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".
Do you believe that Ed's argument was based on an informed interpretation of relevant state and federal legal statutes?
After all, that was the central point of Greenwald's little diatribe. It seems to me that would be a very hard argument to make.
MrLynn
· 1 year ago
Can't speak for Doc, but I do think Ed jumped to conclusions, and said so in my first post yesterday: "But until we hear the judge's explanation, it's a mistake to reflexively condemn him. . ."
When you consider that his style of blogging involves commenting on developing news on almost a real-time basis, I think Captain Ed does a commendable job of maintaining a balanced and judicious viewpoint. In this case it would seem he jumped on fragmentary news reports without waiting for full information.
/Mr Lynn
Frank
· 1 year ago
You prove GG's point when you state:
"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."
Your basis for determining judicial activism is quite clearly YOUR IMPRESSION OF THE DECISION. You don't believe it is just to allow the Courts to dictate who appears on cable television, "it appears on its face" to be wrong. Fair enough. That is a completely rational opinion, but it is an opinion that has no relevance with respect to whether or not this particular judge went outside the bounds of the law in rendering his decision. The fact that a judge used the term "fairness" in an opinion does not mean that all notions of the rule of law were abandoned. A determination in that respect requires a review of the underlying law.
And that was GG's point. If your not going to review the law before you write your column, or your post for that matter, you are writing from a position of ignorance, spewing your own idea of right and wrong, good judges and activist judges. I am not writing to imply that I know the truth with regard to this particular judge or this particular ruling. I am only writing to show that you, and the Captain, are equally ignorant.
This highlights a larger issue in the media, where uninformed opinions are proffered as facts for the masses to accept and internalize as the truth. Just think, everyone who read the old captain's blog today without doing further research is sitting around their dinner table tonight complaining about the darn liberal activist judges... when the person who created that "fact" has now had something of a change of heart... and is going to "wait for the appeal", which he is sure is going to go well (why we don't know), before he makes a further determintion. What happened to getting the facts straight the first time?
MrLynn
· 1 year ago
Doc, the 315 provision you cited does appear to give Kucinich a case: "(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. . ."
However, the question is, what does "use" mean? Networks for many election cycles have been excluding candidates from 'debate' programs. I don't know whether any challenges have been made to this practice in court, but I do vaguely recall appeals to the Federal Election Commission, which I believe ruled in favor of the networks. From this we may conclude that "use" does not mean programs, but paid advertising, as you suggest.
Perhaps someone who knows the history of litigation under section 315 can comment.
/Mr Lynn
dresslar
· 1 year ago
Again, the point here (Doc's post re: Greenwald) has little or nothing to do with whether 315 is applicable. Can someone please defend Ed's original post, as it relates to Greenwald's critique, and answer my question from above - "Do you believe that Ed's argument was based on an informed interpretation of relevant state and federal legal statutes?"
civproguy
· 1 year ago
"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."
State judges routinely make determinations about federal law. State and federal courts have what is called "concurrent jurisdiction" over most cases that are within the jurisdiction of federal courts. See, e.g., Joseph W. Glannon, Civil Procedure, at 77 (4th ed. 2001). That is to say, state courts have the authority to rule on federal laws. Congess can remove particular subject matters under federal law from the jurisdiction of state courts and it has done this with, for example, patent and copyright cases. See 28 U.S.C. s. 1338(a). But it requires specific Congressional action to take a federal law or subject matter "off the table" so to speak.
You said you don't "believe" that state judges make determinations about federal law. But what evidence or research led you to your belief? What legal authority? Far from rebutting Greenwald's cental point, legal criticisms that rely on what you "believe" or what "seems" correct (but is demonstrably false) only prove his point for him.
unclesmrgol
· 1 year ago
Thank you for this.
talleyrand
· 1 year ago
Ed,
You completely misunderstand the concept of jurisdiction. In general, state courts in the US have concurrent jurisdiction over any action that could be heard in federal court--even if the case involves interpretation of federal law. http://en.wikipedia.org/wiki/Concurrent_jurisdi...
In these cases, it is the defendant's prerogative to remove the case to federal court. There is no evidence that NBC attempted to do so here. Given that you apparently misunderstand the law and the procedural posture of the case, it is strange that you would accuse the judge of not the law.
unclesmrgol
· 1 year ago
The Captain was right. Again.
Brian
· 1 year ago
I don't understand your jurisdictional point. I'm not sure off the top of my head whether the case could have been brought in federal court, but if so, NBC could have removed it to there. Even assuming, however, that the case could have been brought in a federal court, there are very few cases that must be brought in federal court (over which they have not just jurisdiction, but jurisdiction exclusive of the state courts). Why would this be one of those rare cases?
lexhamfox
· 1 year ago
Kucinich filed for breech of contract & violation of the the public interest. His contract case is pretty solid. His public interest angle is tougher and that is the aspect that comes under federal jurisdiction. NBC published their own set of standards for who can participate in the debates... Kucinich seems to have met those.
unclesmrgol
· 1 year ago
The Captain was right. Again.
JimC
· 1 year ago
This is the second stunt that Kucinich (D -- Mars) has pulled to get his name in the papers... or to seek relevancy. He filed a complaint in New Hampshire to have the primary votes recounted because of "serious and substantive rumors and allegations" of discrepancies between hand counted and machine counted ballots. Of course, there was no mention of whether or not those discrepancies were in his favor or not. Even if they were, thwey wouldn't have been enough to effect the outcome of the primary... He even admitted that much.
Kucinich... the Democrat's Ron Paul... only slightly more creepy.
Jim C
Kade
· 1 year ago
Third. He's also suing the Texas Democratic Party to be put on the ballot (with Willie Nelson filing an amicus curae)
jr565
· 1 year ago
Kucinich exemplifies the crybaby mentality of the dems, the need to always find some grievance with which they are beset, but which are groundless, and the need to rush to the courts to get their way.
He compaisn because of discrepencies about machine counted ballots in an election where he got like 2% of the vote. What is he fighting for? that he should really have had 2.01% of the vote? That extra .01% doesn't take away the fact that Kucinich is still the biggest loser. And yet he still has to go to court over it.
What a whiny baby.
Paul Amante
· 1 year ago
There is one possible reason that I can think of offhand. Television stations use public airwaves to broadcast their programs. In exchange for the use of these publicly owned airwaves, these stations have an obligation to act in the public's interest. I know the FCC has changed the rules in recent years but I think this still holds true.
unclesmrgol
· 1 year ago
The Captain was right. Again.
MrLynn
· 1 year ago
I don't see anything in the links that explained the judge's reasoning. It's possible--let me stress possible--that it may be a contractual issue and not anything more. I don't know how these 'debate' program invites work, but it's conceivable the network wrote an agreement with Kucinich that a judge could interpret as preventing them from dropping him. Seems unlikely, and it's quite possible we have here just some whacko judge who thinks everyone has a right to participate in private events, or who think the 'Fairness Doctrine' has never been repealed, or something.
But until we hear the judge's explanation, it's a mistake to reflexively condemn him, even though the case involves a genuine moonbat, Rep. Kucinich.
/Mr Lynn
JeanneB
· 1 year ago
From the Huffington Post:
"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."
There's your judicial reasoning. It's not FAIR!
MrLynn
· 1 year ago
Well, if that's all the judge said, I would not dignify it with the title 'judicial reasoning'. Sounds more like errant judicial poppycock.
/Mr Lynn
carol morgan
· 1 year ago
What's private about america's airwaves? The airwaves don't belong to NBC because GE owns NBC/MSNBC but that's neither here nor there, because I can't beleive you don't want peopleto stand up for free speech.If they can decide who we get to hear they will decide who you get to hear. And then all will be lost
MrLynn
· 1 year ago
The airwaves belong to the American people, but they are licensed by the government to private entities, which decide in their own discretion, subject to regulation by the FCC, what to broadcast. You can go down to Rockefeller Plaza and demand to be put on nationwide television, but NBC is under no obligation to do so.
/Mr Lynn
Benedict@Large
· 1 year ago
Clearly Mr. Lynn, you like to SOUND like a lawyer, but equally as clearly, you are not. I doubt you could even score well enough on LSAT to be seriously considered for admission to any law school other than Lynn University.
Of course, that would qualify you for a job with Alberto Gonzales. Perhaps you could even file his appeals. Unless of course he finds God and wants real lawyers for that.
MrLynn
· 1 year ago
Exactly where is the error in those two sentences? Or are you just prone to gratuitous insults?
/Mr Lynn
unclesmrgol
· 1 year ago
The Captain was right. Again.
onlineanalyst
· 1 year ago
Kucinich's toe in the door for the reinstitution of the "fairness doctrine"? Isn't he one of the ones behind this effort?
JohnS
· 1 year ago
Well, Dennis the K may be there - but I bet the judge didn't specify his microphone had to be turned on, or that any camera ever had to show his image in the air.
richard mcenroe
· 1 year ago
Has anybody forwarded this to Ron Paul yet?
unclesmrgol
· 1 year ago
Does Mr. Reid like Mr. Kucinich?
Mark L
· 1 year ago
Solution is simple. Let Kucinich in the building and lock him out of the studio. Any judicial relief cannot take place until after the debate is over, at which point it is moot. Defy the judge to do anything.
Graham
· 1 year ago
Unless this is a violation of a contract (incidentally, I just watched the movie The Paper Chase last night; great movie with a background of contract law) this decision needs to be fought for the same reason that the Alberta Human Rights Council needs to be opposed its persecution of Ezra Levant--the government cannot be given our right to free speech and content on a TV show is free speech.
So Captain, it may be a poor decision on NBCs part to exclude Dennis the Menace, but it needs to be fought and not let stand. NBC should appeal.
Joshua
· 1 year ago
It would be worthwhile for NBC to appeal on the grounds that the situation is capable of repetition, but evading review, because debates are likely to be scheduled and invitations issued on short notice in future elections, and this way NBC could get a precedent against having to invite future Kuciniches to debates in future years.
JeanneB
· 1 year ago
"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.
There you have it, liberal judicial activism in a nutshell.
The judge thinks his job is to decide what's FAIR, not what's legal.
Stephen_Macklin
· 1 year ago
Was there anything in the ruling that says they have to let him speak? If I were NBC I'd put him center stage and then ignore him for the rest of the evening. Just leave him standing there looking like a fool. (Which would probably do less harm to his campaign than letting him talk.)
MSNBC is appealing the ruling! Can you believe it?
