The Ham Hock of Liberty

Wednesday, June 21, 2006

Body Language 101

Kinda speaks for itself though...

Thursday, June 15, 2006

So much for "respect for precedent"...

The Supreme Court today decided that the "knock and announce" rule for execution of warrants doesn't require exclusion of evidence obtained in violation of that rule.

The substance of that argument isn't particularly egregious; even a wild-eyed leftist such as myself can think it's not clear that the Fourth Amendment requires such a result.

What is troublesome, however, is that both Roberts and Alito voted to upturn over 90 years of relatively settled law on this issue. Remember, of course, that both men gave a lot of lip service to the sanctity of precedent and settled law during their confirmation hearings, in response to questions about Roe v. Wade. And yet, within months after being put on the bench, they've very enthusiastically upturned a long-standing line of case law.

Perhaps our Senators will remember this, the next time we hear "precedent" and "settled law" from a controversial nominee. But somehow I doubt it.

Update: I've read the SCOTUS opinion in this case. The majority, concurrence and dissent are all fairly persuasive and well-argued. There are a few problems with Scalia's opinion, though. The biggest one is the majority's claim that even without the use of the exclusionary rule, there are still realistic incentives for police to comply with the law, including civil lawsuits and "better training of police" in recent years. The dissent points out that the majority basically pulls these claims out of thin air, and I think they're right.

In jusifying the wholesale tossing of the exclusionary rule for knock-and-announce violations, the majority's main argument is that the privacy and liberty interests protected by the knock-and-announce rule won't be furthered by the remedy of the exclusionary rule. They do a lot of hair-splitting, but they have a decent argument; the interests involved are different than those for, say, protecting against warrantless searches. However, the dissent rightfully points out, imo, that this sort of distinction is new to the exclusionary rule jurisprudence, which is primarily about giving the Fourth Amendment some meaning, instead of making it purely optional. The majority is significantly deviating from precedent in this area.

Fortunately, this decision probably won't change police behavior too radically, as the knock and announce rule tends to help keep them safe as much as anything else. Most police probably realize the extra danger they're putting themselves in by busting down doors unannounced, and I imagine will continue to knock and announce, except when they have reason to believe that doing so would let a suspect destroy evidence...which was legal for them to do before this case, anyway.

Tuesday, June 06, 2006

Burning anonymous sources

Talking about the Wen Ho Lee case last night, Atrios wrote this:
Look. Cut the fucking crap already. If your sources feed you horseshit, you are under no obligation to protect them. There is no journalistic principle which says that journalists should be information launderers for those who wish to libel people.
Whether journalistic ethics or regular ethics suggest that you shouldn't out anonymous sources who've been feeding you lies is not something I'm qualified to answer. I suspect the answer is "go ahead and burn em." But journalistic ethics are not the only constraint on outing a source to whom you've promised anonymity. There's the distinct possibility of being sued, too.

Journalists have been successfully sued by anonymous sources that they outed. In Minnesota, the Star Tribune was sued by a Republican campaign operative who had been peddling stories about the opponent candidate's criminal arrest record. Although the information was true, it was somewhat misleading; the documents that the source provided showed that the other candidate had been arrested and convicted. The Strib, however, found out that one of the charges was dismissed, and the other, which did result in a conviction, was later vacated. The Strib ran the story with the angle that a GOP smear merchant was trying to fling mud on the eve of the election, and identified the source.

The source, Dan Cohen, sued the Strib, on several theories. To get to the point, the Minnesota Supreme Court ruled in favor of the paper, saying in part that the First Amendment protected what the newspaper had done. Cohen appealed to the U.S. Supreme Court, which reversed the Minnesota Court, on the First Amendment issue (i.e., there's no federal constitutional protection for reporters being sued by formerly-anonymous sources). After the case was sent back down to the Minnesota Supreme Court, to be reconsidered in light of what the SCOTUS said, the Minnesota court reinstated the original judgment against the Strib, on "promissory estoppel" grounds. Basically, this theory is that Party A makes a promise to Party B. B takes (or refrains from taking) some action, in reasonable reliance on A's promise. A then breaches the promise, and B is damaged as a result. B can recover her damages from A in that situation, in most states.

Now, a few caveats apply here. First, this decision was ultimately based on Minnesota state law. Just because the First Amendment doesn't protect journalists from outing anonymous sources, doesn't mean that those sources have any right to recover damages, under applicable state law. I haven't checked the other 49 states to see if there are any similar precedents, so it could be that Minnesota is the only state in the union where this could happen.

Second, it isn't clear that the Minnesota court would have ruled the same way if Cohen was peddling deliberate lies, or even defamatory material, rather than just misleadingly-incomplete facts. That distinction wasn't addressed in the Court's remand opinion.

SO....the bottom line is, a newspaper may very well have some constraint on outing a source to whom it's promised anonymity. The Strib had to pay $200,000 for doing just that.