Great work if you can get it … and we use the term ‘work’ loosely

A criminal complaint was filed this past Friday against former Assemblyman Morse Arberry Jr. for failing to report as campaign contributions more than $120,000 from private individuals that wound up in his personal checking account, which we’re sure he simply forgot to transfer to his campaign account and may have accidentally used the private funds to make a couple of mortgage payments on his house in a gated community miles from his district. Just a momentary lapse. Or maybe the private donors really meant to give him the money to help out a friend — like Ensign’s parents did.

But when it comes to paying another assemblyman with taxpayer funds to do two time-consuming jobs simultaneously, not an eyebrow is raised, much less a criminal complaint.

Glenn Cook recounted Sunday in his Review-Journal column, Steven Miller dug deeper Wednesday with his Nevada Journal piece and Ed Vogel today reports on the collective shrug and disdain for the messenger over the “double-dipping” by Assembly Speaker John Oceguera, who collected his pay for serving in Carson City for the first half of the year and still managed to pull down a considerable salary for his day job as North Las Vegas assistant fire chief.

According to Cook, Oceguera from January to May was paid $67,383.89 by the fire department — including $4,417 for benefits, $11,306 in paid leave and holiday pay, $19,401 in pension contributions, $3,601 in longevity pay and $25,938 for hours worked.

Meanwhile, Miller obtained the NLV fire department work-roster logs for 2009 and 2011 and found Oceguera was credited during both legislative sessions with working four nine-hour days in most weeks of the sessions.

Both Oceguera and his boss, Fire Chief Al Gillespie, dismissed the disparity of work-roster logs and timecard data sent to Miller as merely the result of “ease of coding.”  Though one timecard screen-shot showed Oceguera working nine hours for the department on both May 9 and 10 this year, both days he was in Carson City, Oceguera basically explained the hours were accurate but the hours were assigned to certain days “for the ease of coding.”

The apparently flippant attitude over a taxpayer funded job being well compensated while the person assigned the job spends at least five months every other year in a city 324 miles away was on display when Vogel quoted Gillespie as saying of Miller’s research, “John is a great public servant and does a terrific job as assistant chief and in the Legislature. There wasn’t much truth in the article.”

Vogel found an unnamed spokesman for Oceguera who called Miller’s report “complete ‘National Enquirer’ trash.”

When you can’t dispute the facts, resort to name calling.

If all the records are fungible and coding is all for convenience instead of accuracy, how can the taxpayers ever determine whether they are getting value for their money or simply paying someone to defend the power and influence of local government rather than their taxpaying constituents?

And pay no attention to the state Constitution that reads, “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution,” because no one else does. Make no mistake, in Nevada cities are wholly owned subsidiaries of the Legislature and being a firefighter and a legislator is a conflict of interest, pure and simple.

Miller estimates Oceguera was paid nearly $30,000 by the state for his work and expenses in Carson City. Add this to Cook’s reported city paycheck of more than $67,000. That does not include his pay in June.

As the headline on Cook’s column stated “It’s great work — if you can get it,” but the term “work” is used in the loosest sense we are sure.

Don’t expect any criminal investigations. Don’t expect any outraged city council members to question the expenditure. They know who the boss really is.

Here is Oceguera replying to Gov. Brian Sandoval’s State of the State speech, talking about getting what you pay for:

“… creating good paying jobs as we build.”

Will state high court allow Miller’s absurdity to stand?

No matter how much a passel of salivating Democrats and their lapdog pundits may wish it, Secretary of State Ross Miller should not be able to wave his magic pen and make the major political parties disappear while preserving the minor ones.

The state Supreme Court heard arguments Tuesday in the case of Nevada State Democratic Party v. Nevada Republican Party. Some of the questions from the bench to the attorneys for both sides were almost verbatim from the issues outlined on the court’s Website:

“Should this court defer to the Secretary of State, as Nevada’s chief elections officer, in the interpretation of this state’s election statutes?”

