Strib In The Middle

The proverbial fan blades have been encrusted with a nasty substance in the U.S. Senate race between Norm Coleman, Al Franken, and don’t forget Dean Barkley.  And the state’s largest newspaper is in the middle of it.

First, the latest.  The Star Tribune is reporting this morning that there are now two lawsuits alleging that a close friend of Coleman’s has “used a marine company in Texas” to pay money to the senator through a Minneapolis insurance company where Coleman’s wife works.  There also are signs that Franken, or at least his party, are using the revelations for political gain.  Says a note on the Strib web site:

The Democratic Senate Campaign Committee is running TV ads featuring a Star Tribune reporter questioning Sen. Norm Coleman about a lawsuit noted in this report. The video in the ad was filmed without the knowledge or consent of the Star Tribune.

Says Coleman, in a statement: “Each and every allegation in this lawsuit relating to me and my wife is false and defamatory.”  A spokeswoman further stats that the Strib “is actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Speaking of false and defamatory, Coleman also has filed a complaint with the Minnesota Office of Administrative Hearings alleging that Franken is to be blamed for ads claiming that Coleman is the fourth most corrupt senator in the country and gets too good of a deal on a Capitol Hill apartment.  I cannot find the petition online, but it must have been filed pursuant to Chapter 211B of Minnesota Stautes.  Take a read.

OK, some quick analysis from this journalist turned lawyer, with more to come later as developments warrant.    First, Coleman has an uphill battle if he wants to sue over a lawsuit.  Generally, a litigant can say whatever he wants in a lawsuit.  It is, in legalese, subject to an absolute privilege.  But of course, there are limits to everything, and someday a court might confront this precise issue.

Second, it’s ironic that the Star Tribune is concerned about video of its reporters taken without its “knowledge and consent.”  Newspapers take pictures of persons without their knowledge and consent all the time.  As long as the photos or video are taken on public property and are not used in a way that invades the subject’s privacy, it’s all fair game.

Third, Coleman’s claims.  I could start a blog just to discuss Chapter 211B of Minnesota Statutes and similar federal requirements.  Anyone who values free speech should scrutinize these laws.   And if you do, an intriguing revelation emerges. Chapter 211B makes it a crime –a gross misdemeanor — to actively “participate” in disseminating false campaign information.  Coleman’s spokeswoman says the Strib is “actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Umm.  Stay tuned.

Expect To See Exit Pollsters

The election is nearing, as will be the exit pollsters.

Federal Judge Michael Davis has issued his decision in the “Election Law, Meet First Amendment” case I blogged about a few weeks ago, and it was a complete win for Big Media.

The judge wielded the First Amendment to invalidate a Minnesota a law that made it a crime for exit pollsters, or anyone else for that matter, to stand within 100 feet of a building where polling is taking place.  A bunch of news outlets sued the State of Minnesota, which defended against the lawsuit by claiming that government has a compelling interest in preventing disruptions and overcrowding at the polls.  The judge disagreed 100 percent.  Noting the “paramount importance of free political speech,” Davis issued a preliminary injunction based on his conclusion that the law was not narrowly tailored to the goverment’s interest in preventing chaos.  There simply was no evidence, said the judge, that exit polling “in any way has a detrimental effect on the orderly and corruption-free polling place.”

Technically, the lawsuit is still alive because Judge Davis’ preliminary injunction was just that, preliminary.  But the judge’s decision is as thorough as it is legally solid, so my guess is that the law is caput.

Still, as I blogged about previously, the issue is a toughie.  While speech is sacrosanct, acts are not.  In other words, all Minnesotans, media or otherwise, should have the right to say pretty much whatever they want to say and should not be unreasonably hindered from asking questions and otherwise collecting information that will lead ot expression.  But actions that get in the way of balloting cannot stand.   It’s a classic balancing act, of the type that makes constitutional law fun.  As the judge wrote:

The public has a fundamental interest in unfettered debate of public issues and governmental affairs.  As Defendants note, the public also has an interest in a fair and orderly election, and there is no reason to believe that this injunction will interfere with that interest.  The public interest weighs in favor of granting the injunction.

