Michael Bouldin's blog

You can file this story in a number of different categories: the inability of many New York politicians to grasp the nature of blogs, the cozy way in which political machines do business, the heavy-handed means by which these same machines preserve their power, and lastly, the perils of hosting a forum where anyone can speak out above stuff.

And by stuff, I mean "things people in positions of power would prefer not be talked about".

Per Room 8, that site was served with a criminal subpoena, coupled with a gag order, demanding the release of logs pertaining to a single anonymous blogger on the site. The subpoena was issued in January by the Bronx District Attorney, who was one of the subjects of the posts of the anonymous blogger; you can deduce from the fact that a subpoena was issued that these posts were not in the nature of praise. Unfortunately, the anonymous poster in question deleted all of his entries, but some of them are cached here (.pdf). As an aside, CultureKitchen Media, the publishing entity of this site and others, keeps a lawyer on retainer as a precaution against precisely this scenario.

Ben Smith and Gur Tsabar, the publishers of Room 8, decided to fight the subpoena with the help of a public-interest law firm, and filed papers in state court demanding it be withdrawn.

So we chose to fight the subpoena, and were lucky to be referred – by our friend Orthomom, whom he’d represented – to a talented, dynamic lawyer at the Public Citizen Litigation Group, Paul Alan Levy, a national expert on online free speech. (Support his work here.) He and our smart, thorough, generous, and knowledgeable local counsel – Charlie Spada and Deepa Rajan of Lankler, Siffert, & Wohl – first determined that the Bronx DA was, in fact, seeking the information. Then, in May, they filed a motion to quash the subpoena in state court. (You can read the legal paperwork here.)

Two months later, after we asked the judge to move on the case, the DA withdrew his subpoena. They withdrew the threat of prosecution for speaking about it only after we threatened to sue them in federal court. We’re thrilled by the outcome, and grateful to our lawyers.

With the immediate legal peril removed and the gag order lifted, it's time to take a look at what actually happened here. The outlines of that are damning. An anonymous poster made comments and posted diaries on a blog that were critical of the bi-partisan Bronx machine, including of the local District Attorney, one Robert Johnson. Shortly thereafter, a Grand Jury empaneled by the same D.A. issued a criminal subpoena demanding details captured by the site in an attempt to identify this poster. Subsequently, the poster - his handle is "Republican Dissident" - or someone presumably acting on his behalf deleted the diaries in question.

The New York Times discusses some of the underlying constitutional issues here.

Lawsuits over information posted online are usually civil, not criminal — that is, they are filed by private citizens or companies trying to keep something off the Web. Courts have developed ways to evaluate the claims, often using tests to balance the First Amendment’s protections of speech against the harm caused by whatever someone wrote or said.[...]

But there are fewer precedents explaining how courts should evaluate criminal subpoenas, according to legal experts. Perhaps that is because prosecutors are more cautious about the risk of violating the First Amendment and so issue fewer criminal subpoenas, or because the subpoenas themselves carry language prohibiting disclosure of their terms.

“In the criminal context it’s trickier because it’s the government asking for stuff, and I think it’s going to be harder to fashion a rule, especially when the government is not exactly willing to part with the reasons” for requesting the information in the first place, said Jonathan Zittrain, a law professor at Harvard.

Without knowing the motives of prosecutors, he continued, judges may be hard-pressed to balance their needs against the importance of free speech.

The core of First Amendment jurisprudence is the concept of a chilling effect on Free Speech; broadly, the government may not take certain actions that might intimidate a citizen from exercising his or her right to speak on whatever he or she may choose. There are obviously restrictions to the general principle, including for libel, obscenity, national security, trade secrets, and the like. What was at stake in this case, however, wasn't any of these concerns; it seems, rather, like an attempt to promote the job security of various elected officials, including the issuer of the subpoena, the elected District Attorney himself.

In short, this looks entirely too much like an abuse of power and of judicial process in the furtherance of strictly political goals. Of course, there may be perfectly reasonable justifications for the subpoena, reasons that outweigh the chilling effect.

