Category Archives: Cardozo

A final Jurist column: I’m gettin’ too old for this yoga shit

Just when I thought I was out, they drag me back in.

After a leisurely day of walking to Union Square for kale, and then down to Washington Square Park to enjoy my free sample of pita chips and hummus, the Jurist EIC gives me a ring and asks if I want to write one final column.

Apparently, the Cardozo Dean of Career Services announced he was leaving to become a yoga instructor of some such. And in a surprising moment of pro-active journalism, the Jurist decided to cover it even though the year was over. In addition to news coverage, they wanted some commentary, too. Leading, of course, to some very important questions. Such as: Didn’t that asshole graduate already?

Anyways, here is my column, reposted, and obviously not copy-edited. I think I use three different styles for writing Cardozo Dean of Career Services.

Max Fischer said that the key to happiness is finding something you love to do and then doing it for the rest of your life.

I would guess that Dean Fama has found happiness.

In an open letter to Cardozo, Fama explained that he will be leaving his position as Dean of Career Services to merge his yoga and career counseling experience by developing yoga and relaxation programs for lawyers and law students.

But for the rest of us, it often feels like happiness is slightly out of reach. Heck, a legal job with a salary that will let one make student loan payments will suffice.

But Fama’s project sounds very interesting, and I have many questions about it. For example: Is he hiring?

Indeed, there is a bit of an image problem when a law school’s Dean of career services leaves for a non-legal job. Although that seems to be the new standard: go to law school but then not get a job in the legal industry. Of course, this begs the question of why go to law school in the first place?

Well, the free yoga classes weren’t bad.

Admittedly, Fama’s relaxation techniques are a great way to deal with the still tightening legal market and overall stress of the legal industry. But I can think of a great way to relieve student stress without resorting to mystical breathing techniques of the Orient.


So as Cardozo begins the search for a new Dean of Career Services, I have a recommendation. We’ve had a yoga instructor, and that was great. But this time, let’s try out a weightlifter.

Rather than teach students how to relax when we don’t get jobs, the next dean of career services should help students build the muscle necessary to shovel through the layers of bullshit it takes to get a job these days. We need a terrifying, muscle-bound dean to run around 55 5th ave, yelling at girlymen students about how they need to pump up their resumes. Instead of teaching students how to be flexible, Cardozo needs someone to help mold students into perfect specimens of legal Adonises. The point of law school is to get a law job. Cardozo should find someone who lives, eats and breathes the legal industry, and then turns it into a powder form that he can mix into a smoothie and jam it down students’ throats.

Law students are supposed to be adults who can take care of their own problems. But if OCS has demonstrated anything, it is that many students won’t take the proper job search steps without someone there to hold their hands. The next dean needs to embrace this duty with full intensity, taking those hands and forcing them to write cover letters until they have jobs, not unlike handcuffing a fat kid to a treadmill.

So as we 3L’s cross the stage at graduation, often jobless and in debt, I cannot help but wonder whether we, too, will one day match Dean Fama’s happiness.

Well, I may not have a job, but I wrote for the Cardozo Jurist. What did you ever do?

A self-reflection: farewell to student newspapers, again

We were going for a John Hughes style and I think we pulled it off. Finally, I'm not Ducky.

So I’ve finished my tenure with the Cardozo Jurist. I did not join my 1L year because I naively thought that I would instead concentrate on classes and get good grades and get on a law journal or externship or something instead of just write for what I viewed at the time as a rather mediocre student newspaper. As I said many times, working for a student newspaper in law school makes as much sense as working for a law journal in undergrad. But as my failures became more obvious, I decided to play towards my strengths and join the Jurist. Two years later, I regret not joining earlier.

I’m used to being outspoken in print, but the irrational fear of expressing opinion that infests law students makes my normal style seem even more outrageous. However, this was tempered by the fact that the Jurist only came out once a month, and lots of law students simply didn’t care about a student newspaper.

I would like to think that I had a positive influence on the paper, showing that there was a space for student voices, leading a much-needed redesign, encouraging a switch from QuarkXpress to InDesign, and pushing for the creation of and then leading the editorial board. Then again, we’ll see how long all this lasts.

These are some of the people who put up with me.

The Jurist was also where I made my law school friends. Despite my vocal volume, I’m not really that outgoing, and it usually takes some time for people to get used to me. The forced interactions of the closet that was the newspaper office helped me build some actual relationships. Maybe if I had joined my 1L year, I wouldn’t be so quick to leave NYC. (Then again, maybe I would have gotten some advice about classes and journals, and actually have a job opportunity.)

