Starting with Mitt Romney’s ham-fisted and ill-timed public consternation over the Egyptian embassy’s paying short shrift to “American values,” the free speech question has been discussed pretty much everywhere, as it should be, given these facts. I consider myself a free speech absolutist and ultimately believe that the film is deserving of first amendment protection. The film.

But I also think that in promoting the film, the filmmaker–Nakoula Basseley Nakoula, and not Sam Bacile as he’d originally claimed–made statements that fall outside the first amendment and may be criminally actionable if it can be found that those statements furthered an intent to provoke lawless action, and that such lawless action was likely and imminent as a result of the speech (See Brandenburg v Ohio, 395 US 444 (1969)).

Intent, Likelihood, and Imminence.

Brandenburg’s requirement that violent provocation meet an “imminence” prong would seem to guarantee any film first amendment protection. Films, after all, take time to produce–imminent lawless action thus seems intrinsically impossible. Unless, perhaps, the film was designed in such a way that it would likely provoke violence at its mere showing–the film as time-bomb, with a payload of subliminal messages to cause ordinary viewers to spontaneously engage in knife fights. The direct cinematic equivalent of yelling FIRE! in a crowded theater, an analogy aided by its actually being a film. Obviously that’s not what happened here, and if this scenario was even possible it would have already occurred a few years back at the premiere of The Love Guru.

But what did happen here? And did what happen exceed first amendment protection?

Even the White House, which would stand to gain diplomatically if it had publicly asked YouTube to pull the trailer, declined to do so, instead asking YouTube to review whether the film comported with its Terms of Service (it did, and the video remains available). While this would appear to settle the first amendment question with respect to the film/trailer, it doesn’t fully put to rest the question of Nakoula’s free speech protection, especially after you drill down into the facts.

Just as the video had been gaining traction in the middle east and helped spur minor protests, helped along by the filmmakers’ (or presumably Nakoula’s) translating the trailer into Arabic,  Nakoula was interviewed by the Associated Press and the Wall Street Journal as “Sam Bacile,” [and as PBS points out, shame on AP & WSJ for buying it, perpetuating it, and failing to fully own up to their role in it] which was the account name under which the video was uploaded to YouTube.

Nakoula, as “Bacile,” made two false statements: (1) that he, “Bacile,” was Jewish (Nakoula is a Coptic Christian), and (2) that the film had been principally financed by “100 Jewish donors.” It can be argued that these lies were intended to breathe air into the fire that had only just started. Whether these lies actually stoked the fire is a separate question, but not relevant to the question of Nakoula’s intent. In any case, Brandenburg’s foreseeability prong is satisfied because the presence of some connection between the speech and the resulting violence seems obvious here.

Steve Klein, a consultant to the film and himself a Coptic Christian, bolstered the notion that Nakoula’s intent was to provoke violence. After the protests had already resulted in at least one death, Klein stated that “We went into this knowing this was probably going to happen.”

Together, Klein’s concession and Nakoula’s lies, all which occurred just as protests against the film were percolating, diminish Brandenburg’s applicability because those statements occurred separate from the film, simultaneous with the protests morphing into violence.

The film/trailer itself is also indicative of Nakoula’s intent. As the film’s actors and crew have noted, the dialogue which would be most likely to offend Muslims is not uttered by the actors on screen but was rather dubbed in afterward.

“The original actors said one word, and then the producer and editing team (whom I don’t know) dubbed,” [an unidentified crew member] wrote. “It’s unmistakable that most dubbed portions are a different voice than the original actor.“

Now we don’t want judges answering the question What is Art? any more than we want them defining religion. So the fact that the film has scant artistic integrity, undermined further by the sloppy overdubbing, is of no matter with respect to the film’s speech protection. But it does speak to Nakoula’s intent, as he evidently saw the film production itself as a ruse, and a vehicle to deliver a message he seems to have intentionally omitted in discussions with the film’s crew and actors.