MSNBC's exclusion of a running candidate is another example of corporations getting in the way of a true democracy in which we can allview and judge for ourselves. Paul Tullis would have us believe the higher ups think Keith Olbermann runs MSNBC when the question we should be asking is to what extent is NBC;s parent company General Elctric (which received $2.2Billion in defense contracts in 2005 alone) doing its bit to silence the strongest voice against war and military spending? In the interest of fairness and full disclosure, shouldn't we all want to hear all the candidates still in the race? For true democracy we need honest uncensored debates. I believe Kucinich is doing what most Obama and Edwards followers wish their candidates had the guts to do: Seek impeachment for the WMD lies which have cost so many lives on both sides of this conflict. True single-payer universal healthcare: industrialized countries around theworld believe good health is every citizen's right, and though democrats in general are tending towards this viewpoint, only Kucinich has the guts to face the wrath of the drug companies by offering a NOT-FOR-PROFITsystem. Gay Marriage: Kucinich is the only one to truly offer EQUAL rights to all regardless of sexual orientation. Immediate withdrawal from Iraq: The other Democratic candidates either Voted for the War in the first place, like senator Clinton, or seem too afraid to be labeled soft on terrorism. Nobody defends terrorism, but has anybody forgotten what this war was supposed to be about? Iraq's WMDs?Which they didn't have? Why doesn't the US go after the many other dictators which the US has ties w... right. Saddam was armed by the US andsadly so was Bin Laden. The administration relies on xenophobia, fear-mongering and misinformation to push their own interests. If someone is courageous enough to stand up and call them on it, they uninvite him from the debates. So much for democracy.
carol morgan
· 1 year ago
I can't beleive my eyes! Are these American's talking? What are you afraid of? Oh I know, that given a chance Dennis Kucinich will win! You all must be scared to death to go to such extents. Do you really beleive that NBC owns the airwaves? GE owns NBC/MSNBC, can't you figure it out.? The news media is so bias, it should make us all sick. Have you ever listened to him? You want your country back?: Vote KUCINICH. Now go back to trying to keep democracy down. Don't look at the polls on line or you will see the support Dennis and Ron Paul have.
unclesmrgol
· 1 year ago
The Captain was right. Again.
carol1
· 1 year ago
Talk about crybaby's listen to yourselves. Do you know that NBC/MSNBC is owned by GE, and guess what , America owns it own airwaves. But I"m interupting your attempt to limit free speech, and democracy. When GE gets to decide you you will see and hear, won't we all be the loser?
Math_Mage
· 1 year ago
Uh...ok, so General Electric owns a news corporation and gets to decide what gets said on NBC. I bet that'll kill the country just like William Randolph Hearst did. And wtf does "America owns its own airwaves" mean?
The First Amendment only prevents government obstruction of free speech. Limitations on private action, like NBC deciding whether or not to include Dennis Kucinich at a debate (or Fox deciding whether or not to include Ron Paul), are only now being cautiously looked in to, and furthermore seem to contradict the right to free speech by imposing a standard of fair speech (and the government determines what is "fair").
This is assuming that Kucinich's case is built around the First Amendment, which doesn't seem to be the case (see lexhamfox, above). But if it were, you would be totally and completely wrong.
unclesmrgol
· 1 year ago
The Captain was right. Again.
MarkTheGreat
· 1 year ago
The only reason "govt owns the airwaves", is because the govt stole them through emminent domain.
Fairness
· 1 year ago
NBC has absolutely no right to exclude a qualified presidential candidate, such as Dennis Kucinich, from a debate. They operate under a license granted to them by the people and they are violating the public trust that license confers on them. And the Fairness doctrine should be and will be reinstated.
Kevin K.
· 1 year ago
The Fairness doctrine - the very definition of 'oxymoron' - will never be "reinstated".
docjim505
· 1 year ago
Could you please define "qualified"? Under the Constitution, I am a "qualified" presidential candidate. If I show up at the debate, does NBC have an obligation to let me speak?
unclesmrgol
· 1 year ago
The Captain was right. Again.
karenhasfreedom
· 1 year ago
Does anyone have any doubts now why this election is so important for the judges which are to be appointed? We will get more "legislate from the bench" folks rather than constitutional judges if we allow the Dems to win this election.
Frank
· 1 year ago
The fact is you have no idea the legal basis for the judge's ruling and, as a result, you are in no position to decree if he has, or has not, attempted to "leglislate from the bench". As someone mentioned before, Kuncinch's claims were for breach of contract and violation of the Communications Act. His breach of contract claim seems pretty straight forward and strong, but without seeing the language in the contract it is difficult to really tell. As far as his Communications Act claim, I have no idea because I am not familar with the langauage of the statute.
I don't know if you or Morrissey have a law degree, and I am not saying the fact that I have one puts me in a better position to opine about the merits of the judges ruling, but rather that I am in a better position to know what I don't know, so to speak. What I do know is Morrissey's writings regarding kucinich's "tort" and the jurisdictional issues associated with the non-existent "interstate commerce claim" belie the fact that he has any idea what he is talking about.
unclesmrgol
· 1 year ago
The Captain was right. Again. You need to return to law school.
Frank
· 1 year ago
You missed the point. Again. The Captain had no idea what he was talking about and didn't bother to research the issue. (tort, interstate commerce claim, jurisdictional issues) The fact that he eventually got it right has no bearing on my argument which was no one knew the facts of teh case, the basis or claims or the judge's reasoning and further, no one bothered to check before declaring "activism". Indeed my argument was not that the judge was no t an activist, but that you and the Captain had no idea either way... and frankly you still don't.
unclesmrgol
· 1 year ago
I think you missed the point. Again. We all knew the "facts", including the three claims Kucinich made in his case, long before the Judge Thompson's decision was quashed. We have the Supreme Court of Nevada decision as a guide, and the mandamus they issue at the end is quite pointed. Read the Court's unanimous opinion, and note where they align with the Captain's reasoning.
You lawyer dudes were owned by a non-lawyer in this one. I know this loss has got to rankle, but you've got to follow those law school admonishments about not taking a loss too seriously...
Frankly, Frank, you are welcome to hold to whatever tatters of nonsense you think is appropriate. I'll hold to mine. And we'll see who's right 90% of the time and who's right 10%.
New_Jersey_Buckeye
· 1 year ago
One small point, you object to the appointed judges making these decisions. However, this judge along with all judges and supreme court justices in Nevada are elected positions. Many of the midwestern and western states elect their judges rather than have them chosen through appointments. As for the appeal, there is no intermediate stage in the Nevada judiciary. It goes directly from the trial court to the NV supreme court, which is very backlogged.
unclesmrgol
· 1 year ago
The Captain was right. Again. And this judge was probably one of Reid's friends.
conservative dude
· 1 year ago
according to judge thompson's official biography, he is a republican. FYI.
RepresentativePress
· 1 year ago
Business control over our political discourse is a bad idea. And many false assumptions were made when it was assumed that these media outlets would serve the public's interests. Actually, the over the air broadcasters are obligated to operate in the public's interests in exchange for all the free gifts they get from the government. I think cable outlets are getting a lot OUT of USING what should be the public's forum for their own enrichment. The idea always pushed is that private companies are "better" at performing a given function so we assumed we would let these corporations administer this public forum for us (while they make money off of doing so) Turns out they can't do the job and this invite then disinvite crap is yet another example. I sense an odd disconnect from you about the interests of the AMerican people and a big concern for profit corporations doing what ever they want within our society.
I don't hear any concern for the public to have a true public forum where politics can be debated in national debates. There needs to be a media system that is operated non-profit which is under the total control of the general public. I advocate for one, look for info soon on RepresentativeMedia.org
The Captain was right. Again. And the cable is owned by the cable company. Ever heard of the maxim "Freedom of the Press belongs to the owner of the press"?
jurnei
· 1 year ago
You missed the point of the entire action. Media in this country will only allow candidates THEY choose to participate in their nationally televised debates. This country is founded on the principles of government for the people, BY THE PEOPLE - not the media. They can provide whatever "entertainment" they care too. However it is irresponsible journalism to unilaterally decide who is running for president. Your shallow analysis of this event is shocking.
unclesmrgol
· 1 year ago
The Captain was right. Again. And Nevada's Supreme Court agrees with the Captain's shallow reasoning on how the First Amendment applies. Maybe you should take it up with them.
docjim505
· 1 year ago
Can you say "Fairness Doctrine"? I think you can...
I see from the comments that some lefties have showed up, spouting their mantra about how eeeeeevil corporations are "controlling" the news and it just ain't right!
Here's a hot tip for you: somebody has to "own" the media outlet, whether it's the government (Pravda), some non-profit, or a nasty ol' corporation (ABC, NYT, etc). The end result is always the same: somebody other than "the people" control the media. The virtue of corporate ownership is that it at least has some accountability in the form of market forces: if the public perceives that it is delivering a bad product in the form of biased, sloppy or incorrect news, they will vote with their pocketbooks and the news agency will either have to improve or go out of business (paging Pinch Shultzberger!). A government agency, because it is backed by the virtually unlimited resources of the government, isn't so responsive. Its only accountability mechanism exists in the ballot box: do you REALLY want George Bush having ultimate control over the media in this country? I know I sure as hell wouldn't want the Hilldabeast in that position.
As for ownership by THE PEOPLE... Good grief, people! This ain't the '70s anymore! That "Power to the People!" crap didn't work then, won't work now, and can't ever work. Give it a rest, OK?
Ravi
· 1 year ago
The corporations may be accountable to the market forces, but the people at the corporations are not. That's the central problem with incorporation is it insulates people from their business risks. If you want the reward, you should accept the risk.
If the market really decides what information is most valuable, then porn is the best commercial product, by a huge margin.
docjim505
· 1 year ago
1. Apples and oranges. Porn is unquestionably popular, and it may be that, given a choice, people would prefer to watch Jenna J being... er... ahem... would prefer to watch Jenna J than Katie Couric. However, Americans unquestionably like being informed. The proliferation of cable news channels, the continued sale of newspapers to, the rise of talk radio, etc. all demonstrate this.
Just because hamburgers are more popular than salad doesn't mean that there isn't a market for salad... and it doesn't mean that the government needs to step in to either (A) force people to buy salad or (B) force hamburgers stands to sell the stuff if their customers don't like it. Ditto news and opinion. Or, to borrow from your own analogy, nobody should force porn studios to make and market gay porn if that's not what their customers want to see. Do you think porn would be as popular as it is if the government mandated "fairness" in it, by the way? That, in order to be "fair", every porn movie must have a certain of gay / trannie / etc scenes?
2. Um, if a corporation is accountable to market forces, then by definition the people there are, too. Granted, when a corporation goes bankrupt, its officers and employees don't all die; they move on. But only an idiot would knowingly and willfully cause his business (whether corporation or sole proprietorship) to provide a bad or otherwise unwanted product or service; the market will let him know very quickly that he's made a foolish and self-destructive decision.
If the president of my company makes stupid decisions and the company folds, he'll be out of a job just like I will, though it's quite likely that he's negotiated a contract that will make unemployment a damned sight more comfortable for him than for me.
The only people I know who have the kind of insulation your talking about are government bureaucrats. Thanks to their anonymity AND civil service protections, they can foul up all the time and not be fired for it. As a parthian shot, where do you typically get better service: at a nasty ol' corporation... or the DMV?
MarkTheGreat
· 1 year ago
To a liberal, everything belongs to the govt, so it's natural that Kucinich would turn to the courts to control what a network puts on the air.
jvill
· 1 year ago
Haha...
I'm a liberal working on Wall Street and in venture cap.
Did your head just explode? Must be the fault of judicial activism.
