Maybe it's because I'm a long-ago high school newspaper editor, but I was shocked and appalled (nobody is ever shocked but not appalled) by a New York Times report that Supreme Court Justice Anthony Kennedy -- "widely regarded as one of the court’s most vigilant defenders of First Amendment values" -- insisted on reviewing and tweaking an article about his appearance at a private school in New York. The student newspaper at the Dalton School published a tantalizing editor's note saying: "We are not able to cover the recent visit by a Supreme Court justice due to numerous publication constraints."

Then I read the Times article again and discerned some shades of ethical gray. It's true, as Frank D. LoMonte of the Student Press Law Center said, that "in the professional world, it would be a nonstarter if a source demanded prior approval of coverage of a speech." But apparently Kennedy's purpose wasn't to vet the article as a whole but to reconsider the felicity of some of his phraseology.

It wasn't clear whether he made this request in advance. But if he did, and the agreement was confined to allowing him to polish his prose, I'm less shocked but still somewhat appalled. My own practice as a reporter was to refuse at the outset to show my completed story to an interviewee. As for quotes, I never would allow someone to retract or rephrase an answer because of second thoughts about its political effect.

But I made an exception when I did a series of interviews with prominent intellectuals. One law professor, in explaining his constitutional philosophy, used an analogy in reference to the Constitution. He later called me to suggest a different analogy that he said more precisely made his point. I let him change it, because the whole purpose of the piece was to let him present his thinking in his own words.

The difference here is that the Kennedy story was an account of an event at which an audience heard the justice's original words. That tips the scales of journalistic justice. Kennedy said what he said; if he wanted to correct it, he should have written a letter to the editor.

Actually, there's a precedent. Last year the court ruled that the death penalty couldn't be imposed for rape. Writing for the court, Kennedy cited as proof that the penalty was cruel and unusual the fact that, while 26 states and the federal government, had the death penalty, "only six of those jurisdictions authorize the death penalty for the rape of a child." After the decision, a blogger pointed out that the Uniform Code of Military Justice allowed the death sentence in the rape of a child, a fact the court had overlooked

The court added a footnote rectifying its omission -- but it didn't blot out the original language.

--Michael McGough

Columnist Jonah Goldberg foresees clouds ahead for the Democrats -- in fact, a coming storm so severe that it could end Democratic control of Congress. It's building from the Tea Party movement, which Goldberg sees as an heir to the Ross Perot third-party movement of the 1990s. "If the GOP can convincingly align with and exploit the growing Perotista discontent, it very well might ride to victory on a tsunami the Democrats can't even see."

Also on today's Op-Ed page, scholar Giles Dorronsoro explains why U.S. attempts to win hearts and minds in Afghanistan's Pashtun areas in the south and east are probably doomed to fail. And ACLU National Security Project chief Jameel Jaffer decries an attempt by Congress to circumvent the courts by giving the secretary of Defense the power to withhold photographs of combatants "engaged, captured or detained" by the U.S. during the Bush administration.

On the Editorial page, The Times weighs in on Atty. Gen. Eric Holder's policy change on medical marijuana. Though we're happy that federal prosecutors will make marijuana cases a low priority in states like California that have passed laws approving its medicinal use, we think that's the wrong approach. The administration shouldn't be picking and choosing states in which to enforce federal law -- rather, it should de-emphasize medical marijuana cases in all 50.

We also note that the best place for local health departments to conduct swine flu vaccinations is at public schools -- yet that's not where the inoculations will take place in Los Angeles, thanks to a failure by the school district and the county to properly coordinate.

And we muse on the bizarre spectacle presented by Colorado's Heene family, accused of perpetrating the "balloon boy" hoax in an attempt to drum up publicity for a reality show. "As much as some people will do just about anything for a Hollywood contract, a good number of the rest will lap up the juicy story of their wrongdoing. In reality, perhaps we all get what we wanted."