Those actors, and to a lesser extent the crew, surely would not have consented to work on a film if they had known beforehand that its producer intended to use the film–and necessarily, their names and likenesses–to provoke violence in the middle east. This opens the door to possible tort actions against Nakoula by the actors and crew. If anything should happen to them, free speech won’t get Nakoula too far as a defense.

Nakoula would likely respond that any dishonesty on his part is explained by his need for anonymity–that he was protecting his own safety. Anonymous speech is still protected speech after all. But it doesn’t explain how Nakoula’s need for anonymity necessitated putting his actors and crew in harm’s way, nor does it explain why he needed to blame The Jews for the film’s creation, given how those lies would most likely be inferred in middle east.

I’ll finish by disclaiming the idea that my criticism of Nakoula is equivalent to a defense or tacit endorsement of those rioting protesters, or somehow a denial that radical Islamic fundamentalism is a problem. Indeed it is, and the answer to this or any future problem won’t and can’t involve the curtailment of our own free speech rights. And unlike those who want to reduce this controversy to its simplest, falsely-equivalent narrative, I don’t think such as a reasonable fear at present.

A month earlier I had reluctantly willed myself from bed at a similarly ungodly hour and trudged down to Zuccotti Park (a little over a mile south from my apartment in the West Village) to witness—to legally observe—the planned eviction of the Occupy Wall Street protesters, announced for 6:00 am, October 14. I arrived a half hour early. The massive police presence I expected was nowhere in sight. If something was going to happen at 6:00 am, it would have to step on the gas because the fifty or so police sprinkled randomly throughout the park were ill-equipped to dislodge hundreds of civilly disobedient protesters. And those police didn’t seem to be on edge.

But also lined up Cedar Street, the park’s southern boundary, were at least eight media trucks. Inside the park media weren’t hard to miss either; it was still dim enough at that hour that interviewees faced both cameras and harsh lighting. An AP reporter struggled to establish a connection between her phone and laptop, which was sitting on a garbage can, while ten feet away a handful of protesters patiently waited in line to stand on a masking-taped X, and speechify into a livestreaming laptop suspended at eye-level.

I found out that the eviction had been canceled by overhearing the AP reporter on her phone. Judging from the approving roar at the east end of the park seconds later, the General Assembly must have relayed the good news via human mic only seconds later.

I contemplated going home, being likewise reprieved, but recognized some people and went over to discuss the about-face. We all speculated what was next; there were rumors that the eviction would happen later that day. We next speculated as to why it was called off—I suggested that they failed to calculate the presence of the media, who would collectively broadcast all day Friday hundreds of civil disobedience arrests, some which surely would be messy. I suggested they’d evict sometime in the wee hours over the weekend, without advance warning, when the media would be nowhere in sight.

ONE MONTH LATER, not that weekend, my premonition became reality. I reread the text message and then consulted Twitter, debating whether to go downtown. Could I even get there? As Twitter relayed the situation on the ground, the genius of police commissioner Ray Kelly became (again) apparent. Downtown was inaccessible by subway, the inbound Brooklyn Bridge was closed (I think it regularly is these days though), and most importantly, a moat of inaccessibility was created effectively isolating Zuccotti Park—rendering it near impossible to get there. There was also a rumor that the NYPD prohibited news helicopters from covering the eviction from above. I traveled light; shorts, sneakers, hooded sweatshirt, and camera. I’d regret not grabbing my sunglasses later—who leaves the apartment with sunglasses at 2 am?

I walked down Greenwich instead of the West Side Highway, trying get there—wherever there was going to be—as soon as I could. At Murray Street I saw a convoy of eight garbage trucks cross West Broadway, undoubtedly on their way to Zuccotti Park. Church and Cortlandt was the end of the line, evidently—three cops stood behind metal barricades. I asked whether I could go down, showing my legal observer credentials. No. So you’re not permitting press or legal observers down there? No. What’s your name? Sergeant Kelly. Which wasn’t true, I’d seen his badge already. The three cops chuckled to themselves as I walked away, over Cortlandt to the corner of Broadway, where I would spend the next few hours.

