Horatio

Horatio
[Photo by Jacquelyn Griffin)

Sunday, July 29, 2012

Five Loaves, Two Fish

I spent last night at the Little Portion Friary, an Episcopal monastic house which is a part of the Society of St. Francis, a worldwide monastic order following the rule of St. Francis of Assisi.

The reason for my visit was that a friend of mine--one of my first two mentors in EFM--was received as a novice in the order. The rite is called, I was intrigued to find our, the "clothing" of the novice--that is, the giving of a habit.

It was a very moving, surprisingly brief, ceremony. The order had just marked the passing of a brother, and a candle commemorating his life was burning on the altar. The Gospel reading was John 6, the story of the boy who gave five barley loaves and two fish which the disciples then presented to Jesus, and with which Jesus fed the five thousand. Brother Jude, the Minister Provincial, gave a moving, inspiring sermon, in which he focused on the often unremarked aspect of the story--the boy's generosity in giving what he had as a response to Jesus's generosity of spirit. Brother Jude emphasized that this, and not the "how" of the miracle is the point of the story.

How we respond to God is a part of what theologians sometimes call the economy of salvation; it's the part that is up to us. Jesus represents God's utter identification with his creation--his kenosis, or emptying out of all the aspects of divinity, as Brother Jude (following my hero Charles Gore) called it--and we are called likewise to a gracious, generous response.

A moving, warm, day among friends old and new. And a lesson learned, perhaps, in the way in which we should embrace our callings--not merely dutifully, but joyously.

There's An Elephant In The Room?

Ross Douthat's column today sounds a familiar theme to regular readers of this blog:
The words “freedom of belief” do not appear in the First Amendment. Nor do the words “freedom of worship.” Instead, the Bill of Rights guarantees Americans something that its authors called “the free exercise” of religion.

It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair. Most religious communities conceive of themselves as peoples or families, and the requirements of most faiths extend well beyond attendance at a sabbath service — encompassing charity and activism, education and missionary efforts, and other “exercises” that any guarantee of religious freedom must protect.

****

You can see this confusion at work in the Obama White House’s own Department of Health and Human Services, which created a religious exemption to its mandate requiring employers to pay for contraception, sterilization and the days-after pill that covers only churches, and treats religious hospitals, schools and charities as purely secular operations. The defenders of the H.H.S. mandate note that it protects freedom of worship, which indeed it does. But a genuine free exercise of religion, not so much.
Now, without explicitly saying so, Douthat is essentially claiming that the HHS exemption is too narrow to comport with the First Amendment, that it is,in short, unconstitutional. Would it surprise you, gentle reader, to learn that Catholic Charities litigated and lost this exact claim in New York State courts, in a decision which the U.S. Supreme Court declined to review? And that Catholic Charities also challenged a similar contraceptive mandate in the California courts, and lost, too? And that both decisions relied heavily on Employment Division v. Smith, the Justice Scalia opinion which emphatically reaffirmed, with a myriad of citations dating back to the Victorian Age through the 1980s, that "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate"? Smith remains the leading case in this area, and under it, the courts both state and federal have routinely dismissed First Amendment arguments identical to those made by Douthat. As I have previously pointed out, the US Conference of Catholic Bishops in its materials claiming that religious freedom compels an exemption from the requirement that employers provide contraceptive coverage likewise implied that the Administration was violating the First Amendment, citing a case with no applicability, and studiously avoiding Smith, or the cases dating back to 1879 which it followed and applied.

So when you read these First Amendment claims that religious freedom must allow for such exemptions, ask yourself: What about the elephant in the room, and why won't these First Amendment mavens-come-lately address the actual case law?

Saturday, July 28, 2012

Not So Much a Candidate for Husband of the Year

OK, I admit I'm not a dressage fan. Not my thing, really. But I have to admit to feeling a twinge of empathy for Ann Romney when I read this:
Much is made during the Olympics of the robust support systems needed to send an Olympian into competition. The parents, families and employers who rally around their athlete to get them to the games. The village it takes to make Olympic dreams come true.
But for Mitt Romney, whose wife Ann’s horse Rafalca will compete in the Olympic event of dressage, he makes it clear it’s really not his thing.
In an interview with NBC News Wednesday night, Romney spoke of the experience of being in the Olympics with the disengaged tone and shrug of a husband who doesn’t quite get his wife’s hobby.