I'm making love to the camera. So is Rachel's foot.

Like the Thresher before it, the Jurist wrote a very nice parting farewell to alumni. Of course, as a departing alumnus, I was mentioned. The Thresher farewell was a bit tongue-in-cheek, jabbing at my habit of riling up campus and getting into trouble. I understood the lack of some lovely farewell. After all, I’m sure I got on their nerves after four years of the same old routine. It was time to move on. Plus, I was used to critique and displayed a pretty thick skin, so I’m sure they thought it was totally appropriate. Which it was.

But the Thresher was very special to me and, well, I maybe would have wanted something that more honestly recognized my dedication to the paper rather than framing me as some cartoonish troublemaker. Then again, I didn’t do much to dispel that image.

When I started to read the Jurist’s farewell, I expected the same thing. Imagine my pleasant surprise to find a column that spoke without irony or hesitation about my work for the paper.  Graduating in the middle of the class from a second tier law school feels like no grand accomplishment. But this letter, even if for a fleeting moment, made it all worthwhile.

Furthermore, often I have a habit of being goofy, or a joker, or feigning ignorance. To paraphrase what I’ve heard from many people, “Evan’s here for everyone else’s entertainment.” I don’t mind being the jester, and in fact I usually relish the attention. But because of this, people often see me as some buffoonish clown, unserious and dimwitted. So when I read that one descriptive phrase, “Courageous, super-intelligent and undaunted by the consequences of speaking his mind,” well… it was more than I’ve gotten in a very long time and it is a compliment that feels really important.

I really appreciate it.

Anyways, enough of my cliche yet expected self-obsession. Here is the column:

(pdf: jurist farewell mintz)

Please give me, Evan, a job

Today the Jurist released its last issue of my law school career. Or as I like to call the past three years: a mistake. But what’s done is done. I’ve made my bed, and now I have to weasel my way out of it. So rather than buckle down, get good grades, and do whatever it takes to get a job, I did what I do best: write a snarky column.

I’m pretty proud of this column, which I wrote instead of my back up plan: advocating for the American Psychiatric Association to rename narcissistic personality disorder as “Evan’s Disease” in the DSM-V.

Anyways, I suppose it is sort of a suicide note for law school, but in a good way. The tone and jokes slowly build to a climactic moment, and I hope that moment is obvious. Admittedly, the overall column style was directly inspired by an old Dylan Farmer sports  column in the Rice Thresher. And by “inspired,” I mean I stole the idea.

Here is my final column for the Cardozo Jurist, “Hey, Employer! Have You Heard About Evan Mintz? No? Read This Column” (pdf: Mintz Jurist hire me)

Eliminate Cardozo’s Student Speaker, so Elect Me!

I had another column, as usual, in this month’s Cardozo Jurist. I was inspired by an April 21, 2006 column in the Rice Thresher, written by none other than CNN’s own Jo Ling Kent. You see, Rice graduation doesn’t have a student speaker, and Kent thought that this needed to change. As she wrote in: “Commencement deserves student speaker”

Not having a student speaker at commencement is like having free tuition in 2006: It is shocking and grossly archaic. I polled a few students for their reactions to this, and most responded with some variation of, “We don’t have a student speaker? I just assumed we did.”

But according to the Board of Trustees’ newly adopted mission statement, Rice is “a leading research university with a distinctive commitment to undergraduate education.” Keeping this in mind, inviting a student or two to share anecdotes about their Rice experiences would fall in sync perfectly with the undergrad-centric goal of the university.

However, Kent never really explained why a student speaker would be such a good thing beyond her general claim that it would fit with the goals of the university. But that is an awfully broad claim. Rather than back it up, she spent the rest of the column preemptively rebutting arguments against a student speaker.

So what exactly is holding Rice back from unveiling a refreshing and long-overdue twist on commencement? Over the past year, I discovered that there are a number of administrators, faculty and alumni who oppose the idea of a student speaker lineup every May for either flimsy or outdated reasons.

Most people said picking a student speaker would be political and therefore unfair. A selection process via committee or election would be inadequate, they say. Simply granting the Student Association president a few minutes to speak might not be fair either, given the voter turnout or lack thereof. With this logic, they claim no student should speak at all.

So, if everyone does not agree on who the U.S. president should be, we should just forgo the presidency altogether. Brilliant.

Another major point of contention is whether a student speaker would jeopardize a controversy-free ceremony. Heaven forbid we ignite any controversial dialogue on this campus. And for those who are worried about streakers and protesters, do not forget that commencement falls on May 13 this year. Nudity will inevitably be front and center.

