Patterico's Pontifications

10/1/2003

BREAKING B.S. — I MEAN NEWS

Filed under: California Recall Election,Dog Trainer — Patterico @ 10:35 pm

Nothing will get me on the pro-Arnold bandwagon faster than the Los Angeles Dog Trainer (aka Los Angeles Times) coming out with its incredibly predictable hit piece on Arnold. (A tip of the hat tip to fresh potatoes for breaking the news of this smear job.)

This pathetic rag of a newspaper does this every election. As a regular reader of this site informed me just today, they slammed Bruce Herschensohn with a last-minute hit piece having to do with his visit to a strip club. They hit Michael Huffington with a late-breaking story about his illegal nanny. They were quick to trumpet the last-minute Bush DUI story. George Will (predicting a last-minute smear job on Arnold) reminds us that Darrell Issa took a “late hit” regarding his military record. And now this — a story the paper has been developing for seven weeks, and releases now.

How predictable is this? Well, Mickey Kaus predicted it, right down to predicting the exact day they’d release the story for maximum effect:

Tomorrow would be about the logical last day for the Los Angeles Times to drop its bomb on Arnold Schwarzenegger. If editor John Carroll waits any longer it will look like a late hit designed to stampede the electorate.

That was posted today; the story will appear in the print editions tomorrow.

P.S.: When I call this story a “smear job” or “hit piece” or “B.S.” I am not saying that the allegations of the women in the piece aren’t true. How could I possibly know? In fact, the allegations sound fairly credible, and this behavior is pretty consistent with what we have all heard about this guy.

What I am saying is that I think it’s absolutely indefensible for the folks at the Dog Trainer to sit on this story as long as they did. The timing is especially suspect because the allegations are not really new, but rather a repetition and elaboration of a March 2001 article from Premiere Magazine called “Arnold the Barbarian.”

The motives of the Dog Trainer editors are crystal clear — after all, they have consistently editorialized against the recall, and the news side has a regular piece called Recall Madness. The paper’s recent decision to portray the election as a two-man race between Davis and Arnold can be fully understood only once you also understand that the editors have been sitting on this stink bomb for weeks, waiting for just the right time to release it.

UPDATE: The Times staff writer who pens the “Recall Madness” pieces, Roy Rivenburg, writes to correct me on a couple of points. He says that he writes for the features side of the paper, not the news side. Fair enough. I meant to distinguish between the paper’s editorials, which are supposed to represent opinion, and the rest of the paper.

He also says that he believes that his column is not an example of pro-Davis or anti-recall bias. I actually think this is a fair statement — but I don’t think it addresses my point. I did not mean to argue that the content of his column is the problem. Rather, my point is that the very act of running a light features column with this title seems to indicate an editorial decision to trivialize the recall effort. (This is a quibble with the editors, not with Mr. Rivenburg.)

Even this, standing alone, would not be so objectionable — there is an undeniable circus aspect to this process. My comments above address the Dog Trainer‘s actions in their totality. It’s the editorials; the last-minute Arnold smear job; the refusal to run a comparable story about Davis’s abuse of women; the insistence that the sources for the Arnold hit piece were unconnected with the Davis campaign, but the inevitable refusal to tell us who they are; the ridiculous references to Davis’s “calm demeanor” when they know better — and so on, and so on, and so on. Very telling, in my opinion, is the Dog Trainer editors’ recent decision to emphasize the view of the recall election as a two-man race between Arnold and Gray — all the while knowing that they were sitting on a big Arnold stinkbomb. That undeniably has the feel of a “set ’em up and knock ’em down” strategy.

I would be thrilled to hear from Mr. Rivenburg or any other Times writers as to how they feel about the paper’s timing on this story, in light of the above factors I have mentioned. I would especially love to hear from anyone with any insight on the paper’s refusal to run the Gray Davis story that Jill Stewart has been pushing since 1997. Anonymity will be guaranteed if requested — if unidentified sources don’t bother the Times, why should they bother me? If anyone from the paper has anything to offer on this issue, you know what to do — click on the “E-mail me” link to the left.

SEARCH YOUR SOUL WITH THIS

Filed under: General — Patterico @ 9:09 pm

SEARCH YOUR SOUL WITH THIS INTRIGUING QUESTION: RobbL at Infinite Monkeys has this thought-provoking post which asks a good question:

If everything about this campaign were the same – Arnold’s positions, his associations, etc. – but he were running as a Democrat or an Independent, would you even CONSIDER voting for him? If the answer is ‘no’, then why vote for him now? He’s not a conservative, so this isn’t about conservatives winning – it’s about REPUBLICANS winning, and when you start voting for a party regardless of what the party stands for, you’ve stopped thinking.

