The Inquiring Manatee

Putting Breitbart in His Place: Legally Liable for Defamation

   So I see where Shirley Sherrod, the USDA official ousted from her Georgia position thanks to a misleadingly edited video posted by Big Government.com blogger Andrew Breitbart and trumpeted by Fox News, is thinking of suing Breitbart for defamation.

  Unfortunately, under the Supreme Court's 1964 New York Times v. Sullivan defamation decision, Breitbart might well win the lawsuit because Shirley Sherrod as a USDA official addressing the NAACP on a public issue easily could be deemed a "public figure." As such, she cannot recover damages for slander without proof that Andrew Breitbart published the tendentiously edited video with knowledge of its falsity or with "actual malice" -- publication with reckless disregard of whether it was false or not.  

   Still, as a lawyer myself, I'd love to take the case because (1) the unprincipled Breitbart has some comeuppance coming, just as his obnoxious little ACORN  protege got his in Mary Landrieu's Louisiana office, (2) it could easily be argued that Breitbart published with actual knowledge of falsity, promoting the purposely false impression that Sherrod was a racist who was denying government services to white farmers, in reckless disregard for the effect of his misleading actions upon her career.   

    Breitbart's lawyers might be forced to fall back upon a final line of defense: No real damages suffered by plaintiff Sherrod. She got publicly and humiliatingly canned, but everyone involved -- from President Obama to Tom Vilsack to the NAACP -- has just as publicly apologized. Her reputation has been entirely vindicated. She's been offered a government job back, and if she takes it, where are the real damages?

McChrystal: The Three Unsaid Words That Would Have Saved Him

     Gen. Stanley McChrystal is out. Rolling Stone and contributor Michael Hastings (ex-Newsweek, like me) are basking today in the professional glory of revealing information that shook the U.S. war effort in Afghanistan to its foundations.

     The trouble over the snarky, Bud Lite-fueled remarks by McChrystal and his entourage over their civilian overseers on the Obama administration's national security team could have been so easily avoided. All it would have taken is three little words: "Off the record."

     There is no excuse for McChrystal and his top aides not being aware of how news interviews work. If you don't mind remarks being published but you don't want them attributed to you, you simply say "not for attribution." If you don't want them to be made public at all, you say "off the record." The reporter is obligated by ethics, custom and professional reputation to sit on those remarks. They can't be used. Period. At best, if McChrystal and his people had gone off the record, Hastings could come no closer than writing vaguely that around the four-star general there was at times the impression of an attitude bordering on disdain for the competence of some unnamed civilians involved in the war effort. That way, McChrystal is left with the defense that he's not responsible for a reporter's mere, alleged impression. 

    It's astounding that the sophisticated soldier had not taken to heart what New Yorker writer Janet Malcolm once said about journalists: We are always selling somebody out. Give us a sword, as Richard Nixon might say, and we will carve you up.

    McChrystal inexplicably was as clueless as the late, unfortunate Earl Butz, the Jerry Ford agriculture secretary who lost his job in 1976 after saying jocularly amid the camaraderie of a plane ride: "You know what the colored man wants? Loose shoes, a tight pussy and a warm place to shit." He said this in the presence of John Dean. Dean was not only the best-known American snitch of the 20th Century, he was then writing a piece on the 1976 Republican national convention for -- guess who? -- Rolling Stone.  Butz knew this, but went ahead. Today, score another one for Rolling Stone.

    From now on, generals are going to give a lot less access to reporters, and will be tight-lipped during any periods of access that are granted. That's a loss to the public.

   And that's on the record.

Welcome to Weimar

    The atmosphere in this country is beginning to smack of the Weimar Republic between 1919 and Adolf Hitler's accession to power in 1933.