Others had gathered at Cortlandt and Broadway because it was as near as you could get to Zuccotti Park, from the north at least. Most were protesters who’d been forced from the park, the ones who hadn’t affixed themselves to trees with kryptonite locks around their necks. Others were gawkers and sympathizers who’d been somehow woken, kind of like me, only without the fluorescent green hat the NLG provides to us. And of course, on other side of the barricades stood at least one riot-gear-clad cop for every remaining protester; in numerous scenarios I’ve witnessed a similar 1 to 1 protester/police ratio, which of course is more source of than salve to the problem.

I contemplated circumnavigating the barricaded moat to approach from the south, perhaps, or east, but nixed the idea, figuring that a perimeter is a perimeter and if Ray Kelly was going so far to keep news copters from hovering over, I wasn’t going to get any closer than where I already stood. No one was going to bear witness to this eviction except the police executing it. Besides, if police/protester interaction was going to happen, it was going to happen here, and I was the only legal observer present, so far as I could tell, at that point. I did run into a few over the next few hours, though.

There were some minor flare-ups there on the corner, some resulting in arrests. Some people were pissed and vocal, but there wasn’t much cohesion. Mic checks prompted everyone to go here or there, but not much came of it. The most interesting moment occurred around 5:30 am, as the skies slowly lightened and commuters began to trickle in: a man wearing an expensive gray suit purposefully strode past me on Broadway, and as he approached the corner to go right, instead of walking around a few seated near the corner, viciously kicked a young woman in her side, then walked fast down Cortlandt. A number of people angrily confronted this asshole engaging in his own private counter-protest, before police settled things down and, to their credit, arrested him.

There was also a tense standoff with twenty-plus riot police who’d blocked the entire width of sidewalk on Broadway between Cortlandt and Fulton, effectively trapping myself and others between its line and barricades behind us. It was an odd and intimidating and thankfully only lasted perhaps ten minutes before they filed into the street permitting us the freedom to walk back to the corner of Cortlandt.

Gradually the police outnumbered the dissipating crowd, so I walked north (not far) to Foley Square, which Twitter suggested had become the de facto rendezvous point. It was almost fully light by the time I arrived and there was a sizeable number there. There were also a number of other NLG observers, some whom I knew, so I brought myself, and them, up to speed, comparing notes of all that had happened. It was here I found out that the NLG was trying to obtain an injunction to enable the protesters’ return to Zuccotti Park.

Another strong rumor was that at 7:00 am there was a planned rendezvous at Sixth Avenue and Canal Street, at an odd, triangular stretch of empty lot space owned by Trinity Church, whose venerable, beautiful church bookends Wall Street’s west end. The church also owns a ton of Manhattan property, much of it downtown. I suspect that the protesters thought that this lot—which I only found out that day was called Duarte Square—was similar to Zuccottti Park for its private/public character. Apparently no one bothered to ask Trinity what it thought about this idea because hours after the protesters marched there (I marched with, arriving at), I heard it reported that Trinity wanted them all gone.

Before Trinity could throw the anti-moneychangers out from their empty lot of a temple, though, another interesting thing happened: the injunction was granted, we found out. Copies of it were distributed to NLG observers, and news of it was human mic’d to the now sizable crowd—besides those who marched from Foley Square, others had marched from other locations. The triumphant but wary protesters made a decision to split up; some would stay there and a smaller contingent would march back to Zuccotti Park. It was decided that I and a few other NLG observers would march back to Zuccotti, about a mile away, with this group.

