It's a Legal Matter, Baby

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I had the same reaction as most to Dennis Kucinich's anti-NBC lawsuit attempting to shoehorn himself into the Nevada debate, but I liked what Glenn Greenwald had to say about it.

The complaint (.pdf) filed by Kucinich is simple and straightforward. He alleges that he had a binding contract with MSNBC once they offered and he accepted the terms of his participation in the debate, and that MSNBC's refusal to allow him to participate constitutes a breach of that contract. He also alleges that his exclusion violates the mandates of Section 315 of the Communications Act, which requires broadcasters—who operate the public airways, i.e., airways which are public, not private, property—"to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of public importance."

Nobody can opine meaningfully on the propriety of the court decision here without first knowing about, and then analyzing and resolving, those legal claims. That's how the law, when properly applied, works. You don't get to pick which outcome you think is most desirable or "fairest" in some vague philosophical sense and then, based on those preferences, decide if the court correctly adjudicated the questions before it. A court adhering to the rule of law, by definition, applies the law and legal principles. Self-evidently, to know if the court acted properly, a basic knowledge of those laws and legal principles—at minimum—is first necessary.

The rest is too long to blockquote, because, uh, it's a Glenn Greenwald post. But his point is that conservatives who wanted to mock Kucinich attacked his lawsuit as frivolous without applying any sort of rigor or understanding of the law. In their defense, Kucinich likes to file frivolous lawsuits. He's being challenged in his congressional district by a couple of Democrats who want their congressman to behave more like a congressman, and one of them filmed himself looking for Dennis at a few of his Ohio offices—a campaign gambit that goes back at least to 1992, when Russ Feingold did it to his opponent. 

Cimperman entered Kucinich's office while a campaign worker taped him dropping off one of the posters at the front desk.

"I walked in, asked for Dennis, dropped off the poster and walked out, all in one big motion," Cimperman said. "I was polite and in there 20 seconds."

But Kucinich, who is seeking a seventh term to Congress while aggressively running for president, believed the incident violated the privacy of constituents visiting his office.

"The people must have some assurances that their government does not allow individuals to enter the premises and film them while they are seeking federal assistance," Kucinich's office wrote in a letter to the Federal Protective Service. An agency under the U.S. Department of Homeland Security, it has law enforcement jurisdiction over government offices.

That's the same DHS that Kucinich votes against funding.

As with the lawsuit that Clinton allies filed to break up Nevada caucus sites, Kucinich's suit against NBC was an electioneering stunt that failed. Most of these heat-of-the-moment legal barrages are.

Headline explained here.

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  1. MSNBC is a cable outlet, not using public airways. So Section 315 doesn’t apply. (IANAL, so I don’t know all the bullshit reinterpretations that could classify MSNBC as using public spectrum.)

  2. And even if MSNBC was using “public airways,” can anybody just walk into a debate and demand a podium? Buy the way, what was the consideration for NBC’s alleged promise to allow him into the debate?

  3. Okay guys…there was that contract thing as well and the breach thereof…middle of the second line of the blockquote. Try a little harder.

  4. MSNBC is a cable outlet, not using public airways. So Section 315 doesn’t apply.

    Supposedly, NBC was going to allow its affiliates in Las Vegas and Reno to carry the debate, but reversed itself, lest it open itself to a claim based on 315.

    http://www.tvweek.com/news/2008/01/contested_debate_turns_into_ma.php

  5. I agree. I think that he has a totally legitimate case (albeit without knowing the details of such) for breach of contract. However, he’s sullied that case with this outrageous claim of the public airwaves bullshit. This is why I hate liberals. When he could form a rational argument in his defense, the guy has to insinuate his ideology. As someone with some provisional law experience, this is something that only hurts his case. If he’d left the suit as a simple breach of contract, it would look less like the typical activist publicity stunt.

  6. Supposedly, NBC was going to allow its affiliates in Las Vegas and Reno to carry the debate, but reversed itself, lest it open itself to a claim based on 315.

    Thus providing a wonderful illustration of how government mandates often achieve the opposite of what is supposedly intended.

  7. I’m surprised no one has hinted at the parallels to Michael Moore.

  8. a campaign gambit that goes back at least to 1992, when Russ Feingold did it to his opponent.

    I moved to Wisconsin in 1992. All I remember is his “I know Wisconsin like the back of my hand” commercials. They helped me learn some geography.

  9. “The people must have some assurances that their government does not allow individuals to enter the premises and film them while they are seeking federal assistance,” Kucinich’s office wrote in a letter to the Federal Protective Service. An agency under the U.S. Department of Homeland Security, it has law enforcement jurisdiction over government offices.

    Right on! Filming people is the government’s job.

    Pot>>Kettle>>Black

  10. This wasn’t particularly helpful.

    Is it correct that you wouldn’t need a release for Kucinich (public figure), maybe / maybe not need a release for people working in his campaign office, but you definitely would need a signed release for all the random citizens in his office?

    If that is true wouldn’t Kucinich have no standing and one of the random citizens would need to file?

  11. one of them filmed himself looking for Dennis at a few of his Ohio offices-a campaign gambit that goes back at least to 1992

    Were you born in 91 David? Because it goes back at least as far as 90 when Paul Wellstone made national headlines running a shoestring campaign with that tactic. Google “looking for Rudy”

  12. “robc | January 18, 2008, 2:09pm | #

    a campaign gambit that goes back at least to 1992, when Russ Feingold did it to his opponent.

    I moved to Wisconsin in 1992. All I remember is his “I know Wisconsin like the back of my hand” commercials. They helped me learn some geography.”

    The ad in question is “Home Movies”, and is still on-line on Feingold’s campaign website here:

    http://www.russfeingold.org/multimedia.php

    The ad you are referring to is a 1998 ad, and is also there.

    I must say I am a great fan of Feingold, and consider him to be one of the best at campaigning out of all active politicians. Check out the other ads at that link and you’ll see what I mean.

  13. IANAL, but I watched The Paper Chase, and Mr. Hart said that “for there to be a contract, there has to be consideration.”

    If that is so, isn’t “free media” actually a campaign contribution, and haven’t the cablenets and the broadcasters violated the campaign finance laws?

    An actual lawyer could blow holes in this argument, I’m sure.

    Kevin

  14. I for one am looking forward to a debate that includes only the front-running candidates. They are front-runners for a reason!

    They paid their dues over many years by working closely with Corporate America. They more closely embody what corporate america is looking for, which is why they basically agree on everything. They will fight for the companies that have invested time and resources in them, including the war effort.

    Kucinich hasn’t been invited to the party and shouldn’t force himself on anyone. That peace-loving, environmentally friendly, civil rights freak who talks about protecting people’s rights and privacy should crawl back to wherever he came from.

    His message isn’t welcomed by America and I’m glad companies now control enough of the media to put a stop to him.

  15. In a vague philosophical sense, this case demonstrates one reason that media consolidation is so bad.

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