Fighting for the Press–Book Review

Date: June 12, 2013 Author: Grant Oster Comments: 3 Replies

When one comes across a headline in the news about the violation of a First Amendment right, the right in question is usually one of speech or religion. The other three freedoms guaranteed in the First Amendment–press, petition, and assembly–never seem to get much attention. As the government continues to restrict the people’s rights during the current war on terror, it becomes more and more disheartening to hear of these flagrant abuses and violations. While we fight fervently to protect these two rights (speech and religion), it is important to remember that press is what allows American citizens to be in the know; the press is what keeps the people informed. Without the press there would be no dissemination of information; ergo, no men and women to rally together (assembly), to unite behind one forthright voice–which heard makes known their dissatisfaction, needs, and desires (speech). The press’ investigative journalism has earned the nickname of “the government watchdog” for a reason. The Free Dictionary defines watchdog as: [o]ne who serves as a guardian or protector against waste, loss, or illegal practices.

James Goodale

While cases such as those recently brought against Julian Assange (Wikileaks) and Judy Miller (The New York Times) have attempted to halt the press and scare reporters into divulging their sources, one case in particular set into action a legacy of protection. In 1971, the American press went head-to-head in the ultimate showdown against President Richard Nixon. The press organization that Nixon placed on the chopping block was The New York Times. In what Nixon believed was a matter of “national security,” he demanded that the courts issue prior restraint against the Times and prohibit any further publication of the Pentagon Papers. This would mark the first time that the American government attempted to have a federal court issue prior restraint. While this legal battle was not won by one individual, James Goodale was a major contributor and (for decades to come) would play a key role in guaranteeing the future freedoms of the press.

James Goodale, the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, served The New York Times as their general counsel in all four of the cases in which the Times tried cases before the Supreme Court. Moreover, he served as a beacon, both in hope and strength, in New York Times Co. v. United States (1971). Upon starting his legal career with Lord Day and Lord, in 1959, he also enlisted in the Army Reserve. During his six years in the Reserve, Goodale served as a strategic and intelligence research analyst. This training would greatly influence Goodale in his ability to determine the real worth of “classified” and “top secret” documents. Knowing that the system used to determine how a document should be rubber-stamped was a sham, Goodale was confident in his beliefs and assertive in his stance.

In Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, Goodale gives a firsthand account of the (literal) trials and tribulations of battling the Nixon administration and the Justice Department. The book fully explains the events leading up to the first publication of the Pentagon Papers, while giving you insightful tidbits that only the keys players had access to. As this case is one of the most prominent in First Amendment constitutional history, the outcome is already known. The book won’t keep you guessing, but offers an intelligent summary of the ins and outs of the case. There were numerous areas in the book which I found enthralling: the process by which the government decided what was deemed “top-secret,” the structure and continued use of journalist’s power of contempt, and the establishment of shield laws. (Just to name a few!) While the majority of the book surrounds New York Times Co. v. United States, the book ends with a summary of recent First Amendment cases. Maybe the most important aspect of the book is its ability to portray the parallels between Nixon’s administration of those of George W. Bush and Barack Obama.

Overall, the book was an informative read. That being said, however, it may be hard to get through if you do not have an interest in legal proceedings, journalism, or First Amendment rights. If U.S. Constitutional history is important to you (which it should be to everyone), or you are considering a career in law or journalism, this book is worth picking up. For more on this book, click on any of the links above to purchase from Amazon or check out information on the publishers page.

Celebrating the Pentagon Papers Victory (L-R) Harding Bancroft, Arthur Ochs Sulzberger, A.M Rosenthal, Sydney Gruson, and James Goodale.

Are Technological Advances Impeding our Fourth Amendment Rights?

Date: April 25, 2013 Author: Grant Oster Comments: 1 Reply

Some of you may remember that a month or so ago I posed the following question: “Which Amendment from the Bill of Rights is worthy of a paper?” I received an overwhelming number of responses left on the post, Facebook, and LinkedIn. After looking into each suggestion (I appreciated them all), I went with the Fourth Amendment. I started writing about how “Home is where the heart is” and that our home is our sanctuary and a place where we should feel the safest–a place where the individual should expect the largest amount of privacy. However, after I did a little more research, I realized that there is no longer any privacy in the home. I was shocked at how the Fourth Amendment, specifically in regards to unreasonable searches, had become neglected; therefore, I took it upon myself to find how the Fourth Amendment had become the watered-down version it is today.

