Burke's Importance Today

Jesse Norman, a British Member of Parliament, has written an exciting new book about why Burke is important today. I reviewed Norman's book for the American Conservative. You can access my review here.

Realistic Fantasy And Existential Dread

Q. Why doesn’t George R.R. Martin use Twitter?

A. Because he killed off all 140 characters.

Reading this excellent piece (from which I've copped the joke) by David Gibson, who writes about religion, got me thinking about my experience reading the first four books of Martin’s A Song of Ice and Fire multi-volume epic – the one that begins with the novel Game of Thrones.

I enjoyed these books, to be sure. I enjoyed them very much in fact. If not, I wouldn’t have persevered through their four-thousand pages. Martin is an accomplished storyteller. He’s good a complex character development. None of his characters are entirely good or bad – though a few may be 97 percent bad – and as you learn more about characters whom you initially despised, you sometimes find yourself empathizing with them. And Martin excels at Machiavellian political plotting, which is what I enjoyed most.

Yet, for me, something was missing. I failed to fall in love with his world of Westeros as much as fell in love with J.R.R.Tolkien’s Middle Earth or J.K. Rawlings’ magical dimension. (What’s with the similar initials, by the way? Are Martin’s middle initials homage to Tolkien? But I digress.)

Despite carefully doled doses of magic, Martin’s world is brutally realistic. It’s not a righteous war between good and bad; it’s a raw struggle for power. There are characters to admire and characters to like, but I failed to fall head-over-heels in love with any of them. Indeed, Martin teaches you early not to do that; his characters are all too mortal, and if do fall in love you will suffer if that character drowns in his own blood. In addition, the complexity and structure of Martin’s storytelling – a very large cast of characters who rotate in and out of the narrative – can make love frustrating. It’s difficult to desperately keep turning the pages when a character you love is in peril when Martin periodically leaves that character for stretches that may run a hundred pages or so.

What we loved so much about Gandalf and Dumbledore was, in part, their commitment to good. We emotionally stood with them and other characters in their apocalyptic struggle against evil. Martin’s characters are more realistic.

But do I really want a realistic fantasy?

The answer, I’m afraid, is no. I am enough of an existentialist to desperately want to give my life a noble purpose – to believe that I have enlisted, in my small way, in the forces fighting for the good. Tolkien and Rawlings’ novels support that world view. I tell myself they are metaphors for our own world, in which there is truth, and good, and meaning – not as clear or pure as in the fantasy world, of course, but real nonetheless. When I make a sacrifice to do the right thing (as I see it), I want to believe that sacrifice had a genuine purpose. Martin kept telling me that I’m deluding myself. The world is a dog-eat-dog struggle for power and limited resources, and nothing more.

David Gibson’s piece made me realize that Martin’s world is soulless. When it comes to fantasy, I prefer soul to realism.

I don’t mean to be too hard on Martin. He knows how to tell a tale, and I did enjoy his books. But if I learn that the final volumes in A Song of Ice and Fire tend, just a bit, to the view that all of the tears and blood have not been for naught – that good does exist, that love can prevail – then I'm more likely to finish the series.

Maybe I am deluding myself. But I’d appreciate a little help.

Notes on a Scandal-2 (AP)

Here’s a concise legal briefing that may be helpful to understanding the so-called Associated Press scandal.

Do journalists have a constitutional privilege that protects them from criminal investigations seeking to learn the identity of sources? The Supreme Court has said no. It made that decision in the case of Branzburg v Hayes, 408 U.S. 665 (1972). Writing for the Court, Justice Byron White said:

“[W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. …The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.”

Among other things, the Court was concerned about determining who members of the press are. A journalist’s privilege is far more troublesome to apply than, say, the attorney-client privilege or doctor-patient privilege, because it’s easier to identify a lawyer or doctor than a journalist. “Sooner or later,” wrote the Court, “it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Obviously, the internet has complicated this even further.

The Court certainly did not write freedom of the press out of the First Amendment. “We do not question,” it wrote, “the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.” But the Court suggested that the normal principles and procedures that apply to all citizens – with courts being sensitive to the First and Fifth Amendment concerns – were adequate to protect the press from improper investigations. The Court noted that the press can challenge subpoenas or grand jury inquiries that are not undertaken in good faith or serve legitimate objectives of law enforcement.