Jazz
· 1 year ago
Good for the judge! Hooray! We don't need them keeping Kucinich off the stage. If we get to have Ron Paul for comic relief during the GOP debates, I think the least MSNBC can do is provide Kucinich for the Dem debates so we don't fall asleep listening to Obama, Clinton and Edwards.
ParatrooperJJ
· 1 year ago
Of course the judge has juristiction, the event is happening in nevada.
unclesmrgol
· 1 year ago
The Captain was right. Again. The Nevada Supreme Court determined that the judge lacks jurisdiction.
Have the courage to admit that you're wrong and simply don't understand the law.
docjim505
· 1 year ago
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".
"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."
You're wrong. They do it all the time. The vast majority of federal claims can be brought in state court.
unclesmrgol
· 1 year ago
The Captain was right. Again. So, explain again how eviscerating Glenn Greenwald was?
MrLynn
· 1 year ago
I am going to expand a little on what I said above:
The airwaves belong to the American people, but they are licensed by the government to private entities, which decide in their own discretion, subject to regulation by the FCC, what to broadcast. You can go down to Rockefeller Plaza and demand to be put on nationwide television, but NBC is under no obligation to do so.
Of course, as DocJim said, the airwaves really belong to no one. Congress decided early on that they would belong to "the American people," and therefore could be managed and licensed by the Federal government. It is true, as some have mentioned above, that the FCC, the agency Congress put in charge of managing the airwaves, has a 'public interest' requirement for radio and TV stations. In radio the licenses must be renewed every few years, and the stations must maintain a 'public file' (of letters mainly) that the FCC may inspect. The FCC will also respond to complaints from the public. I assume the same is true of TV stations and their parent networks, but it is by and large a pro-forma requirement. The attempt by Congress to regulate political speech, the so-called 'Fairness Doctrine', had the effect of stifling all political speech; that of course is why the Left wants to re-institute it, since it would have the effect of curtailing conservative talk radio. (And why is talk radio overwhelmingly conservative? Because that's what the market supports--liberal talk fails miserably, except on NPR, where it is taxpayer-supported).
In practice the 'public interest' component of license renewal is pretty skimpy, as perhaps it should be, considering that in major markets there are a plethora of radio stations. And of course we now have cable TV (and cable and satellite radio), which do not use any of the broadcast spectrum, and are not subject to such rules.
A gathering of presidential or other candidates for a broadcast 'debate' is at bottom a TV program like any other, and its format and content can and will be decided by the station, not the government. Unless there are contractual issues involved, a state or federal judge has no business interfering on grounds of 'fairness' (or any other grounds, unless a criminal prosecution is involved).
Now there is one network that is financed in part by taxpayer funds, namely the Corporation for Public Broadcasting and its broadcast outlets, PBS and NPR. You might think that if the Congress and the people wanted all-inclusive 'debates', they would require PBS and NPR to broadcast them as a condition of receiving public funds. But as far as I know there are no such requirements.
There is in fact one network that provides a true public service, and that is C-Span. In my view, C-Span is the only network that deserves any taxpayer funds. It broadcasts the proceedings of Congress, and much else in the public arena, in addition to fulfilling a genuine educational function, and makes a serious attempt to be scrupulously unbiased--unlike PBS and NPR, which are by and large organs of the liberal Left. If anyone should be broadcasting debates, it should be C-Span. Of course, C-Span is not a broadcast network: it uses cable exclusively.
That's the state of affairs in this country at this time. There is no obligation for the commercial TV networks, broadcast or cable, to include anyone in their 'debate' programs, and if Mr. Kucinich had a legitmate complaint, it would have been for breach of contract. There is no requirement for NBC to be 'fair'. In point of fact, in most states there are usually a plethora of minor candidates running for president (Socialist Workers, Green, anti-tax, Prohibitionist, vegetarian, whatever). None of them are included in the broadcast 'debates'. Arguably they should be, but programmers know that most of the audience would tune out. Let PBS do it.
/Mr Lynn
jvill
· 1 year ago
"There is no obligation for the commercial TV networks, broadcast or cable, to include anyone in their 'debate' programs, and if Mr. Kucinich had a legitmate complaint, it would have been for breach of contract."
Um, the suit was indeed for breach of contract (among other Nevada-specific laws).
docjim505
· 1 year ago
Um, according to your hero Glenn Greenwald (I tremble at the mere mention of his name!), it was also over an alleged violation of FCC rules.
conservative dude
· 1 year ago
it was both.
openmouthedfool
· 1 year ago
Ahem. "America owns the airwaves?" Think about that for a minute. What, did "America" somehow invent or create electromagnetic radiation? We don't "own" it just because we can control it.
unclesmrgol
· 1 year ago
We owned it enough to lease it to NBC. Now that it's leased, NBC's First Amendment rights apply.
Ravi
· 1 year ago
If you read the complaint, Kucinich claims these points to make his case:
1. He's a credible candidate for president - he has some facts to back this up, but it's only technically correct. I guess credible under criteria earlier established by NBC, but not viable at all. The earlier criteria said "top 4" and then they changed it to "top 3." 2. His views are substantially different from the other Democrats - true, and he outlines some differences 3. The new rules NBC made up were created just to exclude him - a matter of opinion, which was, I guess the judge's job to decide
Kucinich cites (and quotes) a section of the Federal Communications Act, but you know what? The complaint is only 6 pages long, in a huge font, and double spaced. Read it yourself and decide don't let the media tell you what to think.
ic
· 1 year ago
Anything to do with "equal time"? Is the debate NBC's freebies, free advertising, free campaign contributions, to its favored candidates? K has not wiithdrawn or been disqualified, of course he should be given time to make his pitches. If NBC disinvited him because he was not deemed viable, some of us believe Edwards was not viable, a couple of months ago, McCain was not viable. Ron Paul was in the Republican debate, so why not Kucinich in the Dem's. As a matter of fact, none of those debates were real debates. They were questions and canned answers sessions. The questions were pre-selected, the answers were canned by strategists and internal pollsters. Unless they have something like the Brit's House of Common's debates, they are not worth watching.
Kevin Keeney
· 1 year ago
Every time a conservative complains about judicial activism, an irony meter dies.
You got pnwed by Glenn Greenwald. You may want to post an update or something.
unclesmrgol
· 1 year ago
The Captain was right. Again. Glenn Greenwald got pnwed by the Ed Morrissey.
jvill
· 1 year ago
Glenn Greenwald (an actual lawyer) rips apart this post for being completely out of sorts and for ignoring the actual law:
It's literally impossible to know less about the relevant issues here than Morrissey. He just simply doesn't know what he's talking about in the slightest, yet that doesn't stop him from emphatically condemning the Judge as a stupid, corrupt activist, while accusing Kucinich of "fil[ing] the claim in the wrong court and push[ing] for government control over the speech, property, and assembly rights of NBC."
The Captain was right. Again. It's impossible to know less about the relevant issues here than Glenn Greenwald. The Nevada Supreme Court emphatically condemned the Judge as trampling NBC's First Amendment rights.
The Captain was right. Again. The Nevada Supreme Court replied for him.
ME
· 1 year ago
Mr Lynn, you mentioned "Unless there are contractual issues involved, a state or federal judge has no business interfering on grounds of 'fairness' (or any other grounds, unless a criminal prosecution is involved)."
Which is exactly what we have here, and what the Judge apparently ruled on. Thank you for making clear that the Judge DOES have legal standing to compel NBC to include Kucinich,
mojo
· 1 year ago
Fine. Include the little twit, just don't ask him any questions. Let him stand there looking stupid.
labradog
· 1 year ago
I'll suggest that, before you make a World's Fair of your ignorance, you check with a lawyer, who would know what he's talking about. There are too many errors and displays of bottomless ignorance for me to address, here. But, dude, you are embarrassing yourself.
unclesmrgol
· 1 year ago
The Captain was right. Again. In spite of your ad hominem attack upon him.
glasnost
· 1 year ago
I don't know about anyone else, but I'm actively looking for conservatives who I can respect. There's only one criteria, and it's not ideological:
Don't issue demagogic judgements involving topics you are ignorant of. Understand what you're talking about, or else speak in a manner that indicates your lack of knowledge - i.e., humbly.
Sometimes you appear to fit this criteria, Ed. Other times you drop the ball. I see Glenn Greenwald has already been linked repeatedly in this thread. You owe your readers some sort of attempt at a response - rebuttal, apology, explanation, whatever, but make sure it addresses Glenn's factual points, which seem to demonstrate clearly that you have no understanding of the relevent laws or jurisdictional constructs.
To quote you:
Constitutionally, this case belonged in federal court, which has jurisdiction on any interstate commerce complaints."
To quote Glenn:
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). Morrissey's claim that "Kucinich filed his tort in state court" is equally cringe-inducing, since Kucinich filed a contract and a statutory claim, not a "tort."
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. The Congress and the Executive Branch regulate how our public airways are used through statutes and regulations, and courts are not just a proper venue, but are the only proper venue, for resolving disputes arising out of those laws and regulations.
My conclusion: A lot like Glenn says, for conservatives, "judicial activism" equals "this court issued a ruling I don't like."
captained
· 1 year ago
I respect Glenn's opinion, and I'll respond to you because unlike the others who flooded here to promote Glenn, you're a regular commenter. I did screw up on using "tort" which is a specific legal term; sometimes the urge of writers to very the vocabulary bites one in the rear.
I'll wait for the appeal. I'm suspecting that the "contract" argument won't hold water. When the appeal gets decided, I'll post the update back here.
flagwaiver
· 1 year ago
You didn't just screw up by misusing "tort," amigo. You screwed up in every paragraph. Cover it all in your response.
dfeyres
· 1 year ago
Flagwaiver, The Nevada Supreme Court unanimously said that the Captain was right and Mr. Sockpuppet Esq. was wrong. I'd suggest sprinkling a little ketchup on your foot next time you post something here.
unclesmrgol
· 1 year ago
Thanks for getting one I missed. Nice response.
dresslar
· 1 year ago
Ed,
Instead of, "Glenn Greenwald dissects my argument ...", I believe a more informative lead-in for your readers would have been "Glenn Greenwald invalidates my argument."
After reading Glenn's article, I don't really understand your, "... I'll wait for the appeal." response. I believe he made it pretty clear that your argument was based on nothing relative to the legal aspects of the case. Accordingly, I don't really see what impact the results of an appeal would have on the veracity of your argument (given the fact that NBC, it ints legal filing is not disputing the court's jurisdiction).
That said, you should be commended for linking to his post. Very classy move.
Any interest in responding to Glenn's actual point here? I think it is one that deserves a response.
unclesmrgol
· 1 year ago
The Captain was right. Again. The Nevada Supreme Court invalidated Glenn Greenwald's argument.
dresslar
· 1 year ago
Please explain in detail just how Greenwald's portrayal of the situation was invalidated.
Greenwald's point was not that the injunction wouldn't be overturned. In fact, he explicitly stated, "... and I have no idea whether the court's decision is reasonable, defensible, or right." His point was that Ed argued from a position of extreme ignorance.
