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One More Thing on Redistricting . . .

The Court has held that a state can use a referendum as part of its redistricting process.  See Davis v. Hildebrandt, 241 U.S. 565 (1916).  In Davis, a referendum was used to reject a redistricting plan drawn up by the Ohio Legislature.  Thus, one cannot say that Article One, Section 4 prohibits states from using a referendum to limit the Legislature in this context.  Maybe the Legislature must be the one to draft the redistricting plan–the difference in the Arizona case is that the Legislature is not permitted to draft anything.  But clearly the Legislature does not have the exclusive power to redistrict or the final say over redistricting.  Is drafting really so different?

4

The Law of the Land

I thought I would flag the fact that Akhil Amar has a new book coming out that is available for pre-order on Amazon.  Here is the summary of The Law of the Land:  A Grand Tour of Our Constitutional Republic:

From Illinois to Alabama, and from Florida to Utah, our laws and legal debates arise from distinctive local settings within our vast and varied nation. As the renowned scholar Akhil Amar explains, Abraham Lincoln’s argument against the legality of succession can be traced to his Midwestern upbringing, just as a close look at the Florida legislature and state Supreme Court reveals the fundamental wrongness of the Bush v. Gore decision.

Amar profiles Alabama’s Hugo Black, the dominant constitutional jurist of the twentieth century, and California’s Anthony Kennedy, the powerful swing justice on the current Court. He probes Brown v. Board of Education, and explores the divisiveness of the Second and Fourth Amendments. An expert guide to America’s constitutional landscape, Amar sheds new light on American history and politics and shows how America’s legal tradition unites a vast and disparate land.

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FAN 36 (First Amendment News) Forgotten Free Press Advocates — The Women Lawyers in NYT v. Sullivan

These three women were active in ACLU First Amendment work during those early years and had an enormously powerful and lasting impact on the law we enjoy today. — Joel Gora (longtime ACLU lawyer)

The news follows, but before it does I want to say a few words about three remarkable women and their roles in New York Times Co. v. Sullivan (1964). They are:

  1. Harriet Pilpel (1911-1991)
  2. Nanette Dembitz (1913-1989)
  3. Nancy F. Wechsler (1916-2009)
Harriet Fleischl Pilpel

Harriet Fleischl Pilpel

Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in the Sullivan case. Beyond the single sentence they receive in the Supreme Court Reports and in Anthony Lewis’ Make No Law: The Sullivan Case and the First Amendment (1991), the women are virtually unknown players in the First Amendment world. As their respective stories reveal, there is more, much more, to be said about the people in the landmark case and how it came to be so. (BTW: Doris Wechsler — the wife of Herbert Wechsler, the attorney for the Times — helped write the merits brief in Sullivan and is listed on it. She sat in the lawyers’ section when Sullivan was argued in the Supreme Court.)

Recently, I had occasion to say a few words about some of those people in connection with a conference hosted by the University of Oregon School of Journalism and Communications and the Law School, a conference to commemorate the 50th anniversary of Sullivan. That is how I came upon the ACLU brief filed in Sullivan.

The lead attorneys for the ACLU and the New York Civil Liberties Union were Edward S. Greenbaum (of the famed Greenbaum, Wolff & Ernst firm) and Harriet Pilpel. Melvin L. Wulf, Nanette Dembitz, and Nancy Wechsler were of counsel.

Here is how things began: Mel Wulf, the ACLU attorney, contacted Greenbaum and asked if his firm would file a brief on behalf of ACLU. Greenbaum agreed and, as Wulf recalls, Nancy Wechsler wrote the first draft along with help from Harriet Pilpel. Nanette Dembitz added her own comments, whereafter Wulf did the final read and edit. Greenbaum, the lead attorney, had little or no meaningful input on the brief. The ACLU brief was 37 pages long (plus appendix) and made three basic arguments:

  1. Alabama’s exercise of its long-arm jurisdiction over the Petitioners violated the First Amendment and the due process clause of the Fourteenth Amendment
  2. Alabama’s defamation law as applied to criticism of public officials on matters of public concern violated the First Amendment as applied to the states by way of the Fourteenth Amendment
  3. The trial judge denied the Petitioners due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment

Those arguments were teased in a variety of ways — e.g., Alabama’s use of its defamation laws was analogous to the Alien and Sedition acts; there was no reasonable basis for presuming malice or damages; and the trial was so rife with racial prejudice against the Petitioners as to deny them equal protection. More could be said about the brief, but for now let me leave it there so as to return to my sketch of the three women who contributed to the ACLU brief.

