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E as in rhymes with hypocrisy

PP stays up later than I do so he picked up on South Dakota J.A.I.L.er-in-chief Bill Stegmeier’s lawsuit against the No on E Committee. PP makes several good points but in looking at the pleadings, something jumped out at me.

You may recall that the Amendment E people have taken to holding up a ruling by Judge Rusch as a poster child for J.A.I.L. Their complaint? That because this individual supports Amendment E, Rusch violated the man’s First Amendment rights by telling him he could not post information about his ex-wife on the internet. As I’ve pointed out, this claim is bogus. But what shows up in the pleadings by these great defenders of the Fist Amendment?

It asks the trial judge to enter an “exparte (sic) temporary restraining order” forbidding No on E from airing any television commercials or distributing pamphlets or other materials the litigation claims are untrue. An “ex parte” order is one issued without notice to or a hearing afforded the party against whom the order is sought. So, the people who complain about the judicial system want an order without notice or hearing. While such orders are authorized under limited circumstances, it seems that under Amendment E any judge who issued such an order could be the subject of a J.A.I.L. complaint and sued.

These great defenders of the First Amendment also apparently skipped several days of whatever class they took about the First Amendment. First, the Supreme Court has said in no uncertain terms that the First Amendment “affords the broadest protection to . . . political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'” Buckley v. Valeo (1976) (quoting Roth v. United States (1957)). In fact, the landmark case of New York Times v. Sullivan dealt with a political campaign ad.

Similarly, the order seeks to restrain speech (hence a “restraining order”) before it takes place. The Supreme Court has been as blunt about prior restraints as political speech, saying “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart (1976). So Amendment E, which trumpets the First Amendment on its web sites and inane blog comments, wants a judge to issue a prior restraint on political speech. Even though hypocrisy isn’t spelled with an e, it sure rhymes with it.

If this is how Stegmeier and Amendment E supporters view the First Amendment, perhaps you’re getting an insight into how they hope J.A.I.L.’s “special grand jury” will work and what they want to use it for.

UPDATE: I understand Judge Gors has scheduled a hearing in the lawsuit for 9 a.m. Wednesday morning The fact a hearing is scheduled would lead me to believe the “exparte” request for a TRO was denied or, at least, deferred.


Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.

Mills v. Alabama, 384 U.S. 214, 218-19 (1966)

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3 comments to E as in rhymes with hypocrisy

  • Wow, after reading TG’s legal analysis in which he writes :I understand that…”

    He’s wrong about the hearing, he’s Wrong about his guess,(and he was dead-bang wrong on prior analysis).

    In his defense; perhaps he actually believes what he writes.

    But TG’s legal analysis solves one mystery. A lack of clients accounts for a lot of time for book reviews.

    Here’s a suggestion:

    Try reading, Professor Charles Gardner Geyh’s “When Courts & Congress Collide – The Struggle for Control of America’s Judicial System.”

    Pretty soon the reader (well, expect maybe Tim) learns the last time Congress investigated a federal judge was 1986.

    Geyh reveals that and oh by the way, and of no surprise to anyone; polls show judges rule According to Their Beliefs…then look to bootstrap any law to it.

    Would TG be brave enough to post this? Who knows. Last time I spoke to him and said he didn’t have to write facts because he “wasn’t a journalist.”

    Then he didn’t post a post I made critical of him…which was for once, a fairly smart move.

    Here’s from former Judge Andrew P. Napolitano, specifically addressed removing judicial Immunity in his book, “Constitutional Chaos” to wit: Page 186 – 187

    “Congress and the state legislatures should also make it easier to sue the federal and state governments for monetary damages when they violate our constitutional liberties.

    The federal government and many states have rendered themselves immune (called “sovereign immunity”) from such lawsuits if the lawsuit attacks the exercise of discretion by government employees. This is nonsense. You can sue your neighbor for negligence if his car runs over your garden or your dog. You can sue a corporation if it pollutes the air you breathe. You can sue your physician if he leaves a scalpel in your belly.

    You should be able to sue the local police, state police, and the FBI under the same legal theories if they torment you, if they prevent you from speaking freely, if they bribe witnesses to testify against you, if they steal your property, or if they break the law in order to convict you.

    Along with removing sovereign immunity, I would also remove personal immunity on the part of the individuals who work for the government when they commit crimes. Let me explain what I mean.

    If a corporation harms you by selling you a defective product you may sue the individuals who work for the corporation who actually caused the defect, as well as the corporation itself. The individuals are usually indemnified, that is, their legal bills are paid and any settlements or judgments against them are paid by the corporation which employs them. If they have committed a crime during the course of their employment which led to the defect, their employer cannot indemnify them, and they are personally exposed to your lawsuit. The same should be the case for government employees and agents. If a government employee commits a crime in the course of his work, he should lose all immunity and be exposed personally to litigation by the victim of the crime. This would be a strong and cost-effective way to compel the government, its employees, and agents to obey the same laws they are sworn to enforce.

    In some states and in the federal system, if a litigant files a frivolous pleading with the court or makes an indefensible argument to the court, the litigant must pay the legal fees of his adversary for resisting the pleading or the argument. This rule should be applied as well to the federal and state governments in civil and criminal cases. If a defendant is ultimately exonerated in a criminal case, and the government broke the law to prosecute him, the government should pay his legal bills.”

  • Tim

    For someone who claims she doesn’t read this blog, Russell sure spends a lot of time here.

    First, let’s thank her for her legal analysis. Maybe we should check and see which of us has been listed in Best Lawyers in America for the last 10 years in the field of First Amendent law. But, like much of the lunatic fringe, Russell doesn’t like facts or the truth because they interfere with her ranting.

    As far as the substance, to use the term loosely, of Russell’s post:

    What does Congress investigating a federal judge have to do with the judiciary and government in South Dakota ? In fact, since Geyh’s book is an “analysis of the relationship between Congress and our federal courts,” what does it have to do with South Dakota’s court system? Maybe Russell might like to know that Geyh testified before Congress against legislation intended to create more “oversight” of the federal judiciary because it “can and likely will be exploited to punish judges for their judicial decisions.”

    To the extent federal judges and polls are relevant, Russell evidently missed the recent CNN poll that revealed that 67 percent of those polled said federal judges and the decisions they make should not be subject to more control.

    Russell’s last comment here wasn’t posted for one reason — it was an attack on one of my daughters, who has nothing to do with this blog or my position on E. But I guess desperation leads to extreme measures.

    The last time we spoke Russell was going to send me the “evidence” she was awaiting to show why South Dakota needed JAIL. She was also going to point out the specific factual errors that appeared in the posts about which she complained. I’m not surprised that I have yet to see either, just like the voters have never been given a reason South Dakota needs JAIL.

    Judge Napolitano is not talking about judicial immunity. He is talking about sovereign immunity. They are separate doctrines. I welcome Russell to point to one section of Napolitano’s book, which I have read, that talks about the need to abolish judicial immunity.

    Yep, Russell is one helluva publicist. She spends most of her time posting barely intelligible comments on blogs. No wonder E is doing so well in South Dakota, where the voters actually see through all the bullshit spread by the Amendment E crew.

  • Tim

    I guess I should have waited until I read PP’s blog. It shows once again why Russell can never be believed.

    She claimed in her comment that I was wrong in saying a hearing was scheduled this morning (Wednesday) in the new lawsuit against No on E. Odd. It appears Judge Gors did hold a hearing this morning and issued a ruling. (http://dakotawarcollege.blogspot.com/2006/11/i-told-you-so-associated-press-reports.html)

    Russell’s motto as a “publicist” must be “Never let the facts stand in your way.”