Tuesday, March 10, 2009

You say "dicta," I say "holding" -- let's call the whole thing off!

Via DeLong, one D.A. Ridgel has a detailed takedown of Yoo's latest op-ed. Here's a taste:
In the first place, the holding “of the Supreme Court in the case of Near v. Minnesota ex rel. Olson concerning press freedom” is not the passage Yoo quotes. The Court in Near strikes down a state statute as an infringement of the 14th Amendment (which makes the First Amendment applicable to the states as well as the federal government.) Now, I’m not sure how they teach what constitutes a case holding at Yale where Yoo went to law school or at Berkeley where he now teaches, but I’m reasonably confident that the holding in any judicial opinion is a statement of how and why the court decides a case as it in fact does and not language which, at most, limits the scope of that decision.

In the second place, while the Court in Near clearly does acknowledge that even the prohibition against prior restraint of the press “is not absolutely unlimited” (Near at 716), its quoting of Schenck v. United States (a case the Yoo memo conveniently fails to cite even as it also quotes Schenck) refers to a 1919 conviction under the Espionage Act of June 15, 1917 for distributing pamphlets encouraging men to disobey the Selective Service Act of May 18, 1917. Well, there’s no war hysteria like old war hysteria, after all. Nonetheless, the rationale behind the holding in Schenck was substantially overruled in 1969 by Brandenburg v. Ohio, a fact one must suppose Yoo also knew.

As a result, it is difficult, to put it mildly, to see how dicta quoted from a case that no longer constitutes good law in another case which in fact struck down attempted state restrictions on constitutional liberties works to strengthen Yoo’s contention that President Bush need not be concerned by Fourth Amendment protections, either.
But it would all look very convincing to a non-lawyer in CIA or DOJ, wouldn't it?

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