Of AfPak, Pomegranates, and Pentagon Papers

Posted in Case Reports by Mike Sacks on July 26, 2010

The Pentagon Papers case has been getting some recognition today after WikiLeaks gave the New York Times, the Guardian, and Der Spiegel nearly 100,000 classified reports from 2004-09 on the Afghanistan war.

CNN reports on Press Secretary Robert Gibbs’s addressing comparisons between today’s big story and the 1971 Supreme Court case over whether the government had the power to restrain the New York Times from publishing the Pentagon’s top secret history of American involvement in Vietnam:

“The Pentagon Papers are different in the sense that you are talking about policy documents, these are sort of on the ground reporting of different events. I don’t see in any way how they are really comparable,” Gibbs said.

Noting that the Pentagon Papers contained significant revelations in terms of policy, Gibbs said that Sunday’s publication has not “markedly changed” what “is known, about our relationship and our efforts in both Afghanistan and Pakistan by what is in these documents.”

“You don’t have some revelation that there is a systematic change of the course of events, that we have stepped up operations in a certain part in the war in Southeast Asia, that we’ve escalated, that’s just not, that’s not what these documents are,” Gibbs said.

Beneath all the huff-and-puff of this major story–a story, one should note, that has suffered no governmental attempt at prior restraint–comes an actual prior restraint out of the D.C. Superior Court.  Mike Scarcella of the Legal Times reports:

A D.C. Superior Court judge on Friday blocked The National Law Journal from publishing information from court records about a regulatory investigation into juice maker POM Wonderful.

An NLJ reporter had legally obtained the information from court files, but the judge, Judith Bartnoff, ruled the records should have been under seal. She issued a temporary restraining order just before the paper’s deadline on Friday to block publication of the information.

Attempts to restrain a publisher are exceedingly rare. But Bartnoff said that the court’s interest in maintaining the integrity of its docket trumped First Amendment arguments. […]

“If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff said at the hearing. “None of that First Amendment jurisprudence, to my knowledge, is dealing with this issue—the integrity of the functioning of the court system.”

If suppression of a top secret history of the country’s Vietnam war policies for the sake of national security did not overcome the Supreme Court’s heavy presumption against a prior restraint’s constitutionality, I have a hard time seeing how Judge Bartnoff’s justification for suppression–the court’s institutional integrity–can sustain its heavy burden upon appeal.

Read Scarcella’s report here for some great exchanges between the judge and the National Law Journal’s counsel, as well as POM Wonderful’s direct connection to the Pentagon Papers case.

UPDATE 7/30/10: The Legal Times reports that Judge Bartnoff lifted the restraining order this afternoon at POM’s request:

On July 30, just hours after a group of media companies filed an amicus brief in support of the NLJ in the D.C. Court of Appeals, POM’s lawyer moved to have the restraining order withdrawn. Judge Judith Bartnoff lifted the temporary restraining order about 4:30 p.m. Friday.

“Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue,” POM’s counsel, Barry Coburn of Washington’s Coburn & Coffman, said in a statement. “POM is, and always has been, fervent supporters of and believers in the freedom of the press, and takes very seriously its commitment to transparency in all aspects of our business.”

Mauro on Stewart

Posted in Law and Politics by Mike Sacks on July 19, 2010

Tony Mauro at the National Law Journal has another piece up from his digging through the Potter Stewart papers, this time on the Justice’s friendships with President George H.W. Bush and Professor Larry Tribe, and their thoughts about what could have been.

Stewart died in 1986, so he never saw his friend George make it to the White House in 1989 – but Mauro finds that he did follow his friend’s 1980 Presidential run and VP nomination quite closely:

Stewart clearly had a keen interest in Bush’s electoral fortunes, collecting news clippings about Bush testing the waters for a 1980 run for the presidency, which turned into a campaign for vice president with Ronald Reagan at the top of the ticket. Stewart corresponded with Christopher Phillips, apparently a strategist who was urging Bush to stress his moderate views and not give in to pressure from the right that was fueling Reagan’s success. “My great fear is that even if the views stated in your memorandum are fully understood and completely accepted, the house may be irreparably late,” Stewart wrote. Stewart even shared his views with Powell, who wrote Stewart, “These are views you and I have shared. It may indeed be too late now.”

Indeed, for the Court, it was too late.  Under Reagan, Stewart and Powell’s moderate conservatism–political and jurisprudential–began its decline towards today’s near-extinction.

And from Stewart’s “Tribe” file:

In May 1969, after Nixon appointed Warren Burger as chief justice, Tribe wrote a letter to Stewart mourning the demise of a shared hope: that Stewart would be elevated to the position instead. “I had so hoped things would turn out differently,” Tribe wrote. “For you — and for the country — I am sorry.” Stewart’s reply note did not deny the ambition.

This note from Tribe seems at odds with The Brethren‘s prologue (see pp. 10-13), in which Woodward and Armstrong write that Stewart declined President Nixon’s overtures to elevate Stewart to Chief Justice.  Perhaps Stewart, now known as a significant source for The Brethren, fed Woodward and Armstrong this story for pride’s sake.  Perhaps Tribe did not know about this meeting.  Or perhaps Tribe was lamenting the underlying reasons why Stewart felt compelled to decline the President’s offer – “why”s that may have been lost forever in the fires Tribe told me about at the Kagan hearings and reiterated to Mauro:

Laurence Tribe remembers watching Potter Stewart, the U.S. Supreme Court justice for whom he clerked in 1967, feed his office fireplace around Christmas time.