And if protesters are a worry, tell me about a time when you have seen enough protesters at Rice to disturb an event, and I will show you a pre-med who does not obsess about organic chemistry.

And finally, my favorite argument: An additional speaker would force commencement to last too long. Well, if that is a problem, switch on a handheld mini-fan and enjoy the show.

I remember at the time supporting her position. But after talking it over with people in the Thresher office, and just generally around campus, I was convinced otherwise. Stephanie Taylor summed up the arguments against a student speaker quite well in her letter to the editor. Notably, the final sentence:

Instead of allowing a few students to inflate their egos for a few minutes, Rice should continue to make commencement a time when all graduates are congratulated in the same manner — in heavy gowns and by people who have actually been adults in the real world.

There is a certain mystique to graduation. However, after sitting through my own high school and college graduations, I think it is a fair assumption that all the grandeur is generally an illusion. You sit. You wait. You listen. You want to go home. By law school, we should all be over that, and merely appreciate the graduation ceremony stripped down to its most basic essence. A graduation speaker at least has the premise of being someone who can give guidance as you enter the real world, or for law school, the legal world. But a student speaker can’t say anything that everyone else at the school already doesn’t know.

And if a student speaker does have something important to say, why wait until the last minute to do it?

But these days, even the role of graduation speaker seems to be reduced to a celebrity position to appease students and get attention, in exchange for cash payment of course.

Cardozo has a student speaker. Another addition to the already long ceremony. However, that position is elected by whichever group of students decides to show up to a speech competition and listen to all the potential speakers. Thus, I threw my hat in the ring, with the promise of not giving a speech if elected. I probably won’t win, but in your heart, you know I’m right.

Anyways, my column (pdf: Evan for cardozo speaker)

I wrote a column advocating a national holiday for lawyers

Another month, another Cardozo Jurist. Like usual, I had a column. This time, I wrote about how the real defenders of liberty and freedom aren’t in the military, they’re in law school.

Of course, Andrew Sinclair had the best retort: “You know Evan, not all lawyers defend liberty. The Obama Justice Department for example.” And then he went on a rant about John Yoo.

He is right, not all lawyers dedicate themselves to universal justice. But I would argue that the legal industry overall does a better job preserving the rights and liberties of U.S. citizens than the military does. So where is our holiday?

Without further ado, “Lawyers Deserve a National Holiday.” (pdf: Mintz Cardozo lawyer holiday)


A paper I wrote about libel laws in the United States and Canada

Earlier today, Kyle made a comment on Facebook that was serendipitously related to a paper I wrote last semester discussing the difference in U.S. and Canadian libel laws.

So in answer to his query about the difference between U.S. and Canadian libel law, here is the paper I wrote for Comparative Constitutionalism. It wasn’t my best paper, but I got a B+ in the class, so I think that should be good enough to at least provide basic information about the topic. But rereading for the first time since completing it in December, it is pretty awful.

pdf: Mintz Cardozo paper on US and Canada libel law

Evan Mintz

Libel Standards in Canada and the United States

I. Introduction

A.  The U.S. actual malice standard for libel, and nations with a similar standard

The landmark U.S. Supreme Court decision in New York Times Co. v. Sullivan established the high standard of requiring actual malice to prove libel.1 However, Sullivan has not just set the standard for the United States, but acted as guiding case for many other countries as well.  Argentina has actively applied the actual malice doctrine since the 1987 case Costa, Héctor R v. Municipalidad de la Capital y otros.2 In that case, the Argentine Supreme Court spotlighted Sullivan, noting that American free speech jurisprudence is undeniably relevant to how freedom of the press should be interpreted under the Argentine Constitution.3 Bosnia has also adopted a malice-based libel standard, holding that “harm [is] caused in making or disseminating the expression of he or she knew that the expression was false or acted in disregard of its veracity.”4 The Hungary Constitutional Court has also held that actual malice must be proved in libel cases.5 The Hungary court echoed Justice Brennan’s “perfect and splendid” language from Sullivan, stating, “In these [wide-open] debates governments and officials are attacked by unpleasant, sharp and possible unjust accusations, and facts are brought to public knowledge which are capable of offending the honor of public figures.”6 However, the court held that open discussion of public affairs is essential in a democratic society, rendering criticisms of government authorities a necessity. The Supreme Court of India has endorsed the actual malice standard as well. In Rajagopal v. State of Tamil Nadu, the court held that public officials cannot recover damages for libel when the actions are discussed in context of official duties, reasoning that this should be held “even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for the truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts.”7 An intermediate appellate court in Pakistan has also held actual malice as the standard for defamation cases. The judge in Nazami v. Rashid held that public figures must prove that defamatory statements are false and that they were published “recklessly and maliciously” with no attempt at verification, and thus that statements critical of public figures cannot give rise to liability unless motivated by malice, personal ill will or “spite and eliberate and false attack on one’s personal life.”8 Indeed, given this vast smattering of nations from South America to Europe to Asia adhering to an actual malice standard for libel against public figures, it is easy to see that the U.S. standard held in Sullivan has had a global impact, even on nations that do not share a similar history, origin, or philosophy. However, it then seems almost contradictory to note that the United States’ closest neighbor, Canada, not only has a different standard, but has actively contemplated and rejected the U.S. standard.

