DISQUS

docjim505 RE: Glenn Greenwald

Several commenters have posted links to this crushing counter to Cap'n Ed as if the mere mention of Glenn Greenwald's name is enough to settle the argument. I think it's helpful to look at what Greenwald has written. I, for one, am not especially impressed.

Greenwald accuses Cap'n Ed - and, by extension, all us nasty ol' right-wingers - of seeing judicial activism every time a court rules in ways that we don't like (as opposed, I suppose, to peaceful, rational lefties who accept all court rulings with calm and aplomb). As I read the original post, Cap'n Ed's complaint is that the judge is ordering NBC to allow Dennis Kucinich to appear in the Nevada debate whether or not NBC wants him there or not. On the face of it, this DOES appear to be judicial activism: NBC, not the courts, should have control over who appears on their programs.

Greenwald flies off the handle:

GG: Morrissey, in his indignant condemnation, makes no mention whatsoever of the only actual issues that are relevant -- Kucinich's breach of contract claim and Section 315 claims. One wonders if Morrissey even has any idea what the arguments are that the court had to resolve. That seems doubtful, and if he did, he doesn't bother to mention them. How can someone condemn a court decision without bothering to inform oneself about the legal issues the court has to resolve? All Morrissey knows is that he wants a certain outcome -- he thinks MSNBC should have the right to decide who gets excluded from its debate -- and his "analysis" is based exclusively on whether or not the Judge gave him the outcome he wanted. (1)

What is this "Section 315"? According to Greenwald himself:

GG: ... requires broadcasters -- who operate the public airways, i.e., airways which are public, not private, property -- "to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of public importance."

But what did Judge Charles Thompson actually say? According to al-AP (via magicarb in previous comments):

Thompson called it a matter of fairness and said Nevada voters will benefit by hearing from more than just top contenders Hillary Rodham Clinton, Barack Obama and John Edwards. [emphasis mine - dj505] (2)

Note that - in this report anyway - there is no mention of breach of contract. Rather, the judge is foisting his view of what is "fair", a term not used in the federal law of which Greenwald accuses Cap'n Ed of being ignorant. Let's look more closely at sect. 315:

(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. (3)

Is anybody barring Kucinich running his ads on the station / network in question? No, apparently not. Are they charging him a higher advertizing rate than the other candidates? No. The only issue is that he is not being invited to appear on the debate... in common, I suppose, with many other fringe candidates for the presidency.

Further, I dispute Greenwald's assertion that not having Kucinich on the debate somehow negates Sect. 315's requirement that broadcasters provide "reasonable opportunity for the discussion of conflicting views of public importance". The other dem candidates are (I presume) going to be featured; it won't be a one-man show. Greenwald's argument that Kucinich, because he's a candidate, MUST be allowed to appear quickly becomes ridiculous: how many people must one allow on a debate to meet a subjective determination of "reasonable opportunity"? Would Greenwald, for instance, agree that a REPUBLICAN candidate appear in a DEMOCRAT debate? Isn't that providing a "reasonable opportunity for the discussion of conflicting views"?

I must say that I guffawed at this statement by Greenwald:

GG: Nobody can opine meaningfully on the propriety of the court decision here without first knowing about, and then analyzing and resolving, those legal claims. That's how the law, when properly applied, works. You don't get to pick which outcome you think is most desirable or "fairest" in some vague philosophical sense and then, based on those preferences, decide if the court correctly adjudicated the questions before it. A court adhering to the rule of law, by definition, applies the law and legal principles. [emphasis mine - dj505]

But isn't that exactly what Judge Thompson did? When he said that it was "a matter of fairness", he was doing EXACTLY what Greenwald sanctimoniously argues that the law doesn't do (my God, does he really believe that???): picking a desired outcome in some vague philosophical sense. Had Thompson simply said that NBC was in breach of contract because they rescinded their invitation, it seems to me that he would be on much better legal ground and that there would be little cause for Cap'n Ed or anybody else to complain. But when Judge Thompson stuck the word "fairness" into his decision, he destroyed any vestige of legal thought and credibility. It makes it appear very clear that he simply wants Kucinich on that stage, and found a quasi-legal argument to give his desires a veneer of legitimacy.

I'd like to close with a couple of other points. Greenwald sneers at Cap'n Ed's claim that a FEDERAL court should hear Kucinich's claim:

GG: Just to underscore the extreme absurdity that this mindset produces, Morrissey has the gall to describe the judge here as an "activist judge who didn't know much about the law" even as he makes a claim that one can only describe as completely nonsensical: "Constitutionally, this case belonged in federal court, which has jurisdiction on any interstate commerce complaints."

That's not just wrong. It's pure nonsense. "Interstate commerce" is a term used to define the scope of Congressional power to regulate under Article I; it has absolutely nothing to do with a court's "jurisdiction." State courts can and, every day, do resolve disputes and issue rulings on "interstate commerce complaints" (whatever that might mean).

Correct me if I'm wrong, but sect. 315 is a FEDERAL law, not a state law. I don't belive that state judges make determinations about federal law. It seems to me that Greenwald is playing bait 'n' switch by confusing the judge's ability to rule on sect. 315 - a federal law - and his ability to rule on Nevada state contract law. Greenwald goes on to write:

GG: The contract claims require application of Nevada contract law to the specific communications between Kucinich and MSNBC, and the Section 315 claim requires all sorts of analyses as to whether its mandates apply to a cable channel such as MSNBC, whether Kucinich can be excused by the time imperatives from the statutory requirement of first seeking relief from the FCC before suing, etc.

Usually when there are "all sorts of analyses" to be made about the law, it pretty quickly becomes a federal matter. Further, MSNBC operates all across the country, which WOULD invoke that pesky interstate commerce clause that Greenwald professes not to understand.

I also scoff at Greenwald's not-so-innocent assertion that he's not arguing the merits of the judge's decision. THE JUDGE ISSUED A RULING. It may not be a leather-bound, engraved, ready-for-the-national-archives decision, but he issued a ruling that has legal weight. To say that Cap'n Ed is whining about a decision that hasn't been made is... odd, to say the least.

Finally, Greenwald appears to be pulling another fast one when he tries to imply that NBC agrees with him:

GG: Moreover, nobody -- including NBC (.pdf) -- disputes that courts, in general, have the authority to apply Section 315 as well as garden-variety contract claims to a network's programming decisions.

Um, nobody here is claiming that the courts don't have that authority, either. Indeed, Cap'n Ed said that the FEDERAL court will have to rule... for which Greenwald mocks him. Obviously, NBC DOESN'T agree with Judge Thompson's ruling because they are APPEALING it.

Many commenters have made much of Greenwald's article. I'm not impressed by it, nor am I impressed by what I know so far of Judge Thompson's ruling. As I said above, had he limited himself to ruling that Kucinich had a valid contract to show up at the debate, he would have been on better ground. But he used that word "fairness", and that blows it as far as I'm concerned.

The law is about what is LEGAL, not about what is "fair".

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(1) http://www.salon.com/opinion/greenwald/2008/01/...

(2) http://www.sfgate.com/cgi-bin/article.cgi?f=/n/...

(3) http://www.fcc.gov/mb/policy/political/candrule...

unclesmrgol The Captain was right. Again. So, explain again how eviscerating Glenn Greenwald was?