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FAN 117.1 (First Amendment News) Martin Garbus Files Defamation Suit on Behalf of Pete Rose

WHEREFORE Plaintiff Peter Rose demands a money judgment against Defendant John Dowd for the amounts described herein and an award of punitive damages, together with costs and expenses, including attorneys’ fees, of this action, and such other and further relief as the Court deems just and proper. — Martin Garbus (pro hac vice pending)

Martin Garbus, a lawyer who has done his share of First Amendment defense work, now finds himself on the other side of the constitutional divide.  According to an ESPN news story, Mr. Garbus is representing Pete Rose in a federal defamation suit against “John Dowd, who oversaw the investigation that led to Rose’s ban from baseball, for claims Dowd made last summer that Rose had underage girls delivered to him at spring training and that he committed statutory rape.”

Martin Garbus

Martin Garbus

“The complaint,” says the ESPN story, “was filed today in U.S. District Court in Pennsylvania. It cites a radio interview last summer with a station in West Chester, Pennsylvania, in which Dowd said, ‘Michael Bertolini, you know, told us that he not only ran bets but ran young girls down at spring training, ages 12 to 14. Isn’t that lovely? So that’s statutory rape every time you do that.’ . . . “

“The lawsuit also cites an interview with CBS Radio in which Dowd said, ‘He has Bertolini running young women down in Florida for his satisfaction, so you know he’s just not worthy of consideration or to be part of the game. This is not what we want to be in the game of baseball.'”

“Rose denied Dowd’s accusations. Bertolini has said he never made such claims. Former commissioner Fay Vincent, who was deputy commissioner at the time of Rose’s ban, has said that he did not remember such allegations. .  . .”

Rose v. Dowd complaint here. The three claims for relief set out in the complaint are: (1) “Defamation per se“, (2) “Defamation”, and (3) “Tortious Interference with Existing or Prospective Contractual Relationship.”

 Additional News Stories:

  1. Randy Miller, Pete Rose suing John Dowd for statutory rape accusations,” NJ.com, July 6, 2016;
  2. Debra Cassens Weiss, Pete Rose sues former Akin Gump partner for radio show comments, ABA Journal, July 7, 2016;
  3. Brian Baxter, Pete Rose (and Marty Garbus) Sue Ex-Akin Gump Partner, Law.com, July 6, 2016; and
  4. Greg Noble, Pete Rose sues John Dowd over allegations he had sex with underage girls, WCPO9, July 6, 2016.

Biographical Snapshot:  Ever the maverick, Mr. Garbus has represented everyone from:

  • the ribald comedian Lenny Bruce (Garbus was co-coounsel with Ephraim London in People v. Bruce),
  • to a woman in a libel case brought against a Daily News columnist for allegedly claiming she faked a rape).
  • He was on the brief for the Appellant in Jacobellis v. Ohio (1964) and was counsel for Viking Press in the Appellate Division of the New York Supreme Court in which the court dismissed a libel suit against a novelist (see New York Times, December 16, 1982).

See generally:

  • Nat Hentoff, “First Amendment Lawyer Punished,” Nevada Daily Mail, April 11, 1996 (“Garbus . . . followed his conscience to help someone he believed had been terribly wronged by a columnist and his newspaper. Let this be a lesson to law school students with a conscience.”)
  • John Sullivan, “Columnist Wins a Suit On Articles About Rape,” New York Times, February 7, 1997 (“The woman’s lawyer, Martin Garbus, said that the judge’s conclusions were wrong and that the ruling could provide an opportunity for a successful appeal, though his client had not decided whether to pursue the case.” — The case was dismissed and no appeal was taken.)
  • Martin Garbus & Richard Kurnit, “Defamation in Fiction: Libel Claims Based on Fiction Should be Lightly Dismissed,” Brooklyn Law Review (1985)
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FAN 117 (First Amendment News) Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law

Columnist George Will held them out as the go-to group when it comes to the First Amendment and campaign finance laws. The group: The Center for Competitive Politics. Consistent with that reputation, the Center has recently prevailed in a challenge it leveled against  a Utah campaign finance law (Utah Taxpayers Association v. Cox). Here are some excerpts from a press release from the Center:

Screen Shot 2016-07-19 at 9.39.24 PM

“In an agreement approved by a federal judge this afternoon, Utah agreed not to enforce a state campaign finance law that violated the First Amendment. The complex law required nonprofit advocacy groups to register with the state and publicly report their supporters’ private information, threatening donations to those organizations.”

“The agreement, known as a consent decree, was approved by U.S. District Court Judge Dale A. Kimball and settles a lawsuit filed on behalf of three Utah groups by attorneys at the Center for Competitive Politics, America’s largest nonprofit working to promote and defend First Amendment rights to freedom of political speech, assembly, and petition.”

Allen Dickerson, CCP Legal Director and the lead attorney in the lawsuit said, ‘This complicated law chilled speech and association protected by the First Amendment. By regulating speech about any public policy issue and groups with only trivial connections to elections, Utah failed to regulate with the care the Constitution demands. We appreciate the work done by Attorney General Sean Reyes’s office to settle this litigation and provide necessary guidance to all advocacy groups in Utah.'”

The plaintiffs were represented by Center for Competitive Politics’ Allen Dickerson and Staff Attorney Owen Yeates.

Here are a few excerpts from the consent decree:

“The State Defendants and their agents, officers, and employees agree not to enforce the law currently codified at Utah Code Ann. §§ 20A-11-701 to -702, as modified to create a donor reporting regime by H.B. 43, because imposing such requirements on Plaintiffs for engaging in constitutionally protected political advocacy and political issues advocacy is unconstitutional unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose. In particular, the State Defendants will not impose fines against corporations for failing to comply with the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose; file or refer criminal charges against such corporations; or otherwise enforce the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose.”

Colorado Petitions SCOTUS in Campaign Disclosure-Requirements Case

The case is Williams v. Coalition for Secular GovernmentThe issue in the case is whether Buckley v. Valeo’s “wholly without rationality” test apply to all dollar thresholds that trigger campaign finance disclosures, or are thresholds below some as- yet-undefined amount subject to heightened constitutional scrutiny?

In its cert. petition Colorado notes:

“To trigger campaign finance disclosure regulations, States rely on dollar thresholds ranging from zero to amounts in the thousands. Recognizing that setting a disclosure threshold is a policy decision entitled to deference, this Court held in Buckley v. Valeo that disclosure thresholds must be upheld unless they are “wholly without rationality.” 424 U.S. 1, 83 (1976). The Tenth Circuit, however, has rejected this test. In two decisions, it has held that Colorado’s disclosure threshold for “issue committees” is too low, although it declined to explain what number would be constitutional. Under that reasoning, even groups that spend $3,500 on campaign advocacy—a figure over ten times greater than the amount that triggers similar disclosure regulations in other States—are exempt from Colorado’s disclosure laws.”

Colorado urged the Court to grant review for the following reasons:

“I.  This Court’s review is necessary to resolve the circuit split over the standard of review for campaign finance triggering thresholds.”

“A. The Circuits are split three ways over Buckley’s ‘wholly without rationality’ test.”

“B. The outcome below conflicts with cases from the Fifth, Ninth, and Eleventh Circuits, which uphold disclosure thresholds for issue committees ranging from $0 to $500.”

“II. The constitutional standards that govern campaign finance disclosure laws, particularly laws that apply in the ballot issue context, are exceptionally important in dozens of States.”

“III. Because it comes from the outlier circuit after a bench trial, this case is an excellent vehicle for resolving the confusion among the lower courts.”

Frederick Yarger, Solicitor Generall, counsel of record for Colorado.

The challenge to the Colorado law was brought by the Center for Competitive Policits.

The ACLU & Campaign Finance Laws: Marcia Coyle Interviews Outgoing Legal Director Steven Shapiro Read More

The Phantom Industrial Policy of the Beltway’s Favorite Health Cost Cutters

A few weeks ago, I spoke on artificial intelligence in health care at the AI Now Conference. I focused on the distinction between substitutive automation (which replaces human labor with software or robots) and complementary automation (which deploys technology to assist, accelerate, or improve humans’ work). I developed three cases where complementary automation ought to be preferred: where it produces better outcomes; in sensitive areas like targeting persons for mental health interventions; and to improve data gathering. Law and policy (ranging from licensure rules to reimbursement regs) could help assure that the health care sector pursued complementary automation where appropriate, rather than chasing the well-hyped narrative of robot doctors and nurses.

The pushback was predictable. Even if complementary automation is better now, shouldn’t our policy reward firms that try to eliminate ever more labor costs? Doesn’t *everyone* agree that the US spends too much on health care–and isn’t technology the best way of reducing that spending? Let me try to address each of these views, boiling down some perspectives from a longer, academic article.

A Policy at War with Itself

There is a troubling tension at the heart of US labor policy on health care and automation. Numerous high-level officials express grave concerns about the “rise of the robots,” since software is taking over more jobs once done by humans. They also tend to lament growth in health care jobs as a problem. In an economy where automation is pervasive, one would think they would be thankful for new positions at hospitals, nursing homes, and EHR vendors. But they remain conflicted, anxious about maintaining some arbitrary cap on health spending.

Politico reporter Dan Diamond encapsulated this conflict in his recent article, “Obamacare: The Secret Jobs Program”–and he leaves no uncertainty about which side he thinks is right:
Read More

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The Indiana Governor’s Race

Now that Mike Pence is officially Donald Trump’s choice to be Vice-President, Indiana Republicans need to nominate someone else to run for Governor this Fall. I thought I would say something about the three prospects, as I know something about two of them. (One is the Lt. Governor, whom I do not know.)

First there is Congressman Todd Rokita, who is currently my representative in the House.  Congressman Rokita is an alumnus of the law school where I teach, though I did not know him in school.  What I can say, though, is that he’s a dunce who would be unable to serve effectively as Governor. He once called the Affordable Care Act the worst law in American history, evidently deciding that the Fugitive Slave Act was not as bad.  Enough said.

Congresswoman Susan Brooks is also a McKinney Law School alum, and I’ve had the pleasure of meeting her several times.  She’d be a terrific Governor, and I hope the GOP picks her.  She’s smart, practical, and good at building coalitions.

I should add, in the interests of full disclosure, that I gave money to the campaign of the Democratic candidate for Governor, John Gregg, who is also an alum of the law school.  If Brooks is picked I’ll vote for her.  If it’s Rokita or the Lt. Governor I’ll vote for Gregg.

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Mike Pence

Media reports say that Donald Trump will select Indiana Governor Mike Pence as his running mate.  Since Pence is an alumnus of the my law school and I did meet him once, I thought I’d share my views.

Governor Pence is a serious man who takes his faith seriously.  He is very good at speaking clearly on issues where he has strong beliefs. He has not shown a penchant for the nuts-and bolts of administration since becoming Governor, but as Vice President that may not matter.

A more serious objection is that when the state passed a Religious Freedom Restoration Act that was deemed hostile to gays and lesbians, the Governor was totally out of his depth when questioned on the matter.  It was not something he had thought about in depth and so he floundered.  To my mind, this could become a liability in the campaign if you like Trump.  Trump is bound to say more controversial things between now and November, and I suspect Pence will not be good at thinking on his feet to defend those sorts of comments.

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Parliament and Brexit

Now that the Tories have settled on a new Prime Minister, there is a fascinating constitutional question that must be addressed in Britain: Can Brexit be triggered unilaterally by the PM or must there be an Act of Parliament? This is not a trivial matter, because it is unclear whether a majority of MPs would support Brexit if it were put to a vote.  (Let alone the House of Lords.)

The issue is partly about whether prior Acts of Parliament confirm or assume Britain’s EU membership in such a way that only another Act can repeal them. Another issue is whether the power to withdraw from a treaty (which is one way of thinking about Britain’s obligations to the EU) is part of the royal prerogative, which is the power that a PM can exercise without Parliament.  In the United States, the President must get congressional approval for a treaty (either through 2/3 of the Senate or a majority of each House), but he can unilaterally abrogate.  Is this true in the UK?  I’m not sure what the recent precedents say, but we’ll find out.

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FAN 116 (First Amendment News) Farber on Scalia & the Abortion Protest Cases

Professor Daniel Farber

Professor Daniel Farber

The current issue of the Minnesota Law Review Headnotes consists of a symposium on Justice Antonin Scalia. One of the contributors to that symposium is Professor Daniel Farber, whose contribution is entitled “Playing Favorites?Justice Scalia, Abortion Protests, and Judicial Impartiality.” His essay consists of an analysis of Justice Scalia’s views on four abortion protest cases and the First Amendment.

Here are a few excerpts from his introduction:

“[G]iven Scalia’s accusations of partiality in the abortion protest cases, a 2013 statistical study concluded that Scalia himself was far more likely to uphold the speech rights of conservative speakers than liberal ones, though the study has been subject to some methodological criticisms.”

“Taking a closer look at the abortion protest cases can shed light on these disputes over judicial bias in First Amendment cases. It can also shed light on two important aspects of Scalia’s work: his rhetorical style, which regularly featured scathing attacks on the motives or competence of other Justices; and his insistence that his own decision-making adhered to rigorous, objective methods of analysis.”

1199772_630x354“In reexamining the four abortion protest cases, my goal is not to decide whose views of the doctrinal issues were correct. Rather, it is to assess whether Justice Scalia or the majority stepped outside normal bounds in ways that might indicate bias. At the risk of eliminating suspense about the results of the inquiry, there seems to be more evidence of partiality on the part of Justice Scalia in these cases than on the part of his opponents.”

He concludes his essay by noting:

“In these cases involving abortion protesters, Justice Scalia accused the Court of ignoring well-established law in the interest of suppressing speakers with whom the majority disagreed. That was a serious accusation. It involved not only violation of the general judicial duty of impartiality and fairness toward all litigants, but also of the First Amendment’s own imperative of neutrality toward opposing viewpoints. A close examination of the relevant cases suggests little support for this accusation, although it is never possible to say with confidence that a case was completely unaffected by the biases or ideologies of the judges. . . . “

Headline: “Judge Rules Virginia Can’t Force Delegates to Back Donald Trump”

According to a story in the Wall Street Journal “Virginia can’t require Republican National Convention delegates to back Donald Trump, a federal judge in Richmond said Monday, though he made no ruling on whether the party can itself bind its delegates.”

“U.S. District Judge Robert Payne said the Virginia state law requiring delegates who oppose Mr. Trump to vote for him next week at the party’s convention creates ‘a severe burden’ on First Amendment rights.”

“But Judge Payne explicitly avoided weighing in on whether Republican National Committee rules requiring convention delegates to follow the results of their states as dictated by state and national party rules. Judge Payne said he “lacks jurisdiction to adjudicate” the broader unbinding question. . . .”

Bopp Petitions Court in Judicial Elections Free Speech Case  Read More

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Guns and Public Service Announcements–Part II

The last post got a lot of comments, and so I wanted to follow-up.  One line of thought was “What if a local or state government launched a public campaign to discourage people from voting or believing in Islam?  How are those different from discouraging people from owning a gun?”

A couple of responses come to mind.  First, any of these kinds of campaigns could be unconstitutional  depending on what they said.  For example, if the message was “Don’t buy a gun or else . . .,” that would be coercive in a way that would violate the Second Amendment.  Second, something can be very wrong but still constitutional. Third, these rights are not equivalent.  Felons cannot own guns, but felons can (in most states) vote and (in all states) practice Islam.  So you can’t say that they all must be treated equally with respect to the validity of government speech discouraging them.

Let me add one more thought.  Suppose Columbine decided to use public funds for an anti-gun message.  Given the sad history of that high school, would you really say that the town would be prohibited from responding in that way?

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Justice Ginsburg Should Apologize

It is inappropriate for a sitting Justice to take sides openly in a presidential election, as the Justice did in her interview with Adam Liptak yesterday.  Even though it was safe to assume that she was for Hillary Clinton and was not a fan of Donald Trump, she should not say so in the media.  The younger Justice Harlan was right when he stopped voting after reaching the bench, because he said it might affect his impartiality.  Justice Ginsburg is not helping anybody by sounding off.