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Stuart Taylor, Jr.

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The Internet: Smut for Dummies

by Stuart Taylor, Jr.

Just after the big March 19 argument at the Supreme Court on the constitutionality of the Communications Decency Act-which makes it a federal crime to "display . . . patently offensive," sexually explicit words or pictures on the Internet "in a manner available to a person under 18"-I was interrupted by a phone call while perusing the plaintiffs’ brief.

It was my Internet-cruising, 12-year-old daughter, Sarah. She burst in while I was rereading the part about how the best way to protect our kids from wandering into the pit of Internet smut is not government censorship or regulation, but the sort of parental control software that you can install on your home computer or get for free through services like America Online.

"Dad," demanded Sarah, "what have you done to America Online?"

Uh-oh. What I had done, inspired by the litigation, was to activate the "parental controls," by clicking on various boxes that did things I little understood.

"You’ve ruined it," Sarah complained. "I need the IMs. That’s the funnest part. Dad, you can trust me."

IMs? Huh? I turned off the IMs? What the hell are IMs, anyway? (Instant messages, it turns out.) In any event, it seems that the "parental controls" had not only slammed the door on the smut peddlers, and the art museums displaying racy nudes by Mapplethorpe and classy ones by Michelangelo, and the like; they had also shut Sarah off from private, real-time discussion groups with her online buddies. (Here’s hoping they’re all really kids, like they claim to be.) So now there will be no peace in my home until I undo the parental controls (pending further study of whether I can fine-tune them), swinging the doors open to the whole vast, anarchic, wonderful, variegated, democratic, interactive, participatory Internet-porn and all.

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NewsHour: Decency Standards on the Internet – March 20, 1997

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JIM LEHRER: Now today’s developments before the Supreme Court and to Margaret Warner.

MARGARET WARNER: And joining us is the NewsHour’s regular court watcher, Stuart Taylor, correspondent for the "American Lawyer" and "Legal Times." Stuart, first of all, do you agree with what many observers at the court are saying, that this ruling, however it comes down, could be one of the landmark rulings of this term?

STUART TAYLOR, The American Lawyer: Yes, with a little hedge, certainly because of the vast importance of this new medium. And this is potentially the most important First Amendment case to come before the Supreme Court in I’d say more than 25 years just making new rules for a brand new situation. Whether the court will bring down the kind of ringing declaration that people recognize as a landmark opinion, whether they will produce a splintered thing where you have to sort of get out a chart to figure out how many votes are for which proposition remains to be seen. They may also want to move rather cautiously because you could tell in the argument today this isn’t just a matter of where we’ll take the older precedents and apply them to a new situation. They groping with the technology and with economic situations that are hard to understand, hard for them to understand, hard for a lot of people to understand, and are moving very fast. And I don’t think they want to sort of lay down some rules. They want to look like they were based on a factually inaccurate premise two years from now.

MARGARET WARNER: So we just heard the basic argument between these two partisans, but tell us about the arguments in court today; that is, taking the government first. Which of the arguments that we just heard did the government lawyers try to emphasize in arguing to uphold this law?

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Scandal Hidden in Plain View

by Stuart Taylor, Jr.

Forget about whether Vice President Al Gore’s dialing for dollars from the White House violated the law against asking for dollars in the White House, and whether the Riadys or Johnny Chung were agents of the Chinese government, and whether Web Hubbell got hush money. Forget about the what-did-the-president-know-and-when-did-he-know-it game, and about who handed fat checks to whom in the White House, and about the Lincoln Bedroom, and all those coffees, and the similar access-peddling by Republican bigwigs.

Pause, for a moment, in the search for smoking-gun evidence about how they raised the money, and focus on how they spent it The evidence of high-level lawlessness has been sitting in front of us for months, hidden in plain view.

As detailed by Common Cause, it consists of essentially undisputed accounts of what look very much like deliberate, multimillion-dollar violations (or at least evasions) of campaign spending and contribution limits, directed by President Clinton personally and by others at the highest levels of both the Clinton and Dole campaigns.

The presidential candidates and their agents used the Democratic National Committee and the Republican National Committee as totally controlled cash conduits to finance unprecedentedly costly television advertising promoting Bill Clinton and Bob Dole. They thereby smashed, by tens of millions of dollars, the post-Watergate ceilings on spending by publicly funded presidential candidates, while also flouting (among other laws) the much older ban on using corporate and labor union money in federal election campaigns.

In so doing, the president, his aides, and their Republican counterparts relied upon legal ratiocinations that-while not without support in the convoluted campaign finance case law, and while perhaps sufficient to ward off prosecution for ”knowing and willful" crimes-make a complete mockery of the campaign finance laws.