That certainly is one possible outcome.

But the better question also was outlined:

“Does the Secretary of State’s interpretation of NRS 304.240(1) unconstitutionally burden the Republican Party’s First Amendment free association rights by forcing the party to associate with individuals it may not necessarily agree with politically or by causing voter confusion over whether the party is officially endorsing a candidate on the special election ballot who designates himself or herself as a Republican?”

The major political parties, despite crawling in bed with the state and having the taxpayers conduct their primaries for them, are not mere extensions of or wards of the state. They are separate, private entities free to conduct their own business as their rules apply and nominate their own candidates.

The strategy in a free-for-all election, in which the Democrats and the Republicans neither designate a standard-bearer, is that many Republican aspirants could split their party’s vote and allow a single Democrat to grab the office on the basis of a small plurality.

In his District Court ruling, which is now on appeal, Judge James Todd Russell spelled out just how contorted and convoluted Miller’s interpretation of the law was when he declared a free-for-all ballot for the special election to fill the 2^nd Congressional District seat vacated by the appointment of Dean Heller to the Senate.

This is the law on which Miller based his decision:

“NRS 304.240  Issuance by Governor of election proclamation precludes holding of primary election; nomination of candidates; placement of names of candidates on ballot; conduct of election; application of general election laws; exception.

“1.  If the Governor issues an election proclamation calling for a special election pursuant to NRS 304.230, no primary election may be held. Except as otherwise provided in this subsection, a candidate must be nominated in the manner provided in chapter 293 of NRS and must file a declaration or acceptance of candidacy within the time prescribed by the Secretary of State pursuant to NRS 293.204, which must be established to allow a sufficient amount of time for the mailing of election ballots. A candidate of a major political party is nominated by filing a declaration or acceptance of candidacy within the time prescribed by the Secretary of State pursuant to NRS 293.204. A minor political party that wishes to place its candidates on the ballot must file a list of its candidates with the Secretary of State not more than 46 days before the special election and not less than 32 days before the special election. To have his or her name appear on the ballot, an independent candidate must file a petition of candidacy with the appropriate filing officer not more than 46 days before the special election and not less than 32 days before the special election.

“2.  Except as otherwise provided in NRS 304.200 to 304.250, inclusive:

“(a) The election must be conducted pursuant to the provisions of chapter 293 of NRS.

“(b) The general election laws of this State apply to the election.” (Bold-faced text added.)

Miller relied entirely on the second bold-faced portion of the text and ignored the reference to NRS 293, which states that a vacancy in a major or minor political party nomination “may be filled by a candidate designated by the party central committee.”

As Judge Russell noted, the plain language test rests on the definition of “nomination,” which most certainly does not include self-designation by any or every person registered as a member of the party.

The court may well bow to the authority of Miller to write the election rules no matter how absurd. If so, the law is a meaningless jumble of words and the executive is all-powerful.

Miller may say that is the more democratic way to go, but means it is the more Democratic way to go.

High court’s different philosophies revealed in ruling on Arizona campaign finance law

“THE YEAR WAS 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.”

— Harrison Bergeron by Kurt Vonnegut Jr.

And you thought it was just a case about public financing of political campaigns in Arizona? Nay, nay, I say. It is another chapter in the great American struggle over egalitarianism — all people may not be created equal but the nannies are dead set on making everyone equally mundane.

On Monday, in a 5-4 ruling the U.S. Supreme Court struck down as unconstitutional under the First Amendment Arizona’s Citizens Clean Elections Act, which attempted to fight corruption by dampening the impact of private campaign financing with a flood of tax money.

Under the law, publicly financed candidates in races against privately financed candidates would get more tax money if their opponents or even private independent groups spent more than the public money cap. In fact, in a race with a number of publicly financed candidates, if an independent group exceed the cap in support of one candidate, all the publicly financed candidates would get a dollar-for-dollar match, while any privately financed candidate would get nothing.