“It’s a big, exciting experience for my wife. I have to tell you, this is Ann’s sport,” he said. “I’m not even sure which day the sport goes on. She will get the chance to see it, I will not be watching the event. I hope her horse does well. But just the honor of being here and representing our country and seeing the other Olympians is … something which I’m sure the people that are associated with this are looking forward to.”
Of course, this being Romney, he's lying--the article points out that he has been "associated with" Rafalca, selecting the "horse ballet" music for at least one event, and, sharing his wife's riding enthusiasm. (I have to admit, it's nice to hear that Romney has some personal tastes that don't involve brining in the coin.)

So, here we have a man who, for what can only be the infinitesimal flicker of political gain of distancing himself from his wife's "elitist" hobby, is cheerfully willing to disparage her not inconsiderable achievement in qualifying her horse for the Olympics. Nice guy. I hope he finishes last.

Edited to Add: I should say that my own enthusiasms--legal scholarship, theology, etc., can be a bit obscure, and my own wife has been very supportive, as I believe I am of hers. I find Romney's behavior characteristically gutless, but also quite offensive--this is the guy swaggering around saying he won't apologize for America (suggesting the incumbent does) and he can't even show support his wife on a day that is the culmination of a lot of time and work. The GOP really is nominating Gordon Gekko.

Friday, July 27, 2012

Why Betty Windsor's Olympics are Better than Mitt Romney's

A post in several clips:

1. Betty's Olympics Have Mr. Bean

Here he is:



2. Betty's Olympics Have Patsy and Edina



Post race interview:



3. Betty's Olympics Have Betty--and Bond



Mittens, you've been served.

Thursday, July 26, 2012

Jeers to a Clown

So Mitt Romney, whose campaign claimed, in racially charged term, that his election would "restore Anglo-Saxon relations" between Great Britain and the United States, is not, in fact, going down well, there.

In fact, he's bombing. He was rebuked by both David Cameron and London Mayor Boris Johnson--both Conservatives!--for retroactively insulting Britain's Olympic games. Cameron's riposte, "Of course it's easier if you hold an Olympic Games in the middle of nowhere," i.e., Utah, was smooth, while Johnson's was epic:



Romney also managed to blunder in his meeting with Cameron, blithely telling the press afterward that he had met the Head of MI-6--not good form, old chap, it's a Secret Service!--and to forget the name of Labour Leader Ed Milliband during their meeting, addressing him as "Mr. Leader," a term not generally employed here or in the UK.

Also, "looking out the backside of 10 Downing Street?" Epic Fail.

As they say in LOL-cat land,needz moar Mandy Patinkin.

Avoiding Looking Facts in the Eye

In an interview with NBC News, Mitt Romney is quoted as having the following exchange:
WILLIAMS: "On things however like Aurora, Colorado, do you see why Americans get frustrated at politics. They can see and hear your words from earlier in their career, people are hurting out there. Perhaps they want to start a national conversation about whether an AR-15 belongs in the hands of a citizen, whether a citizen should be able to buy 6-thousand rounds off the internet. You see the argument?"

ROMNEY: "Well this person shouldn't have had any kind of weapons and bombs and other devices and it was illegal for him to have many of those things already. But he had them. And so we can sometimes hope that just changing the law will make all bad things go away. It won't. Changing the heart of the American people may well be what's essential, to improve the lots of the American people."

Except, of course, that James Holmes bought his armaments legally. (Hat Tip: Think Progress)

(According to the National Journal, Romney's campaign has subsequently claimed that Romney's observation was limited to the booby-trapping of hid apartment, and that "Holmes allegedly used legal materials to make an illegal bomb." Not what he said, unresponsive to the question asked, and of course, not taking a position on the ultimate issue--perfect Romney, in other words.)

This particular lie is a bad one; Romney is trying to avoid the consequences of our extreme devotion to guns and the fundamentalist interpretation of the Constitution that creates an unlimited "right" to have them for any purpose or no purpose at all. (The Second Amendment explicitly ties the right to the States' need for a "well-ordered militia" not the joy of blazing away at unarmed animals. Or humans, for that matter.)