I know that, for many of you, the answer is “yes” — because Arnold is at least portraying himself as a fiscal conservative. But so does Howard Dean. Another similarity: Howard Dean and Arnold are both embarrassed by the Clinton impeachment. I think RobbL may be on to something here. It’s worth thinking about.

I’d love to hear from the Arnold supporters. If you would like to let me know your thoughts, you can e-mail me at the link to the left.

FIRST FEEDBACK: The Irish Lass wins the “First Feedback” award, writing to say: “If Arnold were running as a dem or indy I would not vote for him. If McC were running as a reform or american independent, I would hope that you would not vote for him. I believe identifying yourself as a member of our party is extremely important.”

Thanks for the feedback! Unfortunately, I must disagree. Tom could be running under the banner of any party on Earth, and my assessment of him and his positions would be the same. Of course, it is impossible to imagine him running as a Democrat, while it is possible to imagine Arnold running as a fiscally conservative Democrat.

In any event, I appreciate the comment. If you don’t know about the Irish Lass, she is a new Bear Flag member (as am I) and an official and active Arnold Supporter (which I am not). Everyone, and especially Arnold Supporters, should check out her blog — and then send me your own feedback! (Warn me if you don’t want it published!)

MORE FEEDBACK: From a regular reader who (I suspect) does not wish to be identified, but does not ask not to be quoted. So here is his e-mail in its entirety, lightly edited for clarity and anonymity:

Patterico, has Arianna Huffington gotten to you? You make about as much sense as she does. The point about the Clinton embarrassment is silly. Who cares? Arnold Schwarzenegger’s disgust or lack thereof about Clinton really has very little to do with his ability to govern this state. Once again, you are guilty of the cardinal failing of California Republicans: you’re trying to subject Arnold to a series of purity tests, somehow arguing that only a pure Republican–by your standards, no less–is one worth voting for. I consider that a bad approach.

More pernicious is that hideous “if Arnold were running as a Democrat, none of us would be voting for him” canard. That may be true or untrue. We have no way of knowing. Much would depend on his competition. As it stands, it’s another inapposite hypothetical, since he is running as a Republican. The point you and that lackey you cite are making is that Arnold is not a “real” Republican. And there I have got to vehemently disagree. There are many ways to be a Republican, not just the morally uptight, anti-choice way that people like you favor.

The larger point is: why you are devoting so much space and time to attacking Arnold — and worse, his supporters — in the first place? You’re continually posting bromides as if we are somehow stupid, foolish and worse, “stopped thinking.” That’s just plain stupid. Many of us are Republicans, and not Patterico-conservatives. I don’t agree with you on many social issues. Maybe that’s why I like Arnold, not just because I want to win. But speaking of winning, it would be good for the state, the party, and the country if the Democrats did not have a Soviet-style hold on this state. To me putting a Republican in the state house will lead to some limits over the free-spending, special-interest dependent, trial-lawyer-loving and business-hating Democrats. And I’ll take that.

You seem obsessed with Arnold. How about moving on to some more fruitful topics?

Wow. A lot there to address.

Well, first, don’t get me wrong. I have said again and again that I do not hold the Arnold Supporters in contempt, just as I would hope that the reverse is true.

The reference to Clinton was mainly a response to Hewitt’s (in my opinion) ridiculous comment. I will admit, however, that I become rather irrational whenever I hear someone pontificating about how awful it supposedly was to impeach Clinton. Sure, it has little to do with being Governor of California. But I find it a little embarrassing and annoying. Nothing more. I don’t say only a pure Republican is worth voting for — I would vote for Arnold if necessary, as I have said.

I am not saying that Arnold Supporters have stopped thinking, and neither did the guy I quote. He said that “when you start voting for a party regardless of what the party stands for, you’ve stopped thinking.” Stated in the abstract, that statement is impossible to disagree with. As to whether that is the case here, I make no such accusations — I merely ask the question. And, Gentle Anonymous Reader, you didn’t answer it! And I really would be interested in your answer.

One last question: “Anti-choice”?? Please tell me this is not an official Arnold phrase.

THE LACKEY RESPONDS: The “lackey” is RobbL at Infinite Monkeys, who thanks me for my defense of him. I appreciate the link. Check out his site.