The law attempts to “level the playing field,” as both Chief Justice John Roberts said for the majority and Justice Elena Kagan writes in dissent.

Actually, the law throws a huge tax-backed monkey wrench into the cogs of free speech, because money talks, and when it does, it is protected by the First Amendment. Whether it is a handicap, as envisioned by Vonnegut, or a financial backing as dictated by Arizona law, it interferes in a fair fight.

Kagan unwittingly described the fairy tale world in which liberals live, noting that too high a campaign subsidy would overload the taxpayers, while too low a subsidy would not make the publicly funded candidate competitive. “The difficulty, then, is in finding the Goldilocks solution — not too large, not too small, but just right.”

Roberts dismissed her whole argument in a single sentence, saying her argument was “of no moment; ‘the First Amendment does not permit the State to sacrifice speech for efficiency.’”

Roberts also exploded the liberal myth by citing one of his own, pointing out the First Amendment problem faced by a privately funded candidate facing two publicly backed ones. “In such a situation, the matching funds provision forces privately funded candidates to fight a political hydra of sorts. Each dollar they spend generates two adversarial dollars in response.”

Just as bad, Roberts explains, is when the publicly funded candidate gets additional money because of expenditures by independent groups, “whether such support was welcome or helpful.” A devious person might conjure all sort of shenanigans of the type the Nixon plumbers called, well, rat fornicating, to put it in a slightly less profane term.

He explains that the triggers in the Arizona law forces candidates to alter their message and timing to avoid triggering additional matching funds. That is an abridgment of free speech, pure and simple.

“This sort of ‘beggar thy neighbor’ approach to free speech — ‘restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others’ — is ‘wholly foreign to the First Amendment,’” Roberts writes.

Forcing or facilitating speech is also an abridgment, as Roberts pointed out by citing a case overturning a Florida law that required newspapers that assailed a politician to allow that person to print a reply in the paper. The law’s effect was to deter newspapers from speaking out in the first place and penalized the paper’s own expression.

One can imagine the high court liberals embracing the Vonnegut future:

“A police photograph of Harrison Bergeron was flashed on the screen-upside down, then sideways, upside down again, then right side up. The picture showed the full length of Harrison against a background calibrated in feet and inches. He was exactly seven feet tall.

“The rest of Harrison’s appearance was Halloween and hardware. Nobody had ever born heavier handicaps. He had outgrown hindrances faster than the H-G men could think them up. Instead of a little ear radio for a mental handicap, he wore a tremendous pair of earphones, and spectacles with thick wavy lenses. The spectacles were intended to make him not only half blind, but to give him whanging headaches besides.”

Individual success and merit are so overrated, aren’t they? And money is, well, the root of all evil, and the sooner it is all in the hands of the government, the better off we’ll all be, right?

Ike warned about more than just the military-industrial complex

During his PowerPoint presentation on his book “Climate Coup” at a Nevada Policy Research Institute luncheon this past week, Patrick Michaels, a senior fellow at the Cato Institute, flashed up a couple of quotes from Dwight Eisenhower’s January 1961 farewell speech as president.

First, he showed the quote everyone remembers, the one warning about the rise of the military-industrial complex. Then he showed the words that followed, in which Ike warned about the domination of federal money over scholarship and scientific research. I made myself a note: “Steal it.” This is my larceny.

This is what is remembered of Ike’s speech:

“This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence — economic, political, even spiritual — is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

“We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

But his very next words foretold the content of “Climate Coup.” The central theme of the book is not so much a debunking of the global warming hysteria — read Cato’s “The False Promise of Green Energy” for that — but an examination of how the clamor to counteract the presumed catastrophe has corrupted our constitutional form of government — powers once held by the states are subsumed by the federal government, powers of the legislative branch are abdicated to the executive, trade policies and treaties are usurped by demands for climate fixes, climate propaganda is in the schools, scientific research money is pouring into universities that employ doomsayers, even the military is using the presumption of climate chaos as an excuse to demand funding.