I was pretty shot by this point, but also curious to see what would happen upon the protesters’ return to Zuccotti, so I walked in the front of the pack. An older officer with a bullhorn—a short, stout, burr-headed Ralph Steadman caricature—angrily screamed at the marchers to stay on the sidewalk, which has become standard operating procedure for all marches. I tried to engage him but he wasn’t having it. Did the NYPD plan on honoring the injunction when we all got to the Park? He responded with an even angrier look (to the sky, not me, eye contact is studiously avoided by most police) and went back on script: Get on the sidewalk!

A protester asked whether I would address the legal issues with the other protesters upon our arrival—there as to be a hearing at 11:30 and everything could change depending on that hearing’s outcome. I said sure. A few blocks later, walking south on Church, past Century 21, we could see Zuccotti ahead of us. There was plenty of media tagging along at the front but they scrambled ahead to anchor themselves to get a shot of the protesters reentering the park. It was only when we were feet away from the media gaggle that I realized that behind them were barricades. Simonetti, the bullhorn cop, directed us left into a narrow barricaded corridor running up Pine Street, Zuccotti’s northern border. A barricaded dead end. The kids call this “kettling.”

I walked left and looked for police captains, or higher. Spotting a few (they were all inside Zuccotti Park), I made my case: “You do know you’re violating an injunction, right?” Stone-faced silence. I made the argument to some media, pointing out the operative language of the injunction, which couldn’t have been clearer. Behind me the protesters chanted “WE. HAVE. A COURT. ORDER.” I spoke to other police—didn’t they realize denying the protesters reentry amounted to contempt?

Some police responded that there was a hearing at 11:30 and that the injunction was meaningless until that was decided, which of course was exactly wrong—the injunction was explicitly drafted to return the protesters to the pre-eviction status quo, and it was signed by a Justice of the Supreme Court of New York State. There’s a plausible argument that the injunction should have held off allowing protesters to return to the park pending the hearing’s outcome, but it didn’t do that: it allowed them to return—with tents even—and a hearing would then decide whether they would be allowed to continue to stay.

I eventually gave up trying to convince everyone and became more concerned for my safety, as it was becoming clear that the group that had marched down was larger than this barricade corridor reserved for it. I was also tired—it was 10 am and I’d been up and out walking all over downtown for eight hours. But I was also disgusted. The city, or rather Bloomberg, had obviously made the imperious decision that a judicial order didn’t apply to him.

A core running theme of the Occupy protests is that politics is rigged to favor the money. There have been so many instances where this dynamic has played out, where the symbolic overtones are no longer parable but reality. The double-barricaded Wall Street Bull, for example, is guarded by two officers at all times. Police arrest bank customers audacious enough to cancel their accounts. Now it was the police who occupied Zuccotti Park, safely barricaded in after their methodic, disgracefully secret, eviction, despite that I held in my hand a lawful court order requiring precisely the opposite. The protesters played by the rules and still lost even when the scoreboard supposedly registered a win.

I stuck around for another hour, pled my case to more deaf police ears, and finally gave up and went home. I would find out later that afternoon that the city argued to remove the judge who had signed the injunction—she had been an ACLU attorney prior to becoming a judge, as if that should have even mattered. Until U.S. Supreme Court justices begin recusing themselves for real reasons, such as financial self-interest or prior involvement in the instant case, it’s difficult to take seriously more tenuous connections, such as supposed ideological biases, especially when the only ideological bases seen as disqualifying are on the left. Ex-Federalist Society member judges aren’t asked to recuse themselves from tort cases.

Justice Billings was replaced (I’m still unclear whether she recused herself or whether an administrative judge/panel removed her) by Justice Michael Stallman, who heard both sides of the freedom of assembly versus reasonable time/manner/place restrictions and ruled, without offering a reasoned basis, for the city. The city’s blatant contempt of Billings’ order went unmentioned in the written decision and was barely discussed in the press. The only lawlessness that can’t be excused, as any Occupy protester will tell you, is the lawlessness committed by the poor. For everyone else, it’s Calvinball over and over and over again.

