Tillman to get new sentence

The Utah Supreme Court held today that ElRoy Tillman, who is on Utah's death row for a murder committed in 1982, is entitled to a new sentence. The Court thus affirmed the trial court, which based its conclusion on the fact that the State of Utah failed to disclose transcripts of two interviews with witnesses. Tillman's conviction was not vacated, but he is entitled to a new sentence because the failure to disclose the transcripts constituted a due process violation, the Court said.

Arbitrary and capricious

Demonstrating just how deferential the arbitrary and capricious standard is, the Utah Supreme Court just minutes ago released an opinion rebuffing the attempts of parents to challenge the decision of the Salt Lake City School Board to close two elementary schools.

A key issue in the case, Save Our Schools v. Board of Education, was whether the School Board considered its own Policy FLA, which set forth six principles to guide the decision to close a school. The Supreme Court concluded that the trial court's factual finding that the Board considered the six principles (even though board members did not have a copy of Policy FLA itself) was not clearly erroneous. Further, the Court determined that the Board did not act entirely without justification nor interpret the principles of Policy FLA in an arbitrary and capricious way.

Il Postino

There is a nondescript scene in the movie "Il Postino" where Mario Ruoppolo, played by Massimo Troisi, sits outside the tavern where his wife, Beatrice Russo, works. Mario is half-asleep, tired from working in the kitchen to serve the 20 families brought to the island to work on water mains. Mario sees Di Cosimo, the politician, and one of his henchmen pull up in a car. Di Cosimo starts pandering for votes from a couple of nearby fishermen, but Mario says he's "voting Communist." Di Cosimo makes some snide remark about Mario's comrade Pablo Neruda and then says that poets have to be careful because their words can cause people some trouble.

Di Cosimo's henchman haggles with the fisherman over a purchase. Mario interjects that the fishermen are exploited and that the henchman should just pay the full price. The henchman says he doesn't want to exploit anyone and so he walks away from the deal. One of the fishermen scolds Mario for interfering and causing him to lose needed income.

In the many times I have watched "Il Postino," I have never really noticed that particular scene. But it's pivotal. Later in the movie, that scene becomes highly relevant. In fact, it's that scene that makes me think "Il Postino" is not really about the postman character at all; rather, the movie focuses on the poet.

After Neruda leaves the island and returns to Chile from exile, Mario anxiously awaits some communication from Neruda but none is forthcoming. Mario wonders if Neruda has abandoned him and taken all the beautiful things on the island with him. Even though Mario marries his love, Beatrice, Mario seems uninspired. Then he gets the idea to make a tape recording for Neruda of all the beautiful things on the island, including the heartbeat of his in utero son, Pablito. The last thing on the tape is the riot at the communist demonstration where Mario was supposed to have read his poem, "Canto a Pablo Neruda." Instead, Mario is killed when police move in.

When I watched that last scene, I realized that the message of the film is that poets and others have to realize what they write has impact on people's lives. Neruda's poetry helped Mario get married to Beatrice, and that was a good thing. But Neruda's poetry also led Mario to a communist demonstration where he was killed. It may be debatable whether that was a good thing for Mario (the movie seems to suggest that Mario's highest calling was to be martyred in pursuit of poetry and communism, or at least to die doing something he believed in), but it certainly was not a good thing for Mario's widow, Beatrice, and their son, Pablito. I realize this is just a movie and perhaps I'm getting hyper-analytical, but I think the message is important.

As a poet, at least in the film, Neruda purported to represent the lives of the downtrodden and oppressed. His "Canto General" was supposed to have been inspired by a poor Chilean coal miner who told Neruda to go everywhere and tell people about his brother, the miner, who lived underground in Hell. Yet it seems that Neruda did not understand the impact his poetry had on the masses, at least not until he stood on the beach at the end of the film and reflected on Mario's death. Neruda was at least in part responsible for that death and causing Mario to take the actions that led to it.

As writers, we should consider that readers will be impacted by what we write. What we write becomes a part of those who read it.

Esse est percipi

The Argentine author-philosopher Jorge Luis Borges, who cut his teeth publishing not only in literary journals but also in newspapers, wrote several insightful passages about journalism. One was a comment by his character Eudoro Acevedo in the story "Utopia de un hombre que esta cansado." The character said:

Las imagenes y la letra impresa era mas reales que las cosas. Solo lo publicado era verdadero. Esse est percipi (ser es ser retratado) era el principio, el medio y el fin de nuestro singular concepto del mundo.

Roughly translated, it means that the printed word was more real than reality, and that no one exists unless they are depicted in the news.