These were Eisenhower’s words:

“Akin to, and largely responsible for the sweeping changes in our industrial-military posture, has been the technological revolution during recent decades.

“In this revolution, research has become central; it also becomes more formalized, complex, and costly. A steadily increasing share is conducted for, by, or at the direction of, the Federal government.

“Today, the solitary inventor, tinkering in his shop, has been overshadowed by task forces of scientists in laboratories and testing fields. In the same fashion, the free university, historically the fountainhead of free ideas and scientific discovery, has experienced a revolution in the conduct of research. Partly because of the huge costs involved, a government contract becomes virtually a substitute for intellectual curiosity. For every old blackboard there are now hundreds of new electronic computers.

“The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present and is gravely to be regarded.

“Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite.

“It is the task of statesmanship to mold, to balance, and to integrate these and other forces, new and old, within the principles of our democratic system — ever aiming toward the supreme goals of our free society.”

That sums up what is happening in the realm of atmospheric science and many others, especially medicine.

But to my surprise, when I read the rest of the speech, ol’ Ike had another warning for this generation in his very next words. The man was a triple threat on forecasting future threats.

Eisenhower then said:

“Another factor in maintaining balance involves the element of time. As we peer into society’s future, we — you and I, and our government — must avoid the impulse to live only for today, plundering, for our own ease and convenience, the precious resources of tomorrow. We cannot mortgage the material assets of our grandchildren without risking the loss also of their political and spiritual heritage. We want democracy to survive for all generations to come, not to become the insolvent phantom of tomorrow.”

Ike spoke those words 50 years ago. They ring with truth more today than ever before as the president and congressional leaders debate the national debt and the annual deficits that keep it growing.

It makes me wonder why so many in power clamor and demand we fight climate change today, but we can work on the national debt next year or the year after — mañana.

Listen to President Eisenhower’s three warnings:

View a 2008 production of the speech in part 1 and part 2.

Listen to Michaels being interviewed by G. Gordon Liddy.

As for McNamara’s Wall, read a blog I wrote about it on the occasion of the former Defense secretary’s death.

Can’t tell the players without a program … and a calendar

Speaking of translators and time machines …

One can’t help but wonder which Harry Reid will show up Monday at the White House to talk about the federal budget and the deficit and the deficit ceiling. Will it be the 2006 Harry Reid? …

Or will it be the 2011 Harry Reid?

They say at the ball park: “You can’t tell the players without a program.”

But in politics you can’t tell the players without a program and a calendar.

Come to think of it, which Barack Obama will show up? The 2006 model or the 2011 model?

Regrets, they’ve had a few, perhaps too many to keep track of.

You need a translator or time machine to keep up with Harry

Don’t you wish sometimes that political speeches came with an instant translation — like something out of an old Saturday Night Live routine: “What the president means is …”

I went searching recently for the gaffe du jour from some of our favorite politicians, but instead ran across a Hispanic campaign rally for Harry Reid. According to a Newsweek article shortly after the November election, Harry won 90 percent of the Hispanic vote following speeches like the one above. “Latinos certainly saved Harry Reid,” the article quoted Gary Segura, a member of Latino Decisions and a professor at Stanford University, as saying.

This was the Harry Reid who said of Republicans pushing for a reinterpretation of the 14^th Amendment to exclude automatic citizenship to children of illegal immigrants born on U.S. soil: “They’ve either taken leave of their senses or their principles.”

One can’t image the strong language Harry would use against the senator who sponsored this piece of legislation:

“In the exercise of its powers under section 5 of the Fourteenth Article of Amendment to the Constitution of the United States, the Congress has determined and hereby declares that any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth.”

You guessed it, the chief sponsor was none other than Harry Reid, back in 1993.

One either needs a translator or a time machine to keep up with Harry. That’s pretty much what a Review-Journal editorial on this topic said. Poltifact was did not mince words either.