[The above photos from the eviction night are included in my larger album of #ows photos here]

• Cops overdoing it. SWAT team breaks down the door of and arrests the estranged husband of a woman who had defaulted on her student loans. Scary for personal reasons. via Gawker.
• Michael Tomasky’s persuasive argument that democrats should spend more time vilifying Ayn Rand.  He makes a great point where he reduces the dem/repub conundrum as follows:

Republican attacks against Democrats are typically philosophical in basis, while Democratic attacks are usually policy-specific. [...] The difference exists for a simple reason: Republican programs are unpopular, but their bumper-sticker philosophy is popular (less government, stronger defense), while Democratic philosophy is viewed negatively but people strongly support specific government programs. This dichotomy makes for Republican attacks that are in general far more emotionally compelling. They tell a story and provide a context.

I think the Dems should resurrect all those “Trickle Down” mentions in support of laissez-faire policies from the 80s and remind everyone that not much actually trickled down. And now that Ross Perot’s “great sucking sound” of job disappearance has actually come to pass, the theory is even less sustainable–the trickle-down–what little there is of it–beneficiaries to corporate welfare are foreign workers.

• The California State Fire Marshal, in 1941, warns Americans of fire hazards including housewives washing clothes in gasoline:

h/t my ultra-fascinating college R.A. Bunch.

Let me make clear that I’m not expressing sympathy for these men–they should be held accountable. I do find some aspects of this operation disturbing, however. For one thing, like Law & Order: SVU, the show is getting a ton of ratings mileage from the very thing it is lordly sneering at, the titillation inherent in the possibility of an illicit sexual encounter. Not that all its ratings derive from this, but it’s hard to conclude otherwise based on the thin content offered up by the show. The show is just one gotcha moment after the last, with Stone Phillips essentially prying out a sentencing allocution from the accused immediately before they’re arrested. It’s exploitation made worse by the absence of any socially redeeming features … made even worse because the show hinges on the proposition that it furthering a social good (alerting a community to potential criminals is a good, but the national audience suggests a broader purpose–”humilitainment,” as Defamer puts it).

And this brings me to my second problem–by formally assuming a law enforcement role minus the legal wherewithal, NBC jeopardizes the local prosecutor’s ability to convict any of these guys. So they’ve stopped bothering. From an April 2006 Washington Post story [no link, story from Lexis]:

Von Erck said his group’s members [the group being Perverted-Justice.com, which worked alongside NBC for the Catch a Predator series] have helped identify hundreds of alleged pedophiles through Internet stings. The group, which began in 2002, also claims to have provided police with information that led to 100 arrests and 50 convictions in 25 states. “We turn up great evidence that stands up in court,” he said.

But that claim is disputed by the group Corrupted Justice, whose mission includes counteracting the work of Perverted Justice, and is based near Ottawa. A spokesman for Corrupted Justice said much of Perverted Justice’s efforts are counterproductive because most of the people it exposes suffer no legal consequence and remain free to prey on children. Perverted Justice’s members also have mistakenly identified and harassed innocent people but are not held accountable because they operate anonymously, typically using computer screen names, Corrupted Justice spokesman Scott Morrow said.

“The fact is, these people are amateurs,” Morrow said. “They’re volunteers, with no official training, no training in law enforcement, no training in the rules of evidence, no idea about maintaining evidence so it can be used in court. They shop this stuff around, and most of the time local law enforcement tells them, ‘We can’t use it.’ ”

Morrow said NBC’s involvement with Perverted Justice is particularly troubling: “They’re manufacturing the news, rather than just reporting it. They’re not only working with untrained, anonymous vigilantes, but now they’re paying them, too.” He said NBC could do stories on what police departments and the FBI are doing to hunt down pedophiles without resorting to “questionable” tactics. [emphasis added throughout]

Shortly after that story ran, the district attorney from a Dallas suburb where a large chunk of NBC stings took place refused to prosecute any of the men because many of the cases were “tainted by the involvement of amateurs.”