I know this is a silly question, but have you even read the decision to find out what the court said? Read the reasons that they overturned the lower court. I take it from your cry of vindication, that they argue that no state court has the jurisdiction to hear this case. Is that what they said? Did you even read it before you before you wrote this last post? Do you have any legal background that would render your opinion in this matter worthy of consideration? Or, is the decision, in and of itself the vindication.
If I say that the Patriots will win the Super Bowl due to the convergence of prime interest rates and the percentage of African-American voters who pulled the lever for Mike Gravel in the Iowa primary, would my argument be validated if they win? By your logic, the answer is an emphatic, "Yes!"
So, once again I ask that someone, please, answer this very simple question:
Do you believe that Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
unclesmrgol
· 1 year ago
I don't need to explain a thing. Read it and weep. Note that each one of Kucinich's claims is addressed and dismissed, and Da Judge gets a Writ of Mandamus (aka a Big Wedgie).
conservative dude
· 1 year ago
hey uncle, as i have read through the posts here, i am detecting that the liberals and cap'n ed supporters are talking at cross purposes. the latter group arguing that ed's opinion is validated by the overturning of judge thompsan's ruling. while many of the greenwald supporters basically saying that he got it right for the wrong reasons.
after having read the NSC's ruling, i have to give this one to the greenwald gang. the ruling states that the court lacked jurisdiction on the FCC claim because kucinich did not apply to the FCC first for relief, not because they are federal airwaves. it has been pointed out that state courts are able to rule on federal laws. On the contract claim, which ed did not address, the NSC ruled that the judge was wrong in not considering whether or not a valid contract existed.
if one of my medical students gave me the correct reaction product on an organic chemistry question, but had all of the intermediate products wrong, the answer would still be counted as incorrect. knowing how to get an answer is just as important as getting the answer for obvious reasons.
dresslar
· 1 year ago
Yes, explanations don't seem to be a necessary debating tool with you and your compatriots defending Ed.
"I don't need to explain a thing." Shouldn't that have been, "I CAN'T explain anything?"
Truly pathetic, unclesmrgol.
StaggerLee
· 1 year ago
One simple question, would the good captain be just as indignant if it were say, Tom Tancredo (supposing he hadn't dropped out) that was invited then dis invited?
flagwaiver
· 1 year ago
docjim, 1. Greenwald did not assert that "not having Kucinich on the debate somehow negates Sec. 315's requirements . . ." What Greenwald wrote was that Kucinich's ALLEGES in his complaint complaint that NBC's action "violates the mandates of Sec. 315 . . ." 2. Sorry about your guffaw, but a judge using the word "fairness" while on the bench does not mean that his decision was based on a subjective sense of what's fair and what isn't. Your somewhat hysterical reaction only reinforces Greenwald's fundamental point that Morrissey (and you) would be better advised to make an effort to understand the issues before attacking the judge. I doubt that his written opinion will consist of "what's fair is fair." 3. There is such a thing as concurrent jurisdiction and state court judges make determinations based on federal statutes every day in every state. 4. The notion that "when there are 'all sorts of analyses' to be made about the law, it pretty quickly becomes a federal matter," is flat wrong. Federal courts handle only a tiny fraction of the cases litigated in this country, and many state court cases are immensly complicated. 5. Yes, NBC operates all over the country. That's why the Nevada state court has jurisdiction over NBC. 6. Yes, NBC is involved in interstate commerce. Yes, the Constitution gives to Congress the power to regulate interstate commerce. No, that doesn't mean that the commerce clause is implicated anytime there is dispute involving a company involved in interstate commerce. If it were implicated, that would give rise to a federal question, and the federal court would have jurisdiction. Sadly, that is not the case. 7. I don't think Greenwald professes not to understand the commerce clause. I think he is just expressing some impatience with Morrissey's careless use of language and pretension that he has any idea what he is talking about. 8. The court was ruling on an a petition forbrought on an emergent basis for an order to oblige NBC to include Kucinich. Such petitions are heard on an emergent basis because time is usually short and if there is a delay, the ruling will be moot. That is the case here. Under these circumstances it is common for the judge to make a ruling from the bench followed by a written opinion later. What Greenwald is saying is that Morrissey shouldn't be attacking the opinion of "an activist judge who didn't know much about the law" (how's that for chutzpah!) until he knows the facts and the law and the judge's rationale for applying the law to those facts. 9. NBC's appeal is not to the federal courts. The appeal will go to the Nevada Supreme Court. There is no ned for federal review, and for all practical purposes, no avenue for federal review.
captained
· 1 year ago
Looks like the Nevada Supreme Court agreed with me on this one. They overturned the lower court decision on First Amendment and jurisdictional grounds. How embarrassing .... for all of you.
dresslar
· 1 year ago
Ed,
Your self-proclaimed vindication is, in a word, laughable. Please take a few minutes of your time and answer for the class, the following question:
Do you believe that your argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
It's pretty simple Ed. Greenwald's point was not that the injunction wouldn't be overturned. In fact, he explicitly stated, "... and I have no idea whether the court's decision is reasonable, defensible, or right." The point was that you argued from a position of extreme ignorance.
So, please, answer the question and let's put this to bed.
docjim505
· 1 year ago
Stop digging yourself deeper. You seem to be attempting to continue to discredit Cap'n Ed despite the fact that he was right... BUT FOR THE WRONG REASONS!
If it makes you feel any better, just tell yourself that he got lucky THIS TIME... as you leave the field a loser.
dresslar
· 1 year ago
Your ignorance knows no bounds. For the 3rd time. please answer the question:
Do you believe Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
docjim505
· 1 year ago
OFFS!
OK, Killer, you win! I think that Cap'n Ed, who is not a noted constitutional lawyer, legal scholar and member of the bar in Nevada, was totally talking out of his butt. I stipulate that he had not the faintest clue about the legal issues at hand when he made the wild, crazy, totally-without-any-legal-knowledge argument that Judge Thompson was guilty of judicial activism when the judge told NBC that they HAD to put Dennis the Menace on the debate or else!. In fact, I'll even go so far as to say that Cap'n Ed wouldn't know a law book if it bit him in the ass. Hell, it's even possible that Cap'n Ed developed his argument while under the influence of some mind-altering drugs. Either way, I agree with you: he completely, utterly, totally, conclusively, inarguably had NO informed understanding AT ALL of the facts of the case or of the relevant state and federal statutes. You should never, ever read another of his blog posts on legal matters because, IMO, he'll NEVER write one based on informed interpretation of the law or the facts of a case. It just ain't in him. Nice guy and all that, but a complete dunce when it comes to the law. You're better off asking the Pope about day-to-day life in a Bangkok brothel than you would be reading ANYTHING Cap'n Ed writes about the law. He's totally ignorant of it. I doubt he could even spell the word "law" even if you gave him his favorite crayon AND told him the first and last letters of the word.
Therefore, it's nothing but luck - sheer, blind, stupid, dumb, doesn't-understand-the-basic-legal-issues-or-the-relevant-state-and-federal-statutes luck - that the NVSSC effectively agreed with Cap'n Ed and NOT with your hero, the infallible and incredible Glenn Greenwald.
Now, will you, Glenn Greenwald and your fellow losers kindly get off the field and bleed somewhere else?
flagwaiver
· 1 year ago
I can't leave because I can't stop guffawing.
dresslar
· 1 year ago
What a smackdown! That debate club semester in high school is paying BIG dividends today, huh? I'm sure that you're practically fellating yourself with glee at your brilliant witticisms and snappy repartee.
At any rate, "Mission accomplished", docjim505. You have done a better job than I possibly could have at exposing the ignorance and inanity of Special Ed and his feckless minions.
Oh yeah. If you can find the time, I'm still waiting for a reasoned answer to my question. Give it a shot. Believe me, you have absolutely nothing to lose.
TokyoTom
· 1 year ago
Ed, I imagine that you'll think about GG's point about blogging in ignorance, on which no amount of post hoc quarterbacking will put you in the right. Damn those slippery lawyers! But it's okay to be wrong - maybe even a virtue - as long as one beats out the competition and builds eyes, right?
But while you ponder "activism", you might wonder what it is when the Nevada Supreme Court provides NBC with relief that NBC didn't request (mandamus), while refusing on procedural grounds to consider fully the merits of the substantive contract law aspects presented by Kucinich (promissory estoppel).
While I strongly oppose interference with First Amendment rights, NBC clearly treated Kucinich shabbily, and whether such treatment amounted to a breach of enforceable obligations that could be enforced via specific performance is a serious issue, aside from questions about the FCA. While NBC won in the Nevada Supreme Court, most of your post remains laughably wrong. Only someone who doesn't really want to be taken seriously would be proclaiming this a win.
In the big picture, is it wrong to pick on our poor little media corporations from excluding voices like Kucinich and Ron Paul from televized debates? Who wants guys like that making inconvenient points about foreign policy, the war on drugs and big government, anyway? It just confuses voters.
captained
· 1 year ago
But it's okay to be wrong - maybe even a virtue - as long as one beats out the competition and builds eyes, right?
I don't know; maybe you should ask Glenn. I said that the ruling violated jurisdiction and the First Amendment, and the Nevada Supreme Court agreed. Maybe I didn't throw around hifalutin terms like "Section 315", but then again, I didn't get it wrong, either.
Perhaps I'm not quite as ignorant as y'all assumed, eh?
unclesmrgol
· 1 year ago
I think I'll do the honors on all the perspective lawyers who weren't right.
Benedict@Large
· 1 year ago
You are certainly a wonderful example of that liberal concept called freedom of speech. Were it not for freedom of speech, the uneducated nonsense you've spit out here would never be allowed to see the light of day. Thanks to freedom of speech however, we can all fully see what a fool you are. Thank you, Thomas Jefferson.
docjim505
· 1 year ago
There have been several replies to my post. Let me see if I can deal with them all in an omnibus response.
1. It would appear that the Nevada Supreme Court doesn't agree with Judge Thompson and, by extension, DOES agree with Cap'n Ed and me. The Nevada State Supreme Court has issued an Order Granting Petition for Writs of Prohibition and Mandamus. I'm not a lawyer so I really don't know what those things mean, but the body of the document is a bit more understandable to a layperson like me. In brief, it appears that the Nevada State Supreme Court (hereafter abbreviated NVSSC) pretty much agrees with Cap'n Ed: Judge Thompson exceeded his authority. Here are some relevant passages:
NVSSC: With respect to prohibition, petitioner [that would be NBC] asserts that, in resolving the real party in interest's Federal Communications Act of 1934 (FCA) claim, the district court [that would be Judge Thompson] exceeded its authority. We agree.