Defamation Is Tough (For) Business

A defamation decision from the Minnesota Court of Appeals of a few weeks ago should give online communicators pause.  The decision did not involve web sites, blogs, or other internet-based ways of communicating, but it did involve something that is so easy to do online: rant about a business.

Judging from the name of the case, Diversified Water Diversion, Inc. v. Standard Water Control Systems, Inc., you would be correct to guess that the matter involved Minnesota construction contractors — specifically, contractors that do drain-tile work at homes.  In the court’s words, there was “a great deal of ill will” between the companies, so bad that in 2002 Standard sued Diversified over its business practices.  The parties settled the suit and, as is customary, agreed that neither company would “disparage” the other.

In 2005 and 2006, when some homeowners received bids from both companies, Standard’s president warned the homeowners that Diversified did “terrible work,” would not honor warranties, and was “sleazy.”  Diversified sued Standard for defamation, even though the homeowners had hired Diversified anyway.  The claim was for “defamation per se,” which in Minnesota permits certain persons — chiefly businesspeople people and persons wrongfully accused of crimes — to win defamation suits even when they have failed to prove that they actually have been harmed.

Defamation per se is controversial, and rightly so.  The theory is that some defamation is so bad that the person who was defamed should not have to be burdened with proving that there was damage to reputation.  Falsely accusing someone of being a pedophile is one instance in which Minnesota courts have awarded defamation per se damages.  That makes sense.

But does it make sense to permit a business to recover these sorts of damages?  In Diversified v. Standard, both the Hennepin County trial court and the Minnesota Court of Appeals said yes, to the tune of $30,000.  The appeals court’s written ruling provides only a peek of what went on, but I am troubled that there is no explanation of how Diversified proved that the comments were false – something that is required even for “defamation per se.”  No one deserves to be accused of being “sleazy,” and I am not suggesting that anyone in this case was.  But still, Minnesota’s defamation law cannot be allowed to get so out of control that plaintiffs have to prove neither falsity nor damages.  Maybe falsity was proven in this case, but the appeals court’s unfortunate omission of that issue might mean trouble down the road.

Including for online communicators.  For now, be very, very careful about whining about businesses.  Because in Minnesota, you’re on notice that even true whining might mean trouble.

Minnesota Election Law, Meet First Amendment

Big Media filed a big federal lawsuit against the State of Minnesota yesterday challenging a Minnesota law that prohibits anyone other than voters and election officials from being within 100 feet of a building where voting is taking place.  The law was changed in April so that the 100-foot buffer zone is to be measured from the building’s door, not from the room where the balloting is actually taking place.

The change, according to ABC News, the Associated Presss, CNN, CBS, FOX, and NBC, violates the First Amendment because it prevents Big Media from exercising its constitutional right to perform exit polls by asking Minnesotans who they just voted for and then reporting the results before the votes are actually counted.

Hmm.  This is a tough one for me.  I agree that anyone, Big Media included, should generally have the right to ask questions and then tell someone the answers.  I also agree that elections are a Big Deal, particularly THIS YEAR, and that any act that might dissuade any voter from casting any ballot is to be forbidden.

The State of Minnesota has not had opportunity to file a response, but when it does, I wonder whether the Attorney General’s Office will dig up recollections of 2000, when famously inaccurate exit polls led some in the media to call the State of Florida for Gore, then for Bush, then for “too close to call.”

As luck would have it, I was on the Big Media front lines that night, squirming through my shift as front-page news editor at the St. Paul Pioneer Press.  The AP had called the presidential race for Bush, and we had a page ready to go with “BUSH WINS” streamed across the top.  Then, at the last second, around 1:15 in the morning as I recall, the AP sent a bulletin stating that the exit polls had been wrong, and that the race was too close to call. 