 Harriet Pilpel was an accomplished public-interest advocate with sterling credentials: A graduate of Vassar College and Columbia Law School (1936, second in her class), she went to wotk for the firm of Greenbaum, Wolf & Ernst. Later, she served as general counsel for both the ACLU (1979-1986) and Planned Parenthood. In 1982 she joined the law firm of Weil, Gotshal & Manges. During her career, she participated in 27 cases that came before the Supreme Court. She argued on behalf of Planned Parenthood in Poe v. Ulman (1961). She wrote yet other briefs for Planned Parenthood in cases such as Griswod v. Connecticut (1964, with Nancy Wechsler), Roe v. Wade (1973, with Nancy Wechsler), and Carey v. Population Services International (1977). Pilpel was also on the briefs for the Appellees in Harris v. McRae (1980).

In the free speech context, Pilpel was co-counsel with Edward Greenbaum in Farmers Union v. WDAY (1959), a statutory interpretation defamation case.

Harriet was very helpful in supporting my initial run for the ACLU National Board of Directors (a very competitive process), and she also debated Catharine MacKinnon about pornography at an ACLU Biennial Conference.Nadine Strossen

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To Sarat or Not Sarat

As in Austin Sarat, Law and Humanities scholar at Amherst College.  As in one of the leading figures within the Association of Law Culture and Humanities, which has become one of my favorite destinations over the years for engaging discussion across the disciplines.  (FYI, today is the deadline to submit abstracts to the Law Culture and Humanities Conference being held at Georgetown this year).
Glancing across Sarat’s scholarship one might notice a fascination with documenting the morbidity of law.  Images of war, death, and imprisonment filter the landscape of writings; the images are used to magnify their contrast. They create discourses in binaries.  We understand legal violence distinctive from non-legal violence; death distinctive from non-death; and imprisonment distinctive from non-prisoned life.  Sarat sums this up in his Article Violence, Democracy, Responsibility, and the Problem of Punishment.

 

Moreover, by equating the conditions of legal legitimacy with that masking, much of that jurisprudence promotes righteous indifference and allows law’s violence to continue unabated. I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end violence done, authorized or approved by legal institutions and officials. Still the energy in much of my work on punishment comes from a desire to interrogate legal theory in order to understand how law, surrounded by so much pain, is, nonetheless, able to maintain its calm, bureaucratic facade.

 

Drawing on themes that prompt considerations of justice and violence, it’s no wonder that Sarat and Robert Cover were walking the same halls in New Haven in the early 1980’s.  I don’t know if Sarat and Cover interacted much.  Really, does it matter?  Sarat himself was a well accomplished scholar in the humanities prior to enrolling at Yale (I mean how many of us as one L’s had their professor begin a civil procedure class by reading and discussing our own work?) .  Perhaps he and Cover never interacted.  I’d like to think they didn’t but that the recursiveness of space, time and ideas latched on to them independently as they traveled the halls.

Besides violence, Sarat’s scholarship prompts me to think about similar themes in my own work.   Loneliness has been a particular theme of mine.  Robert Penn Warren, Fydor Dostovsky, and Flannery O’Connor have been shaping devices of this theme.  They play themselves out in a chorus of questions about space, roles, isolation, and time.  When Warren writes about the South as a Lonely place, he prompts me to wonder whether and how time shapes people.  For those three, time is the violence of memory, sometimes maintained through static relationships of property, law, family, and culture.  Sarat likewise prompts us to consider how time shapes our understandings of justice and violence.  He writes in the same article prompted above:

For me, democracy requires a particular orientation toward time. Democratic temporality is the time of change, of reconsideration. It is open-ended and open to a sense of the endlessness of time. Acts of punishment, even if we had a way of calculating what people deserve, are always in some sense the servants, not the masters, of time. Numerous authors have highlighted the problem of time in asking whether the person being subject to punishment, 2, or 12, or 20 years after the crime is really the same person as the one who committed the crime that justified the punishment in the first place. When, many years ago, Justice Brennan described the death penalty as taking away the right to have rights, he might well have said that no punishment that seeks to be timeless, or stop the movement of time, can be reconciled with a democratic theory of punishment.

