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| Hot Type, for the week of July 1, 2005 -- continued When journalists lost Branzburg v. Hayes in 1972 the courts and the media alike read into the opinions of a divided Supreme Court some sort of right to protect sources. The balloon didn't burst until 2003, when the Seventh Circuit's Richard Posner seized an opportunity to declare that Branzburg did no such thing. Posner's sidekick Easterbrook just made the same kind of move. Hazelwood was another defeat with a silver lining, in this case a footnote: "We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level." Easterbrook wrote, "Picking up on this footnote, plaintiffs argue, and the district court held, that Hazelwood is inapplicable to university newspapers. . . . Yet this footnote does not even hint at the possibility of an on/off switch: high school papers reviewable, college papers not reviewable." On the contrary, he wrote, "Hazelwood's framework is generally applicable and depends in large measure on the operation of public-forum analysis rather than the distinction between curricular and extracurricular activities." Though Judge Conlon had written that the defendants conceded the Innovator was a public forum, Easterbrook felt the question needed plenty of analysis of his own. Why? Not to contradict Conlon, which in the end he didn't do. And not to cut through confusion, which would have been his job if he'd been reviewing an actual trial. The issue here was whether Carter should even stand trial, and Easterbrook wanted to demonstrate how murky everything was. "Many aspects of the law with respect to students' speech, not only the role of age, are difficult to understand and apply," he wrote. "Public officials need not predict, at their financial peril, how constitutional uncertainties will be resolved." So he gave Carter qualified immunity from liability, letting her off the hook. Unless Porche and Hosty wangle a hearing from the Supreme Court, their suit is over. And the college press must beware: Hazelwood is now inside the gates. News Bites
Jacob said Dick Durbin should have learned a long time ago that people who played the "Reich card . . . have looked darn silly." But have they? In War Made Easy, a new book by media critic Norman Solomon, there's a chapter called "This Guy Is a Modern-Day Hitler"; it begins, "Evil that warrants the large-scale killing of war needs a face." Solomon's point is that invoking the Führer primes the pump of martial enthusiasm. Durbin's biggest mistake, you might find yourself thinking, is that he used Hitler to criticize a war instead of to start one.
Kelo v. New London, the eminent domain case that made the two Tribune columnists, their paper's editorial page, and lots of other people very unhappy last week, shows how little "liberal" and "conservative" mean in the context of constitutional law. Justice John Paul Stevens, who wrote the opinion for the 5-4 majority that voted to uphold Connecticut's supreme court, probably thought he was applying state laws and federal precedents as he found them. (Of course the Supreme Court majority always claims to be applying precedents as it finds them.) In his dissent, Clarence Thomas admitted as much. "Today's decision," he wrote, "is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity." Stevens invited states unhappy with the court's position on eminent domain to write stiffer restrictions of their own. Thomas said to hell with the states: "A court owes no deference to a legislature's judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property." George Will saw the irony. In a June 24 column, he noted that conservatives had been rooting for "judicial activism [to] put a leash on popularly elected local governments." But the activists lost. Which meant the liberals won? Will thought so. Whatever. Send tips, tirades, and comments to hottype@chicagoreader.com |
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Mark Jacob, the Tribune's foreign and national news editor, had a smart idea last week. "Furor over Der Fuehrer," a story he wrote for the Perspective section, demonstrated that "people of all political stripes have been throwing around references to Adolf Hitler and the Gestapo for years." Jacob made a list. On it was North Korea saying Donald Rumsfeld "put Hitler into the shade," Rumsfeld comparing an Arab terrorist to "Hitler in his bunker," Senator Phil Gramm calling a Democratic tax proposal "right out of Nazi Germany."