Tag Archives: courts

Charging Assange

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Julian Assange, of Manning and Wikileaks infamy, has been indicted on violations of the Espionage Act in addition to the existing charges pending against him.

Naturally, the NLMSM is in an uproar over this putative attack on a free press.

…reignited debate over whether pursuing Mr. Assange for publishing classified information could lead to other cases against journalists who receive government secrets.

There are a couple of things on the NLMSM’s artificial dudgeon, though.  One is that a free press also has to be a responsible press—which includes respect for the law and acceptance of the consequences where the press engages in civil disobedience.  We’re all big boys and girls, though, the press’ and the Left’s contempt for us notwithstanding.  We’re fully capable of recognizing irresponsibility when we see it and disdaining pseudo-journalism when it’s presented.

The larger thing, though, is the role of law in our nation.  We’re either a nation of laws, or we are not.  We’re all equal under law, or some of us get special treatment—descending us into rule by law instead of rule of law.

The laws regarding receiving stolen goods are quite clear: that’s a crime, and the recipient(s) on conviction go to jail.  Except when it’s a journalist who receives the stolen property.  See, for instance, the news outlet that received and published the stolen Ellsberg papers, along with the hue and cry over holding Julian Assange—who’s not even a journalist, for all that he pretends to be—to the consequences from his having received the documents Manning had stolen and sent to him.

A free press requires journalists be allowed to break the same laws the rest of us must obey?  What’s the value of a press that cannot be trusted, that demonstrates its lawlessness by freely receiving stolen goods and profiting from the receipt by publishing the stolen material?

Here’s an alternative—a bare minimum of movement of the NLMSM back within the reach of the same laws the rest of us must obey.

Upon receipt of the stolen material, the news outlet and the receiving journalist must immediately return the originals of the material to the robbed entity and identify to law enforcement the person(s) and/or entity from which the material was received.  Upon return, the news outlet would be free to publish based on its copies of the stolen material.

Should the journalist or news outlet refuse, the journalist (or the news outlet’s chief editor, if the receiving journalist cannot be clearly identified) should be jailed until the originals are returned and the delivering person/entity identified.

Of course, overriding the above is whether the stolen material is classified (the Manning theft, for instance).  In this instance, the material and the receiving news outlet and its personnel would be subject to laws pertaining to (mis)handling classified material.

Yewbetcha

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Justice Clarence Thomas, on the matter of judicial precedent, as quoted by Myron Magnet in Thursday’s Wall Street Journal:

“Stare decisis is not an inexorable command,” Justice Thomas observes in [Franchise Tax Board v] Hyatt. He has said elsewhere: “I think that the Constitution itself, the written document, is the ultimate stare decisis.”

What he said.

A Textualist Justice Makes Folks Uncomfortable

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Apple v Pepper is an antitrust case in which the plaintiffs argue that Apple’s requirement that all iPhone apps must be sold through Apple’s app store is a monopoly that Apple abuses by charging excessive commissions on app sales.

The Wall Street Journal has its editorial knickers in a twist because Justice Brett Kavanaugh, writing for the majority, rejected Apple’s plaint that the case be dismissed. The result is that the case continues in trial court.  Yet the editors are upset that Kavanaugh’s ruling “gutted four decades of precedent,” as though precedent cannot be erroneous and so must be unchanging for the ages.

Justice Kavanaugh [opined] based on the text of the Clayton Act, but the Court has long interpreted antitrust statutes alongside common law principles of proximate causation.

How shocking that a textualist ruled on the basis of the text and disagreed with judges imposing personal views of “common law principles” on what a law actually says.

Contrary to the editors’ thrust, all that has happened at this point is that the suit is allowed to proceed in a lower court. This actually represents a golden opportunity to apply the text of antitrust law to the likes of Alphabet, Facebook, Twitter, Apple, et al., which have capabilities of which Clayton could not conceive. In what ways might tech giants exercise monopoly power (legal) or abuse it (illegal)?

At bottom, as the case itself makes it way to the Supremes, it would be a golden opportunity for that Court to tell the Congress to do its political job. Bleatings about “common law” and judges’ perceived principles inhering in “common law” notwithstanding, everything that Clayton means is contained in the text of that law.  Everything that that century-old Congress intended when it enacted that law is contained in the text of that law and nowhere else.  If the law needs updating to address today’s digitally-oriented monopolies, that’s the political task of today’s Congress, not the judicial task of any era’s Justices.

Censorship in the Patent and Trademark Office

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The Supreme Court has heard the oral arguments for Iancu v Brunetti, a case I wrote about a bit ago.  Hadley Arkes’ op-ed in The Wall Street Journal shed additional light on the matter, which centers on whether Iancu’s business can trademark the name of his business, Friends U Can’t Trust, with its acronym stand-in.

Certain words are fixed in the language with the moral functions of “commending” and “condemning,” and some of them have a special edge….

You bet.

However, confusing F**T with the specially edged F**K can only be done by those with potty-mouthed minds.  Ordinary people, people with the barest modicum of decorum, are not so easily misled, whether they simply choose not to see the worst in everything they encounter, or they’re mildly amused by the obvious jape.

Chief Justice John Roberts did raise a significant point:

…advertisements will be posted in malls where children can see them. Mr Brunetti is appealing to rebellious young men, “but that’s not the only audience he reaches….”

However, this isn’t the risk that Roberts thought he saw.  This is an excellent opportunity to teach those children how to recognize critical differences and to not be misled by artificial similarities.  And to teach them how not to be easily offended or cavalierly crude.

Putting potty-mouthed minds into the PTO to effect government censorship according to their base criteria should be unacceptable.

The Attorney General and Immigration Judges

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John Yoo, who was a Deputy Assistant Attorney General in the Department of Justice Office of Legal Counsel, has reminded us of the authority of the AG vis-à-vis immigration judges.

He [the AG] has the power to overrule immigration judges. Immigration judges have been making mistakes….

Aside from the immigration judges’ error rate, it’s really quite clear that the AG can overrule them. Not only are immigration judges not Article III judges, they’re employees of the Department of Justice—they work for the AG. Beyond that, they’re not even judges; they’re Special Inquiry Officers.