Illustration by Jonathan Twingley / For The Times

Not for use with small animals. (EPA/Peter Foley)

Credit Justice Samuel A. Alito Jr. for the takeaway quote from the Supreme Court's oral argument Tuesday about a law punishing the possession or sale of depictions of animal cruelty. Questioning a lawyer for Robert Stevens, a pit-bull enthusiast sentenced to 37 months for selling dog-fighting videos, Alito asked if her First Amendment theory would protect people who wanted to watch the "Human Sacrifice Channel?" Other justices then riffed on the concept in the hypothetical-mongering for which the court is notorious.

Alito's hypo seems a bit less far-fetched when one considers the popularity of WWE, televised hockey games and even The History Channel (which one of my peacenik relatives calls The War Channel). Violence sells, But censors, with support from the courts, usually have  focused on sex instead. What puts obscenity outside the protection of the First Amendment is that it appeals to "prurient interest" -- that is, it's sexually arousing.

Patricia Millett, the lawyer for video vendor Stevens, ratified the "violence OK, sex bad" rationale. She conceded that the law might have survived a First Amendment challenge if it  had been narrowly drawn to punish only the phenomenon that provoked the legislation -- so-called "crush videos" catering to fetishists who are turned on by seeing a woman crush dogs with her high heels. A non-erotic, aesthetic appreciation of dog-fighting, however, is protected.

The sex/violence dichotomy has inspired the familiar joke about the differences between conservatives and liberals when it comes to censorship: Conservatives want to ban depictions of sex, liberals want to ban descriptions of violence. But it's rooted in the traditional justification for laws against obscenity: society's interest in preventing debauchery. As a 19th century British judge put it: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." In other words, keep reading this and you'll go blind.

That rationale arguably applies to "crush videos," but it's hard to see how it justifies prosecution of the sale of dogfighting videos, which means that Stevens likely will go free. Watching violence against animals is constitutionally protected as long as you don't enjoy it too much. If a Cable TV producer greenlights Alito's idea of a Human Sacrifice Channel, he should be careful to market it to anthropologists, not sadists.

-- Michael McGough

 

Small-government conservative columnist Jonah Goldberg makes a startling argument on today's Op-Ed page: We should make the House of Representatives bigger. A lot bigger, in fact; Goldberg says a Congress with 5,000 members would shake up our nation's calcified two-party system and more closely approximate the kind of democracy the founding fathers intended.

UC Irvine School of Law Dean Erwin Chemerinsky, meanwhile, debunks arguments that the healthcare bills pending in the House and Senate would be unconstitutional. And obesity experts Kelly D. Brownell and David S. Ludwig argue in favor of a tax on sugar-sweetened sodas, which would help fund healthcare reform programs and lower healthcare costs by decreasing obesity and related ailments such as diabetes.

On the editorial page, the board urges the Obama administration to consider backing new elections in Afghanistan or a transitional government, unless monitors can determine that the country's Aug. 20 election was legitimate.

The editorial board also takes up a gun-rights case and argues, surprisingly enough, in favor of stronger protections for gun owners. Though the board favors measures to reduce gun violence, it thinks the Supreme Court should rule that the 2nd Amendment applies to states as well as the federal government. That's because allowing states to ignore this part of the Bill of Rights could undermine the requirement that they abide by others.

Finally, the board notes that Comcast Corp.'s proposal to buy NBC Universal cuts against the grain of recent media deals, and its effect on the marketplace may be limited. But it will be interesting to watch how the combined company's approach to the Internet might change.

* Cartoon by Rob Rogers / Pittsburgh Post-Gazette

Even if I hadn't covered the U.S. Supreme Court in a former life, I'd be looking forward eagerly to C-SPAN's interviews next month with members of the court, snippets of which are available now on YouTube. It's not often that TV viewers get to eye the mugs of The Nine.

But it's not never, either. Not counting their confirmation hearings, justices have been selectively subjecting themselves to TV interviews for some time, sometimes in connection with promoting their books. This fact renders even more ridiculous one argument against cameras in the courtroom, Justice Clarence Thomas' suggestion that, after 9/11, televising the court's aguments would let terrorists know what the justices look like. All they have to do is TiVo C-SPAN.