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The Case for Self-Censorship

by Stuart Taylor, Jr.

In what may be the most dramatic clash of free press and fair trial values in the nation’s history, The Dallas Morning News has taken a position very like that adopted in a very different context by Vice President Al Gore.

Both are proud of what they did-and promise not to do it again.

On March 3, Gore said he would not make any more fund-raising calls from the White House. That same day, The News-in the wake of its spectacular report that Timothy McVeigh had told his defense team that he bombed the Oklahoma City federal building in daytime to maximize the "body count"-filed the following statement with U.S. District Judge Richard Matsch in Denver:

"The Dallas Morning News …has no further plans to report unpublished information from material used as the source for the previous articles.

"The information … has been placed in the exclusive possession of [two outside law firms]…. Counsel will not thereafter provide The News access to the information for news reporting purposes. The News has placed the information with its counsel to preclude attention focused on Mr. McVeigh’s fair trial rights if it made further use of the material."

I especially like the part about the need "to preclude attention focused on Mr. McVeigh’s fair trial rights."

In fairness to The News, its intent was not to confess error, but to avoid being slapped with a gag order-just as its apparent intent in breaking its story on the Internet on the afternoon of Feb. 28, rather than waiting for the next day’s paper, was to get it out before defense lawyers could seek a gag order.

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NewsHour: Supreme Court – February 19, 1997

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MARGARET WARNER: The first Supreme Court action we examine tonight is a decision in an abortion protest case from New York State. The decision changes the rules of engagement between abortion protesters on one side and abortion clinic workers and their clients on the other. Here to explain the ruling is NewsHour regular Stuart Taylor, correspondent with "The American Lawyer" and "Legal Times." Welcome back, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

MARGARET WARNER: Briefly, what’s the background of this case?

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Prosecute Him for Perjury?

by Stuart Taylor, Jr.

For those of you who have not yet had your fill of wallowing in O.J. Simpson cases, at least one big question remains: Should Simpson now be hit with a perjury prosecution for lying under oath at his civil trial?

"Oh, no." I sense you groaning, "enough is enough!"

Well, perhaps. But let’s think it through. A Feb. 6 Wall street Journal editorial urged California’s attorney general to explore a perjury prosecution even if Los Angeles County District Attorney Gil Garcetti won’t. And in the words of Eugene Volokh, an associate processor at UCLA Law School, "The fact that you’re acquitted for murder doesn’t give you a license to lie in court in future cases."

There is ample evidence that Simpson lied rampantly and shamelessly under oath in his civil trial and deposition. Indeed, the evidence is so strong and so widely known that a decision not to prosecute might teach the deplorable lesson that lying- even under oath-is both expected and condoned.

There would be no apparent legal impediment to a perjury prosecution. It would not be double jeopardy: The alleged crimes-lying under oath in 1996 and 1997 about facts material to the civil case-took place after the criminal jury’s 1995 acquittals of Simpson for the 1994 murders.

To be sure, the criminal jury’s acquittals would bar a perjury prosecution of Simpson for denying that he committed the murders. This conclusion flows from the principles of Ashe v. Swenson (1970) , in which the Supreme Court held that the double jeopardy clause gives rise to a collateral estoppel rule that a defendant cannot be prosecuted for perjury (or any other crime) based on allegations that are necessarily inconsistent with a previous jury verdict acquitting that defendant.

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Smashing Undercover Journalism

by Stuart Taylor, Jr.

Did you hear about the big civil rights organization that sent two undercover "testers" to work as a meat-wrapper and a deli clerk in a huge supermarket chain, after being tipped off by union activists about racial bias there?

Using fake resumes and concealing their true identities to get jobs, the testers carried hidden cameras and microphones to document a pattern of crude racial epithets and other racial harassment by supervisors and fellow workers.

When confronted with the evidence, the supermarket chain counterattacked by hitting the civil rights organization with a $7.5 billion lawsuit in the chain’s home state of North Carolina, with claims for racketeering, mail fraud, common law fraud, and trespass, among others. The trial judge let some of these claims go to a jury, which slammed the civil rights group with $5.5 million in punitive damages for using fraudulent tactics to obtain evidence.

Actually, I made the case up. But the facts closely track those leading to the Jan. 22 jury award of $5.5 million in punitive damages against ABC for the 1992 hidden-camera expose" of Food Lion Inc. by "PrimeTime Live." The main differences are that ABC broadcast some of the hidden-camera tapes-in a program the truthfulness of which Food Lion chose not to challenge in court-and that ABC was not exposing racism, but the alleged mislabeling and selling of out-of-date foods, including spoiled meat and fish that had been bleached and food rescued (at management’s direction) from garbage dumpsters. Food Lion says the broadcast was inaccurate and unfair.