The conception of time as a marker of change is one, I think Robert Penn Warren would greatly admire.  On May 15, 1961, The New Republic published a review of Warren’s essay The Legacy of the Civil War.  In the review essay, writer Peter d’a Jones aligned Warrens views with Robert Patterson of the Citizens Counsel of Mississippi, a group formed following the Supreme Court’s decision in Brown v. Board of Education.  The group, put simply, was designed to use legal (and non-legal) violence to stymie desegregation.
Following the review of Warren’s essay, Warren wrote a letter to the New Republic editor:

Dear Sir,

This letter is promoted by a review of my essay the Legacy of the Civil War, which appeared in your issue of May 15.  I could wish that Mr. Peter d’a Jones had thought better of my essay or at least of my intellectual integrity, but I am not now writing in defense of either.  What I want to do here is disabuse those readers who may feel, from Mr. Jones’ review that I have much sympathy with Mr. Robert Patterson of the Citizens’ Committee of Mississippi, whom he cites with, perhaps, some effect of guilt by association.  

The quickest thing for me to do is state three things — things which it is strange for any citizen to feel constrained to state.

1 It is morally right, as well as politically and economically necessary, that all the rights and privileges of American citizenship be guaranteed to all citizens.  
2 A man’s worth should be judged by the qualities of his manhood.
3 Any official of any state who does not honestly and vigorously endeavor to punish, with full rigor, any violence against or coercion of any individual or group has violated his public trust and should be impeached.  

I suppose that a reader can easily infer from these statements my attitude in specific instances, as I had assumed one might from other writings of mine, including the Legacy of the Civil War; but I shall add that I think Dr. Martin Luther King a great man, and that the sit ins conducted according to his principles are morally unassailable, and will win.  One reason they will win is that they offer, even to the man howling from the sidewalk, an exhibition of courage, dignity, and self control.  

                        Very Respectfully Yours,

                        Robert Penn Warren

P.S.  One more thing: since Mr. Jones takes the trouble to quote from me in 1929, I wish he had taken the trouble in his researches to glance at my explicit repudiation some time back, of what I said in 1929.  In 1929, in my youth, I was wrong — and even now, I do not feel myself entirely above error.  

Warren’s reflection of change over time merges with his views of social responsibility.   For what its worth, Warren was also wandering around New Haven in the early 1980’s.  How I would enjoy sitting at a table amongst Warren, Sarat and Cover as they talked about these things.  How the walls in New Haven must have been ablaze with ideas in the early 80’s.

(P.S. Robert Patterson was also former Captain of the Mississippi State football team — ergo my promised college football reference, in case anyone needed an irrational reason to hate the number one ranked team).

4

More on Arizona State Legislature–Reply to Mike Ramsey

The always insightful Mike Ramsey has posted about my posts about the Arizona State Legislature case.  I thought I would offer a couple of further comments.

In several places the Constitution clearly says that only “the Legislature” can do something.  For the regulation of congressional districts, though, the Constitution says that “[T]he Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  I submit that this is not clear as Mike suggests.  Why is that?  Because governors have always had the power to veto redistricting plans (as the Supreme Court held in Smiley v. Holm and as the practice was going back to the Founding), whereas they have not had the power to veto, for example, ratifications of constitutional amendments under Article V.  As a result, Article I, Section IV must mean “prescribed in each State by the Legislature thereof” consistent with the lawmaking process set forth in the state constitution.