Summer vacation

This has little if anything to do with media law, but I spent an enjoyable week on a houseboat on Lake Powell. Now I am ready to dive back into the business of media law on a regular basis. Hope you all had a nice summer.

Dallin Oaks and the Supreme Court

I'm not sure this qualifies as "news" because it's 24 years old and has been frequently reported before, but The Salt Lake Tribune today has a story saying that Dallin Oaks was once considered for appointment to the U.S. Supreme Court. I'm not sure who, among those who care, did not already know this.

While the story notes that Oaks would have been the first Mormon Supreme Court justice, he would not have been the first Utahn. That distinction belongs to Justice George Sutherland, as noted in this post by Nate Oman.

Going on a Mission

Although the San Antonio Missions baseball team lost, I spent an enjoyable evening at Wolff Municipal Stadium in south-central Texas last night. In case you didn't know (and I didn't until yesterday), the Texas League's Missions are the Double A affiliate of the Seattle Mariners.

Although this story notes that gates generally open at 6 p.m. for a 7:05 p.m. first pitch, I walked into Wolff Stadium unnoticed yesterday about 5:40 p.m. But, in the interest of honesty, I walked back out 35 minutes later, bought a ticket and re-entered the stadium.

After the game, befitting my stay deep in the heart of Texas, I watched the Texas high school football classic film Friday Night Lights.

AEJMC presentation

Politically conservative students who are also highly religious become more tolerant as they study the First Amendment and the literature of classic liberal speech theory. That's according to a presentation to be made this morning at 10 a.m. by me and three colleagues. Our manuscript is titled "Democratic Learning and The Sober Second Thought: The Effect of Reading John Stuart Mill’s Essay 'On Liberty' on Tolerance for Free Speech Among Highly Religious Politically Conservative Students" and is being presented at the Association for Educational in Journalism and Mass Communication, here in San Antonio.

Essentially, we found that BYU students became more tolerant of the 2004 Michael Moore visit to Utah County once they had taken a course in First Amendment theory.

Why would you do this for a living?

Civil litigation generally, and debt collection in particular, is nothing more than fighting over money. Virtually no amount of money could persuade me that doing this for a living would be worthwhile. The Salt Lake Tribune reports today: "Button it, judge tells cussing lawyers."

The best of bad writing

Great story in today's Salt Lake Tribune about a Utah woman who won a prize for bad writing. In "Dang, that's bad writing, but sort of neat," the Tribune tells the story of Keriann Noble of Murray. Noble churned out a novel's opening line that was judged to be among the worst in the world by San Jose State University English professors.

The sentence goes like this:

As soon as Sheriff Russell heard Bradshaw say, "This town ain't big enough for the both of us," he inadvertently visualized a tiny chalk-line circle with a town sign that said "Population 1," and the two of them both trying to stand inside of it rather ineffectively, leaning this way and that, trying to keep their balance without stepping outside of the line, and that was why he was smiling when Bradshaw shot him.

Interestingly enough, the Tribune itself engaged in some bad writing -- or at least bad writing practice -- in its story about bad writing. While the Tribune states the following:

The contest is named for Edward George Bulwer-Lytton, a minor Victorian novelist who somehow made several lasting contributions to the English vernacular, including the phrases "the almighty dollar" and "the pen is mightier than the sword." Bulwer-Lytton also began his novel, Paul Clifford, with the immortal line, "It was a dark and stormy night," later plagiarized repeatedly by Snoopy of "Peanuts" comics fame.

But those lines from the Tribune are remarkably similar to the lines on the contest website:

Although best known for "The Last Days of Pompeii" (1834), which has been made into a movie three times, originating the expression "the pen is mightier than the sword," and phrases like "the great unwashed" and "the almighty dollar," Bulwer-Lytton opened his novel Paul Clifford (1830) with the immortal words that the "Peanuts" Beagle Snoopy plagiarized for years, "It was a dark and stormy night."

If you ask me, that's bad writing on the Tribune's part.

Common-law reporter's privilege

Lawyers for a Washington Post reporter threatened with jail time in connection with a confidential source are arguing that the reporter's privilege stems from federal common law. In "Lawyers Seek New Legal Protections for Reporters," (free registration required) the Post describes how lawyers for journalist Walter Pincus are relying on Rule 501 of the Federal Rules of Evidence rather than the First Amendment to the U.S. Constitution.

Given the reluctance of some judges and members of the public to award journalists "special privileges" under the Constitution, perhaps the common-law argument will fly better. In order to do so, lawyers must convince a federal district judge in the Wen Ho Lee case that journalist-source relationships are similar to psychotherapist-patient relationships.