either Foley d id not u nderstand the case Or he int en t ionally di s r egard ed precedent because he did not wish to sanct ion a magazine {hat o ffended him.
Judging )KIges by Ba rto n G e llman Let m e con fess from t he start thaI t his will nOI be an exercise i n objec ti vi t y . I am not the ideal editorialist-de tached , ou t of the l imel igh t , u n i n vo lved . Q ui te t h e c on tra ry , I have -or more co rrect l y , once had-a directly vested inlerest i n w h at I am abo u t to w ri te . But at the risk of being d ecl ared u n duly partisan, I ' m going to devote t his space to a d i s cussi on o f j u d icial i mpro priet y . There. Now I ' m doubly suspect . Not only am I w rit i ng about a vested i nter es t, but I'm going to crit icize j udges. A n d odd l y enough in t h is freesl of soci eties , the subject is j us t a l i l l ie bi t taboo. Judges seem to float somehow i n a nether regi on within and aro u nd and even above t h e law. They decide the fate o f every c i t i ze n , exercise vast pol it ical and economic contro l . They are , well , judges . You don ' t go around badm out hi n g them . But I t h in k t h at is in i tsel f part of the problem . J udges wie ld t he broadest powers in g ove r n men t w i t h li t t le of t he inconvenience of acco u n l abil i l y . Rare l y are I hey scr u t i nized by t he press and t he pub lic . Even more ra rely are I h ey rebuk ed by t hei r superior s . Federal j ud ges need n ' t even worry about occa sional bou t s wi th a ballol box - t hey are a ppoi n t ed for l i fe. W h at S l OpS them , I h en, you m ighl as k , from abusing thei r consi d e rable po w ers . from h a ndi n g down oUlr ag eous or arbit rary dec ision s ? A few min u tes ' peru s al of SPLC files m igh t sug gesl I hal t h ere is very I i U le . A si de from impeachmen t . in fact , there is no way to regu l at e judicial conduct-a n d o n t w o h ands you could probably count the /lumber o f i m peac h m ents in U . S . h isl ory . Judicial abu ses a n d j u s l pl ai n OU( rageous dec isions, of course , are nOI nearly so ra re . I n t h i s issue of SPLC Report, at leas t I wo cases come t o m i n d . The fi rst , i n N e w York s t ate fsee
50
p. 25 ] , in vol ves t h e pub l ication of a rat her racy magazine called Hard Times. The second , in Phi ladelp hi a (see p . 28] , i nvolves a r a t h er i n nocuous newspaper called t he To wn Crier. Hard Times i n c l uded such feat u res as a story on " w res l l i n g cheerleaders" and an editorial on m ast urba t ion . Not the zenit h o f construct ive jo urna lism . perhaps-bul cer t a i nly not l i belous or o bscene by leg a l sta ndards. N or . in t h is cas e , did dist ribu t io n disrupt t h e nor mal functioning o f the school . That did not stop school o fficia ls fro m sus pend i ng the st ude n t writers and confiscatin g t he m aster copy six days a fter dist r i b u tion . It wasn 't t h at the magazi ne had done any demo n strable harm, mind you -j us t thaI the school board presi den t thou gh l it was " t he worst t h i ng she had ever seen . " I f the school bo a rd ' s decision w a s la mentably ignorant, the j u dge ' s was un accept ably so . The Honora ble James T. Foley ruled t h at the school o ffi cials' actions had been nOl hi n g more t han t he pro per d iscipl i ne of " i nsubord i n ate sl uden ts . " The sligh t l y puzzled jurist wen t so far as 10 say he did not bel ieve I h i s "h igh school ad venture" even belo n ged i n a fede ral court . In the wake o f Tinker an d the dozens o f other c a ses exp a ndi n g the rights of st u dent jou rnalists in I he pasl decade . Fo[ ey ' s o pini on is roughly par i n a n achronistic value w i t h a criminal sen tence o f h orse - wh i ppi ng . It is i nco n ceivable I hat t h e Second C i rcuil Co urt o f A ppeals will fai l t o reve r s e h i m . But I hat is not rea lly the poi n l . F oley ' s decision is not merely contr o versial or questionable. II does not deal w i t h a I rou blesome area of t he l aw . It is j ust dead wro ng , vi rtually un founded either i n precede n l or th eory . Judge Foley should k now this, as I he sl udenl s ' attorney was good e nough t o provide him wil h t h e relevant case law . So wh a t are w e 10 make o f his rul ing? There a re o n l y two possi b il it ies ;
I tend t o believe t he latter. I t i s a phen om enon t hat is sad l y common i n t oday' s resul t -orien t ed j u d iciary . I f a j udge d oes not l i k e t he probable conse quences of a pa rti cu l ar ruling, he may nOI m a ke i t- even if t heory a nd prac
tice poi nt hea vi l y l owa r d th a t side .
That k i nd of beha vior goes d irec t l y again st t h e grain o f o u r traditions o f justice. Tru e , a j udge mig h t be ex pected to inject h is gut feeli ngs a n d com mon sense i n to a case involving vague or sk et ch y precedenl . But he has no b u si ness allowing any private opin ion 1 0 inter fere with his i n l ended func tion as an arbiter oj the low . [f I he cl ear weight of l egal a u t hority rests with one side, he is d u t y-bo und to re spect th e rule of law. Judge Foley may or may not have fai led in Iha t dUlY, as il is not at all clear he u nderSlOod t h e legal issues. I n I he Phil adel phia case , however , I d o not believe I here is a n y quest ion that the j udge acted in bad fai t h . Perhaps it's natural for me t o t h i n k so. I w as one of t he plai n t i ffs in the Town Crier con flict. My co - ed i t ors and I at George Wash i n gton H i gh School decided to pri n t a Sl ory on bi rth cont rol , de spite our pri n cipal 's w a rni n g t h a t I he piece was " i llegal " and that we would h ave 1 0 " face t he consequences" of pub lis h i ng il . Just hou rs after the paper rol l ed off t he pri n ter's press, the p ri nc ipa l seized t he issues and d r agged them off to t he school vau l l . Then she shu I down t he paper i n defi n itely. ThaI was lale Octo ber of 1 977. We sued t he princ i pa l and school board , and had an expedi ted , fo ur-day hear ing in N ov e m ber before U . S . Dis t r ict J ud ge John B . H an n u m . T hen we
began t o wai l . We assu med that since t he l i mel i n ess of a ne wspape r is of such i n t rinsic i m portance, o u r case w'o uld meril H an n u m ' s prompt at t ent ion . We were w rong . I t grad ually became clear that Han n u m , a former school board mem ber h i msel f, d i d not t h i n k "children" should be printing an art icle aboul co n t racepl ion . He seemed v e r y concerned it might promote poor m oral values. I n h i s privat e cham bers, h e told o u r attor neys he t hought we were " i rrespon sibl e" and " i mma t u re . " I am certain
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