So I changed our headline on the fly and averted disaster.  The Star Tribune, though, did not, and alas, a few thousand papers escaped the building with “BUSH WINS” across the top.  One of them landed on my doorstep!

I do not pretend to have the right answer to this one.  Thankfully, a federal judge will, and soon.

Off the Hook

True to form, the St. Paul City Attorney’s Office says it won’t prosecute “journalists” who were caught in the web of arrests outside the Republican National Convention.  That’s the right call.  But, as I predicted, the call was made for the wrong reasons.  As I wrote a couple weeks ago:

Once again, we are on the verge of government endeavoring to determine who is and who is not a journalist.  This should frighten anyone who cherishes free speech.  The framers of the First Amendment would shudder at the words “media credentials.”  Online communicators in particular, beware.

Jane Kirtley, a media ethics guru at the University of Minnesota and former head of a tremendous outfit called the Reporters Committee for Freedom of the Press, was quoted as agreeing with the idea that defining who is and how is not a journalist is tricky business.  She’s exactly right.

The First Amendment was not adopted to protect journalists.  It was enacted to protect free expression for everyone.  True, the First Amendment specifically ensures a free press, but I simply do not believe that “the press” had the same meaning in 1791 as it does today.  Early Americans wanted to make sure that the people who operated printing presses and therefore enabled large-scale free expression would not be subject to the burdensome licensing schemes prevalent in Europe.  The First Amendment’s drafters did not intend to extend special privileges to massive for-profit media conglomerates or even to bloggers for that matter.  Rather, they sought to protect the rights of anyone who had something to say, protesters included.

As for those protesters, I completely agree that some at the RNC crossed the line.  As I said previously, those who participated in the near-riots committed criminal acts.  But the large number of onlookers who merely sought to express themselves, to watch people express themslves, or to document people expressing themselves committed no crimes.  Cases closed.

Larry Craig Case: Not Too Appealing

Joe Kimball has a nice step-back-from-the sensationalism piece on MinnPost about the Larry Craig legal fiasco.  Craig, as any Minnesotan with at least one functioning eye or ear knows all too well, was the Idaho senator who got ensnared in a sex-solicitation sting in a men’s room at MSP airport.

Larry Craig

Craig, you will recall, mailed it in.  His guilty plea, that is.  When he tried to get the trial court to throw out the plea, the media circus at Hennepin County’s satellite courthouse across from Southdale was eclipsed only by the parade of Curious Georges and Georgettes who have made the bathroom next to Royal Zeno’s shoeshine a Minnesota tourist attraction.

This week, Craig’s case came before the Minnesota Court of Appeals.  Joe Kimball was there, along with about 20 other reporters, including one from the New York Times, which published a picture from inside the courtroom of Judge Natalie Hudson asking a question.  (Think cameras aren’t allowed in Minnesota courtrooms?  They are, particularly in appeals courts.)

As Kimball wrote, the media circus had left town, for the simple reason that Craig was not here.  Only non-salacious legal questions were before the court, such as whether a trial judge had to have reviewed the written guilty plea before it was accepted and whether it contained enough information to establish guilt beyond a reasonable doubt.  Boring stuff, when compared with the facts of the case involving wide stances and the claim that Craig had peered into the cop’s restroom stall with such intensity that the officer could see that he had blue eyes.

Even more boring is a fact that has not gotten play in the crush of media reports about this case.  The guilty plea was as much about contract law as criminal law.  We sign stuff all the time — sometimes with a pen when we refinance our houses, sometimes electronically when we click those ubiquitous “I have read and accept the legal terms” boxes.  Why should pleading guilty to this sort of crime be any different?

Bankruptcy Lawyers Have Rights, Too

You know those bankruptcy lawyers who advertise on TV or anywhere else?  In Minnesota, they are now required to state in their ads that they “help people file for bankruptcy relief,” or something to that effect.  But those same lawyers are now free to advise soon-to-be-bankrupt clients that maybe they should take on more debt.  So saith the Eighth Circuit Court of Appeals in a First Amendment case from Minnesota that was released Thursday.