The more familiar argument against cameras in the Supreme Court is that they might alter the ethos of the court, perhaps by tempting justices into "saying something for a soundbite." (The quote comes from Justice Anthony Kennedy, pictured above.) Believe me, the Supreme Court arguments I've heard are eminently unsoundbitable.

Like the law that it interprets, the court should be open to evolutionary change. Television has been around for 60 years. The justices may still be camera-shy, but, as Justice Antonin Scalia once said in a somewhat different context: Get over it!"

Photo credit: AP Photo / J. Scott Applewhite

-- Michael McGough

Columnist Tim Rutten returns from vacation to find the "birthers" still discussing citizen grand juries and opponents of healthcare reform bringing guns to President Obama's town hall meetings. There's more than the usual dollop of crazy talk in our politics, Rutten warns:

Read the column, then leave your comments -- rational or otherwise -- below. Elsewhere on the Op-Ed page, criminal law scholar J. Kelly Strader warns that courts around the country are essentially ignoring the Supreme Court's admonition in Lawrence v. Texas that states couldn't outlaw private behavior that clashes with the majority's view of morality. And Vanda Felbab-Brown, a foreign-policy fellow at the Brookings Institute, offers insights on the four front-runners in Thursday's presidential election in Afghanistan.

In the editorial stack, the Times board blasts the California legislature for its failure to mandate more use of renewable energy by state utilities, despite the support of Gov. Arnold Schwarzenegger, utility regulators and most voters. It pooh-poohs GM's eBay initiative, questioning whether the carmaker can do anything truly innovative on sales without hurting its dealer network. And it looks past newly released scores on standardized tests to find something encouraging at Locke High School:

Photo credit: AP Photo / John Bazemore

-- Jon Healey

President Obama threw a party at the White House this morning for new Supreme Court Justice Sonia Sotomayor. He shouldn't have invited her, and she shouldn't have come. Her appearance exacerbated the politicization of the court that led so many Republican senators to vote against her.

In celebrating what he called an "extraordinary moment for our nation," Obama didn't pressure Sotomayor to vote in a particular way. Still, it was unseemly for the president to treat Sotomayor's confirmation as a political trophy. The victory party undermined the symbolism of Sotomayor's swearing-in at the court rather than at the White House.

Until her confirmation, Sotomayor was in a sense a creature of the executive branch headed by Obama. Once she was confirmed and sworn in, she was (and is) an officer of an independent branch of government that is often called upon to overturn the actions of the other two branches.  

One of my favorite scenes in "Becket," the biopic about the 12th century saint, is when Richard Burton as Becket realizes that he can't serve simultaneously as archbishop of Canterbury and chancellor of England.  Never mind that he owes his appointment as archbishop to King Henry II (played by Peter O'Toole). I wouldn't push the church-state analogy too far, but Sotomayor also may be called upon to reprimand her patron. With that in mind, she should have spent this morning poring over briefs.

Photo credit: Chip Somodevilla / Getty Images

-- Michael McGough

Dale Neumann was convicted Saturday of killing his 11-year-old daughter, Madeline, because he prayed for her instead of taking her to a hospital when her undiagnosed diabetes got so bad that she couldn't eat, drink, walk or speak. She died on the floor of her rural Wisconsin home with her father, mother and a group of people praying for her healing. Neumann says he was simply putting his faith first and following the will of God, but a jury found him guilty of second-degree reckless homicide. Neumann's wife, who similarly said her daughter's sickness was a "test of faith," was convicted earlier this year.

This event raises serious questions about the conflict between individual rights and governmental power, just as abortion does. Both involve innocent and dependent lives with no real power to contest a parent's choices. And unlike Wisconsin, most states give immunity to those who rely only on faith healing and refuse medical care. Those governments are essentially recusing themselves from any duty to protect the Madeline Neumanns in their communities. According to Wayne Purdin, blogging at Examiner.com,

In 1998, a study of religion-based medical neglect in the journal Pediatrics documented 172 child fatalities over 20 years among 23 religious denominations in 34 states. Faith Assembly in the Midwest led with 64 deaths. The Christian Science Church was second, with 28. The study called the cases the "tip of the iceberg," since many are never reported. The vast majority of these deaths were avoidable.

