The Supreme Court will soon hear Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporations an unprecedented religious exemption from the Affordable Care Act's "contraception mandate," which requires all health insurance to cover preventive services like birth control without co-pays. A wide spectrum of scholars and experts have filed amicus briefs explaining that a ruling in favor of the corporate plaintiffs would not only rewrite First Amendment law, but also undermine decades of anti-discrimination and reproductive rights precedent.
Fox News continued its attacks on Debo Adegbile, President Obama's pick to head the Civil Rights Division of the Department of Justice, and seemingly conflated the advocacy efforts of a different civil rights attorney with Adegbile's legal work as proof of his supposedly "radical" past.
On March 5, all Senate Republicans and a handful of Democrats voted to block Adegbile's nomination following a smear campaign against Adegbile's sterling legal record by leveling racially-charged attacks and linking him to the crimes of his former client, Mumia Abu-Jamal. As a top official at the NAACP's Legal Defense Fund (LDF), Adegbile and a team of lawyers were successful in overturning Abu-Jamal's death sentence due to constitutional error. Because of the unconstitutional sentencing, Abu-Jamal's punishment was ultimately commuted to a life sentence after prosecutors elected not to pursue the death penalty for a second time.
After the failed Senate confirmation vote, Fox News continued its debunked attack that Adegbile was a "cop killer's coddler" for representing Abu-Jamal. The network then introduced a new argument that Adegbile's criminal defense work was politicized and that he "crusaded" for Abu-Jamal, "revealing a bitter bias." Referencing "critics," and Fox contributor Jonah Goldberg, Bret Baier claimed that Adegbile "went beyond the legal work and it was more about political rallies and leading rallies for Mumia and kind of became more political in his support for this character." Fox News contributor J. Christian Adams went even further:
[Adegbile] was not nominated in spite of his defense of Mumia Abu-Jamal, he was nominated because of it. Because these folks think that Mumia was innocent. It is not just a question of giving somebody their day in court. Adegbile took on the wider cause, claiming America was unjust towards people of color. It was because of this rancid racial attitude that President Obama appointed him in the first place and that is why he is mad.
The Wall Street Journal trotted out well-worn myths, many provided by the conservative lobbying group the U.S. Chamber of Commerce, to complain about the latest attack on class action lawsuits currently in front of the Supreme Court.
On March 5, the Supreme Court heard oral arguments in Halliburton v. Erica P. John Fund, a case that could make it more difficult for a class of shareholder plaintiffs to file lawsuits against corporations who commit fraud. At issue in this case is the "fraud on the market" theory, which was established by the Court in a 1988 case called Basic v. Levinson. The fraud on the market theory unremarkably assumes that a company's stock price reflects the information publicly available about that company -- including any false statements made by the CEO or other corporate officer. The fraud on the market theory allows plaintiffs to form a class action and sue based on that fraud, which have artificially inflated the stock price.
The WSJ, for its part, would like the Court to overturn Basic and get rid of this highly effective method of protecting everyday Americans from corporate fraud.
In a March 6 editorial, the paper essentially repeated all of the Chamber's talking points it presented at its February 28 event dedicated to the Halliburton lawsuit, including the idea that the only beneficiaries of securities litigation are plaintiffs lawyers, and that these class actions unfairly punish shareholders.
Fox News treated itself to a victory lap after several Senate Democrats joined with the Republican conference and blocked the nomination of civil rights litigator Debo Adegbile, President Obama's highly-qualified pick to head the Civil Rights Division of the Department of Justice (DOJ).
On March 5, the Senate procedural vote that would have allowed a confirmation vote on Adegbile's nomination failed, after right-wing media spent months lying about his background with racially charged attacks, even publishing an offensive caricature of Adegbile that was condemned by the nation's leading civil rights groups for invoking "the racist iconography of late 19th century America designed to dehumanize and stereotype African Americans." Outlets like Fox News continued to distort Adegbile's record in the run-up to the vote despite these denouncements, and despite the fact that Adegbile is a mainstream nominee who is regarded as one of the preeminent civil rights experts of his generation by a wide spectrum of authorities, including law enforcement executives and the American Bar Association.
After the vote, Fox host Bret Baier was quick to suggest that Senate Democrats who voted in favor of Adegbile could pay a penalty in the upcoming midterm elections. Baier went on to spread further misinformation about the nominee, falsely insinuating that he was part of an effort to overturn a murderer's conviction:
James O'Keefe, a right-wing performance artist known for his undercover videos that supposedly "expose" progressive "fraud," has released a new video falsely accusing conservative Rep. Jim Sensenbrenner (R-WI) of "excluding whites" from protection under his new Voting Rights Amendment Act (VRAA), a distortion of this bipartisan bill that has already been repeated in the National Review Online.