I first blogged about the case a year and nine months ago.  (Yes, that’s how long appeals take.)  It was brought by the lawyers at Milavetz, Gallop & Milavetz, familiar names to anyone who watches Twin Cities TV. Back in December of 2006, Judge James Rosenbaum ruled that the federal statute at issue violated the First Amendment because the “sweeping regulation goes beyond whatever problem it was designed to address.”  As I said at the time:

It’s pretty unusual for federal judges to strike down laws in such sweeping fashion with the First Amendment. The government doesn’t take losses like this lying down, so we’ll see what happens on appeal. A bankruptcy blogger at www.creditslips.org opined: “My guess is that the Department of Justice will appeal, and my guess is that they will lose at the appellate level.”

Well, I was right and the bankruptcy blogger was partially right.  According to the Eighth Circuit’s 2-1 decision, it is a First Amendment violation to prohibit a lawyer from advising a soon-to-be-bankrupt client about the value of taking on more debt.  Maybe refinincing a home or buying a car to get to work is in everyone’s best interest, saith the court.  Good point.

But on the advertising restriction issue, the government won.  According to the Eighth Circuit, requiring attorneys “to disclose factually correct statements on their advertising” does not violate the First Amendment.  I am not sure I agree.  Anytime the government compels anyone to say anything, that is a problem.  But apparently not to the Eighth Circuit.

RNC-ya. Whew. Now What About The Journalists?

The Republican National Convention delegates have left St. Paul, except for those who live around here.  The so-called “anarchists” are gone, too, except for those who live in Minnesota either permanently (in parental basements?) or temporarily (in the Ramsey County Jail).  What a shame that a handful of rabblerousers felt need to step outside the cloak of the First Amendment to damage property while engaging in otherwise legal, valid, and need-to-be-heard concerns about our country and about the party currently controlling the White House.

Troublingly, journalists — some from the mainstream media, some not — were arrested along with the vandals.  The arrests came while the journalists were engaging in their First Amendment rights to gather news.  I wore a suit to work yesterday in case I had to go to court to try to get a reporter for The Uptake sprung from policy custody.  Luckily, she was released around 2:30 yesterday morning, and I never had to don a tie on a Friday.

Now what?  Who gets prosecuted for criminal activity, and who does not?  As Police Chief John Harrington was quoted in this morning’s Pioneer Press, “the media isn’t exempt from (a) legal order.”  True.  According to the paper, Harrington has indicated that now a “policy decision” (the newspaper’s words, not Harrington’s)  must be made to determine what to do with the journalists who “were simply caught up in the middle.”

A policy decision.  Oh boy.   Once again, we are on the verge of government endeavoring to determine who is and who is not a journalist.  This should frighten anyone who cherishes free speech.  The framers of the First Amendment would shudder at the words “media credentials.”  Online communicators in particular, beware.

This is a topic I have written on several times before, most often in the context of “shield laws” that generally protect journalists from having to reveal confidential sources.  My views put me at odds with many of my journalist friends, but here is how I see it:

Anytime government is authorized to determine who is or is not a journalist, government essentially engages in a licensing scheme by awarding increased First Amendment rights and protections to a select group of media interests, which, generally, garner substantial revenue from corporate advertising.  Licensing schemes have their roots in England, where the king used to decide who could and could not print newspapers.  The schemes were among the travesties that so many of our ancestors were eager to escape, and are a big reason why we have the First Amendment in the first place.

In light of that history, St. Paul police and prosecutors need to tread with caution in coming days.  Charges should be dropped not because someone was a journalist, but because authorities lack clear probable cause that any journalist committed a crime related either to damaging property or inciting (as opposed to documenting) a potential riot.  Pushing Dumpters into police cars is a crime.  Recording the worst civil unrest in St. Paul history is not.  Simple as that.

