Exclusive: Palin Emails ABC News to Push Back on ‘Taliban Muslim’ Twitter Controversy

November 4, 2010 · Posted in The Capitol · Comment 

Former Alaska Gov. Sarah Palin uses Facebook and Twitter to make political statements and communicate with her followers. Today reporters noted that she had apparently used Twitter to list as a “favorite” of hers a tweet from conservative commentator Ann…

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Political Punch

Angle Files Voter Intimidation Complaint With DOJ Over Reid E-Mails

November 2, 2010 · Posted in The Capitol · Comment 

In the final hours of Election Day, a lawyer for GOP Nevada Senate candidate Sharron Angle filed a complaint with the Justice Department alleging voter intimidation took place on behalf of the campaign of her opponent Sen. Harry Reid (D), Politico reports.

The complaint relates to an e-mail exchange between an unnamed Reid campaign staffer and the casino chain Harrah’s, which was reported in a story published by the National Review. The National Review reported that the e-mails showed that “Executives at the casino giant Harrah’s pushed company employees to vote early in an all-out effort to help the Harry Reid campaign.”

Angle lawyer Cleta Mitchell — co-chair of the Republican National Lawyers Association -said the e-mails showed “union intimidation tactics.” Reid’s campaign countered that the e-mails don’t show anything against the law and mentioned that the conservative blogger who wrote the story told Fox News that she didn’t think “anything either illegal or unethical was done here.”

“This ‘report’ by a right-wing blogger who’s literally been embedded within the Angle campaign has no credibility on its face,” Reid campaign spokesman Kelly Steele told Politico. “That being said, given Sen. Reid’s work to strengthen the state’s top industry, it should come as no surprise that casino employees support his reelection.”

The chain of e-mails, which can be read here, show that company vice president of public policy and communications Marybel Batjer wrote that another official received a message from the Reid campaign.

“She asked me to reach out to you to PLEASE do whatever we need to do to get the supervisors to know that there is NOTHING more important then (sic) to get employees out to vote,” Batjer wrote to a number of Harrah’s employees. “Waking up to a defeat of Harry Reid Nov 3rd will be devastating for our industry’s future. I know everyone is working hard, but somehow the effort is not getting through the ranks.”

A Justice Department spokeswoman told TPMMuckraker that DOJ was reviewing the letter but declined further comment.

This isn’t the first time that Angle has accused Reid of tinkering with the election, but the Nevada Secretary of State said one of her previous charges had no merit. Angle’s former PAC actually funded a group that later charged that Reid was benefiting from voter fraud.


Palin emails for the RNC

October 8, 2010 · Posted in The Capitol · Comment 

At this point, she’s pretty much the best thing Michael Steele has going.

Her email includes a specific plug for the RNC’s embattled finance chairman:

From: Sarah Palin
Subject: Join Me in the Fight to Restore American Greatness

Dear Michael,

I would be grateful if you took a moment from your busy schedule to read the attached message from RNC Victory 2010 Chairman Peter Terpeluk.

Once you have finished, I hope you will order your tickets to join me at an RNC Victory 2010 rally in Anaheim, California on October 16th or in Orlando, Florida on October 23rd to kickoff our Party’s final push to victory.

RNC Victory 2010 is leading our Party’s get-out-the-vote effort and providing direct financial support to candidates from the county courthouse all the way to Congress. Our candidates are counting on RNC Victory to pull them across the finish line — and I’m counting on you to play an active role.

Thank you for your time and for all that you are doing to bring conservative leadership back to America.


Sarah Palin

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Ben Smith’s Blog

E-Mails Show Rush to Judgment on Sherrod

October 8, 2010 · Posted in The Capitol · Comment 

(CNN) - Newly released documents give the public its first look inside the Obama administration’s internal deliberations over whether to fire Agriculture Department employee Shirley Sherrod, and the hundreds of e-mails clearly confirm officials pushed her out for political reasons despite knowing they did not have the full context of the explosive video that thrust her into the national spotlight.

There is no smoking gun proving Sherrod’s original allegation that the White House forced the Agriculture Department to fire her in order to contain any political damage. But the documents do show that top White House aides like then-Chief of Staff Rahm Emanuel were keeping tabs on the matter as it unfolded, and in the initial hours after her firing other White House officials were thankful that Sherrod had been ousted so quickly.