Harry knows how to analyze issues from all sides, because that is where he has stood in the past or will in future.

Here comes Black Tuesday again

So, Joe Biden’s bipartisan, nobody-gives-an-inch budget talks have broken off and the president has invited Republican Sen. Mitch McConnell and Democratic Senate Majority Leader Harry Reid to separate meetings at the White House Monday. Isn’t that special.

Apparently Democrats are demanding tax hikes as a part of any budget deal and the Republicans will have no part of it. And the pity of it all is that the goal of the Republicans is to merely cut spending by $2 trillion over the next 10 years. That’s half of what The National Commission on Fiscal Responsibility and Reform has recommended and outlined a plan to achieve.

The dire circumstance overshadowing the budget talks was spelled out by the Congressional Budget Office this week in an updated report.

The CBO described the future doom and gloom under the presumptions given it by Congress, which are totally hallucinatory, but then provided the “alternative fiscal scenario,” which given the history of Congress’ inaction is really the most likely outcome.

The CBO stated:

“The budget outlook is much bleaker under the alternative fiscal scenario, which incorporates several changes to current law that are widely expected to occur or that would modify some provisions of law that might be difficult to sustain for a long period. …

“Under those policies, federal debt would grow much more rapidly than under the extended-baseline scenario. With significantly lower revenues and higher outlays, debt held by the public would exceed 100 percent of GDP by 2021. After that, the growing imbalance between revenues and spending, combined with spiraling interest payments, would swiftly push debt to higher and higher levels. Debt as a share of GDP would exceed its historical peak of 109 percent by 2023 and would approach 190 percent in 2035.”

The result of this, says the CBO, will be higher debt, requiring higher taxes and/or cutting government benefits and services. Growing debt increases the likelihood a sudden fiscal crisis, “during which investors would lose confidence in the government’s ability to manage its budget and the government would thereby lose its ability to borrow at affordable rates.”

The CFRB also updated its report this week in time for the budget impasse.

“The United States currently faces what commentators have referred to as the most predictable crisis in history,” CFRB states. “As we have seen in a growing number of European countries, this sort of crisis can be every bit as harmful as a financial crisis, except that we’ll have to respond by sharply cutting spending and increasing taxes, instead of the reverse. And no one will be able to offer the U.S. government a bailout.

“Make no mistake: the United States is not immune from a debt crisis. We are already in debt to the tune of 65 percent of our economy, a level higher than any time since the Truman Administration. On our current path, that level will exceed 90 percent—a level many economists consider as the danger zone—by the end of this decade. In fact, if you account for state and local debt, we are nearly there already. At some point, our creditors will lose faith in our ability to repay our debt. No one can know for sure when we will reach this tipping point. But we do know that the bond markets are fickle and can turn on us fast.”

Black Tuesday has a ring to it.

The CFRB’s recommendations in December have been largely ignored, but they call for entitled reform, spending cuts and tax reform. While Rep. Paul Ryan called for cutting income tax rates to 25 percent, the CFRB called for cutting to 23 percent. But both would increase revenue by axing deductions and loopholes. CFRB estimates its plan would raise revenue by $800 billion.

Good plans are on the table, but all we get is talk and political posturing while the financial markets threaten to burn.

The debt clock looks like a pin ball machine score with a wizard on the bumpers.

You’re so vain you probably think this license plate is about you

I was thinking about frittering off a bit of fluff in this space, discussing the puzzlemanship we all enjoy sitting at a stoplight, trying to figure out just what the hell that license plate on the car in front means.

Some are easy: SCCRMOM, LVLUVR, BORN2RN, DOGLUVR, etc.

Some can be read two different ways.

If a cop ever asks me what my own vanity plate, 4TH ST8, means I’ll tell him: For the State, and maybe he’ll think I’m with the D.A.’s office rather than merely an exile from the Fourth Estate.