Citizen journalist, or not? Hmm ... (Photo by Steven P. Aggergaard)

Warning: Puppet Possession Is A Crime During RNC

The search warrant from one of yesterday’s raids involving would-be Republican National Convention disrupters should cause all of us pause.  The warrant identifies “components” that could be used to make Molotov cocktails and “improvised explosive devices” as among the suspected contraband.  OK, that’s troublesome.

But the warrant also lists maps of downtown St. Paul, spray paint, nails and screws, police scanners, computer printers, and, um “hollowed out puppets,” just to name a few.  And it goes on to state that “the possession of the property described above constitutes a crime,” that the property “was used as a means of committing a crime,” that it “constitutes evidence which shows a crime has been committed,” and that it is “in possession of a person with intent to used [sic] such property as a means of committing a crime.”

How is possessing a hollowed-out puppet, even one kept next to components that go into the common Molotov cocktail, evidence that a crime has been committed?  Under this line of reasoning, possessing a gun in your home could very well constitute a crime, and I doubt many of the conventioneers in town would stand for that.  Rounding up guns in people’s houses on the theory that a crime might be committed is something that a, um, puppet dictator would do.

News reports state that local police ingeniously infiltrated the alleged anarchists’ hangout and gained valuable insights into their disturbing plans to disrupt the Republicans’ First Amendment right to assemble.  Good job!  But why did the police not wait for one of the anarchists to step outside their hangout, hollowed-out puppet and Molotov cocktail in hand, before seizing the persons and property?  Taking affirmative steps toward RNC disruption would, it seems to me, constitute a crime.

So be careful this week.  Keep the lawnmower gasoline away from those old pickle jars in the garage.  And any hollowed-out puppets in the basement should promptly be filled with sand.

St. Paul Put To The (Pro)Test

The Republican National Convention is upon us, and here comes word that St. Paul police recovered slingshots, devices to disable buses, and urine by the gallon when raiding the so-called RNC Welcoming Committee’s hangout yesterday and today.  How disturbing.  To the degree that these folks have come to (or live in) our city to commit crimes, the effort should be condemned.  What a travesty for those of us who value free speech and free assembly.  What a shame that a few can ruin things for all of us.

However, lost amid all this are the reasons why so many people are so upset.  A war founded on faulty intelligence.  Failures to distinguish between Iraq and Afghanistan.  Guantanamo. Waterboarding.  Warrantless wiretapping.  No-bid contracts to rebuild the mess.  Not to mention a red herring called “drill here, drill now,” Swift Boating about Obama’s religious faith, and plummeting home values.  It could — it should — drive a sane person to the streets.

But thanks to the folks who have bred fears about criminal intent, downtown St. Paul resembles what used be East Berlin.  Have you been downtown?  I was, around 7:30 this morning, during an extended morning run.  I must admit, I was unprepared for what I saw.  Concrete barricades topped by chain-link fences that can accommodate razor wire on the top, darkened stoplights, a “FOX NEWS” sign that is a story tall, police officers at every corner, a camera on every streetlight.

This is St. Paul?  This is America?  What meaningful means do we normal folks have to invoke our First Amendment right to get the attention of the GOP power brokers who have a role in righting America?  For the next several days, none.

Most disturbing was what I saw at the Dorothy Day center, the large homeless shelter kitty-corner from the Xcel Energy Center.  They’ve wrapped the fences with a dark black fabric that almost entirely obscures the forms of the homeless human beings on the other side of the fence, human beings who inconveniently are just yards from the Best Politics That Money Can Buy.

I suppose it was done in the name of privacy for our neighbors who happen to have no homes.  How unfortunate it would be if a TV camera captured one of their images and beamed it into somebody’s living room.  How unfortunate for the unfortunate.  How unfortunate for St. Paul.  How unfortunate for the First Amendment.