    In that era of turmoil, German defeat, crippling inflation and worldwide depression, the struggling German democratic government based in Weimar was faced with repeated challenges from both left and right -- in the end, most strongly from extreme nationalists whose message of blame, scapegoating and hate appealed to lower-middle-class masses who felt threatened by change and by economic loss.
    In the United States at that time, and even more so through the Franklin D. Roosevelt years of the 1930s, democracy was under attack from the same populist Know-Nothing elements that have arisen in every national economic crisis dating back to the Whiskey Rebellion. Demagogues ranging from Huey Long and Father Coughlin to Fritz Kuhn of the German-American Bund kept the pot of civic discourse boiling with hatred.
    Nowadays, just as Nazis and their growing bands of sympathizers could not accept German defeat in World War I and the costs imposed by the Treaty of Versailles, suddenly booming extremist groups do not accept the legitimacy of the 2008 election, President Obama or any policy proposal of the Democrats. In short, having lost in 2008, they trumpet their loyalty to democracy but refuse to let the winners govern. We are witnessing the temper tantrums of ignorant, noisy, easily led children.
    Have you had enough of the wildly anti-government "tea party" types and "Christian warrior" militias like the vicious, deluded Hutaree? I have. It's time to call these intolerant, screaming mobs what they are. If they are not fascists, they are fodder for fascists. Spittle, insults and bricks flying, they are out of control -- and getting excessive media attention that attracts even more of the mentally unstable to their ranks.
    The stench of fascism is in the air. These people want to destroy the elected American government as the Nazis wanted to destroy the Weimar Republic.

    To which I say: Never again.

Air Rage Hits Romney

   Why are people such angry jerks on airplanes?

   Latest victim of air rage -- and probably in first or business class, yet -- is Mitt Romney. Leaving Vancouver aboard Air Canada, Romney asked the guy in front of him to move his seatback to the upright position for takeoff. (OK, it was officious of Romney to do that -- it's the flight crew's job, after all -- and in first or business class there's plenty of knee room between seats, unlike coach class, so why was Romney so bothered?) The guy gets up and takes a swing at Romney, the story goes. The crew takes the plane back to the gate and tosses the assailant off the plane.
    Romney, after all, could be the next president of the United States, and the Canadians want good relations. It's amazing that the guy didn't recognize Romney. Or maybe he's a Democrat. Or a conservative Republican who can't stand the once apparently centrist Romney's gross pandering on right-wing social issues. Maybe the guy has a thing about Mormons. Maybe it's the lousy economy. Maybe he was drunk.

    My opinion is that the guy is insecure about finally making it in life to business class or first class, and gets incensed at any attempt to pull him back into his place in the struggling middle class.      He's lucky this happened in polite, laid-back Canada. In the U.S. he might well have been tossed into jail.

     As for Romney, he can brag that he did the Christian thing and took the swing without slugging back. Though maybe that will kill him for good with the right wing as a wimp who wouldn't fight back against terrorists.

Google and China

True confessions: I own 30 shares of stock in Google. So I'm taking a hit in the stock's value as a result of Google threatening to pull its Google.cn search site out of China and Google's announcement that the site no longer will censor searches as the Chicoms desire.

    Google's scruples are costing me money, in other words. But Google is doing the right thing. China's government, not content with being kowtowed to by the American Internet giant, went too far in hacking into Google's system to pry into the gmail e-mails of Chinese dissidents.

    China has one of the world's most shamelessly repressive, hard-line governments. The thugs of Iran's equally bloody-minded "revolutionary" regime (the whole country has become a Tiananmen Square of killings and beatings) at least has the fig leaf of an ideology: They're doing it in the name of God. China's thugs no longer have an ideology. In economics, China doesn't even a communist system. It's unbridled capitalism. Beijing's Communist Party clings to power for the sake of power, and refuses to listen to protests from outsiders as it censors the Web and spies on its own Web users.   

Google shouldn't have agreed to self-filter Google.cn in the first place when it opened shop in China in 2006. Better late than never. Of course, China never will agree to an uncensored search site, so Google will have to pull out of China, where it holds a 20% share of the search-engine market behind China's own Baidu. But Chinese searchers still should have access to the worldwide and uncensored Google.com -- at least until China shuts down access to the site, as it does with Facebook and Twitter. 

   The Chinese government may get what it wants in the end, but Google's defiance will mark the first time that a foreign business desiring a foothold in the great emerging Chinese market has said "enough" to the overrreachers in Beijing. Let's hope Google's example inspires others -- and the Chinese people themselves. Meanwhile, I'm holding onto my Google shares, with thanks that the company is following its famous motto: "Don't be evil."

2010: What an Awful Year

    Already this is an annus horribilis.