We could learn about those reasons by means of an independent investigation. State Attorney General Andrew Cuomo, who has oversight of the District Attorneys, would be the right man to talk to about that.

Today is the last day of an interminable primary season. When the sun sets tonight, Democrats will have their nominee, and in a stunning turnaround from six months ago, that nominee will not be Hillary Clinton. So what happened?

In no particular order, this.

If Hillary Clinton hadn't voted for the Iraq War and the subsequent Kyl-Lieberman resolution against Iran, she'd probably be the nominee today.

If Hillary Clinton had fought the Bush administration with the same zeal and fervor she devoted to a contest where she had a personal stake, she would definitely be the nominee today. Her ferocious campaign against Democrats, however, made clear that her all-but silence for the last seven years was not a matter of temperament, but one of calculation. When the country needed a champion - a fighter, as the campaign literature has it - she was quietly nursing her own resources for her own turn in the spotlight. Choices matter.

If Hillary Clinton had been as good a candidate in January and February as she was in May, she would have wrapped this thing up a long time ago. But she wasn't.

If Hillary Clinton had realized that the Democratic Party today is not the same tattered edifice she and Bill left behind in 2000, and adjusted her strategy accordingly, she would have won. As it was, she campaigned against MoveOn, against the netroots, against a fifty-state strategy, in favor of the same blinkered, the-White-House-is-all-that-matters approach that led us to disaster in the nineties.

Senator Clinton has begun claiming a lead in the popular vote as the nominating contest winds down. This requires some thought. Here's what she's saying:

“I think it will be most likely the case in a few days,” Mrs. Clinton said from San Juan. “I will have won the most votes — more than anyone in the history of the primary process.”

She added: “Senator Obama has a narrow lead in delegates. And we’re going to have to make our case to the automatic so-called superdelegates. And I think my case is clear — more than 17 million people voted for me.

“In recent primary history, we have never nominated someone who has not won the popular vote.”

The popular vote in the Democratic primary is as meaningless as it is in the Presidential election itself. It does not determine the nominee; delegates do that. However, the appeal to majoritarian support is a powerful moral argument, which is presumably why Clinton is making it, and why it's doubly shameful that her claim is false, rests on disenfranchisement, and sacrifices commonly held agreed standards of veracity in favor of a nakedly self-interested argument.

There are few people more worth reading than Paul Krugman in the New York Times. It is an unalloyed public good to have a Progressive economist writing on the nation's senior Op-Ed page.

Unfortunately, Krugman occasionally also writes about politics. Now, that's in itself nothing bad. However, his political instincts are less sure than his economic analysis. Consider this:

It is, in a way, almost appropriate that the final days of the struggle for the Democratic nomination have been marked by yet another fake Clinton scandal — the latest in a long line that goes all the way back to Whitewater.

You can essentially stop reading at that point to think about a larger issue. True enough, Whitewater was never a real scandal; there was no wrongdoing, other perhaps than by journalists against the interests of the American people. Journalists that signally include those working for Krugman's employer, The New York Times, which broke the story, such as it was.

If we posit that a public statement can become the substance of scandal - something that seems true if you consider that George Bush is still being raked over the coals for giving a speech under a banner titled 'Mission Accomplished', in short, for words that he didn't even say - then Senator Clinton's recent remarks about her enduring campaign, Senator Obama, Bobby Kennedy, and the role that assassinations play in American political life qualify.

City Room notes a small blast, believed to come from an improvised explosive device, at the recruiting station in Times Square at 3:43 AM this morning.

(Image: © The Daily Gotham)

New York City police officers and firefighters cordoned off much of Times Square for more than two hours after a small explosion — set off, the authorities said, by an “improvised explosive device” — damaged the front of the Armed Forces Career Center on the traffic island bounded by 43rd and 44th Streets, Seventh Avenue and Broadway at 3:43 a.m., officials said. No one was injured, and after a temporary interruption, subway service was restored.

Most traffic around Times Square was allowed to pass by 6:45 a.m., after vehicles had been diverted for more than two hours. City officials confirmed that police had initially blocked off the area as a precaution to ensure that there was no secondary device or other threat; the officials emphasized that they did not believe anyone was in danger.

