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Bench Memos

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This Week in Liberal Judicial Activism—Week of October 6



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Greenhouse’s ethics, Barkett and lovers’ quarrels, and more:
  
Oct. 82006New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”  According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.”  Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions….  Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….   Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

  
Oct. 91986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death.  Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town.  When he returned a couple months later, Williams had begun a new relationship.  Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her.  He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.”  On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett.  (Congratulations, by the way.)  Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains:  “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”

  
Oct. 111990—More from Florida justices Rosemary Barkett and Gerald Kogan.  In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional.  In a brief dissent, Barkett, joined by Kogan, asserts:  “A basic legal problem with the criminalization of obscenity is that it cannot be defined.…  Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.”  Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”  But Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections.  Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity. 

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism


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