Smashing Undercover Journalism

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Lion chose not to challenge in court-and that ABC was not exposing racism, but the alleged mislabeling and selling of out-of-date foods, including spoiled meat and fish that had been bleached and food rescued (at management’s direction) from garbage dumpsters.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.

Cameras: The Paper Bag Solution

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.

Pondering Paula’s Precedents

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."

Compassion Breeding Hubris

About 3 a.m. one night last April, after reading the two federal appellate decisions creating a new right to assisted suicide, and being pulled one way by concerns about judicial imperialism, and the other way by heart-rending anecdotes of people dying in excruciating pain-or blowing their brains out or jumping off bridges-because they lacked the more humane option of lethal medication, I settled on an ingenious solution.

It was a "constitutional remand," proposed by Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit, in his concurrence in one of the cases now before the Supreme Court. (That case, Vacco v. Quill, and the case of Washington v. Glucksberg, in which the 9th Circuit struck down another statute barring assisted suicide, were argued Jan. 8.)

Judge Calabresi’s idea was to hold New York’s long-standing ban on assisting suicide to be semi-unconstitutional as applied to physicians who honor requests for lethal medication by mentally competent patients in the last stages of terminal illness.

Because the statute seemed anachronistic, and at least "close to violating" substantive due process or equal protection, Calabresi said, the court should strike it down for now, but should reserve the possibility of upholding a similar (or even identical) law if the legislature were to re-enact it while articulating persuasive policy justifications.

"That makes sense to me, at least at first blush," I concluded ("Life, Death, and Imperial Judges," April 15, 1996, Page 23). At second blush, it doesn’t make sense. Rather, it seems clear that the Supreme Court should uphold the long-standing line against assisted suicide, as most of the justices seem inclined to do.

Outrages and Curmudgeonly Complaints

In the spirit of the season, and in the hope of a fresh start-with malice toward none, with charity for all-in the new year, I hereby purge myself of various vexations left over from the old year.


• President Bill Clinton’s bold transcendence of all previous standards of shamelessness in his virtual auctioning off of prizes-nights in the White House’s Lincoln Bedroom, smaller slices of face time with the president, posts on piddling presidential panels-to the highest bidders from Wall Street to Djakarta. This from a man who said in his Inaugural Address: "Let us resolve to reform our politics so that power and privilege no longer shout down die voice. of the people."

• Vice President Al Gore Jr.’s slimy effort to make political hay out of his sister’s death from lung cancer. Telling tearful delegates at die Democratic National Convention how he had knelt by die two-pack-a-day smoker’s bed while she "breathed her last breath" in "nearly unbearable pain," Gore said, "That is why, until I draw my last bream, I will pour my heart and soul into the cause of protecting our children from the dangers of smoking."

This from a man who during the six years after his sister’s 1984 death had taken some $16,000 from the tobacco industry-which had also helped to fund the very convention at which he spoke. A man who had continued growing tobacco on his own land after his sister’s death, and who had rhapsodized at a 1988 campaign rally about how he had "shredded it, spiked it, put it in the bam and stripped it and sold it"

A Civil Libertarian’s Nightmare

Leroy Hendricks is every parent’s nightmare: a 62-year-old pedophile, convicted five times of molesting at least 10 children over a period of 40 years, who admits that he might well molest more if given the opportunity.

His case, Kansas v. Hendricks, is every civil libertarian’s nightmare.

That’s because, to prevent Hendricks from preying on more children, the Supreme Court may be tempted down the slippery slope of allowing states to lock people up-perhaps for life-based-on inherently Speculative predictions of future dangerousness. Down that slope lie questions like this: If pedophiles can be preventively detained for what Kansas calls a "mental abnormality" predisposing them to molest children- even though the likelihood that they will do so falls well short of certainty-why can’t recidivistic armed robbers, or violent drunks, or others be detained for what might be called a "sociopathic personality disorder," which makes them equally or even more likely to commit other crimes?

At the bottom of the slope lies the specter of totalitarianism, as Justice Antonio Scalia noted during the Dec. 10 oral argument in the case.

Anyone with a grain of concern for civil liberties would hesitate to venture down this slope. But do die justices have a choice, short of telling Kansas that it must free Hendricks until-as Chief Justice William Rehnquist put it-"he goes out and does it again"?

Hendricks is one of thousands of sexual predators who will remain a threat to children as long as they live. Studies indicate that many have had dozens, even hundreds, of victims. Some are in prison, but few are serving life sentences.

Why the Courts Will Uphold 209

No state shall…deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin….

California Civil Rights Initiative

(added to state constitution by voters’ adoption of Proposition 209 on Nov. 5)

The question presented is whether the second of these two laws violates the first. The question should answer itself, even for those who think the CCRI is bad policy. The notion that a state violates the 14th Amendment’s prohibition of almost all racial discrimination when it prohibits all racial discrimination is absurd on its face. Butt a little absurdity has not deterred civil rights groups, led by the American Union, from rushing into federal court (and shopping for a sympathetic judge) with a claim that the CCRI must be enjoined as contrary to the equal protection clause. Nor has it prevented U.S. District Judge Thelton Henderson of San Francisco from issuing a temporary restraining order (on Nov. 27) finding that the plaintiffs have "a strong possibility of success on the merits."