In a concurring opinion, Justice Powell wrote: “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. …The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Some lower courts and scholars have read the majority opinion, together with Powell’s concurrence, as implicitly recognizing some kind of journalist’s privilege – perhaps a conditional common law privilege as opposed to a constitutional privilege – but most courts read Branzburg as rejecting a journalist’s privilege of any kind. Frankly, despite ambiguities and my own preferences, that’s how I read the Court’s opinion.

The most fascinating aspect of Branzburg is this: A dissent by Justice Potter Stewart, and joined by Justices William J. Brennan and Thurgood Marshall, has been more influential than the opinion of the Court itself.

Stewart thought that journalists should enjoy a conditional privilege that must be balanced against the legitimate need of the government to investigate and prosecute crimes. Stewart said the balancing should work as follows:

“[W]hen an investigation impinges on First Amendment rights, the government must not only show that the inquiry is of ‘compelling and overriding importance’ but it must also ‘convincingly’ demonstrate that the investigation is ‘substantially related’ to the information sought.

“Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. They must demonstrate that it is reasonable to think the witness in question has that information. And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties.”

Forty states and the District of Columbia have enacted shield laws along the lines advocated by Justice Stewart. So throughout most of the country, state prosecutors must follow Stewart’s prescriptions.

Congress, however, has never enacted a federal shield law protecting journalists. Nonetheless, the Department of Justice has adopted formal regulations (28 C.F.R. §50.10) and internal guidelines (USAM 9-13.400) for subpoenaing the news media, which are also along the lines of Stewarts’s dissenting opinion. Although those regulations are designed to create departmental policy and not create rights, federal agencies are – as a matter of administrative law – required to follow their own regulations.

DOJ’s regulations state that “the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.” Its guidelines related to subpoenaing telephone toll records – which is what occurred in the AP case – read in pertinent part:

“…Department attorneys should take all reasonable steps to attempt to obtain the information through alternative sources or means. In addition, Department attorneys contemplating issuing a subpoena to a member of the news media must first attempt negotiations with the media aimed at accommodating the interests of the trial or grand jury with the interests of the media. Negotiations with the affected media member must also precede any request to subpoena the telephone toll records of any member of the news media, so long as the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the investigation at issue.” emphasis added).

It is, of course, preferred that the government give prior notice so that the subject of the subpoena can obtain court review before the government obtains the information. But if no prior notice was given because the assistant attorney determined that prior notice would substantially threaten the investigation. In that circumstance, DOJ is then required to give notice within 45 days of obtaining the subpoena. That’s what happened here.

AP is incensed that its telephone toll records were obtained without prior notice. (These are records of who called whom, when, and how long the call lasted.) The Reporters Committee for Freedom of the Press has written a letter contending that DOJ did not comply with its regulations, and arguing the episode demonstrates that Congress needs to enact a strong shield law. Attorney General Eric Holder says the Justice Department was investigating “a very, very serious leak” that “put the American people at risk, and Deputy Attorney General James Cole has written a letter claiming DOJ followed its regulations.

If it believes it can do so successfully, AP will now presumably challenge the subpoena in court. In that event, DOJ will have to show that it complied with its own regulations. Meanwhile, other DOJ subpoenas seeking to discover a journalist’s sources are coming to light. (More about that here.) Because both AP and these other matters involve criminal investigations, DOJ is constrained from defending itself in the court of public opinion. Thus, it’s in the courts of law where this will have to be resolved.

image of edmund burkeEDMUND BURKE


Edmund Burke -- the great eighteenth century British statesman -- was both a liberal and a conservative.  For a relatively concise but complete profile of Burke, and an explanation of why by today's standards Burke may be considered either a liberal or a traditional conservative -- but emphatically not a libertarian, neoconservative, or social conservative -- read Professor Bogus' article Rescuing Burke, 72 Missouri Law Review 387 (2007).

Here are some quotes from Edmund Burke:

"We must all obey the great law of change.  It is the most powerful law of nature, and the means perhaps of its conservation."

"Society become a partnership not only between those who are living, but between those who are dead, and those who are to be born."

"The individual is foolish; the multitude, for the moment is foolish, when they act without deliberation; but the species is wise, and, when time is given to it, as a species it always acts right."

"Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he a right to all which society, with all its combinations and skill and force, can do in his favor.  In this partnership all men have equal rights; but not to equal things."


EDMUND is a blog by Professor Carl T. Bogus.


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