The FCA's purpose is to protect the public interest. Under the FCA, primary and exclusive jurisdiction... is vested in the Federal Communications Commission (FCC), and the courts' sole function with respect to FCA enforcement is to review final FCC orders under the federal statutory scheme. As a result, courts have consistently held that no private right of action exists to enforce para. 315, even when injunctive relief, in addition to damages, is requested. Here, because the district court granted the real party in interest [that would be Dennis the Menace] relief for alleged para. 315 violations even though he failed to allege that he first requested and was denied relief from the FCC, the district court exceeded its jurisdiction. [emphasis mine - dj505] (1)
As I read this, Kucinich didn't bother complaining to the FCC that his "rights" under para. 315 were being denied, and the FCC has primary "jurisdiction". Judge Thompson, who should have understood this, either doesn't understand the law or doesn't really care what it says or what the legal precedents governing it say. Could it be that this really IS a case of judicial activism, as Cap'n Ed initially suggested?
COULD BE!
I suppose I should be big about this and admit that I was wrong about why Judge Thompson was wrong: it isn't that a state judge can't rule on federal law (my GF, who is a lawyer, informs me that state judges CAN rule on federal law under certain circumstances, though it isn't clear to me that this is one of them), but rather that it isn't the courts' business to rule at all until AFTER the FCC makes its own ruling. Perhaps Judge Thompson slept through this lecture in law school...
Now, what about possible breach of contract, which I wrote was a reasonable area for a state judge to rule? Well, it would appear that ol' Judge Thompson exceeded his authority here, too.
NVSSC: Although the petitioner [NBC] also asserts that the district court lacked jurisdiction to consider the real party in interest's [Dennis the Menace] breach of contract claim, it bases its assertion, in part, on a lack of enforceable contract between the petitioner and the real party in interest. Thus, we elect to treat this portion of the petition as seeking mandamus relief. We conclude that the district court manifestly abused its discretion in determining that a contract existed between the two parties. Specifically, we have previously noted that an enforcable contract requires and offer and acceptance, meeting of the minds, and consideration. Here, the element of consideration is absent. Indeed, the real party in interest, in his answer to the petition, acknowleges this deficiency when he asserts that in this case "promissory estoppel replaces traditional consideration." And the real party in interest's promissary estoppel argument is unavailing because he failed to raise it in the district court as a basis for relief. [emphasis mine - dj505]
I guess Judge Thompson slept through the lectures on contract law, too.
2. There were several arguments that attempted to invalidate not only my points but also Cap'n Ed's because (gasp!) we're not lawyers or otherwise experts on the law. Well, ya got me there: I'm a chemist, not a lawyer. But here's the funny thing: even though I'm not a lawyer and Greenwald is, I was a damned sight closer to the NVSSC's findings than he was.
Quite a few commenters cited Greenwald's article as if the mere mention of Greenwald's name ended any argument: he's a lawyer, after all, and knows it all. This is an example of the fallacious argument "appeal to authority".
On the other hand, Cap'n Ed and I, because we based our arguments on a lay understanding of the law (and a strong feeling that there was something distinctly piscine in Judge Thompson's ruling) are lambasted for our "ignorance". Well, he who laughs last laughs best, I suppose, as ignorant, hateful, bigotted, hysterical Cap'n Ed and docjim505 were vindicated by the NVSSC. The mighty Glenn Greenwald, on the other hand was - I believe that the term used by one smart ass - pnwed by the NVSSC.
3. Cap'n Ed and I were also criticized for having a "knee jerk" response and not "understanding the basic legal issues", or some such. Take a look at the NVSSC ruling again, kids: it would appear that the people who lacked an understanding of the basic legal issues were Dennis the Menace and Judge Thompson.
4. Several commenters leveled the charge that I "didn't do my legal homework" because I used terms like "it appears to me" and "I think" and "in my opinion". Well, ya got me again: I'm not a lawyer. O' course, I'm also not stupid enough (or even vain enough) to write definitive statements on issues of the law without legal training. I did, however, take some pains to cite (and post links) to the pertinent section of the FCA, so I think I may be at least somewhat excused from charges that I failed to do my homework. This is more than can be said about most of the critics, who simply dropped a link to Greenwald's post with a sneering comment that he "demolished" Cap'n Ed's argument.
It seems to me that there's a smoking hole around here, all right, but it ain't Cap'n Ed in the bottom of it. Rather, it's a clown whose initials are GG.
What it boils down to is uninformed people criticizing other uninformed people for having uninformed opinions. OMG! The horror. The horror. The horror...
But I'll strike a bargain with you all: I'll stop offering my uninformed opinion when the rest of you do the same. Oh, wait... That's sort of the end of the blogosphere, isn't it?
I would like to adress a point made by Frank because I think it's a good one and worth considering:
Frank: This highlights a larger issue in the media, where uninformed opinions are proffered as facts for the masses to accept and internalize as the truth.
This often bothers me: reporters, whose sole education consists of learning how to string more than three words together, often write about subjects of which they have absolutely no personal understanding or knowledge. As examples, I recall watching coverage of the invasion of Iraq a few years ago when an anchor referred to A-10's launching off an aircraft carrier; A-10's are land-based aircraft that CAN'T be launched off a carrier. I recall reading a crime article many years ago that described a murder weapon as an "automatic revolver"; the Webley-Fosberry rides again! And are we really to believe that Katie or Peter or Wolfie REALLY understand a damned thing about the science behind such subjects as cancer research or (snort) global warming when they blather their oh-so-authoritative 30-second clips? We won't even get into cases of the media outright manufacturing the news... Face it, folks: the people we rely upon to give us our news and information are usually far from "expert" about the subjects they discuss. I'm not saying that all reporters and anchors are ignorant hacks, but I don't think that there's any question but that most of them have only a hazy understanding of the subjects they report on.
But what to do? None of us are experts about everything, and few of us are experts about ANYTHING. We must therefore rely on others to explain things to us and hope that they do so in an honest and helpful manner. However, it is also incumbent upon us to keep a skeptical though open mind and always wonder, "Am I getting the whole story?" Those of us on the right have learned to do this quite often when it comes to the MSM. Obviously, many of you on the left have learned to do it when it comes to conservative commentators and pundits. Perhaps we all need to keep going on that track.
"It would appear that the Nevada Supreme Court doesn't agree with Judge Thompson and, by extension, DOES agree with Cap'n Ed and me."
I take it that, after your careful reading of the decision, you believe that the Nevada Supreme Court would agree with Ed's original assessment of the legal merits of Kucinich's filing?
I refer you to a graf from an earlier reply of mine to Ed's proclamation of vindication:
"If I say that the Patriots will win the Super Bowl due to the convergence of prime interest rates and the percentage of African-American voters who pulled the lever for Mike Gravel in the Iowa primary, would my argument be validated if they win?"
And, while your at it, please (for the 4th time now), please answer the following question:
Do you believe Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
Anyone .... Bueller ... Bueller ....
You really need a course in basic logic, brother.
dfeyres
· 1 year ago
Dresslar,
Capt. Ed's opinion was clearly based on a more informed interpretation of the case, and of relevant state and federal legal statues, than was yours. Does the term "unanimous" suggest anything to you? When you reach rock bottom, the best thing you can do is stop digging.
dresslar
· 1 year ago
Interesting retort (or, more accurately, reguritation).
1) Please direct me to my interpretation of the legal merits of the case in the comment section for this post. 2) Yet again - for the 5th time now - please answer the following question:
Do you believe Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
(No, dfeyres, the fact that you claim it was more informed than my phantom interpretation does not answer the question.)
This refusal to answer a simple question really is telling.
unclesmrgol
· 1 year ago
Henry, you're up for re-election. If you go out there and declare that Santa Claus does not exist, you're only going to get two votes: Your own, and the district attorney's.
....
I...do.
After all, under the guise of judicial activism, aren't all our opinions important?
The Jestaplero
· 1 year ago
As a lawyer, (an assistant district attorney, actually) I can confirm that Greenwald is correct - you appear to have no idea what you're talking about. You make matters worse by pretending to know something - throwing around big, impressive-sounding terms like "interstate commerce claims", "tort", and "jurisdiction" - when you have no idea what you're talking about, thereby committing a fraud upon your readers.
Possibly your most embarassing moment is your update where you crow that the Nevada Supreme Court agrees with you and disagrees with Greenwald, which of course is completely false and demonstrates that despite all the highly-informed criticism provided to you by GG and your commentors, you apparently remain completely clueless about what's going on here.
The appellate court reached an outcome similar to yours, but they clearly did not adopt your reasoning to get there - a good thing, since your reasoning had nothing to do with the way the law actually works in the real world - and since GG quite clearly did not take Kucinich's side, your claim that the court "disagreed" with him is simply bizarre. The Patriots in the Super Bowl analogy that a commentor provided was perfect.
Face it, Ed - you've proved Greenwald's point for him - spouting off about a judicial outcome simply because you don't like it, when you have no clue about the applicable law and procedures, is the true definition of "judicial activism."
captained
· 1 year ago
Laughable. Truly laughable. You should study the First Law of Holes.
Jestaplero
· 1 year ago
Or, perhaps you should study the law first before trying to write about it.
Sean
· 1 year ago
Are you an idiot?
The AIRWAVES are public-- and part of the licensing agreement is that they operate in the public good.
You are seriously advocating that corporations should control the electorate's access to candidates?
You are not only a fool who doesn't understand FCC law, or the nature of public property, but you are also an anti-american corporatist.
If you don't like America and what it stands for, I suggest you leave.
Communist China is run by corporations, maybe you would like it better there.
unclesmrgol
· 1 year ago
The Captain was right. Again.
NBC leases those airwaves from the government, and has a right under the First Amendment to determine the content of their programming.
Tufdaawg
· 1 year ago
do you know anything about the law? if so, you would know that every point you brought up is false or nonsense. do you even know what the complaint was about? please read and understand the point before you sour the blogosphere with your blather.
unclesmrgol
· 1 year ago
The Captain was right. Again. Tufdaawg didn't even last one round with him.
unclesmrgol
· 1 year ago
Well, that was fun. Kucinich tried for the quick fix in state court and got burned badly. Should'a tried the Feds. It would have gone to the Supremes before he found out he was wrong, but he might have gotten what he wanted out of NBC.
MarkD
· 1 year ago
I want the government to force the print media - make that ll media - to give equal favorable and unfavorable coverage to all candidates. Take all the campaign contributions and divide them up equally.
All Comments
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:
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".
----------
(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...
Do you believe that Ed's argument was based on an informed interpretation of relevant state and federal legal statutes?
After all, that was the central point of Greenwald's little diatribe. It seems to me that would be a very hard argument to make.
When you consider that his style of blogging involves commenting on developing news on almost a real-time basis, I think Captain Ed does a commendable job of maintaining a balanced and judicious viewpoint. In this case it would seem he jumped on fragmentary news reports without waiting for full information.
/Mr Lynn
"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."
Your basis for determining judicial activism is quite clearly YOUR IMPRESSION OF THE DECISION. You don't believe it is just to allow the Courts to dictate who appears on cable television, "it appears on its face" to be wrong. Fair enough. That is a completely rational opinion, but it is an opinion that has no relevance with respect to whether or not this particular judge went outside the bounds of the law in rendering his decision. The fact that a judge used the term "fairness" in an opinion does not mean that all notions of the rule of law were abandoned. A determination in that respect requires a review of the underlying law.
