspicious about gag orders and prior restraints, since there is a great incentive for those with something to hide to use them to silence potentially embarrassing press coverage. In the latest installment of this farcical anti-free-speech campaign, Suffolk Superior Court Judge Merita Hopkins prohibited local television Channel 7–NBC affiliate WHDH-TV–from reporting the autopsy reports concerning two Boston firemen who died in an August blaze at a Chinese restaurant. According to the story recounted in The Boston Globe, and two reports in the Boston Herald, there are indications that one was drunk while the other tested positive for cocaine.

Prior restraints on publications–like the one Judge Hopkins ordered–are constitutional only when imposed for the most urgent of reasons: where there is solid evidence that publication would have an immediate and catastrophic affect on national security, for example. (There are also some limited circumstances where such injunctions are allowed, such as where a copyright violation is about to occur, since the copyright protection is, like the First Amendment, written into the Constitution.) The law on prior restraints is ably set out by a media writer and blogger who understands these things better than most judges and lawyers, Dan Kennedy.

But no media analysts have identified the most pressing concern about Judge Hopkins’ unconstitutional and ill-considered prior restraint injunction, which was properly and predictably overturned by an Appeals Court judge within hours. This abusive use of judicial power would have deprived the news media not only of First Amendment protection, but also of the right to a jury trial as guaranteed by the Sixth Amendment.

A newspaper editor, television producer, or reporter who possesses a document that is not supposed to be publicly available but yet has obtained it through lawful means (in other words, the newspaper was given it by a whistle-blower–who himself might have committed a crime by obtaining and disseminating it–rather than having stolen it) has committed no crime. If the document was clearly and explicitly illegal to publish, however, the newspaper or television station can presumably be criminally charged for violation of a statute prohibiting the publication of medical records, including autopsy reports. That would be done after the fact of publication or airing, when the district attorney could decide whether the action warranted a criminal prosecution. As a result, the news outlet, editor, or reporter would be entitled to a jury trial for the alleged crime. It would be up to the people, as represented by the jury, to decide whether the invasion of privacy outweighed the public's right to know and that the publication therefore merited criminal sanctions. The trial judge would instruct the jury as to the meaning of the statute, but the ultimate verdict would be the jury's.

As John Ellement reports in The Boston Globe, the District Attorney believes that this particular statute does not carry criminal penalties for violators. Accordingly, the news station and other media outlets that have published the autopsy information appear to be in the clear, insofar as a criminal charge is concerned. But assuming for the sake of argument that the district attorney were to bring charges, it is unlikely that 12 out of 12 jurors could be convinced to convict a reporter or editor for publishing a report that is so clearly in the public interest. Since a conviction would require the jury to unanimously agree on a guilty finding, the state would be unlikely to obtain a conviction no matter how many times it tried the case to a jury. Chances are there would be a "hung jury"–a jury that was unable to arrive at a unanimous verdict–nearly every time such a case were tried. And as soon as a jury was unanimous in acquitting, then the "double jeopardy" provision of the Constitution would kick in, and the case could not again be re-tried. In effect, there would likely be "jury nullification" of a silly law that serves to bury an autopsy report showing that firefighters may have died because they were intoxicated while on duty. That sort of information is self-evidently and unequivocally within the public’s right to know, and any law shielding its publication is clearly against the public interest and would not be sympathetically viewed by a jury.

This is how the criminal justice system should normally work. Judge Hopkins, however, circumvented this route, issuing an injunction against broadcast. So if WHDH disobeyed her and published the report, Judge Hopkins could hold the station (and the relevant producer and reporter) in criminal contempt. Under the law of criminal contempt, as enunciated by the United States Supreme Court, a defendant may be tried by a judge, instead of a jury, for criminal contempt provided that the judge imposes a sentence of no more than six months. (See, for example, the Supreme Court cases Lewis v. United States (1996), Duncan v. Louisiana (1968), and Blanton v. North Las Vegas (1989).)