This devotion comes with a high cost. Guns may not kill people, but they sure expedite the process of people killing people in bulk. Gun rights supporters have no right to blind themselves to that fact, or to expect us to pretend it isn't so. And when these massacres occur, they may want to weigh more carefully the cost of their freedoms to others.

Wednesday, July 25, 2012

Gratuitous Who-age

Have I mentioned that Series 7 of Doctor Who is getting perceptibly closer?

Well, it is:



I truly hope that the Ponds get an appropriate ending, but am placing my trust in Moffatt until the show airs. In the meantime, of course, there remain the Olympic Games, which I will dutifully ignore, unless this chap plays:



During the Olympics, if I'm watching anything, it'll be Season 5 of Leverage, so I'll get by.

Tuesday, July 24, 2012

A Curious Notion of Religious Freedom

In a decision against the Roman Catholic Diocese of Portsmouth, the Court of Appeal (Civil Division) has affirmed a lower court ruling which found that the relationship between a Diocese and a priest is sufficiently akin to employment to permit for vicarious liability for sexual abuse by that priest of a minor. The opinion is detailed, well-reasoned, and exhaustively researched decision among the Commonwealth nations' legal precedents and academic research, at one point remarking of the "scathing" opposition to the very notion of vicarious liability held by the great scholar Glanville Williams that the Court "is relieved that he is not marking this essay." (Para 56)

In the Catholic Herald, Fr. Alexander Lucie-Smith writes that:
Until now, as far as I understand it, priests volunteer to serve in various offices at the invitation of the bishop or religious superior. If the bishop and the priest are now to be considered in an employer/employee relationship, then this represents an innovation. Employees can sue their employers, and vice versa; the relationship between employees and employers is governed by a vast corpus of case and statute law. At present the relationship between bishop and priest is governed by canon law, the only force of which is in the will of those who adhere to it. A priest can, but rarely does, initiate a canonical process against his bishop, and vice versa; but if we are employees, then this opens up a whole new range of possibilities, and potentially, a considerable new territory for litigation.

Then there is another matter. The Church is a voluntary organisation that makes its own rules, just like the Scouts or any other bunch of do-gooders. This court ruling, if it is upheld, would effectively mean that from now on the Church’s own rules were no longer in force in governing the relationships between priests and bishops; and canon law would be replaced by the law of the land in this regard. In other words, it would mean the intrusion of the state into the Church and an usurpation of freedom of conscience.
I think that Fr. Lucie-Smith is in error here, and is missing a pretty clear-cut distinction between his paradigm of wrongful state intrusion within voluntary associations, and the parade of horribles he evokes (for example, the secular courts' usurping the role of the Beth Din). That difference is that the Court did not have before it the internecine struggle between priest and bishop, but rather whether the diocese which licenses, assigns, and directs the priest's functioning may be liable to those who have been injured by the priest in the abuse of the trust conferred upon him by the diocese. It is one thing to say that the church may structure its relationship between priest and bishop to have the prerogatives of employment (read the Code of Canon Law (1984), and tell me that it reads like a purely voluntary arrangement) without its burdens vis-a-vis the free adult who chooses that relationship, and quite another to say that the directing authority can thereby immunize itself against the claims of those injured by its selected, licensed and vouched-for representative among the worshipping public.

The decision noted, quite properly, that there may be, based on the facts of a given case, room for a finding that the abuse is so unrelated to the scope of the duties assigned that liability could be defeated. And one can argue that there are good tort law arguments against the extension of vicarious liability here--although I am highly skeptical. But it does not seem to me to be a violation of religious liberty to hold a church civilly liable for the abuse of the privileges and trust conferred on it by its chosen ministers. There is no religious liberty infringed by not permitting institutions to contract around the structures of secular liability.

Thursday, July 19, 2012

History Books Sometimes Lack the Feel of Reality

...which is why they made Blackadder:



(Stephen Fry as King Charles reminds me of another Charles, no? Well intentioned, a little awkward, and ever so sympathetic...)

Thursday, July 12, 2012

Mittens Agonistes

So the Boston Globe has a story today about Mitt Romney's tenure at Bain Capital which presents something of a poser for the former Governor of Massachusetts. Let me explain.

A core component of Romney's argument that he and not President Obama is better able to lead the United States on a path to prosperity is his experience in the private sector, and especially his leadership of Bain Capital. Romney has claimed that in his tenure at Bain, he helped create 100,000 jobs, a figure which doesn't really bear scrutiny, but heightens the centrality of his Bain experience in his resume.