But, there on the front page of today’s Wall Street Journal was a piece on how one enterprising state is taking the most coveted vanity plate names and auctioning them off for fun and funds. What would you pay for AMERICA? One Texas resident about to become a U.S. citizen paid $3,000. A Dallas doc paid $7,000 for PORSCHE.

What had originally got me thinking about vanity plates was a Father’s Day gift — a mouse pad from the Smithsonian depicting a work of art there in metal, vinyl and wood. It displays license plates from all 50 states and the District of Columbia in alphabetical order.

It should be fairly easy to decipher:

WE TH (Alabama) … P PUL (Alaska) … OF TH (Arizona) … U NI (etc.) … DIDD … ST8S … INNOR … DUR 2 … 4M A … MOR PUR … FEC UNE … NONE … S TAB … LISH … JUSTIZ … N SURE … DOME … ESTIK … TRAN … KWILI … T PRO … VIDE 4 … TH COM … UN DE … FENZ … PRO MOT … THE JEN R … L WEL … FARE N (Nevada) … C CURE …TH BLES … NGS OF … LIBBER … T 2 R … SELVS … N R PROS … TERI T … DO R … DANE N … S-TAB … LISH … THIS CON STI … 2 10 … 4 TH … U NI … TID … STBS … OF AH … MARE … E CUH (Wyoming).

Enjoy the MSG YALL.

What’s you favorite vanity plate?

Information wants to free, reporters want to be paid, Part 41

It is hard to be a prostitute in the land of the promiscuous. It is even harder when a federal judge declares your services aren’t worthy of payment.

That’s what it has come to in the wild, wild Worldwide Web.

On Monday federal Judge Phil Pro dismissed a copyright infringement suit on summary judgment for sundry reasons of no particular concern to you or I, but he added insult to injury by suggesting that mere newspaper screeds are of little redeeming social value.

Judge Phil Pro

Judge Pro writes:

“The Work is an editorial originally published in the LVRJ. (Actually, it was a column by Review-Journal publisher Sherman Frederick that first appeared in the printed paper and online at lvrj.com that day, but we don’t expect a federal judge to be cognizant of the industry argot.) The Work is a combination of an informational piece with some creative elements. Roughly eight of the nineteen paragraphs of the Work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. While the Work does have some creative or editorial elements, these elements are not enough to consider the Work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the Work is not within ‘the core of intended copyright protection.’ … Rather, because the Work contains a significant informational element, the scope of fair use is greater than it would be for a creative work, but likely less than it would for a purely informational work. However, this factor is not terribly relevant in the overall fair use balancing, and the lesser creative element of the Work lessens the impact further.”

Now, Sherm has never pretended to be the Frank Lloyd Wright of wordcraft, but “lesser creative element”? That’s just mean, judge.

Sherman Frederick

The issue in the case was that some guy snatched whole hog one of Sherm’s columns under the headline “Public Employee Pensions. We Can’t Afford Them” (Actually that was the headline in print but only the first three words appeared online.) and the newspaper’s litigation partner Righthaven sued the snatchee for copyright infringement.

The judge made much of the fact the thief did not profit from his pilferage, while making no mention of the business model — no matter how weak or ill-advised it might be — for news content on the Internet. Profits, if any, for sites like lvrj.com come from advertisers who pay to be next to popular content. The more “hits” a site receives the higher the price of the ads. That’s why most in the benighted blogosphere abide by a netiquette in which they take a representative paragraph or two from an article or Web page but then provide a link to the original work so its hit count will benefit and profits hopefully accrue.

Information may want to be free, as some Internet wiseacre once said, but reporters want to be paid. And when someone grabs an entire column, editorial, news story, photo or graphic without linking to the original that is a penny not earned by the creator’s corporate masters. For want of a sale a penny is lost, for want of a penny a reporter is laid off, for want of a reporter an industry fails. Hearst, Pulitzer and Greeley became wealthy off street urchins hawking their wares at a penny apiece, not by letting it be stolen.