“Just wanted you to know that this dismissal came up at our morning senior staff meeting today,” Christopher Lu, who serves as the White House’s liaison to the Cabinet, wrote to senior Agriculture officials on the morning of July 20, the day after Sherrod was fired.

“Everyone complimented USDA on how quickly you took this action,” Lu wrote, noting that the swift move helped stop an “unpleasant story” from gaining any “traction” in the early hours of the flare-up.

“Thanks for the great efforts,” Lu concluded to the Agriculture officials.

Another Agriculture Department e-mail later on July 20, as public outrage grew on the second day of the imbroglio, shows that Emanuel spoke at least once to Agriculture Secretary Tom Vilsack as the administration weighed whether to apologize to Sherrod and offer her a new job. “Rahm calling Secy now,” the e-mail said.

The e-mails, obtained by CNN through a Freedom of Information Act request, also show that Vilsack pressured his staff to get rid of Sherrod even though officials within his department knew full well that there may have been more context to the video showing that in fact Sherrod was not racist.

The story first blew up on July 19, when conservative blogger Andrew Breitbart posted online a brief video clip of Sherrod, who is African-American, delivering a speech to an NAACP convention earlier this year. Breitbart only posted the part of the speech where Sherrod recounted an episode where she decided to not help a white farmer who needed government aid to stay afloat.

Breitbart, however, did not include longer parts of the speech which showed that Sherrod explained to the audience that the incident occurred many years ago - not during the Obama administration - and that she eventually helped the white farmer. Her message in the speech was all about reconciliation and helping people of all races, a point that was drowned out in the selectively-edited clip that gave the impression that an Obama official had deliberately let a white farmer go belly up.

The e-mails show that after the Agriculture Department learned that the partial video had been posted, and that other media outlets like Fox News Channel might be following up on it, there was alarm within the Obama administration about potential fallout.

“I was just informed of a video of the Georgia State Director that was posted on the Internet earlier this afternoon,” Agriculture Department official wrote at 1:56 p.m. on July 19. “It speaks for itself and you need to watch it right away.”

But the e-mails also show that some Obama officials were cautious and urged that the full video be tracked down before there was a rash decision about Sherrod’s fate.

“We need to make sure someone has seen the video,” Agriculture official Krysta Harden wrote in an e-mail at 3:06 p.m. on July 19. “I am quick to jump to conclusions but want to be certain it is what it is said to be before I tell the Secy” she said in reference to Vilsack.

But another Agriculture official, Carol Jett, piped in otherwise: “We need to take immediate action.”

Harden added that Vilsack “is absolutely sick and mad over the S Sherrod issue. He wants her immediately on [administrative] leave.”

“Concur,” wrote Agriculture official John Berge. “She should be fired.”

Sherrod was eventually fired by top Vilsack aide Cheryl Cook. Sherrod repeatedly told CNN that Cook told her she had to step aside because the White House wanted her out, though the administration denied that was the reason.

Within two days of the firing, Vilsack acknowledged there should have been a fuller examination of the facts before she was fired. Vilsack apologized to Sherrod and offered her a new job.

Sherrod has still not accepted the post, and she did not return a call on Friday seeking reaction to the release of the emails.

CNN Political Ticker

USDA emails show rush to judgment in firing Sherrod

October 8, 2010 · Posted in The Capitol · Comment 

The Los Angeles Times and Associated Press both have stories today providing a detailed anatomy of the firing of Agriculture Department official Shirley Sherrod, based on hundreds of pages of emails they obtained through the Freedom of Information Act.

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Political Punch

Palin Emails Suggest Run for President

October 5, 2010 · Posted in The Capitol · Comment 

Internal emails obtained by The Mudflats “provide the most conclusive evidence to date” that Sarah Palin will be running for president.

In mid-September, Alaska U.S. Senate candidate Joe Miller (R) — who received Palin’s endorsement — was asked in a Fox News interview if Palin was qualified to be president. Miller’s response that there were “a number of great candidates out there.”