Where should the line be drawn between parents' religious rights and the government's power to protect the defenseless? Isn't this a Right to Life issue? And if it is, where are the Right to Lifers?

--Catherine Lyons

Photo: Dale Neumann smiles at his defense attorney Jay Kronenwetter during his trial in Wausau, Wis., on July 28. Credit: AP Photo / The Daily Herald, Corey Schjoth

A common criticism from readers this morning in response to today's editorial praising GOP Sen. Lindsey Graham for supporting Sonia Sotomayor's nomination to the Supreme Court is that The Times never censured the Democrats who toed the party line and voted against John G. Roberts Jr.'s confirmation as chief justice. Several commenters make the same point as reader Scot Robertson:

So was The Times a cheerleader for hyper-partisan Democrats hell-bent on derailing President Bush's judicial nominees, including Roberts? Hardly. In fact, The Times editorial board sided with conservatives who wanted to legislate away the use of the filibuster as a means to block Bush's judicial picks:

We usually like it when centrist senators like John McCain (R-Ariz.) and Ben Nelson (D-Neb.) try to galvanize the sensible center on behalf of some compromise, but we sincerely hope they fail in their attempt to preserve the Senate's filibuster. Count this page on the side of conservative social activists who are pushing Senate Majority Leader Bill Frist to "nuke" the filibuster.

And, in a separate editorial, the Times had harsh words for the 22 Democratic senators who voted against Roberts' confirmation.

But too many Democrats beholden to liberal interest groups embarrassed themselves and the party by opposing Roberts. These groups wield disproportionate power in mobilizing activists and raising campaign funds, but they do not speak for the majority of Americans or even most Democrats.

Read the full editorials from 2005 after the jump.

Photo: Roberts at his confirmation hearing in September 2005 (Win McNamee / Getty Images).

Iraq still owes $24 billion in reparations to Kuwait for Saddam Hussein's 1990 invasion and attempted conquest, but now Iraq has problems of its own. Should it still pay? The Times editorial page says Kuwait should consider reducing reparations in the name of stability in that part of the world:

Plenty of bankers would give their eye teeth for 50 cents on a dollar owed, and Kuwait already has received that. Iraq's political and economic development is in the interest of its neighbors, as well as of the United States. Kuwait should consider reducing reparations, and its proposal to reinvest some of the remaining debt in Iraq would benefit both countries.

The page also gives props to Republican Sen. Lindsey Graham of Florida for his vote for Supreme Court nominee Sonia Sotomayor -- and for trying to keep the high court from being just another panel for political appointments:

During the Alito hearings, Graham reminded Democrats that "elections matter." He was true to his word Tuesday in supporting Sotomayor. "I didn't feel good about the election, but we lost," Graham said. Then he offered his colleagues a lesson in political science: "What I'm trying to do with my vote is to recognize that [during the Bush administration] we came perilously close to damaging an institution, the judiciary, that has held this country together in difficult times."

And we round out the page with more props, this time for L.A. residents and their response to the drought:

Let's consider the very real possibility that Los Angeles residents saved water because they take the drought seriously. They have a high degree of environmental awareness. They want to conserve -- even if that means their lawns may turn brown.

On the Op-Ed page, we offer a collection of punditry from around the nation on the state budget. Also, author Helen Winternitz calls on the U.S. and other western nations to support Congo -- the former Zaire -- in part by accepting China as the nation's primary creditor.

And Kathy J. Sackman, president of United Nurses Assns. of California/Union of Health Care Professionals, takes Gov. Arnold Schwarzenegger to task for undermining oversight of nurses. Sackman says more oversight of her union's members is better:

The board should implement a better tracking system so that comprehensive records of allegations against individual nurses are maintained (both in-state and out-of-state) and compared against any new claims. And finally, the board should recruit enforcement monitors to guarantee that action recommended by the board against individual nurses is completed and that any required oversight during a probationary period is fulfilled.

Photo: Gustavo Ferrari / EPA