The principle that timely news content has a copyright value has been recognized by the courts for nearly a century. Back in 1918 the Supreme Court ruled against a New York company calling itself International News Service that was taking Associated Press dispatches, rewriting them and selling them to radio stations at prices that undercut AP.

The court held news itself not copyrightable, but that one who goes to the expense and pains of gathering news for profitable publication has a quasi-property right and misappropriation of that property entitles the news gatherer to seek damages.

But Judge Pro called the purloined column “fair use” because Righthaven failed to produce specific evidence of “harm or negative impact” during the time the item was posted online.

Pro writes, “‘Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.’ … Additionally, ‘[a] challenge to noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.’”

That’s the rub. It already is widespread and rulings such as this will embolden the intellectual property pirates.

What’s to stop some enterprising person from subscribing to paid versions of The Wall Street Journal and The New York Times and then posting mirror versions for free, just to further the public discussion of the issues of the day. Who would pay for something they can get free? Katy, bar the door, here come the infringers.

As for Pro’s bold judgment that the ephemera that is news and commentary is not worthy of the same protections as arguably more creative works, I would note that both Shakespeare and Alfred E. Neuman are commercially viable.

In his discussion of the Constitution’s copyright provision, Seth Lipsky in his book “The Citizen’s Constitution, quotes Oliver Wendell Holmes in the case of Bleistein v. Donaldson Lithographing Co.:

“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to …  pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value, -it would be bold to say that they have not an aesthetic and educational value, – and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights. … We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.” 

Or, as Mark Twain wrote in the Dallas Morning News in 1907: “A thunderstorm made Beranger a poet, a mother’s kiss made Benjamin West a painter and a salary of $15 a week makes us a journalist.”

Climate change Chicken Littles hit a Supreme Court bump in the road

While the Wal-Mart sex discrimination case grabbed all the headlines, of equal or even more significance was the Supreme Court’s rejection Monday of a lawsuit brought by several states seeking to force — under the doctrine of common law relating to a public nuisance, sort of like the public trust doctrine we heard about this past week — a reduction of carbon dioxide emissions from a particular power company’s generating plants.

Ruth Bader Ginsburg

But in an 8-0 opinion in American Electric Power Co. v. Connecticut, written by the court’s most liberal jurist, Ruth Bader Ginsburg, the court said that authority was given by Congress to the Environmental Protection Agency and federal judges have neither the authority nor the expertise to second guess that agency. It overruled a U.S. 2^nd Circuit Court of Appeals decision.

The ruling was a welcome retrenchment from the 2007 case of Massachusetts v. EPA in which the court usurped the very authority it now denies lower court judges and told the EPA it must regulate carbon dioxide as a pollutant.

Ginsburg noted that the 2nd Circuit wrongly relied on “a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry.” That is precisely the legal authority claimed by the attorney for Kids vs. Global Warming argued before the Nevada State Environmental Commission less than a week ago. It did not fly there either.

Ginsburg dismissed as irrelevant the arguments by both sides as to whether global warming is a fact or whether cutting back emissions from American plants, while China continues to boom, would have any impact.

“We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants,” she writes. “Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. And we think it equally plain that the Act ‘speaks directly’ to emissions of carbon dioxide from the defendants’ plants.”

But she couldn’t entirely let go and later added, “EPA’s judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed … can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted.”

Though Justice Samuel Alito concurred in the outcome and Clarence Thomas joined him, he added a one paragraph caveat:

“I concur in the judgment, and I agree with the Court’s displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act … adopted by the majority in Massachusetts v. EPA … is correct.”

They questioned whether that earlier ruling was within their power.

Of course, the best solution to this economy killing overregulation would be for Congress to rein in the EPA and take away its power to regulate carbon dioxide emissions. But they can’t even approve a budget. So don’t hold your breath, no matter how much carbon dioxide that would keep out of the atmosphere.