Below is the first paragraph from my finished paper. If you want to read about the history of the Fourth Amendment and how it has become diluted check out my entire paper here —> Are Technological Advances Impeding our Fourth Amendment Rights? ( <— Link to PDF version of paper.) This paper is roughly 3,500 words (10 pages, double spaced) and covers the contributing case law and history behind the Fourth Amendment, the first Supreme Court cases that triggered the downward, slippery slope, Supreme Court Justices’ dissenting opinions that forewarned Americans of the intrusions of privacy due to technology, and an example of current legislation that the government is attempting to pass that will further circumnavigate our Fourth Amendment rights.

While the right to privacy is not concretely established in the Constitution, the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is (Dershowitz 32). The problem, however, is that there are technological advancements and inventions that were never anticipated by the Framers of the Constitution—Global Positioning Systems, cell phones, and email. These are just a few of the technological advances, invented centuries after the penning of the United States Constitution, which have allowed the criminal justice system to circumnavigate our Fourth Amendment rights. The Fourth Amendment, specifically in regards to the privacy and security in one’s home, should be fervently protected against the ever-slowing responsivity of the United States Supreme Court. Due to these unforeseen technological advances, the current judicial jurisprudence of the Fourth Amendment is in stark contrast with the original Founding Fathers’ ideology in regards to protection of privacy, especially in one’s own home.

Federalists and Anti-Federalists — What is the Difference?

Date: March 4, 2013 Author: Grant Oster Comments: 6 Replies

In the late 1780’s, the most important debate in America’s history took place. This debate, which started in 1787, pitted the Federalists versus the Anti-Federalists. In a tumultuous time, where the newly independent states were riddled with debt, rebellion, and uncertainty, fifty-five men gathered to create the United States Constitution. This constitution would replace the failed Articles of Confederation, thus establishing a new federal government. The Articles, which proved useful in uniting the states together and waging war with Britain, had several flaws. The most severe of these flaws were: 1) that all states were required to amend laws, 2) that the federal government couldn’t raise money through taxes, and 3) there were no national executive or judicial powers; therefore, all powers were vested in Congress.

The new U.S. Constitution differed from the Articles of Confederation in various ways. Most importantly, it implemented changes to fix the aforementioned flaws. However, the way in which the Constitution corrected these issues—the issues which continually kept Congress in a gridlock, rendering the current government ineffective—shaped the American government into a government with federal control. The Articles had originally established the states as a loose confederation, “a firm league of friendship,” whereas the Constitution would establish a firm union with a supreme national government. Once the Constitution was completed, it was sent to all 13 states to be ratified. Feelings about the new government, established under the U.S. Constitution, led to much debate and two groups emerged during the ratification process—the Federalists and the Anti-Federalists.

The Anti-Federalists were against the United States Constitution. This group of men consisted of historical greats such as Thomas Jefferson, Patrick Henry, Samuel Adams, George Mason, Richard Henry Lee, and James Monroe. These men believed that the Constitution gave the federal government too much power; they believed that states should have more power. Their logic behind this was that the states could better decide what the people needed. With each state came its own set of needs. How could a federal government, spanning over such a large area, possibly know what was best for each individual state? In Brutus No 1, it was that argued that “in a republic of such vast extent as the United-States, the legislature cannot attend to the various concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature, that would be continually arising.”

Never in America’s history had so much power been given to a federal court or a federal executive. The Articles of Confederation had intentionally seen to it that such powers were not granted. The Anti-Federalists, who still had fresh memories of oppression under Britain’s King George III, were uneasy in establishing a government that had the potential to turn into a monarchy. They feared that the President of the United States could become a tyrant and with his and Congress’ enumerated powers, such as the power to maintain an army (even in times of peace), take control of the states.

The largest issue that the Anti-Federalists had with the proposed constitution was that it lacked a bill of rights. All states had their own constitutions, with its own bill of rights, but the Anti-Federalists did not believe that this would be enough to protect the citizens from this new, powerful federal government. This issue, as well as all the issues listed above, was mentioned in political writings and speeches which historians have labeled as the Anti-Federalist Papers.

The Federalists were for the implementation of the U.S. Constitution as it was originally written at the Constitutional Convention. Through a series of published articles, entitled the Federalist Papers, Alexander Hamilton, James Madison, and John Jay argued against the concerns of the Anti-Federalists. Where the Anti-Federalists showed concern that a federal government would lead to rule by majority and that states wouldn’t have the powers to take care of their citizens, Madison argued against this irrational fear in Federalist No 10.