Chris Hansen (the other Stone Phillips), has stated that 117 convictions or guilty pleas have resulted from 286 arrests during the show’s 3 year run, but it would be difficult to check those possibly self-serving numbers. Even so, that’s not a fantastic clearance rate. And the fact that more than half the suspects walked suggests that the half that didn’t walk may have had inadequate counsel, since the facts arising from these stings are basically identical.

Then there’s a third problem: What happens when NBC, imbued with faux-muckraking self-importance, forages past their already sketchy ethics boundaries? In the same Texas district mentioned above, where the prosecutor refused to charge any of the suspects, one answer is apparently suicide. A $105m lawsuit was filed against NBC by the sister of a Texas prosecutor from a neighboring district who chose to kill himself rather than guest star on NBC.

Louis “Bill” Conradt Jr., who did not go to the Murphy sting house, shot himself in the head after Murphy police and other North Texas officers forced their way into his Terrell home in November. NBC was outside with cameras.

Conradt didn’t even walk into the sting house–he stayed home after allegedly soliciting sex from an undercover posing as a 13 year old boy. Under Texas law, a suspect does not have to show up–the deliberate planning of a meeting alone is sufficient for a conviction. But this raises a problematic question concerning the lack of an actus reas. How does one go from typing his dirty thoughts to a stranger to suicidal in a manner of an hour?

The issue in the case will be negligence–whether suicide was a foreseeable result of NBC’s actions. Where I might answer the question in the negative if it regarded one of the suspects who showed up at the sting house, I’m less sure how I’d answer the question where, as here, it regards a suspect who did not show up, was about to endure a raid on his house by the police and media, and whose innocence was more probable.
Finally, there’s the overarching (and thorniest) problem where televised justice and its lower due process standards competes with the judicial system. While TV can’t put you in jail, it’s probably true that it could ruin the life of an innocent in a manner worse than actual imprisonment could not–especially where an infamously heinous crime such as pedophilia is concerned, and the matter is publicized nationally. The initial publication of a story is often also the end of the story–NBC’s primetime newsmagazine show might be seen by a million people, few of whom will ever see those suspects again.

This post is not to suggest regulations on any party or industry–I realize that behind door one is more than a little First Amendment friction. But the problem of pedophilia could certainly be tackled by NBC in a manner far less exploitative and protective of individual rights.

The Vatican did not say specifically whether it found the abuse allegations against Maciel to be true. And it said that because of Maciel’s age and ill health — he is 86 — it decided against a full-fledged church trial, or ”canonical process.”

Instead, it said the congregation had ”invited the priest to a reserved life of prayer and repentance, renouncing every public ministry.”

The lesson being that if you molest children, you may at some point (probably right before your death) be forced to sit in the corner and contemplate your actions. Grueling stuff.

UPDATE: NCR reporter John Allen appears to have broken the story yesterday, and and provides some deep background. And the Times updates the story to quote an influential Catholic writer John Wilkins: “But this is the founder of the Legionaries,” he said. “This is a pretty devastating judgment for the Legionaries. For a new movement like that, the reputation and position of the founder is critical.“

The no restraint policy is demonstrated by a litter of easily found articles on Google News: Pope criticizes New Zealand’s civil union legislation and Vatican touts victory with failure of Italy fertility referendum stand out most notably. The latter story had the Pope beseeching Italians to *not vote* on a posted referendum that would have eliminated bans on egg and sperm donation, and frozen embryos. The Pope didn’t encourage the citizens to vote against, but rather simply not vote – the reason was that the referendum needed a 50% quorum. I’m guessing the Pope finds no hypocrisy in commanding native Italians to ignore their political process while simultaneously inserting himself into the same.