The answer “fell far short of a Palin endorsement, and seems to have roused the ire of Todd Palin who launched an angry email blasting Miller on behalf of his wife” went on to ask, “Joe, please explain how this
endorsement stuff works, is it to be completely one sided.”

Taegan Goddard’s Political Wire

MSNBC’s Brewer, Citing Viewer Emails, Finds ‘Religious Kooks’ Culpable for Homosexual Student Suicide

October 1, 2010 · Posted in The Capitol · Comment 

It was only a matter of time before liberal gay rights activists would politicize the tragic suicide of a homosexual college student as an indictment of social conservatives opposed to their agenda.

MSNBC’s Contessa Brewer on October 1 used carefully selected viewer emails to blame "religious kooks" for the death of Rutgers University student Tyler Clementi, who jumped off the George Washington Bridge after his roommate set-up a hidden camera in their dorm room and streamed live footage of the college freshman kissing a man.

At the top of the noon hour, Brewer posed the following question to viewers: "Are we likely to see more instances of gay-bashing because the issue of gay rights is now front and center?" The anchor-activist’s  loaded question produced predictable responses.

Out of the three emails Brewer read on-air, two of them connected the reprehensible bullying of homosexuals with the pro-family messages of religious figures and one described the bully’s actions as hate crimes. Brewer failed to present a single viewer email refuting the link between homosexual bullying and religious preaching.

"The more religious ‘leaders’ preach that gay is wrong, and dirty, the more bullying there will be," wrote one viewer. "They’re almost making it okay to hate, hurt, and truly dehumanize people for who they love."

Another viewer echoed that sentiment: "I can’t understand the bullying. A person’s sexual orientation is no one’s business but his own. Why is it so hard to just live and let live? Even religious kooks should understand that!"        
Brewer highlighted "questions about [gay-bashing] in the death of Tyler Clementi," but failed to provide evidence of such concerns other than fact that the victim was taped kissing a man. In fact, not only is the religious affiliation of Clementi’s roommate unknown, but reporters have yet to unearth any anti-homosexual messages on the roommate’s Twitter account, which he used to inform his followers of his roommate’s homosexual activity.

This is not the first time Brewer has abandoned all sense of journalistic objectivity when reporting on gay rights issues; NewsBusters has chronicled numerous instances of her consistent and unabashed support for liberal social causes.

A transcript of the relevant portion of the segment can be found below:

News Live
October 1, 2010

12:52 p.m. EDT

CONTESSA BREWER: Why is it okay? Why is it child’s play now to take people’s personal details and expose them as entertainment? Of course, then, there are the issues about gay-bashing, questions about that in the death of Tyler Clementi. I’ve asked whether we’re going to see more instances of gay-bashing because the issue of gay rights is now front and center.

Jessica Sodel writes to me, "The more religious ‘leaders’ preach that gay is wrong, and dirty, the more bullying there will be. They’re almost making it okay to hate, hurt, and truly dehumanize people for who they love."

Bill Breen says, "I can’t understand the bullying. A person’s sexual orientation is no one’s business but his own. Why is it so hard to just live and let live? Even religious kooks should understand that!"

And Marcia Draikiwicz got me on Facebook, she says, "This is beyond bullying. These cases represent hate crimes and should all be prosecuted as such."

I’d like to hear your thoughts. We’re having a very interesting online conversation about this. And you can reach me on Facebook and on Twitter and of course my email is [email protected].

NewsBusters.org - Exposing Liberal Media Bias

Clinton emails Lincoln supporters

September 28, 2010 · Posted in The Capitol · Comment 

(CNN) - Former President Bill Clinton is once again lending assistance to embattled Democratic Senator Blanche Lincoln, who is in a fight for her political life in her home state of Arkansas.

Clinton stumped for Lincoln during a dramatic primary election in which Lincoln narrowly clinched the Democratic nomination after a runoff against Arkansas Lt. Gov Bill Halter.

In an email sent on Tuesday, Clinton appeals to Lincoln’s supporters for donations, touting Lincoln’s Senate credentials and writing “I know I am preaching to the saved.”

Additionally, Clinton eviscerates the Republican Senate nominee, four-term Rep. John Boozman, for his position on taxes, Medicare and social security.

In the email, Clinton acknowledges Lincoln’s precarious position; “I’ve seen the polls and yes, this is going to be a tough fight,” he writes.

A recent Mason-Dixon poll of likely Arkansas voters indicated that Boozman holds a 17- point lead over Lincoln. Other recent surveys suggest that Boozman’s lead is even larger.

-CNN Deputy Political Director Paul Steinhauser contributed to this report.

CNN Political Ticker

Nebraska Supreme Court Decision on Offensive E-Mails

September 24, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

Here is an edited version of the opinion in the First Amendment / cyberspace law case that I briefed and argued, and that the Nebraska Supreme Court just decided today. It shouldn’t be terribly surprising or novel to those who know First Amendment law (though the Nebraska Court of Appeals decision that the Nebraska Supreme Court reversed was surprising). Still, I thought I’d pass it along in case some of our readers were interested.

* * *

The State convicted … Darren J. Drahota … of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature. The e-mails — laced with provocative and insulting rhetoric and with the Iraq war as a background — suggested that Avery was a traitor and that he sympathized with Al Qaeda, a terrorist organization. [These e-mails followed an earlier exchange, in which Avery eventually asked Drahota to stop e-mailing him. –EV]

We are asked to decide whether Drahota’s e-mails were protected speech under the First Amendment. The Court of Appeals determined that the First Amendment did not protect Drahota’s speech because the e-mails were “fighting words,” an exception to free speech protection. We disagree….

Offensive Speech Does Not Lose Its Constitutional Protection …

In concluding that Drahota’s speech constituted fighting words, the Court of Appeals relied on our decision in State v. Broadstone…. In Broadstone, we … quoted the U.S. Supreme Court’s decision in Chaplinsky v. New Hampshire to explain that fighting words are unprotected speech:

“‘[F]ighting’ words [are] those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ …”

Within this quote from Chaplinsky, there are two descriptions of fighting words. The first refers to words whose “‘very utterance inflict[s] injury.’” The other refers to words which “‘tend to incite an immediate breach of the peace.’” …

[Discussion of various precedents omitted. –EV] [I]n Gooding v. Wilson, the Court held that a breach of the peace statute was overbroad because it was not limited to fighting words. The Court reasoned that because the statute could be applied “to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that [the statute is not limited] to ‘fighting’ words defined by Chaplinsky.” In effect, the Gooding Court read the “inflict injury” prong out of the definition. Lower courts have followed the Supreme Court’s lead. “It is now clear that words must do more than offend, cause indignation or anger the addressee to lose the protection of the First Amendment.”

We agree. We hold that the State cannot constitutionally criminalize speech under [the breach of the peace statute] solely because it inflicts emotional injury, annoys, offends, or angers another person. Accordingly, we cannot affirm Drahota’s conviction merely because Avery found it offensive.

Drahota’s Speech Was Not Likely to Provoke an Immediate Breach of the Peace

The U.S. Supreme Court in Chaplinsky held that a state could regulate speech that tends to incite an immediate breach of the peace. Although the Supreme Court has not upheld such a conviction since Chaplinsky, other courts, including this court, have done so. In upholding such convictions, we have stressed that the right to use abusive epithets of “‘slight social value’” is outweighed by the State’s strong “‘interest in order.’”

Indeed, “[i]t is the tendency or likelihood of the words to provoke violent reaction that is the touchstone of the Chaplinsky test ….” … The context of Drahota’s speech was an ongoing political debate, not random obscenities directed at small children [referring to an earlier Nebraska case that did find the speech to be punishable fighting words –EV], which could likely provoke a response from nearby adults. Here, Drahota and Avery had corresponded for months on political issues. And both had made provocative statements during that dialog without incident. The First Amendment encourages robust political debate, particularly the right to criticize public officials and measures ….

By the time Drahota sent the e-mails at issue, Avery was running for office. And we have stated that “[t]he steadfast rule is that ‘“in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”’” So even when criticisms of public figures are outrageous, if they fall short of provoking an immediate breach of the peace, they are protected by the First Amendment. To hold otherwise would obstruct the free exchange of ideas.