O'Keefe's new video shows him mysteriously dressed in camouflage, dancing to New Order's "Round and Round," and ultimately "confronting" Sensenbrenner at a town hall meeting about supposedly alarming anti-white language in the VRAA. Sensenbrenner, as he has in the past, began working on both sides of the aisle on this new VRA legislation last year, after the Supreme Court gutted crucial voter suppression protections in Shelby County v. Holder.
In the video, O'Keefe lectures Sensenbrenner on his own bill, claiming that "[i]n the legislation, it seems to contain language that explicitly removes white people from the protections of the Voting Rights Act." Sensenbrenner interrupts O'Keefe to correctly point out that the law "does not do that. There is nothing targeting people by race in the Voting Rights Act." O'Keefe eventually accuses Sensenbrenner of "doing the work of [U.S. Attorney General] Eric Holder and the race-hustlers with this language in the bill."
From the moment Debo Adegbile was nominated to the most recent smear in the Washington Examiner, right-wing media have made clear that their objection to President Obama's pick to head the Civil Rights Division of the Department of Justice (DOJ) is that he is one of the preeminent civil rights attorneys of his generation.
Paradoxical? Only if you believe in civil rights precedent and the idea that civil rights experts should be the ones bringing civil rights cases.
Right-wing media, apparently, believe in none of that.
Byron York's attempt in the Examiner to tenuously link Adegbile with guidance from the Equal Employment Opportunity Commission was just another example of right-wing media's concern that Adegbile might do his job a little too well. Resorting to invoking right-wing media's favorite civil rights bogeyman of the long-established legal doctrine for establishing impermissible racial discrimination from unjustified racial effects, York accused Adegbile of "embrac[ing]" the EEOC's "crazy" use of disparate impact precedent. From the March 3 column:
It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past -- well, that can put a quick end to the application process.
But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory.
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they'll be in trouble if they don't hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer's decision -- not the Obama administration's.
At the moment, EEOC "guidance" does not have the force of law, no matter the threats from top EEOC officials. That's where Debo Adegbile comes in. When he was with the NAACP, Adegbile praised the commission's guidelines. Now, if he becomes the assistant attorney general for civil rights, he will have the power to pursue the same or similar policies.
In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, "take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees." Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. "If employers do perform background checks, the EEOC has released guidance on the subject," he told Grassley.
But York is stretching in this failed attempt to land a new hit on Adegbile.
"It's a situation basically directly out of a Kafka novel, and I can't think of anything more unjust."
That's how Lisa Rickard, president of the U.S. Chamber of Commerce's Institute of Legal Reform (ILR), framed the current state of securities class actions. When the Chamber talks, right-wing media listen -- which is why it matters when its representatives liken class action lawsuits to Kafkaesque hellscapes, worse than anything else in the world.
On February 28, the Chamber hosted "Erica P. John Fund & Beyond: The Past, Present, and Future of Securities Class Actions," an event where Chamber-selected panelists discussed the perils of the next big class action case before the Supreme Court, Halliburton Co v. Erica P. John Fund. At the heart of the case is the so-called "fraud on the market" theory, decades-old Supreme Court and legislative precedent that businesses interests are asking the conservative justices to overturn.
In contrast to significant coverage on CNN and MSNBC, a search of Fox News transcripts indicates the network has yet to address the recent desecration of a statue at The University of Mississippi which commemorates the integration of "Ole Miss," despite the network's previous attacks on desegregation law.
Earlier this month, a noose and a confederate flag were found on the Ole Miss campus, draped over a statue of James Meredith -- the first African-American student to enroll at the school. A group of white fraternity brothers are suspected in the vandalism, and the students could face federal hate crime charges. But a search of network transcripts on Nexis suggests that Fox has failed to report on the story at all -- despite having plenty to say in the past about "axing affirmative action" in favor of "color blindness."
Right-wing media's response to recent challenges to affirmative action policies -- most recently from Michigan and Texas -- has been to unequivocally support the gutting of these equal opportunity admissions policies, which have strengthened diversity on campuses for the benefit of everyone. In discussing affirmative action, right-wing outlets have been prone to favorably refer to conservative Chief Justice John Roberts' overly-simplistic suggestion that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race," when they weren't otherwise mangling the case law.
Lost in this conservative reporting is how a lack of diversity can lead to racial isolation for students of all colors and can contribute to racially-charged incidents of ignorance and hate on campus. Fox News, in particular, has had no qualms about misrepresenting the constitutionality of the diversity principle at the core of current affirmative action programs, which have been so crucial to ensuring that students and future leaders of color are not a rarity in the American educational experience. Their failure to report on the vandalism at Ole Miss unfortunately continues that trend.
Fox News host Megyn Kelly and senior political analyst Brit Hume were shocked by the suggestion that Arizona's anti-gay law might allow "a Christian doctor who is deeply conservative in his religious views to deny treatment" to patients on the basis of sexual orientation, an interesting change of pace for a network that has no problems regularly defending the religiously-based denial of women's health services.
