Thursday, May 19, 2005

ABC's Terry Moran, Free Speech and Judge Lefkow

Terry Moran, ABC News White House Correspondent: You said that the retraction by Newsweek Magazine [of its apparently insufficiently fact based story on the Qur'an being abused by the U. S. Military] is a good first step.
What else do you want this American magazine to do?

Scott McClelland, President Bush’s Press Secretary: This report, which Newsweek has now retracted and said was wrong, has had serious consequences. People did lose their lives.

Terry Moran: With respect, who made you the Editor of Newsweek? Do you think it’s appropriate for you at that podium, speaking with the authority of the President of the United States [POTUS on West Wing] to tell an American magazine what they should print?

McClelland: I’m not telling them. I’m saying we would encourage them to help—

Moran: Pressuring--

McClelland: No, I’m saying that we would encourage them—

Another correspondent: Are you saying they should write a story? Are you going that far? How else can Newsweek satisfy you, here?
White Housing Briefing and Questions and Answers, May 18, 2005, as cablecast, in part, on the FNC’s Special Report with Brit Hume, May 18, 2005.
Brit Hume, Special Report anchor, leading a discussion of the substance of the above video-clip: Well, the story has changed. Newsweek acknowledged error in a retraction on Monday, and by Tuesday and now Wednesday, the story has morphed and we now have some obvious interest in the White House Press Corp. in the behavior of the White House on all this. What about all this?

Morton Kondracke: Executive Editor of Roll Call: I don’t know why it’s not appropriate for the White House to suggest that Newsweek report on the issue of what is the treatment of the Qur’an-- official policy on the treatment of the Quran in military interrogation centers. It’s a perfectly legitimate thing and if Newsweek finds that the treatment of the Qur’an is respectful, then that would help the United States to report that fact. It would also be the truth – if that were the case.

Brit Hume: Let’s suppose that we all decided at this desk that this really was pressure by the White House on Newsweek. Does Newsweek have anything to fear from the White House?

Mara Liasson, NPR senior correspondent: No, I think it’s impossible to actually pressure-- as much as might or might not be tried at the White House to pressure Newsweek into writing a certain story…
Discussion on FNC’s Special Report with Brit Hume, May 18, 2005. Special Report airs on the Fox News Channel every weekday at 5:00 pm and 11:00 pm on Cable in the Chicago Metropolitan area, [Comcast Cable Ch. 54 in the suburbs].
Well, this is kind of an interesting juxtaposition of events. Yesterday, Terry Moran, ABC News, was quite upset about the White House encouraging Newsweek to do more than simply retract its story- a story that Newsweek concedes was ill founded or false. Moreover, the story arguably sparked riots and numerous deaths. Apparently, the White House sought to encourage Newsweek, having gotten the story wrong, to perhaps do another story that gets the facts right—however Newsweek finds the facts on further investigation.

It appears from Terry Moran’s reaction to the suggestion that he thinks Newsweek’s first amendment rights to free speech are being infringed by what he suggests is White House pressure on Newsweek. Here, the media are quite concerned about an infringement on the First Amendment. Perhaps because the potential infringement is on the media.

Let’s look at another possible First Amendment issue. Judge Lefkow testified yesterday before the Senate Judiciary Committee regarding the federal government’s security services for judges who may feel physically threatened as a result of the cases they are handling. See here for the AP report of this testimony by Judge Lefkow. Of course, Judge Lefkow suffered, earlier this year, the extremely sad loss of her husband and mother, at the hands of an apparently mentally disturbed, if not legally insane, litigant before her whose medical malpractice suit she had dismissed.

But Judge Lefkow went further than asking for more physical security for judges. She also sought to have Congress take actions that would seem to be intended to affect speech, both by members of Congress and by various public figures outside of Congress.

Judge Lefkow said, Congress should "publicly and persistently repudiate gratuitous attacks on the judiciary" that have occurred in the days since after [sic] the Teri Schiavo case. See the above linked AP article. She went further, noting, "Fostering disrespect for judges can only encourage those that are on the edge, or on the fringe, to exact revenge on a judge who displeases them." See the above linked AP article.

A few responses perhaps are in order to Judge Lefkow's suggestions. First, I know the judge from my days as a practicing lawyer and she has my deepest sympathy for her loss. Second, the comments by Senator Santorum, House Majority Leader Delay, Senator Cornyn and Christian Coalition Founder Pat Robertson, all cited in the linked AP article, do not necessarily reflect the way I would analyze the Teri Schiavo matter and the gist of the comments are not necessarily my cup of tea. That having been said, do I want to see the judiciary lobbying Congress to “repudiate attacks on the judiciary.” Should the repudiation extend to legislation? Should the judiciary be lecturing the Congress if the Congress is not allowed to lecture the judiciary?

If Terry Moran is going to go bonkers over suggestions from the White House regarding follow-up action to the retraction by Newsweek, should Mr. Moran be a bit concerned about the judiciary or an individual judge telling Congress it should try to limit or constrain what individual congressmen or private citizens say about the judiciary? Was judge Lefkow suggesting that Congress, or their judiciary committees, go easy on the oversight of judges? If so, should Terry Moran be as concerned about these matters as he was about his perceived undue influence of the White House on the press.

On the matter of security for judges, I am sure that society should be looking at how best to provide appropriate security for judges in certain cases. But, should the federal government be buying home security systems for judges, as I think is provided for by the recently passed legislation? I would estimate that most federal judges who are married have family incomes in the $300,000 range and those who are single are in the $150,000 range. Do those folks warrant subsidized home security systems more than all other citizens in the country? If you think my numbers are off, shouldn’t we at least “means test,” the subsidy. I would imagine, at a minimum, 7th Circuit Judges Posner and Easterbrook would agree. Have they said so publicly?

Finally, Judge Lefkow, in her testimony yesterday, seemed to be quite critical of the lack of a coherent proposal to her for security from the U. S. Attorney’s office prior to the tragic murders of her family members. But, my understanding is that she chose not to invest in a home security system, or at least it was not operative at the time of the murders of her family members. If so, shouldn’t that have been discussed as perhaps minimally prudent action that judges can take on their own, if they are facing a dangerous situation, such as the one Judge Lefkow did.

Lest I be misconstrued, none of this is meant as a personal criticism or lack of sympathy for Judge Lefkow. But, having injected herself into the public policy analysis of how to handle the judicial security situation, her ideas cannot be immune from intellectual criticism, and I know the judge would, of course, not want it any other way.
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at