Yet, we do not hold that political speech can never constitute fighting words. It is not difficult to imagine insults virulent enough to provoke a breach of the peace in a political debate. But here, even if a fact finder could conclude that in a face-to-face confrontation, Drahota’s speech would have provoked an immediate retaliation, Avery could not have immediately retaliated. Avery did not know who sent the e-mails, let alone where to find the author. We conclude that the State has failed to show that Drahota’s political speech constituted fighting words.

[Rowan v. Post Office Dep’t]

Rowan [a U.S. Supreme Court case –EV] involved a federal statute that allowed a homeowner to request that a vendor remove his name from the mailing list and stop all future mailings if the homeowner found the mailings erotically arousing or sexually provocative. After weighing a person’s “right … ‘to be let alone’ [against] the right of others to communicate,” the Court ruled that a vendor has no right to send unwanted material to the home of another. Crucial to the Court’s holding was the absoluteness and finality of the homeowner’s decision; the government had no role in determining whether the materials were objectionable.

We find Rowan distinguishable. First, we note the absence of a statute like the one in Rowan. The statute in Rowan gave the homeowner absolute and final discretion over what was objectionable. Under the statute, the government merely enforced the homeowner’s preference and had no part in deciding what was objectionable. In the present case, the discretion is left to the prosecutor whether to charge Drahota with breach of the peace. This element of government action undermines the State’s Rowan–based argument.

Because the State is an actor here, our concern is not focused on balancing Avery’s right to be let alone against Drahota’s right to communicate. But even if it were, the scales would tip in Drahota’s favor. First, Rowan dealt with commercial speech aimed at private citizens. In contrast, this case deals with political speech directed at a candidate for public office. Second, the discussion of political issues is not the equivalent of mass advertisements in balancing free speech against privacy. “‘The First Amendment affords the broadest protection to such political expression in order “to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” …’” The ability of a constituent to voice his concerns and opinions to his elected representatives, and to those who wish to become his representatives, is the cornerstone of republican government. We reject the State’s contention that Drahota’s mere sending of an e-mail constituted a breach of the peace because Avery had previously asked Drahota not to communicate again.

But that does not mean a person’s right to speak will always trump another’s right to be let alone. While Avery, as a political candidate, had diminished privacy rights trumped by a potential constituent’s First Amendment rights, we recognize that balancing free speech rights against the privacy rights of a private citizen may yield a different result.

Obviously, Drahota is not a wordsmith, and his bumper sticker rhetoric was certainly provocative. But it did not rise to the level of fighting words under these facts. If the First Amendment protects anything, it protects political speech and the right to disagree.

Here, Drahota and Avery had an ongoing, bareknuckle political dialog that germinated in a political science course at the University of Nebraska. Avery, to his credit, permitted the university forum to be a marketplace for the free flow of ideas. But Drahota stopped their dialog upon Avery’s request and did not e-mail Avery again until Avery was running for political office.

In closing, the hallmark of free speech protection is to allow the “‘free trade in ideas’ — even ideas that the overwhelming majority of people might find distasteful or discomforting.” To criminalize Drahota’s speech would impede the free flow of those ideas and political discussion between the people and their representatives. This we refuse to do.


We conclude that the State cannot criminalize speech under the fighting words exception solely because it inflicts emotional injury, annoys, offends, or angers another person. And we reject the State’s argument that the First Amendment does not protect Drahota’s speech because it constituted an invasion of Avery’s privacy. The State does not contend that any other exception applies. Because no exception applies, the First Amendment protects Drahota’s speech. We reverse his conviction and remand the cause to the Court of Appeals with directions to the district court for further remand to the county court for dismissal.

The Volokh Conspiracy

Nebraska Supreme Court Reverses Disturbing-the-Peace Convictions for Sending Rude E-Mails to Professor Who Was Running for the Legislature

September 24, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

This is the case that I briefed and argued last year (see here for my initial post about the petition for review to the Nebraska Supreme Court, and here for the various documents in the case, including the Nebraska Court of Appeals decision that had upheld the convictions). I’ll post more on the subject today, but for now I just wanted to note this. Sometimes it’s a lot of fun to be a lawyer!

The Volokh Conspiracy

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