Two other noteworthy Vatican happenings deserve note while I’m here:

The Pope has suspended the planned beatification of a Rev. Leon Dehon, a French Priest circa 1900, whose writings exhibit anti-semetic leanings. The following is highly speculative, but it seems doubtful that the Pope – one of the best read, intellectually astute theologians the Vatican has ever witnessed – would have been taken by surprise by the fact that Dehon’s writings exhibited anti-semeticism. It seems more likely that the Vatican was caught off guard by the fact that someone was about to kick up dirt over Dehon, and the Pope took the politically astute and preemptive step of appearing pro-active. Again, pure speculation.

More charming diplomacy can be found in the recent Vatican overture towards China – the flip side of which requires the Vatican to end ties with Taiwan. The Vatican has stated that this will somehow result in “more religious freedom.” But the Chinese demanded that “the Vatican sever relations with Taiwan and refrain from ‘interfering’ in China’s internal affairs– for instance, agitating for religious freedom — before relations can be restored.” It’s not easy to reconcile these two statements, but more significant is the fact that the Vatican chose to drop Taiwan while it held no apparent deal with China – indeed, they hold diametrically opposing views on the matter of religious freedom. The Vatican put the negotiable cart before the negotiable horse. As a result of the Holy See’s crude cost-benefit-analysis, it decided to sell the souls of its faithful members for the mere possibility that more souls will be behind Window Two.

Anyway, the major reason Maciel and the Legionaries he founded frequently find themselves the subject of news stories is because of 9 ex-Legionaries who stepped forward in the last decade with highly credible accounts of molestation at the hands of Maciel. Maciel’s victims instituted canon law proceedings against Maciel, which triggered an investigation by the Congregation for the Doctrine of the Faith (CDF, a/k/a The Inquisition), then headed by Cardinal Ratzinger (now Pope Benedict XVI). Ratzinger sat on the investigation and did nothing – didn’t dismiss it – didn’t act on it – didn’t resolve it in any way whatsoever. The victims then attempted to reopen the investigation and the CDF said it would reconsider – that’s where, in early 2003, Vows of Silence leaves us.

Today, the NY Times closes the book on this particular drama by revealing that the CDF has cleared Maciel of the allegations. Which makes total sense, unfortunately – how could the CDF now find Maciel liable when Ratzinger buried this same investigation only a few years prior? It could not – the decision then would have to be ratified now so that the current pope doesn’t look bad in retrospect. And this is par for the course – this Vatican, like the last, is only interested in protecting the status quo and hammering its policy agenda down the world’s collective throat.

UPDATE: S.N.A.P. responds by slamming Ratzinger…

One cannot help but wonder if Ratzinger shrewdly manipulated Maciel’s victims as pawns in the papal succession struggle. For years, Ratzinger ignored and rebuffed these victims. Suddenly, as the papal election neared, he reversed course.

At the time, some speculated that Ratzinger re-opened the probe as a calculated move toward the center, an effort to moderate his extreme image, and attract votes for his papal bid.

Now that Ratzinger is ensconsed as head of the worldwide church, he coldly tosses these victims aside again. Now, those skeptics must feel vindicated.

Mostly.

The Foreign Services Immunities Act allows for a few exceptions, “commercial nexus” being the most commonly employed (§1605(a)(2)). But the under utilized (and rarely successful) “non-commercial tort” section (§1605(a)(5)) would seem to cover the Vatican’s hand in the numerous sex abuse cases filed here:

(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment;

However… that leads us to the exception of the exception:

except this paragraph shall not apply to –
(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused[.] (emphasis added)

The question therefore will boil down to: Assuming the Vatican bears some oversight responsibility for the sex abuse crimes occurring on American soil (because plaintiff’s complaint will be viewed in a light most favorable to him/her when considering a motion to dismiss), is the Vatican’s oversight responsibility a discretionary function?

My gut instinct would be to say that the answer to that question changes according to circumstance. While the Vatican was not originally in the business of overseeing child molesters, it can no longer claim ignorance that a transformation of sorts has taken place. Indeed, despite its many contortions meant to pretend the problem does not exist, the Vatican’s main arguments (It’s the fault of gays and/or promiscuous American culture) will fall on deaf ears in an American courtroom. And not because the eevil secular humanists have taken over, but because those arguments are patently ridiculous.