And that was GG's point. If your not going to review the law before you write your column, or your post for that matter, you are writing from a position of ignorance, spewing your own idea of right and wrong, good judges and activist judges. I am not writing to imply that I know the truth with regard to this particular judge or this particular ruling. I am only writing to show that you, and the Captain, are equally ignorant.
This highlights a larger issue in the media, where uninformed opinions are proffered as facts for the masses to accept and internalize as the truth. Just think, everyone who read the old captain's blog today without doing further research is sitting around their dinner table tonight complaining about the darn liberal activist judges... when the person who created that "fact" has now had something of a change of heart... and is going to "wait for the appeal", which he is sure is going to go well (why we don't know), before he makes a further determintion. What happened to getting the facts straight the first time?
However, the question is, what does "use" mean? Networks for many election cycles have been excluding candidates from 'debate' programs. I don't know whether any challenges have been made to this practice in court, but I do vaguely recall appeals to the Federal Election Commission, which I believe ruled in favor of the networks. From this we may conclude that "use" does not mean programs, but paid advertising, as you suggest.
Perhaps someone who knows the history of litigation under section 315 can comment.
/Mr Lynn
State judges routinely make determinations about federal law. State and federal courts have what is called "concurrent jurisdiction" over most cases that are within the jurisdiction of federal courts. See, e.g., Joseph W. Glannon, Civil Procedure, at 77 (4th ed. 2001). That is to say, state courts have the authority to rule on federal laws. Congess can remove particular subject matters under federal law from the jurisdiction of state courts and it has done this with, for example, patent and copyright cases. See 28 U.S.C. s. 1338(a). But it requires specific Congressional action to take a federal law or subject matter "off the table" so to speak.
You said you don't "believe" that state judges make determinations about federal law. But what evidence or research led you to your belief? What legal authority? Far from rebutting Greenwald's cental point, legal criticisms that rely on what you "believe" or what "seems" correct (but is demonstrably false) only prove his point for him.
You completely misunderstand the concept of jurisdiction. In general, state courts in the US have concurrent jurisdiction over any action that could be heard in federal court--even if the case involves interpretation of federal law. http://en.wikipedia.org/wiki/Concurrent_jurisdi...
In these cases, it is the defendant's prerogative to remove the case to federal court. There is no evidence that NBC attempted to do so here. Given that you apparently misunderstand the law and the procedural posture of the case, it is strange that you would accuse the judge of not the law.
Kucinich... the Democrat's Ron Paul... only slightly more creepy.
Jim C
He compaisn because of discrepencies about machine counted ballots in an election where he got like 2% of the vote. What is he fighting for? that he should really have had 2.01% of the vote? That extra .01% doesn't take away the fact that Kucinich is still the biggest loser.
And yet he still has to go to court over it.
What a whiny baby.
But until we hear the judge's explanation, it's a mistake to reflexively condemn him, even though the case involves a genuine moonbat, Rep. Kucinich.
/Mr Lynn
"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."
There's your judicial reasoning. It's not FAIR!
/Mr Lynn
/Mr Lynn
Of course, that would qualify you for a job with Alberto Gonzales. Perhaps you could even file his appeals. Unless of course he finds God and wants real lawyers for that.
/Mr Lynn
So Captain, it may be a poor decision on NBCs part to exclude Dennis the Menace, but it needs to be fought and not let stand. NBC should appeal.
There you have it, liberal judicial activism in a nutshell.
The judge thinks his job is to decide what's FAIR, not what's legal.
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/...
MSNBC's exclusion of a running candidate is another example of corporations getting in the way of a true democracy in which we can allview and judge for ourselves. Paul Tullis would have us believe the higher ups think Keith Olbermann runs MSNBC when the question we should be asking is to what extent is NBC;s parent company General Elctric (which received $2.2Billion in defense contracts in 2005 alone) doing its bit to silence the strongest voice against war and military spending? In the interest of fairness and full disclosure, shouldn't we all want to hear all the candidates still in the race? For true democracy we need honest uncensored debates. I believe Kucinich is doing what most Obama and Edwards followers wish their candidates had the guts to do: Seek impeachment for the WMD lies which have cost so many lives on both sides of this conflict. True single-payer universal healthcare: industrialized countries around theworld believe good health is every citizen's right, and though democrats in general are tending towards this viewpoint, only Kucinich has the guts to face the wrath of the drug companies by offering a NOT-FOR-PROFITsystem. Gay Marriage: Kucinich is the only one to truly offer EQUAL rights to all regardless of sexual orientation. Immediate withdrawal from Iraq: The other Democratic candidates either Voted for the War in the first place, like senator Clinton, or seem too afraid to be labeled soft on terrorism. Nobody defends terrorism, but has anybody forgotten what this war was supposed to be about? Iraq's WMDs?Which they didn't have? Why doesn't the US go after the many other dictators which the US has ties w... right. Saddam was armed by the US andsadly so was Bin Laden. The administration relies on xenophobia, fear-mongering and misinformation to push their own interests. If someone is courageous enough to stand up and call them on it, they uninvite him from the debates. So much for democracy.
The First Amendment only prevents government obstruction of free speech. Limitations on private action, like NBC deciding whether or not to include Dennis Kucinich at a debate (or Fox deciding whether or not to include Ron Paul), are only now being cautiously looked in to, and furthermore seem to contradict the right to free speech by imposing a standard of fair speech (and the government determines what is "fair").
This is assuming that Kucinich's case is built around the First Amendment, which doesn't seem to be the case (see lexhamfox, above). But if it were, you would be totally and completely wrong.
I don't know if you or Morrissey have a law degree, and I am not saying the fact that I have one puts me in a better position to opine about the merits of the judges ruling, but rather that I am in a better position to know what I don't know, so to speak. What I do know is Morrissey's writings regarding kucinich's "tort" and the jurisdictional issues associated with the non-existent "interstate commerce claim" belie the fact that he has any idea what he is talking about.
You lawyer dudes were owned by a non-lawyer in this one. I know this loss has got to rankle, but you've got to follow those law school admonishments about not taking a loss too seriously...
Frankly, Frank, you are welcome to hold to whatever tatters of nonsense you think is appropriate. I'll hold to mine. And we'll see who's right 90% of the time and who's right 10%.
As for the appeal, there is no intermediate stage in the Nevada judiciary. It goes directly from the trial court to the NV supreme court, which is very backlogged.
I don't hear any concern for the public to have a true public forum where politics can be debated in national debates. There needs to be a media system that is operated non-profit which is under the total control of the general public. I advocate for one, look for info soon on RepresentativeMedia.org
see video: Boycott the MSNBC Democratic Debate On Tuesday because Dennis Kucinich was excluded
http://representativepress.googlepages.com/Boyc...
http://www.youtube.com/representativepress
I see from the comments that some lefties have showed up, spouting their mantra about how eeeeeevil corporations are "controlling" the news and it just ain't right!
Here's a hot tip for you: somebody has to "own" the media outlet, whether it's the government (Pravda), some non-profit, or a nasty ol' corporation (ABC, NYT, etc). The end result is always the same: somebody other than "the people" control the media. The virtue of corporate ownership is that it at least has some accountability in the form of market forces: if the public perceives that it is delivering a bad product in the form of biased, sloppy or incorrect news, they will vote with their pocketbooks and the news agency will either have to improve or go out of business (paging Pinch Shultzberger!). A government agency, because it is backed by the virtually unlimited resources of the government, isn't so responsive. Its only accountability mechanism exists in the ballot box: do you REALLY want George Bush having ultimate control over the media in this country? I know I sure as hell wouldn't want the Hilldabeast in that position.
As for ownership by THE PEOPLE... Good grief, people! This ain't the '70s anymore! That "Power to the People!" crap didn't work then, won't work now, and can't ever work. Give it a rest, OK?
If the market really decides what information is most valuable, then porn is the best commercial product, by a huge margin.
Just because hamburgers are more popular than salad doesn't mean that there isn't a market for salad... and it doesn't mean that the government needs to step in to either (A) force people to buy salad or (B) force hamburgers stands to sell the stuff if their customers don't like it. Ditto news and opinion. Or, to borrow from your own analogy, nobody should force porn studios to make and market gay porn if that's not what their customers want to see. Do you think porn would be as popular as it is if the government mandated "fairness" in it, by the way? That, in order to be "fair", every porn movie must have a certain of gay / trannie / etc scenes?
2. Um, if a corporation is accountable to market forces, then by definition the people there are, too. Granted, when a corporation goes bankrupt, its officers and employees don't all die; they move on. But only an idiot would knowingly and willfully cause his business (whether corporation or sole proprietorship) to provide a bad or otherwise unwanted product or service; the market will let him know very quickly that he's made a foolish and self-destructive decision.
If the president of my company makes stupid decisions and the company folds, he'll be out of a job just like I will, though it's quite likely that he's negotiated a contract that will make unemployment a damned sight more comfortable for him than for me.
The only people I know who have the kind of insulation your talking about are government bureaucrats. Thanks to their anonymity AND civil service protections, they can foul up all the time and not be fired for it. As a parthian shot, where do you typically get better service: at a nasty ol' corporation... or the DMV?
I'm a liberal working on Wall Street and in venture cap.
Did your head just explode? Must be the fault of judicial activism.
http://www.salon.com/opinion/greenwald/2008/01/...
Have the courage to admit that you're wrong and simply don't understand the law.
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:
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".
----------
(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...
You're wrong. They do it all the time. The vast majority of federal claims can be brought in state court.
The airwaves belong to the American people, but they are licensed by the government to private entities, which decide in their own discretion, subject to regulation by the FCC, what to broadcast. You can go down to Rockefeller Plaza and demand to be put on nationwide television, but NBC is under no obligation to do so.
Of course, as DocJim said, the airwaves really belong to no one. Congress decided early on that they would belong to "the American people," and therefore could be managed and licensed by the Federal government. It is true, as some have mentioned above, that the FCC, the agency Congress put in charge of managing the airwaves, has a 'public interest' requirement for radio and TV stations. In radio the licenses must be renewed every few years, and the stations must maintain a 'public file' (of letters mainly) that the FCC may inspect. The FCC will also respond to complaints from the public. I assume the same is true of TV stations and their parent networks, but it is by and large a pro-forma requirement. The attempt by Congress to regulate political speech, the so-called 'Fairness Doctrine', had the effect of stifling all political speech; that of course is why the Left wants to re-institute it, since it would have the effect of curtailing conservative talk radio. (And why is talk radio overwhelmingly conservative? Because that's what the market supports--liberal talk fails miserably, except on NPR, where it is taxpayer-supported).
In practice the 'public interest' component of license renewal is pretty skimpy, as perhaps it should be, considering that in major markets there are a plethora of radio stations. And of course we now have cable TV (and cable and satellite radio), which do not use any of the broadcast spectrum, and are not subject to such rules.
A gathering of presidential or other candidates for a broadcast 'debate' is at bottom a TV program like any other, and its format and content can and will be decided by the station, not the government. Unless there are contractual issues involved, a state or federal judge has no business interfering on grounds of 'fairness' (or any other grounds, unless a criminal prosecution is involved).
