The Past. It's Always the Past.

"The past," Faulkner famously said, is never dead.  It's not even past."

So when this blawg returned two days ago from what certainly seemed the dead, it was a Faulknerian return hearkening to and including (resurrecting, if you will - and I will even if you won't) it's own past as well as . . . . Feh, you get the point.

But it wasn't just here, not just me.  For my blawg's resurrection reminded Greenfield of what this blawgging world used to be.  It was fun and lively and, frankly (I really do believe this) important.  We wrote because we had things to say, things to get off our collective and individual chests.  We challenged, squabbled, supported, disagreed.  And it was worth it.  Day after day.

And posting, and then Greenfield, made me remember, made me feel the loss.  And so, maybe I'm back.  Just maybe.

As it happens (and that was all kind of a digression, so really you could have skipped over it), in my more-or-less retirement out here in Phoenix where the sun don't seem ever to stop shining, I'm in a couple of book groups.  This month, the discussion for one of them will be about David Enrich's new book: Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.  

Enrich details how folks with a lot of money (and some without a whole lot who are often bankrolled by folks who do), want to and try with some success to undermine the First Amendment's protections of free inquiry and reporting.

Look, the basic idea, as the folks at One First Street in DC (that's the Supreme  Court) have made clear over the decades, the First Amendment protects even falsehoods about public figures as long as they're not reported with actual malice.  And actual malice doesn't mean that the speakers/writers doesn't like the person about whom the falsehood is offered but, rather, that they either knew it wasn't so and said it anyway or were recklessly indifferent to the question, that they didn't exercise even minimal care to try and get it right.

That's the standard SCOTUS adopted some 61 years ago in New York Times v. Sullivan.  And despite some grumbling by Clarence Thomas and Neil Gorsuch who think it should be jettisoned, it remains the standard for libel.  

Though he does, like so many, get the claim Holmes asserted wrong,* Enrich generally gets stuff right.  And his book serves as a powerful reminder of just why Sullivan is so damn important, why, therefore, so many folks on the right and on the left would like to junk it, and how essential it is that we the people fight back.

Anyway, as I was reading the book, I realized that I'm almost certainly (and here we go again, because the past is never dead) the only person in the book group who's ever been sued for libel.  Rakofsky v. the Internet (or, as it's technically named, Rakofsky v. the Washington Post, et al. I, of course, am one of the 73 in that "et al" or as we sometimes referred to ourselves collectively, "The Rakofsky 74."

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* Enrich claims the rule Holmes set forth is that "you can't say fire in a crowded theater."  Tim Walz, among countless others, repeated that rule in his VP debate with J.D.  What Holmes actually said in Schenck v. United States was far more nuanced (and is still not the law today - if it ever was):  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” 

What Would Jesus Drink Part II - The Angels Coming Home to Roost

Hardin, Texas is just a dot on the map, but it's growing at a pretty fast clip.  The population increase from the 2000 to the 2010 census was a spirited 8.5%.  It's now all the way up to 819.  Hardin is in Liberty County, which according to the county website is pretty close to paradise.

Liberty County is home to some of the kindest, friendliest, hardest working folks anywhere. Something is always happening here in Liberty County. Our proximity to Houston, lower cost of living, great schools, strong economy, and the world-class hospitality of communities like Cleveland, Liberty, and Dayton make Liberty County a wonderful place to raise a family or locate a business.

As they say, "Something is always happening [t]here."

A year ago I told this true story.

Police in Hardin, Texas got a tip.  Reports on just what the tip was conflict.  Dozens of dismembered bodies buried at a farmhouse? Children in danger at that farmhouse? Either way, they got a warrant.

Because when Jesus and 32 angels tell Angel about what's going on at the farmhouse.  The Times reports.

Equipped with a search warrant and cadaver-sniffing dogs, deputies from the Liberty County Sheriff’s Office converged on a home on a narrow country road near Hardin — about an hour outside Houston — in search of a macabre crime scene. The news of a mass grave in rural Texas set off a news media frenzy: throngs of reporters camped outside the home, two news helicopters circled above, and cable news stations flashed alerts that up to 30 bodies had been found.

CBS News:

Liberty County Sheriff's deputies, the FBI, DPS officers and the media converged on the town of Hardin looking for signs of a mass grave. A search at the home turned up nothing.

Because, of course, you have to check.

I mean, when someone calls with that sort of story, and offers a credible explanation for how she knows . . . .

Oh, you wondered about the credible explanation?

The caller, a woman who identifies herself as "Angel," spoke to CBS.

They up-front asked me how I got the information, and I am a reverend. I am a prophetess and I get my information from Jesus and the angels, and I told them that I had 32 angels with me and they were giving me the information and then it went from there.

I mean, who could doubt?

My broader theme then was the widespread but inaccurate belief that the requirement that police have a warrant based on probable cause before tearing up your home and destroying your life, the guts of the Fourth Amendment, was close to meaningless.

The beauty of a good story is that it has legs.  It can be a gift that, as they say, keeps on giving.

This morning, Scott Greenfield picked up on the latest news.

Via Courthouse News, Joe Bankson and Gena Charlton are suing the sheriff, the psychic and a bunch of news outlets who reported about them "after a self-proclaimed psychic told the sheriff that 25 to 30 dismembered bodies were buried in a mass grave at their home." Needless to say, this tip didn't pan out, much to the surprise of the psychic who calls herself "Angel."

The sheriff's office provided the plaintiffs' address to the news media and repeated the false statement, and it made nationwide and worldwide headlines, according to the complaint.
Bankson and Charlton claim the sheriff's office searched their home unreasonably and without probable cause, inviting the media along to watch the intrusive execution of the search warrant.
The couple claim the sheriff's office was "unreasonable in relying on an uncorroborated tip from a self-proclaimed psychic source" who has proven to be "unreliable and untrustworthy."

Me, I'm not a believer.  Sure, I lived in Texas, went to law school there, practiced law there, and have a mighty fine cowboy hat I wear occasionally.  Even so, I'd think it was unreasonable to rely on "an uncorroborated tip from a self-proclaimed psychic" who got her info from "Jesus and the angels" even without knowing that she had been proved "unreliable and untrustworthy." (Of course, despite the dozen years I lived on the Llano Estacado, I'm basically a Yankee.)

Anyway, let's take a moment to think about the lawsuit and in particular the defendants.  And let me make clear that I'm writing based on the description by Courthouse News which may or may not accurately reflect the complaint, which I haven't seen.

Sue the Sheriff for violating the Fourth Amendment?  You bet your booties.  Sure, it's Texas and sure the Fourth Amendment doesn't really mean much these days.  But tips from Jesus and the angels?  Of course, there's that whole qualified immunity thing and whether a reasonable Texas sheriff might believe it however tiny the probability.  Still, I say go for it.

Sue Angel? Be still my heart.  

The first question was whether to charge her with a criminal violation for filing a false report.  Apparently that was going to depend on whether the authorities could confirm that she was actually a psychic?  (Really, you can't make this shit up.)

Rucks Russell at KHOU 11 news quoted Captain Rex Evans of the Liberty County Sheriff's Department on the subject..

However, that has not been confirmed yet, whether she’s a psychic or not.

Because if she were really a psychic there wouldn't be a case?  But if she was a false psychic there would?  And how would they decide?  Shortly after I moved to Texas, another Yankee - one who'd lived there for several years - told me that the important thing wasn't where you lived but when.  In Lubbock, he said, we were living in the 1700s.  Liberty County?

But Angel?  Sue her?  Lovely idea, but for what, exactly.  Defamation, I suppose, since she accused them of horrible crimes.  Except, more precisely, she said there was evidence of horrible crimes on their property.  In a police report.  It was nonsense, of course, but defamatory?  

Still, that's all beside the point here.  Because there's a real and serious problem with the lawsuit. Here's the first paragraph of that Courthouse News story.

A Texas couple claim in court that they were defamed by major media companies, including The New York Times, Belo Corp., CNN, Thomson Reuters and ABC News, after a self-proclaimed psychic told the sherriff that 25 to 30 dismembered bodies were buried in a mass grave at their home.

See, what the media did was report that there was this wasteful search based on a tip by a psychic that didn't pan out.  Here's a bit from that Times story I linked to above.

But in the end, there was no grave, there were no bodies and there was no sign that any crime had been committed — except, perhaps, the misleading call that created the spectacle in the first place. 

Look, when the Sheriff invites the media along (like Greenfield I have serious reservations about that, but it's beside the point here) on a search for dozens of dismembered bodies, they're gonna report it.  Because it's legitimately newsworthy, even if only in a man-bites-dog sort of way.  And because that's what they do.

But they also report that it was hogwash.

And, speaking both as a lawyer and from the experience of being wrongfully sued for defamation, it ain't defamation. 

Even though some folks will miss the follow-up.  Or believe only the accusations.  Guilty regardless of the evidence.

No, the villains here aren't the media.  And may not be the crackpot Angel, whoever she may be.  The villain is the law that allowed a search warrant based on her tip which she based on the word of Jesus and the angels.  And the forces of authority who turned it into a circus.