Thus, by proceeding via a prior restraint order, Judge Hopkins made an end-run around the media’s right to a jury trial for its publication of a document that might violate the statute but the publication of which is clearly in the public interest. Judges tend to punish perceived violations of the dignity and power of courts, while citizens tend to focus instead on the public interest. (It’s an interesting aspect not only of separation of powers concepts, but also of human nature.)

A newspaper should have the option to decide, as a matter of civil disobedience, to publish a document that the law deems private, if the newspaper believes that publication is in the public interest and is willing to take the risk. The newspaper and its staffers would then have a right to a jury trial in the event they are charged criminally with violation of the statute. It is an improper violation of the media’s right to a jury trial for a judge to impose a prior restraint in order to usurp the power to convict the reporters and editors, and then to sentence them to up to six months in prison without a jury’s playing any role whatsoever.

Prior restraint injunctions, in other words, are not only an end-run around the First Amendment’s free press provision, but around the Sixth Amendment’s right to a jury trial as well. The profound decision to punish the news media for blowing the whistle on some story or document that the government would rather keep the people from learning about, should reside with the public whose interests are, ultimately, the ones at stake. History has shown that juries are far more reliable in making such judgments in the public interest than are prosecutors or judges–or self-interested public sector unions, for that matter. It is time to abolish the prior restraint injunction in all cases except the most obvious and dangerous national security instances.

The best example of an appropriate exception to the legal presumption against prior restraints was set forth by the Supreme Court in the 1931 case of Near v. Minnesota. As I recount in my book The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999), J. M. Near and his cohorts published a newspaper, the Saturday Press, which in an ongoing series charged that various political and law enforcement officials and power brokers in Minneapolis were part of a conspiracy to protect, rather than to investigate and prosecute, a Jewish racketeer. The state charged that the allegations were “malicious, scandalous and defamatory,” and it sought to “perpetually” stop the publication of future issues of the paper. Minnesota sought this result by enforcement of a state statute that established a procedure to prohibit, as a “public nuisance,” the publication of a “malicious, scandalous and defamatory newspaper, magazine or other periodical.”

The Supreme Court in Near established an almost insuperable obstacle to the issuance of prior injunctions against publication. It provided an example of a situation that might warrant a prior restraint: “in time of war a government might prevent actual obstruction of its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” This came to be called the “troop ship exception” to the rule against prior restraints.

Judge Hopkins apparently did not understand that a television news disclosure that two firefighters might have died because they were under the influence (one of alcohol, the other of cocaine), while on duty at the site of a raging fire, does not fall within the “troop ship exception” to the heavy constitutional presumption against prior restraints. Judge Hopkins, perhaps not trusting a jury to see it her way, decided to short circuit the station’s right to have a jury decide the question, by issuing a prior restraint. In the event the station decided to violate Judge Hopkins’ order, she could have imposed up to a six-month jail sentence for “contempt of court” without ever submitting the criminal contempt charge to a jury. Fortunately, the Appeals Court judge vacated Judge Hopkins’ order, thus protecting not only of the people’s right to know, but the station’s right to have a jury rather than a judge decide the ultimate question of guilt or innocence, were the district attorney to prosecute the station for violating a statute classifying autopsy reports as private medical records.

Will Judge Hopkins now be sent for remedial education in her duties and obligations to defend and protect the Constitution? Probably not. Being a judge, it seems, means never having to say you’re sorry.

(James F. Tierney assisted in researching and preparing this piece. His expert help is gratefully acknowledged.)

In recent years, the Senate has asked the Department of Justice—controlled by the executive branch—to enforce subpoenas and citations for contempt of Congress. I suggested that the Senate should simply bypass that procedure, instead using its inherent powers to hold the likes of White House advisors Harriet Miers and Joshua Bolten in contempt not only for refusing to answer questions, but moreover for the effrontery of failing to even show up! Under the ancient framework of legislative privilege and powers, the Senate could simply dispatch its Sergeant-at-Arms to arrest the recalcitrant witness and put him/her in the jail cell in the Capitol Building until testimony is forthcoming.