Now there is one network that is financed in part by taxpayer funds, namely the Corporation for Public Broadcasting and its broadcast outlets, PBS and NPR. You might think that if the Congress and the people wanted all-inclusive 'debates', they would require PBS and NPR to broadcast them as a condition of receiving public funds. But as far as I know there are no such requirements.
There is in fact one network that provides a true public service, and that is C-Span. In my view, C-Span is the only network that deserves any taxpayer funds. It broadcasts the proceedings of Congress, and much else in the public arena, in addition to fulfilling a genuine educational function, and makes a serious attempt to be scrupulously unbiased--unlike PBS and NPR, which are by and large organs of the liberal Left. If anyone should be broadcasting debates, it should be C-Span. Of course, C-Span is not a broadcast network: it uses cable exclusively.
That's the state of affairs in this country at this time. There is no obligation for the commercial TV networks, broadcast or cable, to include anyone in their 'debate' programs, and if Mr. Kucinich had a legitmate complaint, it would have been for breach of contract. There is no requirement for NBC to be 'fair'. In point of fact, in most states there are usually a plethora of minor candidates running for president (Socialist Workers, Green, anti-tax, Prohibitionist, vegetarian, whatever). None of them are included in the broadcast 'debates'. Arguably they should be, but programmers know that most of the audience would tune out. Let PBS do it.
/Mr Lynn
Um, the suit was indeed for breach of contract (among other Nevada-specific laws).
1. He's a credible candidate for president - he has some facts to back this up, but it's only technically correct. I guess credible under criteria earlier established by NBC, but not viable at all. The earlier criteria said "top 4" and then they changed it to "top 3."
2. His views are substantially different from the other Democrats - true, and he outlines some differences
3. The new rules NBC made up were created just to exclude him - a matter of opinion, which was, I guess the judge's job to decide
Kucinich cites (and quotes) a section of the Federal Communications Act, but you know what? The complaint is only 6 pages long, in a huge font, and double spaced. Read it yourself and decide don't let the media tell you what to think.
http://en.wikipedia.org/wiki/Bush_v._Gore
It's literally impossible to know less about the relevant issues here than Morrissey. He just simply doesn't know what he's talking about in the slightest, yet that doesn't stop him from emphatically condemning the Judge as a stupid, corrupt activist, while accusing Kucinich of "fil[ing] the claim in the wrong court and push[ing] for government control over the speech, property, and assembly rights of NBC."
The rest is here:
http://www.salon.com/opinion/greenwald/2008/01/...
http://www.salon.com/opinion/greenwald/?last_st...
Care to respond?
Which is exactly what we have here, and what the Judge apparently ruled on. Thank you for making clear that the Judge DOES have legal standing to compel NBC to include Kucinich,
There are too many errors and displays of bottomless ignorance for me to address, here.
But, dude, you are embarrassing yourself.
Don't issue demagogic judgements involving topics you are ignorant of. Understand what you're talking about, or else speak in a manner that indicates your lack of knowledge - i.e., humbly.
Sometimes you appear to fit this criteria, Ed. Other times you drop the ball. I see Glenn Greenwald has already been linked repeatedly in this thread. You owe your readers some sort of attempt at a response - rebuttal, apology, explanation, whatever, but make sure it addresses Glenn's factual points, which seem to demonstrate clearly that you have no understanding of the relevent laws or jurisdictional constructs.
To quote you:
Constitutionally, this case belonged in federal court, which has jurisdiction on any interstate commerce complaints."
To quote Glenn:
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). Morrissey's claim that "Kucinich filed his tort in state court" is equally cringe-inducing, since Kucinich filed a contract and a statutory claim, not a "tort."
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. The Congress and the Executive Branch regulate how our public airways are used through statutes and regulations, and courts are not just a proper venue, but are the only proper venue, for resolving disputes arising out of those laws and regulations.
My conclusion: A lot like Glenn says, for conservatives, "judicial activism" equals "this court issued a ruling I don't like."
I'll wait for the appeal. I'm suspecting that the "contract" argument won't hold water. When the appeal gets decided, I'll post the update back here.
The Nevada Supreme Court unanimously said that the Captain was right and Mr. Sockpuppet Esq. was wrong. I'd suggest sprinkling a little ketchup on your foot next time you post something here.
Instead of, "Glenn Greenwald dissects my argument ...", I believe a more informative lead-in for your readers would have been "Glenn Greenwald invalidates my argument."
After reading Glenn's article, I don't really understand your, "... I'll wait for the appeal." response. I believe he made it pretty clear that your argument was based on nothing relative to the legal aspects of the case. Accordingly, I don't really see what impact the results of an appeal would have on the veracity of your argument (given the fact that NBC, it ints legal filing is not disputing the court's jurisdiction).
That said, you should be commended for linking to his post. Very classy move.
Any interest in responding to Glenn's actual point here? I think it is one that deserves a response.
Greenwald's point was not that the injunction wouldn't be overturned. In fact, he explicitly stated, "... and I have no idea whether the court's decision is reasonable, defensible, or right." His point was that Ed argued from a position of extreme ignorance.
I know this is a silly question, but have you even read the decision to find out what the court said? Read the reasons that they overturned the lower court. I take it from your cry of vindication, that they argue that no state court has the jurisdiction to hear this case. Is that what they said? Did you even read it before you before you wrote this last post? Do you have any legal background that would render your opinion in this matter worthy of consideration? Or, is the decision, in and of itself the vindication.
If I say that the Patriots will win the Super Bowl due to the convergence of prime interest rates and the percentage of African-American voters who pulled the lever for Mike Gravel in the Iowa primary, would my argument be validated if they win? By your logic, the answer is an emphatic, "Yes!"
So, once again I ask that someone, please, answer this very simple question:
Do you believe that Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
after having read the NSC's ruling, i have to give this one to the greenwald gang. the ruling states that the court lacked jurisdiction on the FCC claim because kucinich did not apply to the FCC first for relief, not because they are federal airwaves. it has been pointed out that state courts are able to rule on federal laws. On the contract claim, which ed did not address, the NSC ruled that the judge was wrong in not considering whether or not a valid contract existed.
if one of my medical students gave me the correct reaction product on an organic chemistry question, but had all of the intermediate products wrong, the answer would still be counted as incorrect. knowing how to get an answer is just as important as getting the answer for obvious reasons.
"I don't need to explain a thing." Shouldn't that have been, "I CAN'T explain anything?"
Truly pathetic, unclesmrgol.
1. Greenwald did not assert that "not having Kucinich on the debate somehow negates Sec. 315's requirements . . ." What Greenwald wrote was that Kucinich's ALLEGES in his complaint complaint that NBC's action "violates the mandates of Sec. 315 . . ."
2. Sorry about your guffaw, but a judge using the word "fairness" while on the bench does not mean that his decision was based on a subjective sense of what's fair and what isn't. Your somewhat hysterical reaction only reinforces Greenwald's fundamental point that Morrissey (and you) would be better advised to make an effort to understand the issues before attacking the judge. I doubt that his written opinion will consist of "what's fair is fair."
3. There is such a thing as concurrent jurisdiction and state court judges make determinations based on federal statutes every day in every state.
4. The notion that "when there are 'all sorts of analyses' to be made about the law, it pretty quickly becomes a federal matter," is flat wrong. Federal courts handle only a tiny fraction of the cases litigated in this country, and many state court cases are immensly complicated.
5. Yes, NBC operates all over the country. That's why the Nevada state court has jurisdiction over NBC.
6. Yes, NBC is involved in interstate commerce. Yes, the Constitution gives to Congress the power to regulate interstate commerce. No, that doesn't mean that the commerce clause is implicated anytime there is dispute involving a company involved in interstate commerce. If it were implicated, that would give rise to a federal question, and the federal court would have jurisdiction. Sadly, that is not the case.
7. I don't think Greenwald professes not to understand the commerce clause. I think he is just expressing some impatience with Morrissey's careless use of language and pretension that he has any idea what he is talking about.
8. The court was ruling on an a petition forbrought on an emergent basis for an order to oblige NBC to include Kucinich. Such petitions are heard on an emergent basis because time is usually short and if there is a delay, the ruling will be moot. That is the case here. Under these circumstances it is common for the judge to make a ruling from the bench followed by a written opinion later. What Greenwald is saying is that Morrissey shouldn't be attacking the opinion of "an activist judge who didn't know much about the law" (how's that for chutzpah!) until he knows the facts and the law and the judge's rationale for applying the law to those facts.
9. NBC's appeal is not to the federal courts. The appeal will go to the Nevada Supreme Court. There is no ned for federal review, and for all practical purposes, no avenue for federal review.
Your self-proclaimed vindication is, in a word, laughable. Please take a few minutes of your time and answer for the class, the following question:
Do you believe that your argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
It's pretty simple Ed. Greenwald's point was not that the injunction wouldn't be overturned. In fact, he explicitly stated, "... and I have no idea whether the court's decision is reasonable, defensible, or right." The point was that you argued from a position of extreme ignorance.
So, please, answer the question and let's put this to bed.
If it makes you feel any better, just tell yourself that he got lucky THIS TIME... as you leave the field a loser.
Do you believe Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
OK, Killer, you win! I think that Cap'n Ed, who is not a noted constitutional lawyer, legal scholar and member of the bar in Nevada, was totally talking out of his butt. I stipulate that he had not the faintest clue about the legal issues at hand when he made the wild, crazy, totally-without-any-legal-knowledge argument that Judge Thompson was guilty of judicial activism when the judge told NBC that they HAD to put Dennis the Menace on the debate or else!. In fact, I'll even go so far as to say that Cap'n Ed wouldn't know a law book if it bit him in the ass. Hell, it's even possible that Cap'n Ed developed his argument while under the influence of some mind-altering drugs. Either way, I agree with you: he completely, utterly, totally, conclusively, inarguably had NO informed understanding AT ALL of the facts of the case or of the relevant state and federal statutes. You should never, ever read another of his blog posts on legal matters because, IMO, he'll NEVER write one based on informed interpretation of the law or the facts of a case. It just ain't in him. Nice guy and all that, but a complete dunce when it comes to the law. You're better off asking the Pope about day-to-day life in a Bangkok brothel than you would be reading ANYTHING Cap'n Ed writes about the law. He's totally ignorant of it. I doubt he could even spell the word "law" even if you gave him his favorite crayon AND told him the first and last letters of the word.
Therefore, it's nothing but luck - sheer, blind, stupid, dumb, doesn't-understand-the-basic-legal-issues-or-the-relevant-state-and-federal-statutes luck - that the NVSSC effectively agreed with Cap'n Ed and NOT with your hero, the infallible and incredible Glenn Greenwald.
Now, will you, Glenn Greenwald and your fellow losers kindly get off the field and bleed somewhere else?
At any rate, "Mission accomplished", docjim505. You have done a better job than I possibly could have at exposing the ignorance and inanity of Special Ed and his feckless minions.
