Stay of Discovery Doesn’t Block Public Records Requests

December 1, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

American Bank v. City of Menasha (7th Cir. Nov. 29) (Posner, J.), holds that a federal stay of discovery under the Securities Litigation Uniform Standards Act doesn’t block public records requests under state public records statutes. This strikes me as sound, for the reasons the court gave: The legal term “discovery” generally refers to fact investigation that uses the special rules connected to the litigation process (such as interrogatories, depositions, requests for admission, and the like), and not to other fact investigation, such as interviewing witnesses, researching court records, or filing public records requests of a sort that anyone (litigant or not) could file. Moreover, this is functionally sensible, since public records requests don’t impose the litigation-related burdens that other discovery poses (given that the government agency may charge money to recoup the costs of the requests).

Finally, note this interesting passage:

The City acknowledges that it couldn’t refuse a newspaper’s request for the records, and the newspaper would be free to publish them. Yet it claims a right to an even broader stay than the district court granted it — to a stay that would forbid American Bank to suggest to a newspaper that it request and publish the records, or even hint at such a suggestion by telling a reporter that there might be some interesting stuff in the public-records office about the City’s misbegotten power-plant conversion project. And so another objection to the City’s position in this case is that it would invite satellite litigation over efforts to circumvent a stay and even raise questions under the First Amendment.

It would also create a precedent of unmanageable scope. Suppose a newspaper reporter had requested and obtained records of the City’s conversion fiasco but had not published anything. Could American Bank’s lawyers ask him about what he had found in his search? Or would that be “discovery” too? What if the lawyers search Google under “City of Menasha securities litigation.” Is that “discovery” — for if they do that, they will find articles that contain information about the litigation that they might find useful. See, e.g., [examples omitted]. In rejecting an attempt to “exempt private and citizen litigants from the right to disclosure of public records if the materials sought potentially relate to a matter under litigation between the parties,” State ex rel. Lank v. Rzentkowski, supra, 416 N.W.2d at 637–38, explained that “circumvention of the statute under such an interpretation could be accomplished with ease and impunity. Nothing in [the] argument would preclude a person, not a party to the underlying litigation, from rightfully demanding the materials and then turning them over to the litigants who otherwise would be denied them. The interpretation … would encourage surreptitious circumventing of the statute. We are hesitant to adopt an interpretation which reduces a law to such unenforceable stature and holds it out to ridicule rather than respect.”

The Volokh Conspiracy

After He Promised Transparency, Ohio Newspapers Blast Kasich’s Refusal To Disclose Records As ‘Outrageous’

November 24, 2010 · Posted in The Capitol · Comment 

Ohio Governor-elect John Kasich (R) spent much of his campaign selling the “accountability” and “transparency” buzzwords to Ohio constituents this year. Touting a “new way” of doing politics, Kasich promised to “recharge Ohio” with a smaller, more open government that would require accountability within important sectors – like education – that weren’t up to par. This generic rhetoric, however, sounded enough like a revolution to win him the endorsements of several prominent state newspapers, including the Cleveland Plain Dealer, the Columbus Dispatch, and the conservative Cincinnati Enquirer.

But just weeks after defeating Ohio’s incumbent Gov. Ted Strickland (D), Kasich’s incoming administration is turning on those previously-espoused principles and refusing to release the resumes of the job applicants for politically-appointed state government jobs. While Strickland “regularly” released the records of job applicants for the public, Kasich claims that because the resumes are solicited via — a private site owned by the Kasich-Taylor New Day Committee, Inc. — those who desire to work for him have an expectation of privacy. Pointing out that Kasich won its endorsement based on his stated “bias towards openness,” the once-supportive Cincinnati Enquirer lambasted his rationale as “an outrageous nose-thumbing at well-established principles of openness”:

Mere weeks after defeating incumbent Gov. Ted Strickland, the Kasich team has said it won’t make the names or resumes of applicants for state jobs public – an outrageous nose-thumbing at well-established principles of openness and disclosure of public information.

Within a day of opening his website, Kasich had received more than 1,500 resumes for public jobs via e-mail to the site.

But if he gets his way, the public will never know who applied, what criteria were used in hiring – or who might have been more qualified choices.[…]

If this is “transparency,” we’d hate to see what opacity looks like in a Kasich administration.[…]

Governing is not an exercise in devising mechanisms to shut out the citizens you purport to represent – and for whom you are working.[…]

There may be a legal gray area here regarding the private site. That’s for courts to decide. But you don’t have to be an attorney to understand that well-established precedents toward disclosure are being snubbed – and that the spirit of Ohio’s open records laws is clearly being violated.[…]

You can’t privatize the public’s right to know.

Mr. Kasich, you may not be “worried about transparency,” but we sure are.

Another Ohio paper that endorsed Kasich, the Canton Repository, called Kasich’s transparency tap dance “baloney,” demanding to know “where’s the transparency?” Also noting Strickland’s adherence to disclosure, the Repository pointed out that “not only is Kasich sending the wrong message about his commitment to openness, he’s also not doing himself any favors when it comes to winning support” for his “controversial” idea to privatize the Ohio Department and Development, a plan the Repository accepts if “Kasich keeps his commitment to transparency.” However, as noted by Ohio Attorney General Rob Cordray, Kasich “fails [the] transparency test” there too.

While deeply frustrating to the newspapers who believed his rhetoric, Kasich’s retreat into opacity should not be surprising; its an increasingly popular part of the GOP playbook. This campaign season, Republican candidates maneuvered around public accountability as an electoral strategy — a strategy so successful that House Minority Whip Eric Cantor (R-VA) included it in a survival guide for freshmen House Republicans, even telling them which Capitol tunnel to take to avoid the press completely. With the GOP leadership prescribing the direct opposite of accountability, Kasich may just be following new orders. During his campaign, Kasich told Ohioans “if you’ve got something you want to know, I’ll tell you.” But as the Enquirer aptly points out, “that was then, this is now.” (HT: Plunderbund)


Records We Shouldn’t Keep

November 22, 2010 · Posted in The Capitol · Comment 

Do we really need people Willard Scott wishes a happy birthday to in the air?

A 92-year-old Missouri man said he is aiming to become the oldest person to fly a plane, but he still needs more than a decade to do it.

Ralph McConnell, of Carthage, said he took his most recent flight Saturday in a Piper Warrior for about half an hour, The Joplin (Mo.) Globe reported Monday.

McConnell said he’s going for a record held by a 102-year-old. “I’ve got 10 years to go,” McConnell said. “My doctor, he says, ‘I’ll keep you going.’”

I suppose that, if he passes a flight physical, the mere fact of being 102 years old shouldn’t keep the man grounded. But I’m not sure we should be encouraging children and geriatrics to fly by giving the incentive of a modicum of fame for pushing the envelope, either.

Outside the Beltway

Funny: Just expunge black males’ criminal records, and statistical difference with whites solved!

November 19, 2010 · Posted in The Capitol · Comment 

Just ignore the facts, and the facts don’t exist!  How quiant:

Black males have higher rates of incarceration and of repeat offenses that land them back in jail or prison, statistics show.

Changing that dynamic could begin with expunging their criminal records.

That was the consensus of a discussion Thursday sponsored by the Gary Commission on the Social Status of Black Males in conjunction with the East Chicago-based group Working Outside the Walls and an alliance of grassroot activists.

The panel discussion brought together activists, religious leaders, law enforcement officers and area legislators to talk about a possible Expungement Summit in Northwest Indiana. Expunging the criminal records of juveniles and adults would help them find jobs and turn their lives around, said Bennie Muhammed, GCSSBM executive director.

Are these people congenitally stupid, or was it acquired during their adulthood?  Just because a situation is uncomfortable and has thus far defied correction does not open the door to ignoring the source data.

My word, are we talking about climate science here?

Liberty Pundits Blog

Family of Natalee Holloway Awaits Forensic Tests, Father Dave Holloway Sends Dental Records to Dutch Authorities (VIDEO)

November 19, 2010 · Posted in The Capitol · Comment 

The family of Natalee Holloway, Aruba, and the many that have followed the case of the disappearance of Natalee Holloway in Aruba in 2005 await the findings of the forensic test results from Holland.

Dave Holloway, Natalee’s dad, was asked to provide dental records so that Dutch  investigators analyze a jawbone with a tooth in it that was found last week in Aruba.


The results of the testing, which is being carried out by the Netherlands Forensic Institute in The Hague, Netherlands, may be available Friday.

We provided her dental records to the Dutch authorities. They were sent electronically,” said FBI spokesman Paul Daymond. The information-sharing is “what we do, nothing out of the ordinary,” he said.

The Holloway family had told HLN’s “Nancy Grace” that the records were sent to The Hague.

The length of testing can vary, but normally takes about a week, according to a representative of the institute. The findings will be sent back to the prosecutor’s office in Aruba, which will decide whether to make the results public.

 As we await the final results, it has been confirmed that the jaw bone found by tourists last Friday is that of a young female. Just how many other young females were missing on Aruba? What are the odds that the information will be released over the Thanksgiving holidays so to handle damage control if this jaw bone does turn out to be that of Natalee Holloway?

One thing is for certain, if the remains discovered turns out to be that of Natalee Holloway … Aruba now has a crime scene and a crime. Aruban officials have claimed in the past that Joran Van der Sloot’s confessions could not be prosecuted as he lies. It would appear now that when Joran said Natalee was dumped in the ocean holds a bit of merit now doesn’t it?  The question is, will they finally provide a proper investigation and prosecution … JUSTICE FOR NATALEE!!!

Share This

Scared Monkeys

Anti-Pelosi ads break records

November 8, 2010 · Posted in The Capitol · Comment 

Washington (CNN) – More money was spent and more commercials were run against House Speaker Nancy Pelosi in this midterm election cycle than against any other congressional leader since Newt Gingrich.

More than $ 65 million was spent on 161,203 ads that targeted Pelosi from January 1 through last week’s election, according to a new analysis of TV ads for CNN by Campaign Media Analysis Group.

“Not since 1996 and Newt Gingrich has a speaker been the target of so many elections ads, candidates, groups and party ads from the GOP put Pelosi front and center in the midterms” says Evan Tracey, CMAG’s president and CNN’s consultant on TV advertising.

The game plan by the GOP, individual campaigns, and independent groups that backed Republican candidates and causes, was simple: Tie as many Democratic incumbents and candidates to Pelosi, one of the most unpopular political figures in America right now. According to a CNN/Opinion Research Corporation national poll conducted the weekend before the midterms, only 26 percent of Americans had a favorable opinion of the House Speaker, with 53 percent saying they had an unfavorable view of Pelosi.

“In 1996, Gingrich was targeted in a similar fashion, but in the 1996 election spending represented about a third of what is spent now, so it’s possible as a percentage the total spent against Gingrich would be similar to that spent against Pelosi, but her image was used in a negative way in a unprecedented scale,” adds Tracey.

According to the CMAG analysis, individual campaigns accounted for nearly have of the $ 65 million, with independent groups that supported GOP candidates and issues spending more than $ 22 million and the Republican party chipping in more than $ 8 million.

The most ads (14,443) and the most money ($ 8.46 million) for ads targeting Pelosi were spent in Pennsylvania, where five House Democrats went down to defeat.

Follow Paul Steinhauser on Twitter: @PsteinhauserCNN

CNN Political Ticker

Energy and Global Warming News for November 1: Sunshine State first to get high-speed rail; Swiss solar plane breaks multiple records; England’s wettest autumn since records began in 1697

November 2, 2010 · Posted in The Capitol · Comment 

Florida will build nation’s first high-speed rail corridor

As the Obama Administration pushes for high-speed rail networks across the country, Germany’s Siemens has secured a place for its Valero ICE trains in the Sunshine State.

Earlier this month, Siemens presented its vision of U.S. high-speed rail to the people of Florida with the “Future of Florida High-Speed Rail Tour,” a traveling exhibit featuring a full-sized model of the Velaro high-speed train.

Apparently, the strategy worked, as Florida recently announced that it would make transportation history as the first state to build a high-speed rail corridor, with trains connecting Tampa to Orlando and then to Miami in a second phase.

“We want to give Floridians a taste of what a true high-speed rail train looks and feels like,” added Oliver Hauck, president of Siemens Mobility in the U.S. “Siemens Velaro trains are successfully running on some of the fastest and most important routes in the world today.”

Swiss solar plane confirmed as multiple record-breaker

Aeronautical authorities on Friday confirmed world records for a Swiss solar-powered aircraft that flew around the clock in July, including those for the longest and highest flight by such an aircraft.

Solar Impulse was credited with the longest flight in the category of solar powered aeroplanes, by staying aloft for 26 hours, 10 minutes and 19 seconds, the International Aeronautical Federation (FAI) said.

It also set an altitude record by flying at 9,235 metres (30,298 feet), and a record for the biggest height gain (8,744 metres) during the pioneering flight.

“The FAI congratulates (pilot) André Borschberg and the whole team involved in Solar Impulse on these splendid achievements.”

The experimental single-seater with solar panels cast across a wingspan matching that of a large airliner flew in 14 hours of sunshine to power, also allowing it to charge up its batteries and fly on through darkness.

Majority of Americans support increased funding for clean energy research

In an era of concern about federal spending and deficits, a large majority of Americans (even among Republicans) support federal investment in energy research and development, finds a recent Pew survey.

“There is broad public support for a variety of other proposals to address the nation’s energy situation. About eight-in-ten (79%) favor requiring better fuel efficiency for cars, trucks and SUVs, and 74% support increasing federal funding for research on wind, solar and hydrogen technology.”

While the poll finds an overall decline in Republican support since 2008, a majority of Republicans still support these policies, with 64% of Republicans favoring increasing federal funding for alternative energy technology, down from 85% in 2008, and 79% supporting better fuel efficiency for automobiles, down 13 points from two years ago.

Meanwhile, Democrat support has steadily increased in the past few years, with 84% in favor of increased federal investment in clean energy technologies and 89% endorsing higher fuel efficiency standards.

California unveils final plan for cap-and-trade scheme

California unveiled the final draft proposals for its planned emissions cap-and-trade programme late last week, prompting a mixed reception from business leaders.

While some Californians see the regulations as a positive spur for green jobs, others have criticised the policy as being too ambitious given the current economic challenges faced by the state.

The Californian scheme largely mirrors the EU emissions trading scheme (ETS) and as such will be initially restricted to large emitters of greenhouse gases. Participants in the scheme will receive tradable emissions allowances and those exceeding their emissions caps will be required to purchase additional allowances. The caps have been set in line with the state’s 2006 AB 32 law, which requires California to return to 1990 levels of greenhouse gas emissions by 2020.

As with the EU ETS, the initial impact of the scheme will be minimised as regulators have chosen to give away between 97 per cent and 98 percent of the necessary allowances to polluters for free when the program starts in 2012. Environmental groups had hoped that firms would be forced to buy all the allowances they need at auction, providing a further financial incentive for them to cut emissions, but officials have moved to limit the costs associated with the scheme.

For example, oil drilling, cement and some other selected industries will be granted 100 per cent of permits through to 2020 for free, although more efficient firms are set to receive more free allowances.

England’s wettest autumn since records began

Ten years ago England was drenched by prolonged downpours that led to the three months ending 30 November being the wettest autumn since records began in 1697. There was a respite until February, and then the rains returned. Southern counties were particularly affected; some places had three times as much rain as average. Substantial flooding followed in Kent and Sussex.

One result of this extraordinarily prolonged wet period, which broke records both for intensity and volume of rain, was that the aquifers which supply southern England’s rivers and drinking water overflowed. Springs that had long disappeared, some built over by unwise developers, flowed freely and caused delight or despair depending on where they suddenly came to life. The Thames became much longer when its traditional source, a spring just south-west of Cirencester, produced a vigorous stream after being dry for years. Other forgotten springs upstream joined the flow.

By 2005, after a prolonged dry period, those springs had dried up. Rainfall had been so low for two winters that 12 million people in the south endured water restrictions, mostly hosepipe bans. Unusual short-term extremes do nothing to alter the climate change prediction that the UK will have wetter winters, but they do make planning for water needs difficult. Hydrologists say that to top up the aquifers for 2011, southern England could do with prolonged rainfall between now and Christmas.

$ 57 Million available for new green processes

Last month, the Department of Energy announced $ 57 million in awards to 33 small businesses dealing in the world of clean energy production in order to “accelerate commercialization of clean energy techniques, increase American competitiveness and create jobs.” The money is intended to help businesses who already have proven new technologies to bring up production in order to allow these businesses to hire new people and move further within their industry.

While many people carp about the government going out of its way to hurt small business owners through its policies, the DoE’s money is going, 100%, to small businesses working with larger ones, with universities, and with laboratories. The DoE is awarding money in amounts between $ 500,000 and $ 3 million, helping them to continue expanding in the face of a brutal job market and difficult economy.

Some of the organizations cited as recipients include Renewable Algal Energy, LLC, in Kingsport, Tennessee, which develops technology to transform algae into biodiesel and took the largest award at $ 3 million. Universal Display Corporation of Ewing, New Jersey, received $ 2 million to continue development of organic LED-based lighting products (such as bulbs and fixtures), moving a step further from the fluorescent bulbs now popular in much of the world.

Bacteria can build better roads for our peak oil years

Local jurisdictions in Red state America, increasingly unable to agree to taxes to jointly afford repaving at peak oil prices are simply letting roads decline – in the same way as after the fall of the Roman Empire, in the dark ages there, many roads in Europe returned to mud tracks.

But an innovative new oil-free way of surfacing roads could be on the way to save us from peak oil. This “sandstone” road surface is built by bacteria just using sand, so it’s cheaper. The idea from Thomas Kosbau + Andrew Wetzler is the winning entry in the Korean green design iida awards, announced by designboom.

The idea is to use an abundant resource – sand – and to mix the sand with a solution containing the microbe Bacillus Pasteurii, which cements the sand into a biologically engineered hardened sandstone. Then the sand-and-microbe solution is sprayed onto a layer of sand underneath and hardens the whole thing into a tough road surface made of bio-sandstone.

Currently roads are built of asphalt – a toxic material made of crude oil, that creates heat islands and is subject to peak oil. The advantages of replacing asphalt are both financial and environmental.

It takes 320 barrels of oil to build one kilometer of asphalt roadway.
Made from crude oil, asphalt had a price rise of 222% between 2003 and 2008, which is symptomatic of peak oil and likely to keep happening as we use up the remainder of a finite resource.

Vietnam and Japan to mine rare earths together

HANOI (Reuters) – Vietnam has chosen to partner Japan in mining rare earth minerals and building a nuclear power plant in the Southeast Asian country, Japanese Prime Minister Naoto Kan said on Sunday, as Tokyo seeks to reduce its dependence on China.

Japan, the world’s third-biggest nuclear power generator, is also eyeing fast-growing markets to develop nuclear plants as electricity demand in the country is likely to stay flat or rise slightly due to its aging society and industries going abroad.

“Prime Minister (Nguyen Tan) Dung told me this (rare earths) decision was a political and strategic one,” Kan told reporters after meeting Dung.

China gave repeated assurances at an Asia-Pacific summit in Hanoi that ended on Saturday that it would remain a “reliable supplier” of the high-tech ores used in lasers, superconductors, computers and other electronics.

Nevertheless, Japan and other countries, including the United States, say they want to diversify their sources of supplies.

Last week, Japan and India decided to seek cooperation in developing, recycling and finding substitutes for rare earths and rare metals.

32 companies charging the Super Grid now

In this article, we cover the major fields of super-grid opportunity and the companies, large and small, playing in them. It’s not an exhaustive list, but rather a guide to the companies we believe are currently best positioned to charge up the super grid.

Power generation

One of the biggest challenges for the super grid is integrating sources of renewable energy like wind and solar power. The current electricity grid is most efficient when the power is being consumed at the same time that it is generated and when supply and demand are steady. With renewables, supply peaks unevenly since energy is not generated at a constant rate or at all times of the day.

Many small local sources of energy like homeowners selling back energy to the grid may also become available. A connected collection of these sources is called a microgrid and can be managed like a virtual power station.

The market for software to integrate renewables and microgrids with existing power generation seems to be at an early stage. Gridpointdelivers a suite of smart grid applications that aggregate and manage distributed sources of load, generation and storage including integration of renewables and electric vehicles. Homer Energy provides modeling software to analyze and optimize power grids that incorporate high penetrations of renewable energy sources. Balance Energy produces microgrid and renewable generation solutions which integrate and aggregate distributed generation and storage resources.

Climate Progress

DNC presses Pentagon for records on potential 2012 GOP presidential contenders

October 28, 2010 · Posted in The Capitol · Comment 


It’s never too early to do oppo research, apparently.  Even before the conclusion of the midterm elections, the DNC has filed FOIA requests for official correspondence between the Pentagon and a raft of potential GOP challengers, including Sarah Palin, Tim Pawlenty, Mitt Romney, Mike Huckabee, and even Bobby Jindal.  While it’s not illegal to seek […]

Read this post »

Hot Air » Top Picks

Records Show Miller Admitted Lying

October 27, 2010 · Posted in The Capitol · Comment 

Alaksa U.S. Senate candidate Joe Miller (R) admitted in 2008 that he lied after being caught using Fairbanks North Star Borough computers for political purposes while he was working as a part-time borough lawyer, the Anchorage Daily News reports.

In an email from his employee records, Miller wrote, “I lied about accessing all of the computers. I then admitted about accessing the computers, but lied about what I was doing. Finally, I admitted what I did.”

“During the campaign, Miller first refused to answer questions from reporters about it, then acknowledged he had been disciplined. He’s refused to discuss the details, however and won’t agree to an interview with the Daily News.”
Taegan Goddard’s Political Wire

Sherrod records GOTV ad for NAACP

October 26, 2010 · Posted in The Capitol · Comment 

Former Department of Agriculture official Shirley Sherrod has recorded a get-out-the-vote PSA for the NAACP, expected to air on American Urban Radio Networks and some of its 300 AURN affiliates.

"The outcome is critical for our community," Sherrod says in the ad, which makes no reference to her firing by the Obama administration, which later apologized.

The ad is part of a turnout push by the organization that also includes a PSA from the actor Blair Underwood and a new portal for making GOTV phone calls.

"The upcoming midterm elections will determine the course of our nation just as much as the 2008 elections did," said NAACP president and CEO Benjamin Jealous in a statement.


Add to Twitter
Add to Facebook
Email this Article
Add to digg
Add to
Add to Google
Add to StumbleUpon

Ben Smith’s Blog

North Carolina Department of Revenue’s Demand for Amazon Customer Records Violates the First Amendment

October 26, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

So holds v. Lay (W.D. Wash., decided yesterday):

Amazon pursues summary judgment as to its First Amendment claim that the DOR’s request for all information related to Amazon’s sales to North Carolina residents violates the First Amendment. The Court agrees and GRANTS the motion.

The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57–58 (1953) (Douglas, J., concurring).

Two district courts addressing subpoenas seeking book purchase records have similarly held the First Amendment rights are implicated where the government seeks the disclosure of reading, listening, and viewing habits. In In re Grand Jury Subpoena to Date August 7, 2006, 246 F.R.D. 570 (W.D. Wis. 2007), the court held that the government had to show a compelling need to obtain the personal identities and titles of books certain persons purchased through Amazon from a seller suspected of tax evasion. The government served Amazon a subpoena duces tecum seeking the identities of customers of the criminal defendant and information about their purchases. Id. at 571. Amazon provided the requested information, except the identities of the purchasers, objecting that the revelation of the purchasers’ identities would violate their First Amendment rights. Id. at 572. The court agreed. The court barred the government from contacting anyone who did not consent to talking to the government, noting that the First Amendment was implicated where the government might “peek into the reading habits of specific individuals without their prior knowledge or permission.” Id. at 572. A similar result was reached by a district court handling a subpoena request to obtain the book purchasing records of Monica Lewinsky. In re Grand Jury Subpoena to Kramerbooks & Afterwords, Inc., 26 Med. L. Rptr. 1599, 1600-01 (D.D.C. 1998). The court held that the Independent Counsel investigating President Clinton had to show a compelling interest and sufficient nexus to sustain his request. Id.

Amazon and the Intervenors have established that the First Amendment protects the disclosure of individual’s reading, listening, and viewing habits. For example, the Intervenors make uncontroverted statements that they fear the disclosure of their identities and purchases from Amazon to the DOR and that they will not continue to make such purchases if Amazon reveals the contents of the purchases and their identities. The DOR concedes that the First Amendment protects them from such disclosures. In fact, the DOR has repeatedly stated it does not want detailed information about purchases for fear of implicating the First Amendment. However, DOR has consistently requested this very information by reaffirming its broad requests. At the same time, the DOR has also refused to give up the detailed product information about Amazon’s customers’ purchases. The pending request for “all information as to all sales” by Amazon implicates the First Amendment rights of Amazon’s customers and the Intervenors. While the DOR states that it could not possibly match the names to the purchases, its promise of forbearance is insufficient to moot the First Amendment issue. See United States v. Stevens, 130 S. Ct. 1566, 1591 (2010) (stating that the Court “would not uphold an unconstitutional statute merely because the Government promised to use it responsibly”). The Court finds the disclosure of the identities and detailed information as to the expressive content of Amazons’ customers’ purchases will have a chilling effect that implicates the First Amendment.

Given that the DOR’s request implicates the First Amendment, the DOR must show “a compelling governmental interest warrants the burden, and that less restrictive means to achieve the government’s ends are not available.” United States v. C.E. Hobbs Found., 7 F.3d 169, 173 (9th Cir. 1993) (setting for the standard for a First Amendment challenge to an IRS summons). There must also be a “substantial relation between the information sought and a subject of overriding and compelling state interest.” Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 546 (1963) (in the context of a legislative subpoena). The DOR must “actually need[] the disputed information.” In re Grand Jury Subpoena to, 246 F.R.D. at 572.

The DOR concedes that it has no legitimate need or use for having details as to North Carolina Amazon customers’ literary, music, and film purchases. In spite of this, the DOR refuses to give up the detailed information about Amazon’s customers’ purchases, while at the same time requesting the identities of the customers and, arguably, detailed records of their purchases, including the expressive content. With no compelling need for both sets of information, the DOR’s request runs afoul of the First Amendment. It bears noting, too, that the DOR’s requests for information were made solely in the context of calculating Amazon’s potential tax liability. Amazon has provided all of the data necessary to determine its tax liability, except any potential tax exemptions. The DOR has failed to articulate the compelling need to calculate these possible exemptions, particularly where it has admitted that it can and will assess Amazon at the highest rate and it would permit Amazon to “challenge the assessment and … establish that exemptions or lower tax rates applied to some products.” Even assuming there is a compelling need to calculate Amazon’s tax liability inclusive of exemptions, the DOR’s requests are not the least restrictive means to obtain the information. The request is overbroad. The Court GRANTS the motion for summary judgment.

Thanks to Daniel Cowan for the pointer. For more on the dispute, see this earlier post. For my somewhat skeptical views about some First Amendment defenses to such subpoenas, see PDF pp. 30–37 of this article, though I agree that the justification for this particular sort of subpoena — as opposed to some of the subpoenas I discuss in the article — is extremely weak.

The Volokh Conspiracy

Candidates Shatter Fundraising Records

October 26, 2010 · Posted in The Capitol · Comment 

Washington Post: “House and Senate candidates have already shattered fundraising records for a midterm election and are on their way to surpassing $ 2 billion in spending for the first time, according to new campaign finance data.”

“To put it another way: That’s the equivalent of about $ 4 million for every congressional seat up for grabs this year.”
Taegan Goddard’s Political Wire

FL GOP Poll Watcher Allegedly Records Information On Cell Phone

October 26, 2010 · Posted in The Capitol · Comment 

More allegations are surfacing against apparently untrained poll watchers, this time in Florida, where an early voter says a Republican poll watcher improperly used a cell phone to take pictures and record information.

David Woodward told TPMMuckraker that he went to Delray Beach City Hall yesterday afternoon to cast his ballot. There he says he observed a Republican poll watcher recording data on his cell phone from computer screens, information from a voter registration book and appeared to be taking pictures.

But he said the clerk who runs the polling station has denied that the man had a phone or that he was anywhere he wasn’t supposed to be. Woodward is not satisfied with the response he has received.

Andrew Katz, another early voter, told TPMMuckraker that he never met Woodward but backed up his story. He said the poll watcher’s actions “didn’t quite pass the smell test” and that there was a “certain amount of voter intimidation” involved in the poll watcher’s actions.

Katz described the poll watcher as a man who looked to be in his mid-50s with grey hair. He was holding the cell phone chest high, “essentially a position where he could enter information or take a photograph,” Katz said. There were signs that said there were no cell phones allowed in the area, Katz said.

The 22nd District in Florida, where the polling station in question is located, has been an important race for the Tea Party, said Woodward. Conservatives are backing Allen West who is running against Democrat Ron Klein. “The Tea Party is specifically targeting our polling stations for activities like this,” Woodward said.

West has met with lawyers from the Florida Chapter of the Republican National Lawyers Association, which has warned of “epidemic” voter fraud issues this year.

Woodward first recounted his story at the DailyKos:

While I waited, which was about another ten minutes I observed a gentleman standing behind all the voting officials with an “I Voted” sticker on and his cell phone open. He was recording data into his cell phone. Then, cell phone open he would walk over to the open computer screens with all the voter data displayed and record more data, then walk around the table to look at the info the Haitian man in front of me had written down on his registration form then back to his open cell phone to record more data. This happened to ALL of the people sitting at all four computers gathering info.

When I got in and sat down I immediately said “WHO IS THAT GUY AND WHY IS HE STANDING THERE LOGGING DATA INTO AN OPEN CELLPHONE.” I said, “IS HE TAKING PICTURES?” I jumped up and read his nametag. He was a Republican Poll Watcher. He walked around the table and was doing the same thing to me I saw him doing to the Haitian guy. I grabbed up my forms and insisted he step away. A couple people in charge gave me a yellow form to submit a complaint. I was shaking but I recorded his name and what he was doing and said it really upset me.

Calls to the Florida Division and Elections were not returned.

Check out TPMMuckraker’s full coverage of anti-voter fraud efforts here.


Half of all doctors using electronic records, most of the rest considering it

October 26, 2010 · Posted in The Capitol · Comment 

One of the stimulus’s lesser-known but more-important efforts was the massive push to get doctors to use electronic medical records. The legislation included $ 20 billion to help them and, perhaps more importantly, penalties — in the form of a cut in Medicare and Medicaid reimbursements for providers who are still using paper in 2015 — for those who didn’t make the move. It looks like it’s working:

As many doctors and hospitals are rushing to implement electronic medical records and other health IT systems by 2014 (as mandated by the stimulus bill), IT trade group CompTIA will release this week a snapshot of where things stand. CompTIA’s research finds that half of health-care providers are using some form of EMR — 34 percent are using full EMRs while 16 percent have a partial system. Of the remaining, 29 percent are evaluating EMR options while 20 percent have not yet considered using the technology.

There’s an argument that we’re eventually going to look back at the stimulus bill’s investment in electronic medical records as the most important improvement the Obama administration made to the health-care delivery system — and, if the more optimistic assessments are right, as a crucial piece of infrastructure that allowed us to eventually get costs under control.

Ezra Klein

Obama’s Campaign Contribution Records Scrubbed Clean

October 14, 2010 · Posted in The Capitol · Comment 

I appeared on David Asman’s show on Fox Tuesday evening to discuss the hypocrisy of the Obama gang’s new fallacious attack on the U.S. Chamber of Commerce, projecting Democrat crimes on unsuspecting decent organizations. The whole episode showed up the incredible hypocrisy of Obama and the Democrats, and their callous indifference to the will of the people.

Obama and the Democrats claim that the Chamber of Commerce has been funding Republican candidates using foreign money. But as I show in great detail in my book The Post-American Presidency: The Obama Administration’s War On America (Simon & Schuster), in 2008 Obama’s FEC records were full of donations from people with obviously fake names, and other questionable material. (In contrast, McCain’s were squeaky clean.)

The Obama campaign website even featured a drop-down box enabling donors to specify from what country they were donating. All the donor had to do was check a box certifying that he was legally eligible to make a donation. There was no safeguard in place to make sure that foreign nationals did not donate from these countries, in flagrant defiance of the federal law forbidding candidates from receiving foreign donations.

obama foreign donations

Obama’s campaign received donations from the world over: the Virgin Islands, Vienna, The Hague, Madrid, London, Geneva, Tokyo, Bangkok, Turin, Paris, Munich, Madrid, Roma, Zurich, Moscow, Milan, Singapore, Beijing, Switzerland, Toronto, Vancouver, Dublin, Panama, Berlin, Geneva, Buenos Aires, Prague, Nagoya, Budapest, Barcelona, Sweden, Taipei, Hong Kong, Rio de Janeiro, Sydney, Zurich, Ragusa, Amsterdam, Hamburg, Uganda, Mumbai, Tunis, Zacatecas, St. Croix, Mississauga, Lima, Copenhagen, Dubai, Jeddah, Kabul, Cairo, and many others.

Worst of all, Obama’s campaign received contributions from Hamas-controlled Gaza (documentation here) and lied about refunding those jihad donations.

According to the FEC, the Obama campaign received contributions from three brothers in Gaza: Osama, Monir and Hossam Edwan, totaling $ 33,000. (It is illegal to receive campaign contributions from foreigners.) One of the Gazan brothers, Monir Edwan (identified here), claimed that he bought “Obama for President” t-shirts off Obama’s website and then sold the t-shirts in Gaza for a profit. All purchases on the Barack Obama website are considered contributions.

The Palestinians allegedly claimed that “they were American citizens,” or at least so said Obama’s people. They listed their address with a zip code of 972 (which is, ironically, the area code for Israel) and they listed “GA” as the state where they were living. That’s the state abbreviation for Georgia (screen shot here), but they were actually lived in a Hamas-controlled refugee camp in Gaza.

So if Obama’s people thought that the Edwan brothers were living in “Georgia,” and didn’t represent illegal foreign contributions to his campaign, why did they ship the t-shirts to the correct address in Gaza? One would think that they might have noticed that the shipping costs to send something overseas to a refugee camp in Gaza are vastly different from what you’d pay to send something to the state next door.

The Obama campaign claimed that it returned these illegal contributions. And they were prepared for this issue to come to the fore again: when I appeared on Asman’s show Tuesday, apparently Obama’s clean-up crew gave David Asman a record of “refunds.” The White House sent Asman this link showing a refund of the money that came from Gaza, but you’ll notice it doesn’t come near the $ 33,000 donated to Obama from Gaza; nor does it list Osama Edwan’s refund.

Where’s Osama, Obama?

Scrub a dub dub.

We have been down this road before. The Obama camp claimed in 2008 that they had returned the illegal contributions from Gaza, but this never appeared in the records. They claimed for two years that the money had been returned, but the donors in Gaza said it wasn’t. When we reviewed the records, it hadn’t been returned. Obama’s people claimed that virtually all of the money, about $ 33,500, was returned by December 6, 2008. But they also claimed that because of a “technical error,” the refunds weren’t reported to the FEC.

If McCain had been involved with something so dark and nefarious — taking money from Islamic jihad — his candidacy would never have survived the media firestorm. But in this case the perpetrator was the son of hope, the agent of change, the one we had all been waiting for, and so the media yawned.

But when the Democrats’ accusations against the Republicans showed up their hypocrisy, and I pointed it out, suddenly the money has been returned. The fixers had two years to wash these dirty donations clean. This is dirty pool.

White House spokesman, Josh Earnest,  said, “This brings to light the importance of disclosure.  The only reason someone like Geller was able to find this out was because of the FEC’s disclosure of donations, something the Chamber of Commerce refuses to do.” Hey Josh, the Chamber is private, the FEC is government.

Aren’t they afraid that their hypocrisy will be exposed? No. The White House is fanatically partisan, bent on destroying the Republicans, and the Democrats don’t care about their hypocrisy on this issue because they know that the leftwing lapdog media will be carrying water for them.

So that means free Americans have to keep up the pressure.

Big Government

Next Page »

  • Jennifer Taylor Bedding At
  • Nokia Inc.
  • Laptop ac adapters, keyboards, batteries, inverters, LCD screens at