Does this principle include a state constitution that drastically reduces the Legislature’s role in an unprecedented way?  I’m not sure.  The Arizona scheme may go too far given the text and the Court’s holding in Holm, but I don’t see an originalist ground to object.  Were the Framers opposed to state referenda for regulating elections?  I doubt that you can find any evidence for that.  In that sort of vacuum, I think it is relevant to point out the policy implications of saying that the remedy for partisan gerrymandering lies only with the legislature doing the partisan gerrymandering.  That is not, as Mike says, “purely an argument from policy.”  Moreover, Congress could have exercised its Article I, Section 4 powers to bar independent commissions mandated by a state constitution for redistricting.  It has not done so.  A judicial decision doing so would (as I said in my last post) create a “Dormant Elections Clause,” which I do not think is consistent with any original understanding.

All of this leads me to the conclusion (albeit marginally) that the Arizona plan is constitutional.  What would change my mind?  Probably learning something relevant about the history of state regulation of redistricting or the reasons behind the Framers’ choice to give Congress and state legislatures joint ownership over this power.  So we’ll see what the briefs have to say.

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Process Matters: How, Corporate Reputation, and the Trademark Game

The New York Times reported about the fight over trademark rights around the word “How” and there was the usual chatter about how (yes very punny we law professors are) such a thing could be. But for me the more interesting point was that the issue of how something is made continues to rise as a market question. The dispute is between Chobani, which is pitching us ““A cup of yogurt won’t change the world, but how we make it might,” and that “How Matters,” and Dov Seidman whose company “is in the business of helping companies create more ethical cultures” and whose book is “How: Why How We Do Anything Means Everything.” As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine:

Corporations no longer exist in a purely commercial world. Corporate policies intersect with and shape a host of political issues, from fair trade to gay rights to organic farming to children’s development to gender bias to labor and more. Thus Google urges countries to embrace gay rights; Mattel launches a girl power campaign; activists question Nike’s labor practices, McDonald’s food processing, and Shell Oil’s business practices; and bloggers police the Body Shop’s claims about its manufacturing practices. The social, political, and commercial have converged, and corporate reputations rest on social and political matters as much as, if not more than, commercial matters.

The How of Seidman and Chobani is not limited to those companies. McDonald’s is now trying to engage with its customers about, yes, how, they make their food. I suppose using social media and the former Myth Buster Grant Imahara to reach young ‘uns is wise (then again if the goal is to reach Millenials as reported, they might see this tactic as a ploy). Regardless of success or failure, McDonald’s is another sign that Douglas Kysar’s Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice insight that process matters to the marketplace have force. As he put it “Because process preferences provide an outlet for the expression of public values through a market medium that is being endorsed simultaneously as a primary locus of choice, opportunity, and responsibility, individuals may well come to view such preferences as their most appropriate mechanism for influencing the policies and conditions of a globalized world.”

To date, activism over how has not seemed to gain major traction, if one looks to things such as labor and clothing or environmental issues in energy. Price still matters. Giving up our easier way of life (yes first world ACH! such a condescending term, high quality problem) to improve lives all over the world and for future generations is easier said than done. Try to buy clothing and food that is truly perfect (whatever that metric is, let’s assume fair labor and environmentally sound). Some sort of quasi-subsistence/commune hybrid life would be required and is not viable across society. Yet, as people speak up, and companies engage, make claims about their roles in addressing social matters, and adjust offerings (e.g. offering fruit in kids’ meals or refusing to sell cigarettes in a pharmacy), it may be that long term, incremental changes will emerge. When folks indicate preferences, options to buy something a little bit healthier or fairer could come on to the market. We might buy fewer things but buy better things. And another signal is sent so that the cycle might persist.

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The Role Law and Literature Should Play in a Law School

Some may ask what role should liberal arts style courses play in law school where we are increasingly focused on bar exams and practice ready skills.   It may take me a while to unravel that answer with the gusto and the framing it deserves.  I think anyone that regularly teaches Law and Literature has been asked some variant of this question.  The course doesn’t have the safe luxury of “well its on the bar exam,” or even the more sardonic return of “well, but of course it underlies much of legal thought and practice.”  See, e.g., Law and Econ, Law and Social Theory, and Legal History.