HUGH HEWITT GOES OFF THE

Filed under: General — Patterico @ 8:43 pm

HUGH HEWITT GOES OFF THE DEEP END: I like Hugh Hewitt. But I was annoyed at him on Tuesday after he cited the USA Today poll as support for the assertion that, by staying in the race, McClintock will have “denied Arnold a pure majority which would be extremely useful in demanding change from the legislature.” Hewitt went on to say that McClintock’s campaign was “always hopeless and now revealed as such.”

I wrote Hewitt an e-mail and told him that he “should take a closer look at the actual poll results, rather than the spin that the media is putting on them.” After all, I had already pointed out on Monday that McClintock was doing as well as Arnold in a 2-way race against Mr. N-Word Cruz Bustamante. Still, I figured Hewitt wasn’t saying anything too different from what others were saying.

But now Hewitt has gone off the deep end. He has an article here, the thesis of which is that a vote for Tom is a vote for any number of liberal people and organizations. Hewitt leads this analysis with the following absurd statement: “A vote for Tom is a vote for Bill Clinton.” (Emphasis mine.)

Joe Armendariz has done a nice job of explaining the absurdity of this statement at the website CaliforniaRepublic.org, in a post filed this morning at 10:15 a.m. (I give the time because there are no permalinks to individual posts.) The following is my favorite part of Armendariz’s critique (again, the emphasis is mine):

Need I remind Hewitt of Arnold’s embarrassment at being a Republican during the Clinton impeachment? In fact, a few days ago, Sean Hannity asked Arnold to clarify those feelings and once again Arnold gave Clinton a pass by refusing to say what the former President did was wrong, let alone illegal.

I have never heard Tom McClintock say one word about President Clinton’s lying under oath or obstruction of justice, but I have a pretty dang good idea where he stands. Say what you like about voting for Tom McClintock, but to call it voting for Bill Clinton is beyond the pale.

I agree with one of Armendariz’s final comments: “I will continue admiring Hugh Hewitt, because he is a fine man and has a keen intellect. But, I must confess that I am offended by his characterization of what a vote for Tom McClintock represents.”

P.S.: You folks out there who are so ga-ga over Arnold, can you at least admit that you are embarrassed by his position on Clinton?

MR. N-WORD FEELING THE PRESSURE:

Filed under: General — Patterico @ 8:01 pm

MR. N-WORD FEELING THE PRESSURE: The Interocitor reports here and here regarding the pressure that Mr. N-Word Cruz Bustamante is under to drop out.

I predict he won’t, but you never know.

UH-OH: Arianna has dropped out.

Filed under: General — Patterico @ 7:40 am

UH-OH: Arianna has dropped out. As a result, her almost .5% may swing to Mr. N-Word Cruz Bustamante. Arnold must be quaking in his proverbial boots.

LET ME EXPLAIN IT TO

Filed under: General — Patterico @ 6:46 am

LET ME EXPLAIN IT TO YOU VER-Y SLOW-LY . . . IT’S A LITTLE THING CALLED KEEPING YOUR PROMISES: Carol Platt Liebau at CaliforniaRepublic.org passes along a very revealing tidbit from a friend of hers who was at the California Republican Party’s Board of Directors meeting. Liebau says: “Apparently, the consensus of the directors is that not only can Senator McClintock not win — he KNOWS he can’t win and is staying in the race for reasons no one can fully understand.”

McClintock could not be clearer as to why he’s staying in: he promised to. It’s a matter of principle. Apparently that is something California Republicans cannot fully understand.

CRITIQUE OF “DO NOT CALL”

Filed under: General — Patterico @ 6:43 am

CRITIQUE OF “DO NOT CALL” DECISION: As promised, here is my critique of the decision of the U.S. District Court in the Do Not Call list case. As I suspected before I read it, I do not agree with it. Why do I say this? There is a short answer and a long answer. The next three paragraphs are the short answer.

THE SHORT ANSWER: There are several reasons to distinguish the facts in the Do Not Call decision from the authority it cites: 1) telephone calls invade people’s homes, 2) the Do Not Call list is an opt-in provision; and 3) the Do Not Call list goes a long way towards accomplishing the government’s objective. The Do Not Call decision, in my opinion, gives too little emphasis to these factors.

However, the decision is not as outrageous as it has been portrayed. As with the Pledge of Allegiance decision, people unfamiliar with the relevant precedents (and unwilling to educate themselves) are promoting a cartoonish view of a lower court decision, when in fact the fault lies largely in the governing Supreme Court precedent, rather than the lower court’s application of that precedent.