    Take Yemen. Who ever thought much about Yemen before? This year, thanks to the thugs who placed the Crotch Bomber on Northwest Flight 253, Yemen joins Afghanistan, Pakistan, Iraq and Somalia as nations Americans must worry about as barbarians stroke their flea-ridden beards and plot mass murder in the name of Allah.  

    If there's a positive trend anywhere, it's hard to discern. The health care bill, assuming one gets through the conference process, is at best a half-measure that will unjustly enrich those rascally insurance companies, which deserve nothing but extinction.

    Grumble, grumble. I feel as curmudgeonly as Andy Rooney today, and I'm getting just as jowly.

Send This Man to Copenhagen

    

Wonderful, wonderful CO-penhagen, salty old queen of the sea!
                                                  -- "Hans Christian Andersen," The Movie

     If President Obama wants to go to Copenhagen to flog Chicago to the International Olympic Committee, let him go, says I.
     Those who criticize him for his decision -- they say it's unpresidential, it's too much like working for the "Illinois Chamber of Commerce," it risks having him look bad if Chicago loses -- are the same people who said he shouldn't even have dared to make a stay-in-school speech to America's children. Whatever Obama does or proposes, they're automatically against.
     Whether the 2016 Olympics end up in Chicago, Tokyo, Rio or Madrid, these carpers should be lined up in the stadium's javelin target area. Let the throwers heave at 'em.
      Now, personally, I think Rio deserves the Olympics more than Chicago does. No Olympics have ever been held in South America. And the Brazilians know how to throw a party, just as Chicagoans know how to rig an election.
     Oh, sure, there's lots of street crime in Rio, but how about Chicago, where a hapless teenager was beaten to death on the street the other day as a cellphone recorded the Third World scene? You want safety, go to Tokyo. Or maybe Madrid.
     But Chicago is Barack and Michelle's hometown, and if he's still thinking like the junior senator from Illinois that he was, it's hard to shake those habits. The benefits would not accrue merely to Chicago, moreover. It would be a patriotic plus for all Americans to snag another Summer Olympics, even though we had St. Louis in 1904, Los Angeles in 1932 and 1984, and Atlanta in 1996. We need something more to brag about these recessionary days.
     So bon voyage, President Obama. Come back with those quadrennial Games nailed to the wall. And if you don't succeed, you're still not likely to lose Illinois in 2012.

Recounting Those Iranian Ballots

      

The courageous Iranians demonstrating in the streets and demanding a recount in last Friday's election aren't quite making a strong enough point. They should be asking for a first count. The results favoring Mahmoud Ahmedinejad were announced far too quickly for the ballots ever to have been actually counted. What's needed now is the first legitimate canvass of the ballots, with full transparency that invites observers from the opposition candidates' campaigns to sit in on the counting and, if necessary, protest to duly constituted authorities who will investigate the grievances faithfully.
       In the demonstrators' determination, which has the establishment flummoxed, we see an example that outraged Democrats should have followed in 2000. Al Gore was like Mir-Hossein Mousavi: he never got an honest count in Florida. The Republican Supreme Court, in the worst ruling since Dred Scott v. Sandford in 1857, stopped the count and effectively declared George W. Bush president, with what consequences we now know all too well.
       Some resolute, nonviolent marching on a massive basis might have shamed even Republicans into going along with a recount in Florida, Jeb Bush and Katherine Harris notwithstanding.

Another Flight, Another Continental Pilot Dying at the Control Wheel

       Poor Continental Airlines. For the second time in the past several years, a captain has died in mid-flight at the controls. This time it was a Boeing 777 over the Atlantic, flying to the U.S. from Brussels. The first officer and a relief pilot took over and landed the plane with its more than 200 passengers safely. The last time involved a 757 and a co-pilot who handled the landing alone.
        The lesson: Maybe Continental should hire more flight physicians to check pilots' health. And maybe air passengers should be just as concerned with pilots that are old and experienced (Capt. Sully Sullenberger being an outstanding exception) as with pilots like that Colgan Air pair in Buffalo who were young, inexperienced, underpaid and overfatigued.