Let me make a bold proclamation.  The law and literature course, perhaps more than any other, asks students to wrestle with their subjective views of the law.  It’s interesting, in a course that deals with Constitutional Law, for example, there is the finality of how the court approached the problem (whether we agree with the outcome or not).   In Law and Literature on the other hand, the course encompasses the views of the professor, the authors, and their fellow students as they encounter these views.  Sometimes worlds are created in which those concrete legal frameworks are disembodied (See, e.g., Margaret Atwood’s The Handmaid’s Tale).  Sometimes, the fictional worlds embrace the world as we know it, and offer stunning critique to its foundation (See, e.g., Harriet Beecher Stowe, Uncle Tom’s Cabin). That’s not to say that other courses, (take a UCC course), is not rife with highly charged emotional queries (notwithstanding my critique, my explanation for whether the disposition of collateral equates to proceeds is a highly charged event!).  It is saying that in a time where the ABA is prompting law schools to create standards that push the law school experience towards so-called objective standards of evaluation (see revision of section 302 in the ABA standards), the role of encountering, critiquing, explaining, and understanding different subjective understandings of the law is critical.   We should not be afraid to encounter nor express our subjective views in the context of critical dialogue.

My view is that Law and Literature is a course that offers students not only the opportunity to understand themselves better but to learn to dialogue about the subjective views of law.  A few years ago, Yale Law School offered a course titled “The Book of Job and Suffering.” Unfortunately, at many law schools such a class would never be taught for fear that the subject strayed too far from what law schools are suppose to do — at least not under that title.  However such a course is precisely the kind of law and literature course we should be teaching. Isolating the critical component that suffering may play in the narrative for law students, I imagine, was a powerful experience for those students and the professor.  Powerful because they all have suffered something, I’m sure, though undoubtedly it was uneven.  Students learn to dialogue about themselves and the text in a group where each other’s respective experiences help frame and isolate the way the text moved within the group.   At one and the same time, students in a law and literature class learn about themselves, as members of a group, a class and as an individual.   This is the idea of Law and Literature that James Boyd White framed so well — the engagement of the reader with the text forcing the reader to accept or not accept the writer’s framed world. [Perhaps Boyd’s best framing of this encounter is his book This Book of Starres: Learning to Read George Herbert, in which Boyd wrestles with the text as reader primarily].

This role of teaching students about themselves is critical if not necessary to shaping who they are as counselors and advocates for their clients.  Of course they are things we should care about as shaping lawyers. But should we have to isolate them into an ABA objective or standard.   In a way, it cheapens the process to do so.

I fear that courses like Law and Literature, in which students engage in thoughtful discourse, may find themselves replaced with others that fail to live up to the promise of helping students understand themselves in a legal environment and instead only focus on the particulars of interacting in the legal environment.   There is nothing wrong with a movement in legal education that attempts to focus institutional resources to critically examine whether the law school is best preparing students for the modern legal environment.  But, that doesn’t mean that our students [or our faculty] are better off without having the dialogues and communities that law and literature help promote and shape in the law school environment.

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Vaccination Negligence

I thought I’d offer some thoughts on an issue that is starting to get attention:  Should parents who choose not to vaccinate their children against standard childhood illnesses (measles, mumps, whooping cough) be held liable if their child makes someone else’s child sick with one of these diseases?  For purposes of this discussion, let’s make two assumptions.  First, the choice not to vaccinate was not made for religious reasons.  (That presents a more complex problem.)  Second, there is no contributory negligence (in those jurisdictions) or significant comparative negligence (in jurisdictions that bar recovery when plaintiff is more negligent than defendant) by the parents of the sick child.

The most plausible factual scenario goes something like this.  Plaintiff’s child is too young to be vaccinated fully against a disease or cannot be vaccinated for some unavoidable reason.  This child is exposed to defendant’s child, who is old enough for full vaccination but was not given vaccine and is a host for the disease.  The choice not to give vaccine is made because of concern about the risks that vaccines pose, the belief that they increase the chance of becoming autistic, or some other non-religious reason.Now the question that will generate the most controversy is whether parents are negligent for not vaccinating their child under these circumstances.  I want, though, to focus on how the causation issue would play out.  How would a plaintiff show that exposure to defendant’s child was the cause of the disease?