In recent weeks, the President has taken to pointing out Bain's role in outsourcing jobs from the United States. Romney has sought to deflect this charge--and the possibly even more toxic Bain investment in Stericycle (a medical waste management company "that has been attacked by anti-abortion groups for disposing aborted fetuses collected from family planning clinics."--by insisting he left Bain in 1999, to run the 2002 Winter Olympics in Utah and was not active in the management of Bain thereafter.

As the Globe reports, however:
public Securities and Exchange Commission documents filed later by Bain Capital state he remained the firm’s “sole stockholder, chairman of the board, chief executive officer, and president.”

Also, a Massachusetts financial disclosure form Romney filed in 2003 states that he still owned 100 percent of Bain Capital in 2002. And Romney’s state financial disclosure forms indicate he earned at least $100,000 as a Bain “executive” in 2001 and 2002, separate from investment earnings.

. . . .

A former SEC commissioner told the Globe that the SEC documents listing Romney as Bain’s chief executive between 1999 and 2002 cannot be dismissed so easily.

“You can’t say statements filed with the SEC are meaningless. This is a fact in an SEC filing,” said Roberta S. Karmel, now a professor at Brooklyn Law School.

“It doesn’t make a whole lot of sense to say he was technically in charge on paper but he had nothing to do with Bain’s operations,” Karmel continued. “Was he getting paid? He’s the sole stockholder. Are you telling me he owned the company but had no say in its investments?”

The Globe found nine SEC filings submitted by four different business entities after February 1999 that describe Romney as Bain Capital’s boss; some show him with managerial control over five Bain Capital entities that were formed in January 2002, according to records in Delaware, where they were incorporated.

A Romney campaign official, who requested anonymity to discuss the SEC filings, acknowledged that they “do not square with common sense.” But SEC regulations are complicated and quirky, the official argued, and Romney’s signature on some documents after his exit does not indicate active involvement in the firm.

Mother Jones has placed the Stericycle 13 D form from 1999 online, and it reflects "W.M. Romney" as "the sole shareholder, Chairman, Chief Executive Officer, and President of Bain," and the various entities through which it was working on the Stericycle deal. (P. 26). The Schedule 4 for Stericycle, also filed in 1999, likewise describes Romney "as an individual who holds "voting and dispositive power" with respect to the stock owned by Bain."

Likewise, Talking Points Memo has unearthed not one but two subsequent SEC filings (from July 2000 and February 2001) "in which Romney lists his 'principal occupation' as 'Managing Director of Bain Capital, Inc."

Now Romney's defenders, including Glenn Kessler, as the Washington Post's "Fact Checker" claim that these filings and the Globe-Mo Jo-TPM reportage do not change the picture, and that Obama's claims that Romney is responsible for Bain's acts in these years is, as he had previously dubbed it, unfair and false in essence.

Kessler argues "[t]he story seems to hinge on a quote from a former Securities and Exchange Commission member, which would have more credibility if the Globe had disclosed she was a regular contributor to Democrats." He relies on his previous analysis that Romney's role was legal and technical, and that he was not disingenuous, as "[t]he part about lying to the SEC is absurd, since the SEC doesn’t require an owner to be the operational decision-maker (Romney delegated such responsibilities, as is his right)."

But Romney didn't file as just an owner. Again and again, he is described as CEO, MD and 100% shareholder, having "voting and dispositive" power over shareholder votes, as well as having received a salary (admittedly small by Romney standards--$100,000). These terms in conjunction do not sound like a ruler fainenat, but like the Boss. Period. These statements shift the burden over to Romney to explain statements which would be at a minimum misleading if what he says now is true--and which could have misled investors looking to Romney to exercise his leadership, when, by his account today, he was a mere cipher. Ultimately, I find myself with Andrew Sullivan on this one:
The relevant question is why Romney was listed as CEO and sole owner and chairman for three years after he says he stopped having anything to do with Bain. I don't believe he was SuperMan, running the Olympics and a political campaign while involved in Bain's day-to-day operations. But either you own the company or you don't. And saying one thing to the SEC and another thing to us needs to be reconciled. Even if the shift was abrupt with Romney's departure for the Olympics, it's stunning to see it took Bain three years to correct the record. Legally, Romney is responsible for everything that happened while he was sole owner of the company. Which is what he told the SEC.