Authors-of-the-Federalist-Papers-Alexander-Hamilton-James-Madison-John-Jay

Authors of the Federalist Papers: Alexander Hamilton, James Madison, and John Jay

In Federalist No 70, Hamilton gave a compelling argument for the need to have a one-man executive power over shared executive powers. If plural executives were chosen, the separate rulers would “less the respectability, weaken the authority, and distract the plans and operations of those whom they divide.” Madison argued in Federalist No 51 that neither the executive branch, Congress, nor the judicial branch could become too powerful because of the separation of powers. These separations of power, along with the implementation of checks and balances would provide “[a] great security against a gradual concentration of the several powers in the same department.”

Federalist No 84, written by Hamilton, battled the largest concern of the Anti-Federalists—a bill of rights. Hamilton argued that a bill of rights was a dated notion and, in fact, dangerous to the American people. He believed that a bill of rights would “contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted.” He feared that a bill of rights could be interpreted as a list of the only rights which people had.

While I found the arguments of the Anti-Federalists compelling, I believe that a stronger, unified government was necessary at the time. The Articles of Confederation were restrictive to progress and needed to be replaced. While the Anti-Federalists were unsuccessful in their attempts to stop the ratification of the U.S. Constitution, they were successful in amending the Constitution with a bill of rights. The Bill of Rights, added as the first 10 amendments to the U.S. Constitution, was an excellent addition and an accomplishment that the Anti-Federalists should be proud of achieving.

The Trial of John Peter Zenger

Date: January 30, 2013 Author: Grant Oster Comments: 2 Replies

The trial of John Peter Zenger is of importance both in the foundation of America’s judicial system and in the detailed list of Freedoms guaranteed to us in the United States Constitution. In 1733, Colonel William Cosby, New York’s new royal governor, was displeased with a ruling handed down by Chief Justice Lewis Morris; thus, he saw it fit to remove Justice Morris from his position. Colonel Cosby then appointed James DeLancey, a crooked crony of Colonel Cosby, to act as the new Chief Justice for New York. Lewis Morris, with some of his like-minded political allies, hired John Peter Zenger to publish articles in his newspaper, the New-York Weekly Journal. The series of articles were created to be critical of Cosby and his administration, to bring light to Cosby’s political corruption.

Trial-zenger-free-press

To say the least, Colonel Cosby was outraged and had his attorney general, Richard Bradley, charge John Peter Zenger with seditious libel. Colonel Cosby claimed that the work of Zenger was “divers scandalous, virulent, false and seditious reflections.” During the primary hearings of the case, John Peter Zenger’s attorney, James Alexander, said that the appointment of James DeLancey as judge would not be fair to his client. Alexander believed DeLancey would be neither impartial nor fair.

As you can guess, that didn’t go over well…

Chief Justice James DeLancey had James Alexander and his co-council disbarred, their names struck from the Council of New Jersey. (Colonel Cosby had already succeeded in having James Alexander’s name removed from the Council of New York.) However, the fight would not end here. While the sheriff of New York, also an appointee of Colonel Crosby, was gathering together a hand-selected jury, Alexander was putting out requests to the most powerful attorneys in the area. Andrew Hamilton, a lawyer from Philadelphia, would answer the call–and pro bono at that!

By definition of libel laws during this time period, there is no question that John Peter Zenger was guilty. Andrew Hamilton presented to the jury that what had been printed about Colonel Cosby was, in fact, true. When Hamilton attempted to offer up evidence, the judge wouldn’t allow it. Hamilton had the following as part of his closing arguments:

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main[land] of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth. (1) (The entire trial transcripts.)

Andrew Hamilton was able to win with “truth as defense,” with a non-guilty verdict from the jury. A March of Liberty summarized it the following way:

“Andrew Hamilton won his case because a jury of New Yorkers asserted the right to decide the entire case–both the facts and the law–and accepted the argument that a truthful statement could not be a libel.” (2)

“[The Zenger Trial]…did set an important political precedent. Andrew Hamilton had discussed the law as it ought to be, under the conditions…A static, unchanging law was inappropriate… (2)

Andrew Hamilton

Do you suppose it is just a coincidence that Gouverneur Morris, known as the “Penmen of the Constitution” and his half-brother Lewis Morris, a signer of the Constitution, were grandsons of the removed Chief Justice Lewis Morris? I think that this relationship played an important role in the passing of the Judiciary Act of 1789 and Article III of the United States Constitution. These laws allow that judges and justices of the Judicial Branch be appointed to serve “during good behavior,” or for life unless impeached and removed from office. This kept corrupt politicians from removing judges because they didn’t like the outcome of a case.