A Modest Proposal on Guantanamo

    

As Republicans run wild on the issue of closing the Guantanamo Bay military prison and moving the 240 inmates to facilities on U.S. soil, even Senate Democrats can't be blamed for shying from President Obama's plan to remove this symbol of Bush administration high-handedness and torture.
      The NIMBY fears so easily stirred up by the entirely emotional issue, even though the detainees would be secured in Supermax federal lockups from which no one has ever escaped, have potentially vulnerable politicians running scared of a future opponent's simplistic 30-second commercials.
      But before Congress prevents the administration from moving anyone to the U.S. mainland from Guantanamo -- thereby making it virtually impossible to convince any other country to accept a detainee -- policymakers should consider an alternative that could be a win-win choice for everybody, except perhaps for the terror suspects.
      Want to gratify the rest of the world and frustrate jihadist propagandists by closing Guantanamo? Fine, go right ahead. Want to keep any Guantanamo prisoner out of any U.S. states? You can do that, too.
      The strategy: Relocate the prisoners to a high-security facility that would be newly built and opened in Guam, American Samoa or -- just a short flight from Guantanamo -- the U.S. Virgin Islands. (Quiet St. Croix, somewhat off the tourist track, has the most land. Just don't put the Muslims in Christiansted, the island's chief city.)
      All these potential prison sites have these advantages:
      -- They're on U.S. soil, so Obama won't have to back down on that point.
      -- Residents there have no votes in Congress, only nonvoting delegates.
      -- Building and operating the new prison would create local jobs, a prospect that could mute opposition from NIMPT (Not in My Palm Tree) forces. Some of those giant Samoans would make great prison guards after their careers as NFL linemen end.
      -- The locations are in tropical settings that beat the bleakness of tropical but barren and ugly Guantanamo. How could jihadists or European moralists object to housing prisoners in the balmy South Pacific, the North Pacific paradise of Guam or especially the lovely Virgin Islands? (There, the alleged terrorists would be getting a symbolic downpayment on the 78 virgins, or whatever the number is, that jihadi "martyrs" are promised in heaven.) Or the inmates could learn the Argentine tago in Pago Pago.* 
      The president's executive order to close Guantanamo by the end of 2010 would not be blocked. The detainees, whether tried by Obama's tweaked military commissions or detained Cheney-style without charges, at least would have more pleasant quarters under the American flag.
       So how about it, Mr. President and members of Congress? Try the American Territorial Solution to the Guantanamo dilemma.
 -------------------------------------------------------------------------------
* That's a rhyme. Pago Pago, capital of American Samoa, is pronounced "Pango Pango."      
      

I'm Going to Death Row World!

  

Sorry for not having posted in the last couple of days. Busy making a home video and training for the San Diego Rock 'n Roll Marathon on May 31.
   OK, what have we got in today's Los Angeles Times? A peek at an upcoming proposal by California's Governor Arnold Schwarzenegger to close what looms as a $21.4 billion budget gap by selling off some high-profile state property. If this trial balloon flies and the Legislature agrees, on the sales block will be such real estate as San Quentin prison, the Los Angeles Memorial Coliseum, the Del Mar racetrack near San Diego, the state fairgrounds in Sacramento and the Orange County fairgrounds.
    Here's my counterproposal. Instead of getting rid of the aging San Quentin, with its spectacular setting beside San Francisco Bay (if there were a zoning change from "P-1 -- Prison" to "R-1," residential," the property could fetch $1 billion), California should move the Death Row wretches and other convicts out and operate the place as an amusement park.
     Think of it. The feds make money from boat tours out to nearby Alcatraz, which closed in 1963, but the bay currents are rough and tours are restricted. California could do much better by redubbing San Quentin as Death Row World or Gaschamberland.
     The world will beat a path to those famed, weathered yellow walls and iron gates. Wouldn't you pay a Disney-style $65 to see the old octagonal, glass-windowed death chamber? Or a hallway full of gurneys and needles used in today's execution method of lethal injection?
      Strap yourself into the old death chair. Watch as officials fill the room with a mysterious mist. No worries, it's Old Spice spray deodorant. It's an E-ticket to forever.
     See the cells formerly occupied by Charlie Manson and "red light bandit" Caryl Chessman. Admire the great sunset views they enjoyed at public expense. Sit behind old Warden Duffy's desk and try to sound gruff yet fatherly, like Spencer Tracy.
     Arnold's San Quentin Adventure: Good for California, good for San Francisco, good for America.