Meanwhile, on the the issue that caused all this digging, David Corn has more; "[a]ccording to government documents reviewed by Mother Jones, Romney, when he was in charge of Bain, invested heavily in a Chinese manufacturing company that depended on US outsourcing for its profits—and that explicitly stated that such outsourcing was crucial to its success." MoJo attaches the SEC filing, and the press release. So even if Romney didn't personally orchestrate the later outsourcing done during his legal tenure as CEO, etc, it was very much in his style, and on his watch. Which means, as far as I'm concerned, point goes to Obama.

Tuesday, July 10, 2012

On Peter O'Toole's Retirement

What's this? Peter O'Toole is retiring?:
Dear All,
It is time for me to chuck in the sponge. To retire from films and stage. The heart for it has gone out of me: it won’t come back.
My professional acting life, stage and screen, has brought me public support, emotional fulfillment and material comfort. It has brought me together with fine people, good companions with whom I’ve shared the inevitable lot of all actors: flops and hits.
However, it’s my belief that one should decide for oneself when it is time to end one’s stay.
So I bid the profession a dry-eyed and profoundly grateful farewell.
Ever
Peter O’Toole
As the man says, everyone must decide for himself when to end one's stay, and I'll only add that Peter O'Toole's acting has been a big part of my cultural life--from his two very different portrayals of that most protean of monarchs, Henry II, to his chilling performance as the 13th Earl of Gurney in The Ruling Class to Pygmalion.

What? You didn't know that Peter O'Toole played Henry Higgins? Well he did. On Broadway. And I saw him, in my college graduation year of 1987, along with two of my best friends, two fellow theater junkies who had acted with me in several shows in college, as well as our dates, on the night of the class formal. We'll call them Porthos and D'Artagnan, and I ask their pardon if they ever read this, reminding them that I loved them as brothers, and still do, but we definitely had an Athos, and although I was a damn poor Aramis, I did have the scholarly yearnings.

We blew that off in favor of catching Peter O'Toole, Amanda Plummer, Lionel Jeffries and Sir John Mills, after drinks at Trader Vic's, dinner at Cafe des Artistes (now long gone alas), and a carriage ride in Central Park. (Of course, we ended the evening with what Porthos earnestly promised was the best corned beef hash in New York at Cosmos Diner, but that's a different part of the story. And the hash was pretty damn good.)

But Pygmalion. For the end of college celebration, we saw a show much better than the review above linked suggests. Sir John Mills brought a level of thuggishness to Alfred P. Doolittle normally omitted, but supported by the text--think of Alfie's threats of physical punishment of Eliza, and her fear of him--and Amanda Plummer credibly dreaded him. And when, in his first big scene at Wimpole Street, Doolittle threatens Eliza, in this production bulky John Mills (none o' that "Sir John" gammon, hear, d'ye see) raised his hand to belt her, only for O'Toole, like an angry bantam, got between them, and you would swear they were going to strike each other.

It was electric. And also when Higgins, in this telling first saw Eliza and not a teaching project.

After the show, we decided to wait for them at the Stage Door. There was a large crowd, too. Amanda Plummer shot out of the Stage Door like a soul released from Purgatory and fled the fans, disappearing into the night.

Sir John and Lionel Jeffries (an excellent Pickering, by the way) came out and the crowd, avidly awaiting PETER BLEEDIN' O'TOOLE, barely noticed. My friends and I did, though, and they were gracious, friendly and kind, signing our programs, chaffing each other gently, and disappearing off to the pub 'round the corner, with a final "Now, don't miss Peter!" from Lionel Jeffries.

When the Man Himself appeared, he was visibly tired--swaying slightly in the approved Alan Swann manner, rakishly smiling and signing autographs. We waited til the crowd thinned out a bit. When that happened, we moved up. Athos and I were impressed--this was Hollywood Royalty, and an actor we had all admired, and, in my case, stolen from (I took a moment from POT in Becket and used it in an Agatha Christie play, breaking up D'Artagnan in performance. Not acting, but we enjoyed it even if the audience may not have). We each complimented the performance, got our program signed and gave way. But D'Artagnan was awestruck. He wanted to say something non-jejune, to connect. (I'd face a similar moment a year later when I met William J. Brennan during my first year of law school.) As he struggled, O'Toole smiled devilishly--pure Eli Cross. "I won't bite," he said, in that dry, slightly swooping way of his, and D'Artagnan mutely handed him his program.