How strong? Some predictions: Assuming that Judge Henderson grants a preliminary injunction, the U.S. Court of Appeals for the 9th Circuit will reverse him and uphold the CCRI’s constitutionality. The Supreme Court will then either decline to hear the case or add an exclamation point by upholding the CCRI-unanimously.

The strategy of the ACLU and its allies represents "an Orwellian assault on democracy," in the words of columnist Charles Krauthammer.

Heads, You’re Racist…

Tails, you’re racist.  That seems to be the basic indictment of us white guys espoused by virtuous black people like Jesse Jackson, Kweisi Mfume, Carl Rowan, and Willie Brown.

The same indictment is also parroted by a lot of virtuous white guys (and women), some of whom apparently feel that their best shot at avoiding the suspicion of racism in themselves is a hair-trigger readiness to impute racism to others.

Among the recent developments that bring these thoughts to mind are the furor over the famous Texaco tapes, the publication of Rowan’s new book, the success of black congressional candidates in majority-white districts this year, and the California referendum barring racial preference.

Shelby Steele, a leading black critic of preferences, suggested a useful framework for making sense of these developments before most of them had occurred.

"Whites on the left tend to recompose their vulnerability to the stereotype of whites as racists into an exaggerated deference toward minorities," Steele wrote in the Oct. 7 New Republic. "Preferences give liberal whites the chance to show deference to black victimization, and they give the black leadership the chance to keep asserting that racism is the main problem that blacks face."

Consider the tale of the Texaco tapes. They were surreptitiously recorded at an August 1994 meeting in which top executives discussed a discrimination suit by nonwhite employees. The executives spoke at length about destroying relevant documents. What magnified this from an important story about possible obstruction of justice into a national sensation was a Nov. 4 report by The New York Times. It said that top Texaco executives had been caught on tape "belittling the company’s minority employees with racial epithets," including "nigger," and with phrases like "black jelly beans."

A Futile Balancing Act

When Robert Bork agrees with Laurence Tribe, and with just about every other law professor and mainstream economist in the land, and with President Bill Clinton; and when the editorial page of The Wall Street Journal is in sync with those of The New York Times and The Washington Post, and when they are all united against something, it’s awfully tempting to be for it.

The push for a balanced budget amendment to the Constitution is what they all oppose- intermittently, in the president’s case.

And so I’d like to be for it. I’d like to agree with literal sage Michael Kinsley, whose contrarian side wrote in 1992 (and still believes) that it’s time to "call this hoary Republican bluff," because "the nation’s deficit addiction must… be cured." I’d also like to agree with conservative sage James Q. Wilson, a "reluctant convert" who last year called the balanced budget amendment "a bad idea whose time has come," and a necessary cure for the public’s "free-lunch mentality."

I’d like to agree, but I can’t quite get there.

That’s because the more you look at the various proposed formulations of the balanced budget amendment-which came close to passing Congress in 1995 and will have more support in the newly elected Congress-the more clear it becomes that (in Bork’s words) this "cure seems likely to be either ineffective or damaging, or both."

In addition, the view that the voters are hopelessly addicted to mortgaging our children’s future-through reckless deficit spending from which we can save ourselves only by amending the Constitution-is a bit less convincing now than it was a few years ago.

Is Innocence Irrelevant?

On Nov. 7, at about noon, the Supreme Court casually cleared the way for an execution at 9 o’clock that night-in the face of overwhelming evidence that the man to be killed was probably innocent of the prison murder for which he had been condemned.

All nine justices knew or had reason to know of Joseph Payne’s probable innocence. It would have been apparent to any fair-minded reader of the briefs and lower court opinions. These show that Payne’s conviction-charge of burning fellow prisoner David Dunford to death in his cell in 1985-hinged on the uncorroborated testimony of "an appalling and known prevaricator" (in the words of the U.S. Court of Appeals for the 4th Circuit) named Robert Smith, who was released from prison 15 years early, mainly for fingering Payne, and who has himself been named as the killer by four eyewitnesses and two others who heard Smith brag of having burned Dunford directly after it happened. (See "Innocent? Execute Anyway," Sept. 30, 1996, Page 29.)

Yet Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, and Stephen Breyer were prepared to let the commonwealth of Virginia kill Joe Payne anyway. Only Justices John Paul Stevens and Ruth Bader Ginsberg dissented from their colleagues’ no-comment denial of a stay of execution.

This willingness to allow the execution of a man who had proven his innocence-by at least a preponderance of the evidence-was a first in recent history. It provides a grim harbinger of what is to come.