Issues with Columnist’s Analysis

Mr. Jim de Bree has written two recent columns, “When News is Entertainment” and “Congressman’s Analysis has a Crucial Flaw,” in which he comments on legal issues. I will discuss them in reverse order.

The latest is based on a misreading of the Mi Familia Vota decision (Arizona District Court Case No. CV-20-01903-PHX; 9th Circuit Case No. 20-16932); a misreading of the 14th Amendment; and is from a legal point of view a “hot mess.” Mr. de Bree does not deny that Article II Section 1 of the Constitution vests the authority for determining the manner in which presidential electors are appointed in the states’ legislatures. Instead, he appears to rely on the trial court decision in the Mi Familia case, which was overruled by the 9th Circuit, and his view of Section 2 of the 14th Amendment, which in part provides that if a state denies any of its “male inhabitants” the right to vote, or “abridges” their right to vote, its representation in Congress is to be proportionally reduced, which he extends to registration requirements, and converts into a grant of power to the courts to usurp legislative authority over selection of electors.

While he notes that the District Court order extending the time for registration was overruled by the 9th Circuit, he dismisses its effect based on the erroneous assertion that the 9th Circuit ruling was premised on lack of standing, which he describes as a “technicality.” None of this is even remotely accurate.

First, the plaintiffs did not assert that the registration statute they were seeking to have the court modify was unconstitutional or a violation of the 14th amendment. As the 9th Circuit noted, the section was enacted in 1990, and complies with the National Voter Registration Act. Essentially the plaintiffs agreed that it was constitutional and did not abridge the right of any person to vote in a manner prohibited by the 14th Amendment. Every state has registration requirements, and they vary from state to state. However, these have never, to my knowledge, been determined to be an abridgment of the right to vote, and as QRWHG DUH VSHFL¿FDOO\ DOORZHG E\ IHGHUDO ODZ

The 9th Circuit overruled the District Court, because as it stated, the District Court did not have the authority to issue the order extending the registration deadline. However, the court split on whether to retroactively strike voters who registered after the statutory date under the District Court order before it was overturned, with two justices voting to allow such late registered voters to vote, and one disagreeing. This decision is on appeal to the Supreme Court, along with 20 other similar cases. (Another fact Mr. de Bree and others who assert all the election cases have been rejected ignore).

The second de Bree column demonstrates a misreading of the decisions in the Maddow and Carlson defamation cases. In any defamation case the court must answer an initial question of law: Do the statements objected to constitute actionable defamation? This has been the rule in defamation cases since English common law. The ruling in these two cases held that the statements were statements of opinion and as such not actionable defamation. I suggest Mr. de Bree re-read the decisions. They are not premised on the application of a “reasonable viewer standard,” but rather, given existing law, whether the comments constituted statements of objective fact (potentially actionable defamation) or opinion (not actionable).

As for the Fairness Doctrine as Mr. de Bree misunderstands it, it could not survive judicial review JLYHQ WKH 6XSUHPH &RXUW¶V MXULVSUXGHQFH DV UHÀHFWed in National Institute of Family and Life Advocates v. Becerra, for example, concerning compelled speech. Given that under the First Amendment “Congress can make no law . . . abridging the freedom of speech, or of the press” how can the government possibly require the press (media) to present “controversial issues of public importance” in an “honest, equitable and balanced manner”? How do we even get past the question of what is controversial, much less the even more fraught questions of what and who determines what is “honest, equitable and balanced”? The First Amendment free speech right is under heavy governmental attack. We should not indulge in pleasant-sounding “solutions” that effectively allow the government to restrict our right to engage in a full-ranging discussion of all topics — the method the Constitution provides for their determination.

Finally, in his latest column Mr. de Bree scolds Rep. Mike Garcia for failing “to consider the implications of legal authority, contrary to his position.” I believe we are better served by an accurate recounting of the legal authority and by the application of the First Amendment consistent with Supreme Court rulings going back to the founding of the country. I hope Mr. de Bree will do better in the future.

Stephen Maseda Valencia