"Do you have a pen?" O'Toole asked, with a slight Plantagenet bite.

D'Artagnan handed him his silver Cross pen, of which he was rather fond.

"Thank you," O'Toole said, and signed the program with a flourish.

Seconds later, Peter O'Toole vanished into the limo.

As did, if I recall correctly, a silver Cross pen.

D'Artagnan never complained.

Many thanks for the great performances, the roguish touch of magic and wishing the Great Peter O'Toole a joyous retirement, completing his memoirs. Which I will buy. I just hope that they are written by hand, with a certain Cross pen.

Monday, July 9, 2012

Lies, Damned Lies, and Statistics (OK, no statistics)

So, I get an e-mail forwarded to me--I know, these never go anywhere good--about how the President (tellingly referred to as Barack Hussein Obama throughout--aye, that'll show him, eh?) is outsourcing road repair in the US to Chinese companies, citing an ABC News report, from September 2011. Of course, the report says, as noted by factcheck.org, nothing of the kind:
This email is an example of how things get distorted and go viral — even when the facts are just a click away. It’s true that ABC News did a report on Chinese firms winning contracts to repair U.S. bridges. But the report pointedly said states were to blame. It didn’t mention federal funds — let alone stimulus funds — except to note that California turned down federal money to avoid federal “Buy American” laws and hire a Chinese firm.

In a Sept. 23, 2011, broadcast, ABC News reported on bridge repair contracts going to Chinese firms in three states: Alaska, New York and California. But it gave details on only one project — a $7.2 billion repair of the San Francisco-Oakland Bay Bridge. ABC News explained how and why the Chinese firm wound up with the contract, beginning with a decision by the California transportation department not to accept federal funds.
How much more patent distortion, propaganda, and deceit is festering out there in the electronic equivalent of direct mail? And how many people of good will are genuinely taken in by this stuff, and feed the beast by adding to the chain of forwards?

As Mark Twain has been quoted as saying, "A lie can travel halfway around the world while the truth is putting on its shoes."

Or, more to the point,


(Edited to provide attribution without following link)

The Mot Juste

From Krugthulu today
Once upon a time a rich man named Romney ran for president. He could claim, with considerable justice, that his wealth was well-earned, that he had in fact done a lot to create good jobs for American workers. Nonetheless, the public understandably wanted to know both how he had grown so rich and what he had done with his wealth; he obliged by releasing extensive information about his financial history.

But that was 44 years ago. And the contrast between George Romney and his son Mitt — a contrast both in their business careers and in their willingness to come clean about their financial affairs — dramatically illustrates how America has changed.

A palpable hit!

Tuesday, July 3, 2012

Lying For Fun (But Not Profit!)

I got so caught up in the other end of term cases that I missed commenting on one on a subject near and dear to my heart--the First Amendment's Free Speech Clause, which was given a strong, pro-free speech turn in United States v. Alvarez, also on the last day of the Term. In Alvarez, a divided Court struck down the Stolen Valor Act, which made it a crime to falsely claim receipt of military decorations and medals, and provided for an enhanced penalty for offenses involving false claims to have received the Congressional Medal of Honor, even when no financial gain resulted therefrom.

The Court split three ways: Four Justices (Kennedy, Roberts, Ginsburg and Sotomayor) found the statute unconstitutional as a content-based restriction on speech. This was the most predictable outcome; false statements have not been deemed worthy of constitutional protection when they cause some kind of legally cognizable harm. But even there, mere falsity is not enough--harm and some level of intent is required. (Think libel in New York Times v. Sullivan). Here, you have falsity and intent--presumably a speaker who is deluded but in good faith really believes the false statement to be true falls outside the Act. But what compelling state interest is there here, and how does this Act narrowly serve it?

The plurality opinion treated this like any other free speech case, applying strict scrutiny. Justices Breyer and Kagan would apply intermediate scrutiny--generally not applicable in First Amendment cases, but they argue that in essence that the restriction is viewpoint neutral, regulating only purported statements of fact, should require a lesser showing to support it. They base this on several statements in past decisions that false statements are not protected speech, and then concur in the judgment on the ground that the Government could have found a more narrow way of serving the interest it had in preventing masquerading as an honored veteran than the Act, which criminalized even statements within family circles.