In a February 25 segment on Fox's The Kelly File, Kelly and Hume agreed that the Arizona law -- which could provide legal protections to religious business owners who deny services and accommodations to gay couples on the basis of their sexual orientation -- went too far because the possibility of denying medical services to gay people was "an order of magnitude greater than the legal right to deny services to a gay wedding":
But neither Kelly nor Hume managed to point out the obvious -- Christian doctors are already enabled to deny services to all women on religious grounds.
Right-wing media mischaracterized a recent Supreme Court case as evidence of executive overreach on the part of the Environmental Protection Agency (EPA), even though the challenged agency action was one where the EPA specifically declined to act as aggressively as the law allowed.
On February 24, the Supreme Court heard oral arguments in Utility Air Regulatory Group v. EPA, a case that could hinder the EPA's ability to regulate harmful greenhouse gases if polluting industry interests have their way. Right-wing media outlets like Fox News and The Wall Street Journal were quick to portray the case as an overextension of the EPA's regulatory authority. The WSJ editorial board -- whose disdain for clean air is well-documented -- accused the agency in a recent editorial of "crowbarring carbon into what it admits is an unworkable regulatory framework."
More recently, in a February 24 segment on Fox's Special Report with Bret Baier, legal reporter Shannon Bream framed the legal issue as "whether the agency had the right to literally rewrite" the Clean Air Act:
On March 5, the Supreme Court will hear oral arguments in Halliburton v. Erica P. John Fund, a class action brought on behalf of investors allegedly defrauded by false disclosures of the Texas oil giant. Halliburton has fought to deny a trial on the merits for over a decade, and is now asking the conservative justices to overturn decades of precedent that allows shareholder lawsuits under the rebuttable presumption that this type of misinformation is a "fraud on the market."
Even though President Obama has signed fewer executive orders than many of his predecessors from both political parties, Fox News has dedicated a significant amount of air time to suddenly questioning long-established presidential powers.
On February 18, Fox legal analyst Shannon Bream dedicated an entire segment to Obama's supposed lawlessness in his rollout of the Affordable Care Act (ACA) on Special Report with Bret Baier, highlighting the "Stop This Overreaching Presidency" or "STOP" resolution, an effort by congressional Republicans to "institute legal action to require the President to comply with the law." Experts more familiar with federal litigation and the U.S. Constitution have noted, however, that these sorts of lawsuits can only be filed in real cases or controversies where a plaintiff has actually suffered a legally cognizable harm. As explained by the Legal Information Institute of the Cornell University Law School:
Legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy). Only those with enough direct stake in an action or law have "standing" to challenge it. A decision that a party does not have sufficient stake to sue will commonly be put in terms of the party's lacking "standing".
Fox News contributor Dennis Kucinich was included in the segment and floated "impeachment" as an alternative.
It might be difficult to find "an individual or business owner who could point to concrete damage he has or will suffer because of the president's unilateral changes to the health care law," as Bream suggests, because the changes to the law have served to ease implementation of the ACA. Those in search of the requisite legal standing to challenge the extension of deadlines run into the problem that this phased-in enforcement of the law is to benefit companies and consumers, not to "damage" them. Conservative Senator (and former Supreme Court clerk) Mike Lee explained this to The Weekly Standard: "It's not immediately apparent to me who it is that would have standing to show that they would be injured by this ... The people directly affected by the employer mandate are employers. But I would imagine that the administration would argue, if sued on this by an employer ... 'You can't show you've been injured by this. We're letting you off the hook.'"
In its continued opposition to the Voting Rights Act (VRA) and a proposed amendment to this historic law, The Wall Street Journal published a misleading op-ed by Hans von Spakovsky, an unreliable contributor to the National Review Online.
The op-ed of von Spakovsky, a right-wing activist who has called the "modern 'civil rights' movement" indistinguishable from "discriminators and segregationists of prior generations" and whose attempts to fearmonger about "virtually non-existent" voter fraud have been repeatedly discredited, followed a WSJ editorial that compared the bipartisan attempts of Congress to update the VRA with that of "Jim Crow era Southerners."
Although this new effort to strengthen the VRA through the Voting Rights Amendment Act of 2014 has prominent Republican support, von Spakovsky claimed "[t]his bill really isn't about the [Supreme Court's recent Shelby County v. Holder] decision. It is about having the federal government manipulate election rules to propagate racial gerrymandering and guarantee success for Democratic candidates." From the WSJ op-ed, which defended the conservative justices' gutting of the VRA in Shelby County and smeared the subsequent bipartisan efforts to repair the damage:
Before Shelby County, Section 5 of the Voting Rights Act required certain states to get "preclearance" from the federal government before making any voting changes. But the Supreme Court ruled that the formula to determine which jurisdictions were covered was unconstitutional because it was based on 40-year-old turnout data that did not reflect contemporary conditions. Census Bureau data show that black-voter turnout is on a par with or exceeds that of white voters in many of the formerly covered states and is higher than the rest of the country. We simply don't need Section 5 anymore.
