“[Attorney General Eric] Holder told POLITICO that between now and his departure… he will call for a lower standard of proof for civil rights crimes.” The Department has now confirmed that it will bring no federal civil rights charges against George Zimmerman in the Florida shooting of Trayvon Martin, and it is anticipated on many sides that it will eventually decline to bring such charges in the shooting of Michael Brown by Ferguson, Mo. police [Mike Allen, Politico]
By one estimate, “something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder’s new policy.” [Jacob Sullum, Reason; earlier] “Eric Holder’s Asset Forfeiture Decision Won’t Stop the Widespread Abuse of Police Power” [Jonathan Blanks, New Republic] “New Holder Policy Means Fewer Bal Harbours, More Motel Caswells” [Eapen Thampy, Americans for Forfeiture Reform] More: Balko, continued.
Good for Eric Holder. (And yes, that may be the first time I’ve strung those first four words together in that order.) He’s throttling way back on the “equitable sharing” program that has helped turn civil asset forfeiture into a national disgrace. A shame it’s taken this long, and that he didn’t end the program entirely.
Radley Balko praises the order as “a big deal” and notes that if effective, it “will stop local police agencies from circumventing state laws aimed at reining them in.” (If state legislatures want to allow abuse, on the other hand, the order won’t stop them.) But Balko also warns that the order is ambiguous about whether the exception made for joint federal-state task forces will be permitted, as at least one close observer warns, to swallow the rule. Many law enforcement operations have at least a passing contact with the federal government’s many programs, and if that is enough to get them exempted from the new order, business as usual may continue in the seizure of property from unwitting victims (or even under certain assumptions might things worse.) More: Roger Pilon, Jacob Sullum, Institute for Justice; lawmakers’ letter earlier this month.
- Coverage of Cato Constitution Day panel on First Amendment with Nadine Strossen, P.J. O’Rourke, Eric Rassbach, Ilya Shapiro [Concurring Opinions] And First-Amendment-oriented articles in the latest Cato Supreme Court Review: Judge David Sentelle on freedom of speech as liberty for all and not just for the organized press, Allen Dickerson on McCutcheon v. FEC, Ilya Shapiro on SBA List v. Driehaus, and Trevor Burrus on protest buffer zones;
- Eric Holder “the worst Attorney General on press freedom issues in a generation, possibly since Richard Nixon’s John Mitchell” [Trevor Timm]
- “7 Things Cracked Got Wrong About Free Speech” [Greg Lukianoff of FIRE, who has a new short book out entitled “Freedom From Speech“]
- As ACLU recognizes, Arizona law purportedly banning revenge porn would do more than that [Masnick, Popehat, Greenfield, Sullum/Reason]
- Critical overview of “media reform” movement led by wildly misnamed pressure group Free Press [Barbara Joanna Lucas, Capital Research Center]
- In lawsuits against Yelp arising from bad reviews, courts have not been impressed by theory that the service extorts reviewed businesses [Paul Alan Levy; a restaurateur upset at Yelp strikes back in a different way]
- Proposal to make scientific misconduct a crime “would seem to raise serious First Amendment problems” [Howard Wasserman]
Free speech and press issue:
- Even truthful statements libelous if made with actual malice? Outcry at “dangerous” First Circuit decision [Ambrogi/LegaLine, Bayard/Citizen Media Law, Coleman/Likelihood of Confusion]
- Eric Holder’s open and frank national dialogue on race sure isn’t going to take place in the workplace, thanks to fear of being sued [Goldberg, NRO “Corner”]
- Obama says he opposes revival of talk-radio-squelching Fairness Doctrine, though some in Congress favor it; some worry that under-the-radar FCC rules could accomplish some of the same effects without using the name [Matt Lasar and Julian Sanchez, Ars Technica; Ken @ Popehat] Both FCC and Waxman’s office deny report that Congressman met with staffers to promote new controls [Broadcasting & Cable, Unfair Doctrine]
- Freedom wins a round: Court strikes down California violent-videogame law as unconstitutional [Eugene Volokh] Cockfighting is lawful in Puerto Rico, but U.S. Congress has banned videos of same from the States, raising First Amendment issue [David Post @ Volokh; our posts in 1999 and last year]
- Are they being extraterritorial, or are we? “Congressional Efforts to Stymie ‘Libel Tourism’ Rev Up” [Citizen Media Law]
- Ordinarily there’s no legal penalty for whistling the theme to “The Addams Family” at your neighbors, unless you’re under a court order to refrain from doing so, in which case you might be locked up like one U.K. man [UPI]
- Any First Amendment implications in CPSIA bonfires of old children’s books? [Ted Frank, Valerie Jacobsen and others in comments]
Fred Fielding, counsel to President Bush, is an old lion of Washington, the sort of man who would have been portrayed as a wise elder statesman when books like “Advise and Consent” were popular, and people were less cynical about their government. He is also, apparently, about as computer literate as my grandmother, and as inclined to engage in substantive research.