Here we face an ironic problem.  One thought behind vaccination is “herd protection.”  The idea is that if everyone in a given population who can be inoculated is inoculated then it is far less likely that those who cannot get vaccinated will get sick.  (You can argue that those who are not vaccinating are free riding on those who do.)  When it comes to legal liability, though, herd protection favors those who choose not to vaccinate.  The more children there are like that, the harder it will be for a plaintiff to show but-for cause with respect to any individual child.

How should courts deal with that?  Is the answer that these claims should be viable when a plaintiff can prove that only one child could have exposed his or her child to measles?  Or should we shift the burden of proof to defendants?  Is this a Summers v. Tice situation (at least if we could narrow culpability to a few children)  That question depends, in part, on how bad we think not vaccinating is.  Generally the more egregious the wrong, the more likely we are to extend the scope of causation to hold the wrongdoer liable.

Anyway, I’m sure this will be litigated at some point, and it’s a topic to watch.

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What Did They Put in the Water of PA’s Prosecutors?

Pennsylvania’s Supreme Court Justice receiving hard-core pornographic emails? Check.  Another Justice using that fact as an opportunity to call for his long-term rival’s resignation? Check. My friends: the problems of Pennsylvania’s legal culture, in one nicely-wrapped, festering, package. And now, the made-for-Above-the-Law story is getting worse:

“Attorney General Kathleen G. Kane’s unprecedented move to expose the swapping of pornographic e-mails on state time has so far cost four men their jobs, put another at risk of being stripped of his state post, and left three others deeply embarrassed.

All of them may be collateral damage.

So far, Kane has not landed a major blow on the man who sources say has long been her main target: former state prosecutor Frank Fina.

In fact, she’s been muzzled from doing so …

Fina is a career prosecutor known for high-profile public-corruption cases at the Attorney General’s Office. He now works for Philadelphia District Attorney Seth Williams.

Numerous people with knowledge of their quarrel – including sources close to both – have said Fina participated in the exchange of X-rated e-mails.

According to the same sources, Kane was intent on making that fact public.

She wanted to expose what she believed was an entrenched misogynistic culture in the Attorney General’s Office when Fina was a ranking prosecutor and before she took charge, people close to her say.”

According to the story, Fina obtained a gag order preventing the Attorney general from evening mentioning his name by going to a suburban judge overseeing a grand jury, on the theory that “Kane’s office was using the threat of tying him to the sexually explicit e-mails to intimidate and silence him and others.” But today’s story (seemingly by sources close to the Attorney General) would appear to sap the vitality of that gag order, which may now be extinguished. And enterprising journalists might fairly ask Philadelphia’s District Attorney what he thinks of Fina’s conduct, and whether the DA has asked his employee if Fina indeed sent and received hard-core pornographic emails to colleagues and to Justices on Pennsylvania’s Supreme Court. This scandal, already so damaging for the reputation of Pennsylvania’s bench and bar, may get worse.

 

 

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FAN 35.2 (First Amendment News) — Former NSA Director counsels against going after James Risen

Hey, I knew we were playing up against the line.

. . . I don’t understand the necessity to pursue Jim.

– General Michael Hayden

On Sunday October 12th, James Risen of the New York Times appeared on 60 Minutes. He was interviewed by Lesley Stahl. Below are some selected excerpts from that installment of the CBS news program.

Stahl:  Will you divulge your source?

James Risen on 60 Minutes with Lesley Stahl

James Risen on 60 Minutes with Lesley Stahl

Risen:  No, never; I’m not going to talk.

Stahl: Sometimes you get yourself in trouble.

Risen: [Chuckles] Yea, the government has been after me for a while now. . . .

Stahl: What was your first reaction when you realized that the New York Times was onto the NSA story?

General Michael Hayden: First reaction was this is not good news. . . . [The NSA surveillance practices] were warrantless but not unwarranted. It would have been irresponsible for NSA not to have done this in the immediate aftermath of the attacks of 9-11. . . . Hey, I knew we were playing up against the line. . . . Jim is going to go to jail, why? Because Jim wants to protect his sources. . . .

Stahl: What kept you from walking out [when your editors initially held back your story]? Read More