Stewart was burning some of his Court papers, recalls Tribe, the Harvard law professor and now senior counselor at the Justice Department. “He told me that it was an annual affair.”

What papers did Stewart destroy that year? “I promised him I’d remain forever silent, and it’s a promise I feel bound to keep,” Tribe said.

Read the whole piece over at

Capital Obscenity!

Posted in Anticipation by Mike Sacks on July 12, 2010

Back in February I wrote about the circuit split between the Ninth and Eleventh Circuits over the application of federal obscenity laws in the Internet age.  This is a major issue of law that a majority of the Court, in concurring and dissenting opinions of 2002’s Ashcroft v. ACLU,  first telegraphed its interest in updating, revisiting, or outright abandoning.

This week, another obscenity trial begins in Judge Leon’s federal district courtroom here in DC.  Via Mike Scarcella of the National Law Journal:

Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.

Jury selection is under way and opening arguments are expected to begin this week in the first adult porn obscenity case in the U.S. District Court for the District of Columbia in more than 20 years. “There won’t be any falling asleep in this courtroom,” Judge Richard Leon said at a hearing in the case June 14. “I can assure you of that.” […]

[Stagliano’s lawyers are] arguing that Stagliano has a right to possess and to distribute sexually explicit material. The lawyers contend federal obscenity standards are too vague to govern Internet speech. The sexual acts in the movies were lawful, the lawyers said, and the participants were consenting adults. “The right of sexual privacy has evolved as society’s attitudes about sexuality have evolved,” Corn-Revere said in court papers in July 2008. “Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. This protection is broad enough to encompass a right to buy and sell obscene materials.”

In declining to dismiss the indictment earlier this year, Leon said the federal obscenity statutes are not unconstitutionally vague as applied to Internet speech. “Although public morality may be an insufficient justification for regulating private conduct in some cases, it is certainly a sufficient justification for regulating the sort of public conduct at issue here,” Leon wrote.

Beyond the racy subject matter and evidence to be presented to the district court this week, we will also witness some scintillating constitutional law discussions.  The above passage points to Stagliano’s use of Lawrence to argue invalidation of federal obscenity laws under the Due Process Clause of the Fifth Amendment’s right to privacy.*  This argument worked in the Western District of Pennsylvania in 2005, but ever since the Third Circuit rebuked and reversed the district court and the Supreme Court denied certiorari, appeals to Lawrence have gone unheeded.

So to further push the issue of federal obscenity laws before the Supreme Court, expect also to see attacks on the “community standards” prong of the Miller test, which courts use to determine whether material is obscene:

Lawrence Walters, a First Amendment lawyer who specializes in representing clients in adult entertainment, said obscenity cases have historically been filed in districts that are generally viewed as conservative. “It may result in one of the first cases where a more cosmopolitan jury has made a determination of obscenity with regard to adult material,” said Walters of Walters Law Group in Altamonte Springs, Fla.

Although the Supreme Court and lower courts ultimately came to implicitly interpret “community standards” to be those of the location in which the material was sent, the Ninth Circuit in late 2009 stated that national community standards should apply in a jury’s determining Internet obscenity.

Depending on how this jury rules, the inevitable appeal will likely feature an attack on local community standards – either as too permissive in a big city should Stagliano get acquitted or too arbitrary should he get convicted.  Either way, however, the recent circuit split over the community standards prong will be made more ripe for Supreme Court review.

The question, then, becomes whether the Court will conform to its opinions in Ashcroft I or not.  Thomas, Scalia, and Rehnquist were perfectly satisfied with local standards.  Might Roberts, given his First Amendment protectiveness this term, deviate from his predecessor’s vote?  In refusing to extend the Court’s obscenity jurisprudence to dogfighting in United States v. Stevens, Roberts said nothing of material that actually does fall within the Court’s sex-tethered definition of obscenity.  But in siding with the government in Holder v. Humanitarian Law Project for national security concerns, the Chief showed himself willing to favor traditionally conservative concerns–of which the protection of morals-based laws have long figured–over First Amendment absolutism.

Meanwhile, O’Connor wrote in favor of a national standard, but her successor, Alito, will likely go with local standards, given his lone Stevens dissent this term.

Kennedy wrote for Ginsburg and Souter suggesting that the local standards should be reconsidered, but didn’t tip his hand on what side upon which he’d come down until he had more evidence to make such a determination.  Adding uncertainty upon that concurrence’s uncertainty, we don’t know how Sotomayor would have voted then or now, and Ginsburg may not even be on the Court by the time this case may make it up there.

And finally, Justice Stevens, the lone dissenter in Ashcroft arguing to toss community standards altogether as applied to the Internet, may not have as zealous of a successor in Elena Kagan.

This trial, and its aftermath, will surely be something worth watching.

*Lawrence concerned state laws, so the Fourteenth Amendment’s Due Process Clause governed; this case tests federal obscenity laws, which implicate the Fifth Amendment’s analogous language securing against deprivation of liberty without due process of law.

UPDATE: 7/13 – Scarcella provides a report from today’s introduction of evidence to the jurors.

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