Should Obama Sue?

The Obama Nation, a new book about Obama from the guy behind Unfit for Command, is full of lies.

Usually a public figure will not sue for defamation for 2 reasons: (1) it increases the profile of the defamatory statement; and (2) it is likely to be unsuccessful.

The first reason may not apply here because the book is already a bestseller sure to be used by the conservative noise machine.

The second reason is grounded in the fact that, while an ordinary person need only prove the falsity of the statement, the Supreme Court has held in NY Times v. Sullivan that a public figure has to also prove that the statement was made with actual malice (i.e. knowledge of the falsity or reckless disregard for the truth). Obama has enough money that he need not really care whether he wins so long as the public relations result is to effectively challenge the accuracy of the book. Also, I suspect that actual malice could be proven here. The author has made no secret of the fact that his goal is to destroy Obama.

I would probably conclude that the risk of seeming whiny and overly litigious outweighs the potential benefits of filing suit, but I don't know that Obama should automatically reject the idea of a lawsuit.

Here is Obama's 40 page response.

Executive Immunity

Finally, a court stands up to the Bush Administration and their legal arguments that are completely unsupported by any precedent.

McCain is Wrong Again

After taking a day to become unreasonable, McCain has decided to come out strongly against the Supreme Court's decision on habeas corpus in Boumediene.

Our first obligation is the safety and security of this nation, and the men and women who defend it.

No, our first obligation is to the American values they are defending.

Shock Artist Smut Trial

There is a major obscenity trial in California that has become more interesting with the discovery of pornography on a website maintained by the presiding judge, Kozinski (who is one of the leading federal judges in the country and has been considered a potential Supreme Court justice).

Setting aside whether we should have any obscenity laws or waste resources enforcing them, it seems strange to me to exclude from the jury potential jurors who find the material offensive when the test is in large part based upon whether most people would find the material offensive.

In an unusual twist, the trial is being presided over by the chief judge of the 9th U.S. Circuit Court of Appeals, Alex Kozinski, under a program that allows appellate judges to occasionally handle criminal trials at the District Court level. Kozinski is known as a strong defender of free speech and First Amendment rights.

When jury selection began Monday, he urged prospects to be open about their opinions and incurred an onslaught of negative statements. Within the first hour, he dismissed 26 men and women who said they could not be fair to the defendant because they were repulsed by the subject matter. By day's end, half the panel of 100 had been excused.

"I think watching something like that would make me physically ill, nauseous," said one woman. "It's affecting me physically now just thinking about it."

Several prospects marched up to the judge's bench for private conferences when he told them that the films also involved violence against women. They, too, were excused, as were several who cited their religious beliefs.