Police officers at the scene said the explosion blew a hole through the front door of the recruiting station, which is at the northern end of the structure.

Members of the Joint Terrorism Task Force, the large Police Department and F.B.I. unit that investigates terrorism, were at the scene of the blast, supporting the Police Department’s Bomb Squad, which along with other police detectives likely will take the lead role in investigating the incident, an F.B.I. official said. The official said that in today’s attack, a man in a gray hooded sweatshirt was seen leaving the scene on a bicycle.

What's interesting, obviously, is the blog reaction on the right; it's gleeful.

If you thought that Hillary Clinton's increasingly directionless campaign did not have some further reservoirs of self-immolating malice to draw upon, please disabuse yourself of the notion. The more things change, the more they stay the same.

Exhibit A: a new television spot being run in Texas in advance of that state's primary on March 4th. The conventional wisdom is that, simply, Team Hillary needs a clear victory to even stay in the race. So here's the spot, titled "Children":

To place that in context, here's one of the final ads from Team Bush in 2004, "Wolves":

How astonishingly depraved: after eight years of fear-mongering, a leading Democratic candidate embraces the Rovian playbook. They're not even being subtle about it.

Vote for me or your children die.

It was probably inevitable that a major Presidential candidate with an Arabic name would, sooner or later, be confronted with questions about the relationship between the United States and its closest Middle Eastern ally. Equally inevitably, after five years of war in an Arab country and seven after a terrorist attack carried out on this country by an Islamist terror network, that discussion will touch on America's fractured relationship with the Islamic world in general and our posture towards the Jewish state in particular.

A look back is in order. In 1820, New York State's Grand Island was proposed as the location of a new Jewish homeland, understood as a gathering place for Jews before aliyah to Zion became possible. Emma Lazarus, author of The New Colossus, was an agitator for proto-Zionist and proto-feminist ideas in New York's 19th Century Gilded Age. The connection between New York and the idea of Zionism is long and deep.

The United States was one of the first countries to recognize Israel itself, somewhat to the chagrin of the British Empire; and before Washington endorsed the fact of Israel's independence, there had been a bipartisan consensus of sympathy to the Zionist experiment.

President Wilson expressed his support for the Balfour Declaration when he stated on March 3, 1919:

The allied nations with the fullest concurrence of our government and people are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth.

After Wilson left office, his successors expressed similar support for the Zionist enterprise. "It is impossible for one who has studied at all the services of the Hebrew people to avoid the faith that they will one day be restored to their historic national home and there enter on a new and yet greater phase of their contribution to the advance of humanity," said President Warren Harding.

Calvin Coolidge expressed his "sympathy with the deep and intense longing which finds such fine expression in the Jewish National Homeland in Palestine."

"Palestine which, desolate for centuries, is now renewing its youth and vitality through enthusiasm, hard work, and self-sacrifice of the Jewish pioneers who toil there in a spirit of peace and social justice," observed Herbert Hoover.

Of course, Hoover's observation rested on one glaring error: that the Cis-Jordanian Imperial mandate of Palestine was terra nullius, an empty land awaiting settlement. The land was not empty, and the question of how to reconcile the legitimate claims of competing (and, one could argue, complementary) nationalisms has been contentious and unresolved ever since.

Following independence, the relationship between the United States and the new nation of Israel quickly cooled, responding to the patterns of alignment set in the developing Cold War. A major portion of the weaponry that secured the new state's independence came from Czechoslovakia prior to that country's complete absorption into the Soviet orbit. In 1956, President Eisenhower forced an Anglo-French-Israeli expedition force to retreat from the Suez Canal, recently seized by Egypt's Arab nationalist President Gamal Abdel Nasser. Further frost was added to the bilateral relationship by the conservative Eisenhower administration's distrust of Israel's nascent structure as a socialist economy characterized by strong labor unions, led by the labor coalition Histadrut, and a parallel internal economy of collectivist enterprises in the Kibbutzim. A rapprochement of sorts between the Labour government of Levi Eshkol and the Kennedy/Johnson administration was capped in the 1967 Six Day War, another Cold War proxy battle, when American arms shipments to Israel obviated comparable shipments to Arab combatant states by the Soviet Union and resulted in a stunning Israeli victory.