The WSJ Law Blog has summaries of reporting by the New York Times and the Los Angeles Times on how Fielding became involved in the decision to pardon New York real estate conman Isaac Toussie, a pardon that the President purported to revoke when details of Toussie’s crimes (I don’t say alleged, because they’re still crimes) and donations by Toussie’s father to Republican candidates became known. While I don’t know what actually went on with the Toussie pardon, the appearance is certainly one of impropriety, and the White House claims it didn’t have full information about the Toussie case when the decision was made.
So why was the decision made? Apparently Toussie’s counsel, Bradford Berenson of Sidley Austin and formerly of the office of White House counsel, bypassed the Justice Department attorneys who review pardons and went directly to Fielding. Apparently Berenson’s word was good enough, without input or investigation from the Justice Department. Apparently no one in Fielding’s office had ever heard of “google”. It took me, by no means as good a lawyer as Fielding, thirty seconds to find this: “Homeowners’ Suit Says They Are Victims in Deceptive Sales Scheme” (even now that Toussie’s google footprint has grown enormously since Tuesday), and ten seconds to find this $30,800 donation by Toussie’s father to McCain Victory Committee.
At the very least, had Fielding asked an intern to google the name Toussie for an hour or two, he could have produced quite a dossier to counter the wiles of Brad Berenson. Perhaps better information about Toussie and his father, already publicly available, would have set a few bells ringing in Fielding’s mind.
To be honest, I don’t care that much about the Toussie pardon, though I dislike it. What I do care about is the upcoming nomination hearings on Obama Attorney General designate Eric Holder. I care about Holder’s hearing because Holder is no friend to free speech, no friend of the right to bear arms, and in general seems to favor government intrusion into virtually everything. Holder came out of the Clinton-Reno Justice Department, which before Alberto Gonzales set a high standard for thuggishness, overreach, and political gamesmanship.
While I’m not fool enough to think that Holder’s nomination will be rejected, I had been hoping that Holder would take a shellacking over his role in the even more egregious Clinton decision to pardon fraud artist and fugitive Marc Rich. Holder would be nominated but, I hoped, chastened and aware that he would be watched. Now Fielding has handed Holder an arrow which will surely be fired back at Senate critics: “Mistakes were made Senator Specter, but this was an anomaly and it occurred with only hours to go before President Clinton would leave office. Why even Mr. Fred Fielding, the well-respected counsel of the outgoing administration and a man I greatly admire, has taken his lumps over one ill-considered pardon in the waning days of the Bush administration.”
Of course, all of this will be a tempest in a teapot when Bush issues pardons on January 19.
Edit: 12/28/2008 – Reader Margaret Love of the District of Columbia Bar, who I suspect knows more about this subject than I ever will, emails with the following historical information, reprinted with Ms. Love’s permission: