Author: Heidi Kitrosser


Abusive Secrecy

Here are some statements from an op-ed published in February, 1989 in the Washington Post:

“It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”

The author also referred to the famed Pentagon Papers case of the early 1970s, in which the Nixon administration had sought to enjoin press publication of a Defense Department-commissioned history of the Vietnam War. The op-ed author wrote: “I have never seen any trace of a threat to the national security from the [Papers’] publication. Indeed, I have never seen it even suggested that there was such an actual threat.”

Who wrote this op-ed piece? None other than Erwin N. Griswold, former Solicitor General of the U.S. during the Nixon Administration, who argued the Pentagon Papers case before the Supreme Court on behalf of the White House.

Griswold’s words — not to mention his very example as a government servant who fought tooth and nail for secrecy only to acknowledge later that the fight was unjustified — resonate all too well today. Just this past week, we’ve seen the release of a classified document that was the subject of a major subpoena brouhaha until the government finally released the document and its innocuous nature became clear. Also released after twenty-five years was was the previously classified FBI file on John Lennon, revealing such shockers as the fact that “Lennon has encouraged the belief that he holds revolutionary views, not only by means of his formal interviews with Marxists, but by the content of some of his songs and other publications.”

Today, the NY Times op-ed page features a stunning piece by two former CIA employees, explaining that the CIA refuses to let them release an unredacted op-ed about Iran policy. The CIA concluded on its own that the piece contains no classified material, but explained to the former employees (who are subject to a pre-publication review agreement as ex-employees) that the agency “had to bow to the White House.” Because all of the redacted information apparently is in the public domain, the ex-employees have released the redacted op-ed along with citations to public sources that fill in the redaction gaps. The authors acknowledge that readers will have to review each of the citations “to make much sense of [the] Op-Ed article.” Needless to say, such a cumbersome read is far less likely to be effective, let alone to get read, than would a single, unredacted piece.

I don’t know of anyone who seriously suggests that the government must never keep secrets. Secret-keeping sometimes is a necessary evil to protect national security and other government functions. But abusive secrecy in the form of massive over-classification, unwarranted pre-publication restraints, etc. should not be tolerated in a system that is founded in large part on the free flow of ideas, an informed populace, and ultimately self-government. Nor MUST it be this way. Both Congress and the courts can play a much more active watch-keeper role over executive branch secrecy than they generally do. As I have written about here and here (and in a forthcoming piece on classification leaks and the First Amendment which I haven’t yet released) such a role is entirely consistent with, even demanded by, the checks and balances that are supposed to keep our system from devolving into tyranny.


Balkin on the Subpoena Power as an End-Run Around the First Amendment

Very good discussion by Jack Balkin of the administration’s dangerous new use of the subpoeana power. In a nutshell, the administration is attempting to use the subpoena power to create a de facto prior restraint on speech by demanding “any and all copies” of a document, thus making it impossible for a speaker ever to disseminate the document. As Balkin explains, this amounts to an attempted end-run around the very strong judicial presumption against prior restraints on speech — a presumption that applies even to classified information dissemination. See, e.g., the Pentagon Papers case.


on exams and motivation (or “good luck on exams!”)


Good luck to all students on their exams.

Given that it’s exam time, it only seems fitting that there’s been some talk lately in the blogosphere about motivation. See this terrific first post by fellow C.O. blogger Marcy Peek, and this great little note by Jim Chen over at MoneyLaw.

Here are my two cents. First, I couldn’t agree more with Jim & Marcy that one should frequently remind one’s self of the big picture reasons why one came to law school, why one is struggling through exams, etc. Second, I think it’s also key to find a way to appreciate the day-to-day struggle itself. Sure, there’ll be lousy days, depressing moments. That’s part of being human. But if you can find some joy, purpose and excitement in the day-to-day process, make some good friends along the way, and remember your big picture reasons for going through that process – especially in the not-so-joyful moments — well, that makes for a pretty successful existence, I think.

So good luck and enjoy your well-deserved breaks when exams are done!


Borat & Free Speech


I just saw a link to this story at Althouse:

“Borat” lawsuit takes aim at forthcoming DVD

Thu Dec 7, 2006 5:18 PM ET

LOS ANGELES (Reuters) – A Los Angeles judge on Thursday said he would consider a request by two U.S. college students to have a scene cut from the hit movie “Borat” that shows them guzzling alcohol and making racist remarks.

In a lawsuit originally thrown out a month ago and now aimed at DVD sales, the fraternity brothers said they were tricked into appearing in the film and that including the scene on the forthcoming DVD would harm their chances of finding work.

To quote Althouse, “Outrageous!”

Also, I think that the free speech case law winds blow pretty strongly against this. The most on point Supreme Court case probably is Bartnicki v. Vopper (2001). If I may plagiarize my own work for a moment (just an excerpt from a paragraph in a work-in-progress in which I summarize Bartnicki): The Bartnicki Court invalidated federal and state privacy statutes as applied against a private citizen and a radio station for disseminating illegally intercepted cellular telephone conversations. In the intercepted conversations, members of a teachers’ union discussed a labor dispute. The Bartnicki Court made clear that its analysis was limited to the relevant factual context, in which “respondents played no part in the illegal interception . . . their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else . . . [and] the subject matter of the [intercepted] conversation was a matter of public concern.”

Granted, I gather that the plaintiffs here allege that the Borat folks _did_ illegally gain their cooperation in addition to disseminating the end result, so obviously that’s a potential ground for distinction. Plus, they likely will try to argue that the Borat movie is largely for entertainment value, as opposed to having clear-cut political relevance as in a labor dispute.

HOWEVER, these distinctions shouldn’t fly, I think, for a few reasons: First, the Court has never resolved how a Bartnicki type case would go were the information obtained illegally by the disseminator, so it’s not clear that such a distinction automatically requires a different result. Second, assuming that the men’s cooperation was gained under false pretenses, agreeing to be taped for a film under false pretenses as to where the film will be shown and the nature of the film seems substantially less invasive than having a phone conversation that you believe to be private intercepted and published. To the extent that the Bartnicki Court essentially balanced out various interests, including speaker privacy and free speech, the extent of the invasiveness seems relevant. Third, there are sound arguments to the effect that Borat is politically relevant as an attempt at political satire about racism, sexism, anti-semitism, etc. Fourth, and perhaps most importantly, the remedy sought by the plaintiffs is a restraint on future speech, rather than civil or criminal penalties. (They might also be seeking the latter — I don’t know either way). Courts virtually always deem prior restraints substantially more troubling than post-publication punishments. Granted, this restraint is unusual in that it would occur after the speech already has been widely disseminated. But it would still be a prior restraint with respect to future prints, perhaps all DVD sales, etc. Plus, to the extent that wide dissemination already has occurred, that would seem to diminish the degree of relief that the plaintiffs can obtain from restraint, thus further impacting the balance of interests against the plaintiffs.


beer, Santa, and commercial speech

Santa likes beer.jpg

Over at PrawfsBlawg, Rick Garnett posts the following:

Free-speech beer

“Ban on Saucy Beer Labels Brings a Free Speech Suit,” the New York Times reports.

Santa Claus will not be coming to Maine this year, at least not on a beer label, if state officials have their way.

The state’s Bureau of Liquor Enforcement in September rejected three beer labels proposed by Shelton Brothers, a Massachusetts beer importer, including one for “Santa’s Butt Winter Porter” that depicts St. Nick from behind, checking a list and drinking a beer, his ample posterior on a wooden barrel.

The bureau said the labels violated a regulation stating that alcohol advertisements cannot contain “undignified or improper illustrations.”

Sorry, I couldn’t resist.

This fact scenario is pretty amusing. But it also makes me think about a First Amendment issue over which I’ve long been torn – the appropriate level of protection for commercial speech. I’m curious as to opinions that others may have on the matter. So I’ll begin with a bit of background on the issue and then I’ll end with a question.

Read More


Silicone Injections & The Twilight Zone

Eye of the Beholder.jpg

Frank previously has blogged about the “Beauty-Industrial Complex.” This story in today’s L.A. Times is another reminder of the serious health risks through which some people will put themselves in the quest for eternal youth and “beauty.” As the blurb under the headline sums it up, “‘Dr. Daniel’ gets prison after injecting Beverly Hills women with a wrinkle remover better suited to a Bentley.” The injections were given at fancy house parties … sort of like tupperware parties with industrial-grade silicone, loads of cash and syringes.

All of this reminds me, by the way, of an excellent old Twilight Zone episode: “Eye of the Beholder” — the picture above is a scene from the same.


Tim Noah: “Happy Birthday, Iran Contra!”

Iran Contra.jpg

Timothy Noah has a great piece in entitled “Happy Birthday, Iran Contra!”

In it, he questions why the scandal’s 20th anniversary has seen virtually no media coverage. Noah’s take: (1) The various factual and legal issues were “mind-numbingly complex,” and hence not conducive to media sound-bites and (2) Noah makes the interesting argument that: “To the extent one can tease out a story line, the Iran-Contra saga is at odds with what we “know” about some of the characters involved, a great many of whom hold positions of power in the current Bush administration.”

He also offers some lessons that we can glean from the scandal including:

“Even when Congress forbids specified activities touching on national security, presidents will be tempted to ignore the law, and when they do, they will tend not to suffer many consequences.”

On that last point, keep in mind that the NSA surveillance program is still ongoing, it is unclear what if anything the new (or lame-duck) Congress will do about it, and the Bush Administration only just approved security clearances for a limited DOJ investigation of the program (one that will not consider the program’s legality), after effectively shutting down a more expansive DOJ ethics investigation last year by denying security clearances to investigators.

Keep in mind also that a grand jury investigation has been convened as a possible precursor to prosecutions for those who leaked and/or published information revealing the existence of the once-secret NSA program. I hope to blog more at some point about this last subject (criminal prosecution of classified information leaks).


“The Little Bit of Michael Richards in Us All”

Michael Richards.jpg Mel Gibson.jpg George Allen.jpg

This post’s title is a teaser that I heard on NPR this morning, referencing an upcoming story. While I missed the story itself, I was encouraged by the teaser line. Encouraged, because it suggests that the story was to take an approach similar to that which many other media stories have taken in discussing Michael Richards’ racist outburst. The approach being one which does not single Richards out as an evil racist in contrast to all of us egalitarian, non-racist folks. Rather, the approach sees Richards’ outburst as symptomatic of a much, much larger, ubiquitous undercurrent of racism in our society, one which lurks to some degree in all of us, threatening to bubble to the surface under pressure. For stories on Richards’ outburst that take this approach in whole or in part, see, e.g., Spencer Overton’s excellent piece in; this op-ed in the Washington Post; and this op-ed in the Baltimore Sun.

This approach is an important one because it is grounded, I think, in a deeply important truth. Most of us understand intellectually that it’s wrong to judge people for the color of their skin, the language that they speak, their gender, their sexual orientation, their national origin, and countless other factors that have nothing to do with the “content of [our] character[s],” to paraphrase the great Martin Luther King., Jr. And we know this to be the case not simply because we have been told so, but because logically and from experience with diverse groups we realize that it simply makes no sense, and is deeply, painfully unfair, hurtful and destructive to judge one another by such factors. That said, we continue to live in a society that is fraught with racist, sexist and other stereotypes, stereotypes that pervade our culture and the barely conscious attitudes of even the most well-meaning among us. This is not a surprise: women have had the vote for less than a century, and state sanctioned racial segregation existed well into the 20th century. It takes a long, long, long time for a society and its people to purge itself of the social inequalities, divisions and attitudes bred by such longstanding discrimination. From this perspective, the view that we are all creatures of our society and that we all must harbor some degree of racism, sexism, homophobia, etc., is hardly a radical one. And I certainly do not exempt myself from this observation. I can think of many occasions in which I realized in retrospect that I had judged or treated someone differently because of their race or gender.

The first step in getting past this terrible social and cultural legacy is for each of us to recognize and admit, at least to ourselves, the racism, sexism and similar forms of stereotype and group-based hostility that lurk within us. Pointing to people like Richards as uniquely racist and evil not only seems incorrect, but seems to miss the point entirely. Rather, we should take events like the Richards outburst as an opportunity to admit the hatred and stereotyping that continues to exist within our society, and within all of us. Only then can we confront that which we harbor within us, but which most of us understand is very, very wrong. That the Richards incident seems to have sparked just such a national conversation is a sign, I think, that there is much about which to be hopeful as we continue to evolve as a society.