As a result of that victory, Israel became an occupying power over territories previously belonging, de facto or de iure, to Egypt, Syria and Jordan. It is the fate of these territories that ultimately will decide a resolution of the Arab-Israeli conflict.

In 2004, the Democratic Party platform embraced the concept of a two-state solution for the conflict between Israel and the Palestinians, following in the footsteps of the Clinton administration's developing Middle Eastern policy. The current republican administration embraced the idea of two states for two peoples some time into its first term as well. Despite the overall fraying of the post-war foreign policy consensus along partisan lines, therefore, it can be considered settled American policy that the legitimate national aspirations of both Israelis and Palestinians, to live in peace, security, within recognized borders as fully sovereign members of the international community, are an objective of the American national interest. Firmly embedded within that consensus is the assumption that America, due to the kinship between our domestic institutions and Weltanschauung with those of Israel as a Western democracy, will continue to support Israel's security and aid that country's defense.

Barack Obama stands equally firmly within this consensus. So why the controversy?

From the I don't know whether to laugh or cry file comes this item: the iconic Swedish band ABBA has rejected John McCain's request to use their opus 'Take a Chance on Me' as his campaign song.

Yes, you're absolutely right, that would be this song right here.

RedState slaps its crew-cut head, sniffs, scratches its crotch and declares

Is there anything less manly than this?

Candyass, he's a freaking war hero. The man was tortured by the Vietnamese. You write a blog. Notice the difference?

It's hard not to, at some level, feel sorry for McCain. The only reason he's using lyrics like...

Ba ba ba ba baa, ba ba ba ba baa
Honey I'm still free
Take a chance on me
Gonna do my very best, baby cant you see
Gotta put me to the test, take a chance on me
(take a chance, take a chance, take a chance on me)

...we need to talk. I'm worried about this campaign you're running.

Let's start with the basics: I've voted for you three times. The first time, in 2000, with absolute enthusiasm. The second and third times, in 2006, because you were so far superior to your primary and general election opponents that it really wasn't a contest. Sure, I was somewhat disappointed over your lack of desire to really speak out against the Bush administration, but hey, the Senate is a more collegial body than the House. Sure, your war vote was troubling, too, but I figured you'd come around sooner or later.

Now, however, you're doing things that fill me and many others with astonished dismay. Your chief strategist, Mark Penn, is talking about states that don't matter. Now, if there's one thing we've learned in the last seven years - and in the 2006 elections - it's that all states matter in a political contest you're trying to win. That's why we now have Democratic Senators in places like Montana and Virginia. This Fifty State Strategy stuff? It really works.

Alright, I'm amused. The publicity agents for Equinox, an upmarket chain of gyms, email over, breathlessly, as follows:

It's been politics, politics, and more politics lately (with a little NY Giants thrown in) [Ed. note: Yes, that's what we do], so I thought you and your readers might be interested in a very different type of NY event: Equinox's scandalous - almost pornographic - nuns ad is coming to the city this week for 3 days only.

Have you seen the controversial print yet? It features a group of sexy nuns sketching a nude male model in a figure drawing class, a la Michelangelo's David. Some people are in an uproar - I personally think the whole thing amusing (but hey, I'm a liberal New Yorker)

Now, speaking merely for myself, I'm a big believer in the idea that the world needs more sculpted, naked flesh adorning the public space. What's amusing to me is that what is obviously, transparently, a ploy to garner free media - and what better way is there to do that than mixing religion and sex? - has seemingly aroused the ire of the usual suspects.

Memo to Bill Donohue: The reason people run campaigns like this is precisely to cause the reaction you infallibly deliver.

Memo to advertisers: Want press? Hire some models, dress them in ecclesiastical garb and leave one of them naked - no nipples or genitalia, please, since you're not nearly daring enough to risk condemnation from the Four As. Proceed to write steamy press release congratulating yourself on being all edgy, daring and shit, while all the prudes - in New York City, sure, whatever - supposedly froth. Bingo, get press.