            I received a number of angry communications from fellow civil libertarians (and some administration partisans not so much interested in the civil liberties issue) excoriating me for suggesting that a witness should be convicted and locked up for contempt without a traditional federal court trial, but simply by a vote of the “kangaroo court” known as the United States Senate. These critics are misreading the issue at work here, because they don’t fully understand the procedure involved. Once a witness is arrested and locked up for contempt—with such incarceration aimed at coercing compliance with the legislative subpoena—that witness is not without recourse to judicial relief. The good old United States Constitution contains its much-honored guarantee of the ancient writ of habeas corpus, which allows a person unlawfully held to test his/her detention in the federal courts. The Constitution’s Art. I, Sec. 8, clause 2 reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” At that point, the courts would be able to rule on whether the equally ancient “inherent contempt” power of the legislative branch remains viable and, if so, what procedural protections must be granted to the recalcitrant witness.

            Under these circumstances, one would hope that All the President’s Men (and Women) might gain a renewed respect for habeas corpus, which they’ve spent so much time and energy seeking to destroy.

         Before the court this month is the disastrous McCain-Feingold Act of 2002, the most momentous and well-publicized, and also the most futile, of the many congressional efforts over the last thirty years to limit the extent to which money influences politics. In a 2003 decision that has been rightly derided by free speech advocates, the court by a vote of 5-4 upheld the constitutionality of the Act’s ban on “soft money” and on TV ads that mention a candidate for federal office within 60 days of a general election.

This time around, the court is debating McCain-Feingold’s exception for certain “issue” ads, which are not considered political endorsements when they do not specifically mention the name of a candidate. It’s difficult, if not impossible, to separate ads touting issues from ads touting pols who support those issues. The insanity of this murky attempted boundary is what has occupied an enormous amount of time of judges, bureaucrats, and lawyers – all without achieving any clarity. The constitutionality of this provision is being challenged by the nonprofit Wisconsin Right to Life, an anti-abortion group.  The FEC penalized the group last year for airing ads urging Wisconsinites to contact the state's two U.S. senators and tell them not to filibuster President Bush's judicial nominees. Because one of those senators, Democrat Russell Feingold (coincidentally, one of the campaign finance reforms act’s namesakes), was up for reelection, the group was told that the inclusion of Feingold’s name turned its grass-roots anti-abortion campaign into an "electioneering communication" that could not be legally aired before the election.

          As the Wisconsin Right to Life example proves, the McCain-Feingold act, although well-intentioned, clearly tramples on one of the most fundamentally important guarantees of the Constitution: the right for a citizen to criticize one’s government and to petition for what the First Amendment calls “a redress of grievances.” In my view, there needs to be a major shift in the debate over fair elections and a newfound emphasis on restoring some sense of voter and candidate equality and access to the system without sacrificing free speech. Lawmakers should repeal campaign financing restrictions and instead institute a modest system of public financing of campaigns. Every candidate who demonstrates his or her credibility by collecting enough signatures would be eligible for public money to run a campaign. The American Civil Liberties Union has been proposing a system like this for decades, thus far to no avail. What the current system has gotten us is not a diminution in the role of money in politics – that would be simply impossible to achieve in a free society – but, rather, a system where the benefits of incumbency are huge because current officeholders have so much more access to money and to the news media than do the challengers. If we want to throw the bums out, we need to open up the system by getting rid of McCain-Feingold and other such ill-considered and unconstitutional restrictions on the free speech rights of the electorate.

 Meanwhile, Congress should abandon this absurd notion that support for issues and support for candidates can, or should, be separated. Citizens and political groups should be able to vocally support candidates however they see fit.. Let free speech and fair elections both flourish.

When rules are written to cut off money in one arena, that money inevitably finds its way into the electoral system through a back door. It’s a constant game of cat-and-mouse. Only a strictly enforced publicly funded campaign system could put this tiresome game to an end and, incidentally, put some of the army of campaign finance lawyers out of business.

        We have had some form of campaign finance restrictions for many decades, with the restrictions becoming stricter and stricter with each attempt at “reform.” In order to assess the impact of this effort to “wring big money out of politics,” one has simply to compare the quality of our politics, our political discourse, and our office-holders, with each passing decade. I rest my case.