In Shelby County, a radical break from precedent that has been described by experts as "on a par with the Court's odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America," the bitterly divided Supreme Court struck at the heart of the VRA's efficacy by dismantling its "preclearance" process.
Even as the conservatives did so, however, Chief Justice John Roberts explicitly told Congress to fix this formula that requires covered jurisdictions with a history of racial discrimination to submit election changes for federal review before implementation. Contrary to von Spakovsky's strange assertion that "this bill really isn't about" Shelby County and is "an attempt to circumvent" the decision, this new bipartisan legislation is actually a direct response to Roberts' invitation to Congress to "draft another formula based on current conditions."
Admittedly, this new formula is more complex than von Spakovsky's preferred method of determining voter suppression by "turnout data," a confusion between correlation and causation that has been described as a rudimentary failure of "Statistics 101." Rather, Section 5 of the VRA imposes the preclearance process on jurisdictions with an incorrigible track record of suppressing votes based on race, and the formula to determine this discrimination has been changed in the new legislation to incorporate a comprehensive and rolling 15-year record.
The claim of the op-ed that the old formula led to "unwarranted objections" on the part of the Department of Justice toward alleged voter suppression is also inaccurate; this preclearance mechanism has been extremely effective at stopping racially discriminatory election changes. In fact, the two cases that von Spakovsky highlights both involved Section 5 successes.
Local reporting on Texas divorce law has finally put to rest the right-wing media smear that gubernatorial candidate Wendy Davis lost or gave up custody of her children, debunking this myth as the lie it always was.
Since she announced her candidacy for governor, national right-wing media figures have gone after Davis and scrutinized her parenting choices in a way no male candidate would ever have to confront. One nasty example has been Fox News contributor and RedState editor Erick Erickson, who has repeatedly referred to Davis as "Abortion Barbie," baselessly questioned her mental health on the basis of routine legal pleadings, and misrepresented the terms of her divorce settlement.
It was also the discredited Erickson who quickly jumped at the opportunity to help spread perhaps the most persistent myth about Davis -- that her ex-husband, Jeff Davis, "got custody" of her two daughters following their 2005 divorce decree. This falsehood was unfortunately started by the Dallas Morning News, whose January 18 profile of Davis was criticized for various reporting failures. Although the Dallas Morning News never corrected the language in the original piece, the reporter correctly described what actually happened in a later article, in accordance with the editor's online admission that the original version "left some readers perhaps too free to misinterpret the situation. We will print a clarification in tomorrow's newspaper."
In short, Davis never lost or gave up custody of her children; rather, she was granted what's known under Texas law as "joint managing conservatorship" of her daughters. "Custody" isn't even the relevant legal term in Texas divorce proceedings.
By the time the Dallas Morning News mentioned Davis' joint conservatorship, the smear had already gained traction. Versions of the myth eventually cropped up in the New York Post (which claimed Davis "lost custody" of her daughters), Breitbart.com (she "gave up custody"), and even Ann Coulter jumped into the fray, accusing Davis of telling "huge whoppers" and erroneously reporting that the Texas family court "awarded [Jeff Davis] full custody."
Unlike the Dallas Morning News, right-wing media have yet to issue a "clarification," let alone a much-needed correction and apology to Davis after their distortions about Davis' divorce raced from the fringes of the internet to Fox News. Davis herself expressly pointed this out in a recent speech, saying, "I never gave up custody of my children. I never lost custody of my children. And to say otherwise is an absolute lie."
The Wall Street Journal renewed its opposition to all things union in a recent editorial, complaining about a proposed rule change that the National Labor Relations Board (NLRB) hopes will make union elections more efficient.
On February 5, the NLRB announced a series of proposed rule changes that streamlines labor organizing, including a new rule that could eliminate long delays that hinder employees' ability to vote up or down on union representation.
In a February 10 editorial, the WSJ framed the new rules as an attack on employers, arguing that a change in election timing could "unbalance" employers' First Amendment rights. This is far from the first time the WSJ has taken an unfair dig at unions and their members, but this time the editorial board's defense of an employer's right to badmouth unions during an election managed to completely ignore how unfair anti-union sentiment has flourished under the old system.
The WSJ also mischaracterized the NLRB's previous attempt to change the rules in 2011 as "failed," even though it later admits that the court that heard the case did not overturn the rule on substantive grounds, but rather because of procedural concerns. Specifically, because the Republican appointee to the NLRB in 2011 made good on his threat to "block" the rule by refusing to vote, the court ruled he had successfully denied the board of its required quorum.