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NewsHour: Simpson Civil Case Goes to Jury – January 28, 1997

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MARGARET WARNER: A year and a half ago one-time football star O.J. Simpson was acquitted of murder in the 1994 killings of his former wife, Nicole Brown Simpson, and her friend, Ronald Goldman. Yet, over the past four months he’s been back in court as a defendant in a civil lawsuit brought by the victims’ families. The jurors began their deliberations this afternoon, and to explain the distinctions between these two trials we’re joined by NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Welcome back, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

MARGARET WARNER: What are these jurors being asked to decide?

STUART TAYLOR: They’ll have a verdict for them that asks eight questions. The first of them is fairly straightforward. Do you find that defendant Simpson wilfully or wrongfully caused the death of Ronald Goldman, and do you find it by a preponderance of the evidence? After that, the questions might seem a little strange to some people, which reflect some of the peculiarity of running a murder case through a civil damage suit. For example, the jury’s not asked whether Mr. Simpson killed his wife, Nicole Brown Simpson. It asked whether he committed battery upon her.

MARGARET WARNER: Now, why is that?

STUART TAYLOR: Her estate, her family did not bring what’s called a wrongful death action, presumably because they didn’t want her children and his children to have to testify in their part of the estate in a wrongful death action. The damage the victims or the survivors suffer is the loss of companionship and love of a dead person.

MARGARET WARNER: So–

STUART TAYLOR: They sued in what’s called a survivorship action, which is as though Nicole Brown Simpson were suing from the grave for what was done to her.

MARGARET WARNER: And now the burden of proof is also quite different in this case than it was in the criminal case, right?

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Cameras: The Paper Bag Solution

by Stuart Taylor, Jr.

Last week, while nodding my head at the cogency of the 9,000th New York Times editorial on "the public’s right to observe" the Supreme Court’s oral arguments. I fell to musing about whether the justices’ aversion to letting cameras into their courtroom could ever be overcome.

Then I had an epiphany.

But first, some background. It is obvious to all thinking people (or. at least, journalists), excepting the nine justices, that we have a constitutional right to watch the Supreme Court on television.

Aside from the public’s right to know just about everything reporters might ever want to tell them- from how to construct a nuclear bomb to the sex lives of our politicians- the Court’s oral arguments are a vital governmental process. Powerful public officials doing the public’s business have a duty to expose themselves to the broad scrutiny that can only come through television. It would be a great educational thing-better for the kids than Big Bird and Goosebumps. Sunshine is the best disinfectant. Et cetera, et cetera, et cetera, as Yul Brynner (or was it Yogi Berra?) used to say.

And, of course, Justice Antonin Scalia especially should stop carping at cameras because he’d come across so much cuter and wittier on TV than he does in those nasty dissents calling his colleagues a bunch of ignorant, irrational, sneaky, democracy-destroying couch potatoes, or whatever. He would be all the more telegenic with that great new beard, which was better two hours after his last shave than Yasir Arafat’s after 50 years of rubbing Rogaine into his cheeks.

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Pondering Paula’s Precedents

by Stuart Taylor, Jr.

The myriad rationalizations offered by liberal feminist groups-which habitually canonize women alleging sexual harassment-for the disdain they have shown one Paula Corbin Jones is a bit reminiscent of the classic dog-bite defense: I don’t own a dog; my dog was out of town when the woman was bitten; it was his first bite; he bit her in self-defense; she asked for it; and she wasn’t really hurt.

The feminist line goes something like this: We don’t know this woman; she’s in bed with right-wingers; we already knew Bill was a womanizer, it was his first flashing; she probably came onto him; she asked for it; and she wasn’t really hurt.

There’s more: She waited too long (three years) before going public; we don’t believe her the way we believed Anita Hill (who waited 10 years); and her legal claims are so weak that they should be dismissed without ever getting to a jury, even assuming her allegations to be true.

I examined some of these points in "Her Case Against Clinton" (The American Lawyer; November 1996). Here I will examine the last one: the legalistic dodge, which seems increasingly in vogue.

The legalistic dodge misses the point that the most important public issue raised by the Jones case is not whether she could get past a motion for summary judgment, but what her evidence tells us about the character of the most powerful man in the world. And the dodge is, of course, advanced by many feminist groups and leaders who would argue the opposite if the accused were, say, Newt Gingrich.

These include ex-Rep. Patricia Schroeder, who suggested on CBS recently that Jones would have no claim "unless the governor or somebody had communicated to her she would lose her job, or she wouldn’t get her promotion, or there’s some job-connected consequence of her not having sex with the governor."