Most people are frustrated because they think: surely the government must be able to do something. And I think it can. If the lower court’s view of precedent is upheld (and it could be), the government need only give us the option to ban noncommercial calls too (a suggestion I first saw here).

THE LONG ANSWER: What follows is a more detailed analysis of the meat of the decision. It’s not a law review article, but it’s pretty detailed for a blog post. If you don’t care about the details, you can skip the rest of the post. (Warning: law-intensive post follows. Legal jargon may ensue. I will do my best to put things in plain language, but keep in mind that I am explicating court decisions that are themselves less than clear.)

In essence, the Do Not Call decision says that the FTC cannot prohibit calls from commercial solicitors, while allowing calls from non-commercial solicitors, such as charitable organizations and political candidates and parties. The decision relies heavily on a U.S. Supreme Court decision called City of Cincinnati v. Discovery Network (91-1200), 507 U.S. 410 (1993).

However, the court missed some basic distinctions between the Do Not Call list and the facts in Discovery Network. If you want to understand the distinctions, you have to understand what happened in Discovery Network.

In that case, the City of Cincinnati outlawed purely commercial newsracks, in order to beautify the city. The Supreme Court held that it was impermissible for the city to target only commercial newsracks. The city was required to show that there existed

a “reasonable fit” between the city’s legitimate interests in safety and esthetics, and its choice of a limited and selective prohibition of newsracks as the means chosen to serve those interests.

The High Court found that the city had failed to show this reasonable fit, noting that the ordinance outlawed only about 62 newsracks, while 1500-2000 were allowed to remain. Cincinnati’s ordinance thus removed only about 3% of the offending newsracks — a percentage the court called “paltry.”

The decision in Discovery Network was (badly) written by Justice Stevens. Language in Discovery Network could be read to suggest that, if the interests asserted by the government are unrelated to the distinction between commercial and noncommercial speech, that fact alone is enough to strike down the law in question. In other words, you can’t pick on commercial speech just because it’s an easier target.

However, I don’t think it’s that simple. The Court emphasized again and again that Cincinnati was banning only a paltry number of newsracks. For example, in one statement of its holding, the Court stated that the city had presented an “insufficient justification for the discrimination against respondents’ use of newsracks that are no more harmful than the permitted newsracks, and have only a minimal impact on the overall number of newsracks on the city’s sidewalks.” Basically, the Court was saying: you say you want to beautify the city, but come on! You’re hardly doing anything!

Perhaps because the ruling was rather opaque, and its underlying principles so unclear, the Supreme Court limited the holding to its facts, saying:

Our holding, however, is narrow. As should be clear from the above discussion, we do not reach the question whether, given certain facts and under certain circumstances, a community might be able to justify differential treatment of commercial and noncommercial newsracks. We simply hold that on this record Cincinnati has failed to make such a showing.

(Side note: if the last sentence sounds eerily familiar, it is because it anticipates similar and oft-criticized language in Bush v. Gore. Limiting a case’s holding to the facts at hand did not originate with Bush v. Gore, regardless of what Democrat partisans tell you.)

Discovery Network practically invites lower courts to distinguish it. As I state early in this post, the judge in the Do Not Call case could easily have distinguished the Supreme Court case in several meaningful ways, but does not.

For example, telephone calls are invasive of people’s privacy in the home. This fact is acknowledged early in the opinion. But it is never offered as a possible basis for distinguishing Discovery Network. The same goes for the fact that people choose whether to sign up for the list. The government’s involvement is nothing more than the enforcement of the will of 50 million people who don’t want these calls invading their privacy. The District Court notes this fact, but does not use it to distinguish Discovery Network. Finally — and I think this is important — the regulation against commercial telephone solicitation would prevent 40-60 percent of unwanted calls — far more than the 3% reduction in newsracks in Discovery Network.

These are not meaningless distinctions, unless you read Discovery Network as saying that government can never favor noncommmercial speech over commercial speech for purposes of passing constitutional muster. I don’t read the case that broadly. I think such distinctions can be made if doing so would allow government to significantly advance its interest in protecting privacy interests in the home, and only in situations where this protection has been requested by the homeowner.

In essence, the Do Not Call trial judge paid too much deference to a decision that issued a very limited holding. I believe that the list will ultimately be upheld, because it is different in the ways I have described. The 10th Circuit’s reversal of the stay is evidence that the Court of Appeals agrees with the position I have articulated: that the Do Not Call list is constitutional. But if the list is overrruled, we can still get there (as I mention above), by banning noncommercial calls, too.

One day, Judge Nottingham, who apparently wants his calls blocked too, will get his wish along with the rest of us.


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