This is another example of Breyer being willing to water down the First Amendment--he borrows from cases decided in areas such as public forum analysis, speech restrictions on public employees--areas where the Government has interests other than those traditionally of the sovereign, but rather those of an employer, landlord and even trustee--and uses them to create a free-floating reasonableness rule. In Bartnicki v. Vopper (2001), Breyer was willing to engage in a balancing test in which a generalized interest in privacy as against other citizens, not the government, could be weighed against the constitutional right of free speech, and might, on a proper showing prevail. In other words, an interest not within the constitution could outweigh an explicit constitutional right. Regrettably, Kagan joined the concurrence, indicating that, perhaps, this undefined standard could creep into First Amendment law. To my mind, that disserves the constitutional text, history, and opens the door to abuse, as I have explained at no doubt tedious length.

The minority--Alito, Scalia, and Thomas (who's surprised? Scalia actually was pro-free speech years ago, to be fair)--basically tracks the Rehnquist dissent in Texas v. Johnson that Scalia refused to join back then. What a difference a quarter century makes.

A good decision, but with worrisome overtones.

Monday, July 2, 2012

Return to Salem's Lot

OK, we go off into the world of pop fiction again. Now, when I was a boy (11), I stumbled on Bram Stoker's novel Dracula, and was riveted by it--better than any movie version to date, I still think, especially that first Transylvanian sequence. (The book lost m when perspective shifted to Whitby, but a couple of years later when I re-read it, that was all right.) At 14, I watched the Tobe Hooper miniseries adapting Stephen King's novel Salem's Lot. Naturally, I got a copy of the book, stat. King's writing in that novel grabbed me; the depiction of the small town got me caring about (most of--a few had it coming) the secondary characters, and all of King's main characters. King's wit (Salem's Lot has several laugh-out-loud moments that serve as great tension-breakers) and his riff on the classic vampire story--he kills off (among others) the leading lady, leaves the story open-ended, and hints in a subsequent short story that the vampires may prevail in the end, and tossed in my introduction to the Lovecraft Mythos--surely enough to make the book memorable.

But that's not what engraved it in my memory. No, King had to ratchet it up by introducing a genuinely tragic character in the local Catholic priest, Father Donald Callahan. An alcoholic, Fr. Callahan is eaten away by his fear that there is no grand scheme, no sweeping spiritual epic worthy of committing one's life to; that evil is banal, leaving only a watery ethic of niceness to deal with the broken, unfixable, imbecile face of evil. And then, he is presented with the chance to live exactly the meaningful, hero struggle he'd always been drawn to, only to fail, due only to his own fear and lack of faith.

The idealist's worst nightmare, no? To answer the call you've been preparing for all your life, and mess it up, solely through one's own fault. Haunting. It's T.H. White's young Arthur, wishing to take on all the evil in the world, while Merlyn winces at the child's boast, knowing how things will play out. Except Callahan knows his weakness, and it's, in part his own self-contempt as well as his guttering faith that dooms him. He goes in with eyes open...and fails anyway.

Recently, when I hit a boring patch in another novel I was reading, I realized that I wanted to re-read Salem's Lot, and bought a copy of it on the Kindle (including a new forward, an afterword, and the two short stories related to the novel). I burned through it; the book holds up quite well.

And Father Callahan broke my heart again.

So much so that I overcame my old presumption against all epic fantasy not authored by Tolkien himself or Ursula K. LeGuin, and decided to follow Father Callahan's trail into King's novel cycle, The Dark Tower.

OK, I was wrong. The books are uneven, brilliant and--er, less so--in parts, but they have a life to them, and, as the story advances, King's handle on his epic--pastiche, metafiction, what-you-will--gets stronger and surer. Ultimately, it works.

And Callahan's redemption is very, very satisfying. Not orthodox, mind you, and the CDF might want a word with the good Pere Callahan, but what would you? Satisfying as well is King's tribute to Robert Browning, and the last twist of the novel--so quick you could miss it if you blink--which holds out the promise of--

"Spoilers, sweetie."

"Sorry."