The Zenger Trial was also essential in establishing the First Amendment, guaranteeing Freedom of the Press; the Fifth Amendment, setting rules for indictment by grand jury and protecting the rights to due process; the Sixth Amendment, protecting the right to a fair and speedy trial, including the rights to be notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel; and the Seventh Amendment, providing the right to trial by jury in certain civil cases, according to common law.

And why are these important?

In 1789, Thomas Jefferson stated to Thomas Paine that,

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” –Thomas Jefferson

1) University of Missouri-Kansas City. Trial Record:From Zenger’s A Brief Narrative of the Case and Trial of John Peter Zenger (1736) http://law2.umkc.edu/faculty/projects/ftrials/zenger/zengerrecord.html (Date Visited January 30, 2013.)

2) Finkelman, Paul and Urofsky, Melvin. 2011. A March of Liberty:A Constitutional History of the United States. Vol 1, 41.

Martin Luther King, Jr. Day

Date: January 21, 2013 Author: Grant Oster Comments: 12 Replies

The third Monday in January is commonly known as Martin Luther King, Jr. Day, Martin Luther King Day, or my favorite MLK Day. What you might not know is that many states clump this holiday with their own state’s holiday(s).

The Lorraine Motel / National Civil Rights Museum
(Hankering for History Original Photo)

For instance, today is Lee–Jackson–King Day in Virginia. The state of Virginia uses this day to celebrate not only the memory of Martin Luther King, Jr., but also the memories of Robert E. Lee and “Stonewall” Jackson. This is not an uncommon practice across the nation. There are several states that have decided that today is not only for Dr. King. In the southern states of Alabama, Arkansas, Georgia, and Mississippi, today is a day to celebrate the birth of Robert E. Lee. Whether these southern states intended it as an actual day of remembrance, along with the remembrance of Martin Luther King, Jr., or just an opportunity to spit in the face of the holiday by clumping together an African-American civil rights leader and a General–if victorious– who would have kept King’s people in chains for decades, is unbeknownst to me.

However, there are states who are in the spirit of what King stood for and have marked this day not only as a celebration for Dr. King, but for what he stood for. In Arizona and New Hampshire, today is Civil Rights Day, and in Idaho, it is it Human Rights Day.

This not a post to talk about his excellent work as a non-violence civil rights leader or his expertise in civil disobedience.

This is not a post to call out Dr. King as a plagiarist or an adulterous man; we all fall short.

This is to remind everyone from where we have come, as a nation. I myself was not alive during the civil rights era, but from what I have read and seen, I believe that America is in a better place than it was fifty years ago. Well, maybe not financially, but with today being the second Presidential Inauguration of America’s first black president, you have to admit that America has become more egalitarian.

The assassination of Dr. Martin Luther King, Jr. was such a devastating blow to America’s value system that flags across the nation were lowered to half mast. Wall Street closed for the first time in its history for a private citizen. Even George Wallace, one of America’s most notorious segregationist, described the assassination of Dr. Martin Luther King, Jr. as a “senseless, regrettable act.” (Of course, some would argue that he only regretted not being able to pull the trigger himself…)

I think it was said best by Gandhi, when she stated,

“[King's assassination] is a setback to mankind’s search for light. Violence removed one of the great men of the world.” - Indira Gandhi

Boycott-National-Civil-Rights

I took the opportunity to go by the Lorraine Motel (Now the National Civil Rights Museum) to pay my respects to Martin Luther King. The museum is currently in the middle of making major renovations to the museum/motel. I was a little surprised by what I saw. Read the banner to the right.

Do people really think that the National Civil Rights Museum is here to “celebrate death and violence?” The National Civil Rights Museum’s website has the following on their website as its mission:

“… the Museum exists to assist the public in understanding the lessons of the Civil Rights Movement and its impact and influence on human rights movements worldwide, through its collections, exhibitions, research and educational programs.”

How could you even confuse the two? I understand that $27 million could provide good elsewhere, but come on. There is no way that anyone can actually believe that the museum was established to “celebrate death and violence.”

On a side note, I just finished Hellhound On His Trail, a National Bestseller about the assassination of Dr. King. Check out my book review on it!