Oh yeah. If you can find the time, I'm still waiting for a reasoned answer to my question. Give it a shot. Believe me, you have absolutely nothing to lose.
But while you ponder "activism", you might wonder what it is when the Nevada Supreme Court provides NBC with relief that NBC didn't request (mandamus), while refusing on procedural grounds to consider fully the merits of the substantive contract law aspects presented by Kucinich (promissory estoppel).
While I strongly oppose interference with First Amendment rights, NBC clearly treated Kucinich shabbily, and whether such treatment amounted to a breach of enforceable obligations that could be enforced via specific performance is a serious issue, aside from questions about the FCA. While NBC won in the Nevada Supreme Court, most of your post remains laughably wrong. Only someone who doesn't really want to be taken seriously would be proclaiming this a win.
In the big picture, is it wrong to pick on our poor little media corporations from excluding voices like Kucinich and Ron Paul from televized debates? Who wants guys like that making inconvenient points about foreign policy, the war on drugs and big government, anyway? It just confuses voters.
I don't know; maybe you should ask Glenn. I said that the ruling violated jurisdiction and the First Amendment, and the Nevada Supreme Court agreed. Maybe I didn't throw around hifalutin terms like "Section 315", but then again, I didn't get it wrong, either.
Perhaps I'm not quite as ignorant as y'all assumed, eh?
1. It would appear that the Nevada Supreme Court doesn't agree with Judge Thompson and, by extension, DOES agree with Cap'n Ed and me. The Nevada State Supreme Court has issued an Order Granting Petition for Writs of Prohibition and Mandamus. I'm not a lawyer so I really don't know what those things mean, but the body of the document is a bit more understandable to a layperson like me. In brief, it appears that the Nevada State Supreme Court (hereafter abbreviated NVSSC) pretty much agrees with Cap'n Ed: Judge Thompson exceeded his authority. Here are some relevant passages:
NVSSC: With respect to prohibition, petitioner [that would be NBC] asserts that, in resolving the real party in interest's Federal Communications Act of 1934 (FCA) claim, the district court [that would be Judge Thompson] exceeded its authority. We agree.
The FCA's purpose is to protect the public interest. Under the FCA, primary and exclusive jurisdiction... is vested in the Federal Communications Commission (FCC), and the courts' sole function with respect to FCA enforcement is to review final FCC orders under the federal statutory scheme. As a result, courts have consistently held that no private right of action exists to enforce para. 315, even when injunctive relief, in addition to damages, is requested. Here, because the district court granted the real party in interest [that would be Dennis the Menace] relief for alleged para. 315 violations even though he failed to allege that he first requested and was denied relief from the FCC, the district court exceeded its jurisdiction. [emphasis mine - dj505] (1)
As I read this, Kucinich didn't bother complaining to the FCC that his "rights" under para. 315 were being denied, and the FCC has primary "jurisdiction". Judge Thompson, who should have understood this, either doesn't understand the law or doesn't really care what it says or what the legal precedents governing it say. Could it be that this really IS a case of judicial activism, as Cap'n Ed initially suggested?
COULD BE!
I suppose I should be big about this and admit that I was wrong about why Judge Thompson was wrong: it isn't that a state judge can't rule on federal law (my GF, who is a lawyer, informs me that state judges CAN rule on federal law under certain circumstances, though it isn't clear to me that this is one of them), but rather that it isn't the courts' business to rule at all until AFTER the FCC makes its own ruling. Perhaps Judge Thompson slept through this lecture in law school...
Now, what about possible breach of contract, which I wrote was a reasonable area for a state judge to rule? Well, it would appear that ol' Judge Thompson exceeded his authority here, too.
NVSSC: Although the petitioner [NBC] also asserts that the district court lacked jurisdiction to consider the real party in interest's [Dennis the Menace] breach of contract claim, it bases its assertion, in part, on a lack of enforceable contract between the petitioner and the real party in interest. Thus, we elect to treat this portion of the petition as seeking mandamus relief. We conclude that the district court manifestly abused its discretion in determining that a contract existed between the two parties. Specifically, we have previously noted that an enforcable contract requires and offer and acceptance, meeting of the minds, and consideration. Here, the element of consideration is absent. Indeed, the real party in interest, in his answer to the petition, acknowleges this deficiency when he asserts that in this case "promissory estoppel replaces traditional consideration." And the real party in interest's promissary estoppel argument is unavailing because he failed to raise it in the district court as a basis for relief. [emphasis mine - dj505]
I guess Judge Thompson slept through the lectures on contract law, too.
2. There were several arguments that attempted to invalidate not only my points but also Cap'n Ed's because (gasp!) we're not lawyers or otherwise experts on the law. Well, ya got me there: I'm a chemist, not a lawyer. But here's the funny thing: even though I'm not a lawyer and Greenwald is, I was a damned sight closer to the NVSSC's findings than he was.
Quite a few commenters cited Greenwald's article as if the mere mention of Greenwald's name ended any argument: he's a lawyer, after all, and knows it all. This is an example of the fallacious argument "appeal to authority".
On the other hand, Cap'n Ed and I, because we based our arguments on a lay understanding of the law (and a strong feeling that there was something distinctly piscine in Judge Thompson's ruling) are lambasted for our "ignorance". Well, he who laughs last laughs best, I suppose, as ignorant, hateful, bigotted, hysterical Cap'n Ed and docjim505 were vindicated by the NVSSC. The mighty Glenn Greenwald, on the other hand was - I believe that the term used by one smart ass - pnwed by the NVSSC.
3. Cap'n Ed and I were also criticized for having a "knee jerk" response and not "understanding the basic legal issues", or some such. Take a look at the NVSSC ruling again, kids: it would appear that the people who lacked an understanding of the basic legal issues were Dennis the Menace and Judge Thompson.
4. Several commenters leveled the charge that I "didn't do my legal homework" because I used terms like "it appears to me" and "I think" and "in my opinion". Well, ya got me again: I'm not a lawyer. O' course, I'm also not stupid enough (or even vain enough) to write definitive statements on issues of the law without legal training. I did, however, take some pains to cite (and post links) to the pertinent section of the FCA, so I think I may be at least somewhat excused from charges that I failed to do my homework. This is more than can be said about most of the critics, who simply dropped a link to Greenwald's post with a sneering comment that he "demolished" Cap'n Ed's argument.
It seems to me that there's a smoking hole around here, all right, but it ain't Cap'n Ed in the bottom of it. Rather, it's a clown whose initials are GG.
What it boils down to is uninformed people criticizing other uninformed people for having uninformed opinions. OMG! The horror. The horror. The horror...
But I'll strike a bargain with you all: I'll stop offering my uninformed opinion when the rest of you do the same. Oh, wait... That's sort of the end of the blogosphere, isn't it?
I would like to adress a point made by Frank because I think it's a good one and worth considering:
Frank: This highlights a larger issue in the media, where uninformed opinions are proffered as facts for the masses to accept and internalize as the truth.
This often bothers me: reporters, whose sole education consists of learning how to string more than three words together, often write about subjects of which they have absolutely no personal understanding or knowledge. As examples, I recall watching coverage of the invasion of Iraq a few years ago when an anchor referred to A-10's launching off an aircraft carrier; A-10's are land-based aircraft that CAN'T be launched off a carrier. I recall reading a crime article many years ago that described a murder weapon as an "automatic revolver"; the Webley-Fosberry rides again! And are we really to believe that Katie or Peter or Wolfie REALLY understand a damned thing about the science behind such subjects as cancer research or (snort) global warming when they blather their oh-so-authoritative 30-second clips? We won't even get into cases of the media outright manufacturing the news... Face it, folks: the people we rely upon to give us our news and information are usually far from "expert" about the subjects they discuss. I'm not saying that all reporters and anchors are ignorant hacks, but I don't think that there's any question but that most of them have only a hazy understanding of the subjects they report on.
But what to do? None of us are experts about everything, and few of us are experts about ANYTHING. We must therefore rely on others to explain things to us and hope that they do so in an honest and helpful manner. However, it is also incumbent upon us to keep a skeptical though open mind and always wonder, "Am I getting the whole story?" Those of us on the right have learned to do this quite often when it comes to the MSM. Obviously, many of you on the left have learned to do it when it comes to conservative commentators and pundits. Perhaps we all need to keep going on that track.
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(1) http://www.nvsupremecourt.us/documents/cases/50...
Re: the following statement:
"It would appear that the Nevada Supreme Court doesn't agree with Judge Thompson and, by extension, DOES agree with Cap'n Ed and me."
I take it that, after your careful reading of the decision, you believe that the Nevada Supreme Court would agree with Ed's original assessment of the legal merits of Kucinich's filing?
I refer you to a graf from an earlier reply of mine to Ed's proclamation of vindication:
"If I say that the Patriots will win the Super Bowl due to the convergence of prime interest rates and the percentage of African-American voters who pulled the lever for Mike Gravel in the Iowa primary, would my argument be validated if they win?"
And, while your at it, please (for the 4th time now), please answer the following question:
Do you believe Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
Anyone .... Bueller ... Bueller ....
You really need a course in basic logic, brother.
Capt. Ed's opinion was clearly based on a more informed interpretation of the case, and of relevant state and federal legal statues, than was yours. Does the term "unanimous" suggest anything to you? When you reach rock bottom, the best thing you can do is stop digging.
1) Please direct me to my interpretation of the legal merits of the case in the comment section for this post.
2) Yet again - for the 5th time now - please answer the following question:
Do you believe Ed's argument was based on an informed interpretation of the facts of the case, and of the relevant state and federal legal statutes?
(No, dfeyres, the fact that you claim it was more informed than my phantom interpretation does not answer the question.)
This refusal to answer a simple question really is telling.
After all, under the guise of judicial activism, aren't all our opinions important?
Possibly your most embarassing moment is your update where you crow that the Nevada Supreme Court agrees with you and disagrees with Greenwald, which of course is completely false and demonstrates that despite all the highly-informed criticism provided to you by GG and your commentors, you apparently remain completely clueless about what's going on here.
The appellate court reached an outcome similar to yours, but they clearly did not adopt your reasoning to get there - a good thing, since your reasoning had nothing to do with the way the law actually works in the real world - and since GG quite clearly did not take Kucinich's side, your claim that the court "disagreed" with him is simply bizarre. The Patriots in the Super Bowl analogy that a commentor provided was perfect.
Face it, Ed - you've proved Greenwald's point for him - spouting off about a judicial outcome simply because you don't like it, when you have no clue about the applicable law and procedures, is the true definition of "judicial activism."
The AIRWAVES are public-- and part of the licensing agreement is that they operate in the public good.
You are seriously advocating that corporations should control the electorate's access to candidates?
You are not only a fool who doesn't understand FCC law, or the nature of public property, but you are also an anti-american corporatist.
If you don't like America and what it stands for, I suggest you leave.
Communist China is run by corporations, maybe you would like it better there.
NBC leases those airwaves from the government, and has a right under the First Amendment to determine the content of their programming.
Then nobody can complain that life's unfair.
/sarcasm