It’s not entirely apparent how ‘discretionary’ would be interpreted in this statutory context, and and underabundance of case law doesn’t help focus things. The 9th Circuit distinguishes between “operational” and “discretionary” acts of a government. This test has been employed in Thompson v. US, 592 F.2d 1104, 1111 (9th Cir. 1979), Olsen v. Mexico, 729 F.2d 641, 648 (9th Cir., 1984), and derives from a a pre-FSIA case, Dalehite v. US, 346 U.S. 15 (1953), where the Supreme Court defined discretionary as:

“[M]ore than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.”

In Olsen, perhaps the most promising case in helping the sex abuse complainants get past the motion to dismiss, plaintiffs were relatives of prisoners being transported to Mexico as part of the Prisoner Exchange Treaty between Mexico and the United States. Because the Tijuana airport was so ill equipped, the plane crashed. The court found that the negligence of the Government in maintaining the airport was “operational” in nature as opposed to “discretionary.”

So then, is covering up decades of child abuse a matter of policy? Does running a pedophilic dating service require government decisionmaking at the highest levels?

Or is negligence, which has surely been elevated to recklessness by this juncture, operational by nature? States don’t plan to act negligently nor recklessly pursue goals as a matter of policy.

The Holy See would argue that they have confronted the issue of sex abuse as a state as evidenced by issued various public statements which resulted from meetings meant to establish a coherent policy positoin. Categorically then, the Vatican would claim that sex abuse is a discretionary function simply because it has considered the matter and confronted it as a matter of policy.

(Many would certainly (and fairly) argue with this, but realize that categorical tests employed by the courts do not consider related factual issues or even the particular nature of the state – the issue would be restricted simply to whether oversight by a sovereign entity (any sovereign entity) regarding sex abuse occurring in United States is, by its nature, operational or discretionary for the purpose of extending liability to the negligently overseeing state.)

It’s worth researching more deeply and perhaps in a subsequent post I’ll examine the entire line of §1605(a)(5) cases (there aren’t many) to see if I can’t discern a more exact doctrine.

But I can’t help but think that had the Mexican government decided, in prior meetings, as a matter of policy, to let the Tijuana Airport rot, that their motion to dismiss would have prevailed. I could be wrong, but I would like to think that gross negligence would have somehow trumped.

One wildcard here is the fact that the Vatican is only a state in the loosest sense of the term. It fits almost none of the objective criteria of statehood (a permanent population (you only live in Vatican City if you work in Vatican City); a defined and substantial territory (1/8 the size of Central Park); a government (ok, they have one.. but who are they governing?); and capacity to enter into relations with other states (ok, they can have this one too… but the treaties they do enter into are notoriously one-way – who in the Vatican can be bound?)). Many states indeed recognze the Holy See as a state, and the UN sees them as a non-member permanent observer, like Switzerland. This gives the Holy See enormous pull, including a de facto veto in all conferences.

But what if the United States ceased recognizing the Holy See as a state? While this doesn’t seem like a likely possibility this week, it could be on the horizon. The Holy See is unlike any other state in that it more closely resembles a religious mission, and in that capacity, controls agents operating in various other states, in a respondeat superior sense. Those agents enjoy protection, take orders from, and pay outside allegience to their corporate body politic. Under the same circumstances confronting us today, replace “Holy See” with any other state that comes to mind, and you get the idea. But these reasonable points have an uphill climb in this country, where so much deference is granted to religion that it has long since gelled into a blind-spot.

And a court cannot derecognize a state for the purpose of assigning liability under the FSIA as a purely constitutional matter, especially where numerous treaties between this coutnry and the Vatican exist.

But the Kentucky class action has Sodano unnerved enough to have asked the Bush administration to intercede. And if they do, all the parties should be shamed right onto the carpet.