In this paper, I will compare the U.S. standard actual malice against the Canadian strict liability standard, with specific focus on the Canadian Supreme Court case Hill v. Church of Scientology of Toronto. I will also analyze the comparative histories of the two countries in an attempt to elucidate the reason behind the different constitutional conclusions, with specific focus on the historical role of the press and attitudes towards truth and falsity.

II. Actual malice in the United States and strict liability in Canada

A. The U.S. perspective in Sullivan

Prior to Sullivan in 1964, the United States had a strict scrutiny standard for libel similar to the current Canadian model. However, with the decision in Sullivan, the Supreme Court extended First Amendment protection of speech to a large range of defamatory expression. The case concerned a Montgomery, Alabama city commissioner, Sullivan, who sought compensation for injury to his reputation caused by factual errors in a pro-civil rights advertisement printed in the New York Times. The ad, titled “Heed Their Rising Voices,” described the plight of civil rights in the south and advocated for help.9 Sullivan pointed out that the advertisement contained several misstatements of fact, such as misstating the number of times Dr. Martin Luther King, Jr. had been arrested and that students on the capitol steps had not sung “My Country, ‘Tis of Thee,” but rather the national anthem.10 Although Sullivan was not mentioned directly in the advertisement, the ad did attack the Montgomery police, for which Sullivan was generally responsible. As a result, the Alabama jury awarded Sullivan the $500,000 he sought in the case.11

However, upon appeal to the Supreme Court, a unanimous opinion held that “the Constitution delimits a State’s power to award damages for libel actions brought by public officials against critics of their official conduct.”12 The opinion, described as written “without a great deal of comment,” held that the court’s enforcement of common law was state action and subject to constitutional scrutiny, explaining that criticism of public officials and the manner in which they fulfill their duties mandate special protection under the democratic process of government.13 Therefore, to protect the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,” the court required that public officials could only recover damages for defamation if they proved that the statement was made with actual malice.14 According to the court, actual malice would be present in the event that a defendant had knowledge of a statement’s falsity prior to its publication or if the defendant acted with reckless disregard of its truth or falsity.15 While there has been a discernible trend since Sullivan in the U.S. court system towards limiting the public figure category, the Supreme Court has held to the core of the Sullivan decision, a core that has influenced other legal systems worldwide.16

B. The Canadian perspective

1. Canadian common law standard

Contrary to the U.S. actual malice rule, Canadian defamation law adheres to a strict liability standard, which holds that liability does not depend upon the intent or malice of the publisher but rather the mere fact that defamation occurred.17 If a plaintiff proves that a statement is defamatory, then falsity and damages are presumed and the burden shifts to the defendant. Supporters of this standard justify the presumption of falsity and damages based upon three key notions. First, it is generally difficult for a plaintiff to prove damages because of the inherent difficulty in stating the monetary consequences a defamatory statement. Secondly, it is similarly difficult for the plaintiff to prove the falsity of a false statement, treading into the philosophical quandary of trying to prove a negative. Third, the requirement that the defendant prove the truth of the statement is consistent with the minimal standard of competent journalism.18

Of course, a defendant does have several defenses to a charge of defamation. Absolute privilege is granted to statements made by participants in Parliament, provincial legislatures, and judicial proceedings for the purpose of free and open debate. The media benefits from that privilege as well when it reports on those events in a fair, accurate, and timely manner.19 Furthermore, plaintiffs only have a limited amount of time to issue a libel notice to the defendant in a libel suit. In contrast, the U.S. Statute of limitations on libel actions is 1-3 years.20 On the other side, potential plaintiffs are given several days to review the statement, and if they concede a mistake and offer an apology, the courts will lower damages to actual damages rather than damages for harm to reputation. This usually amounts to the courts finding no damages at all.21 In addition, the Canadian “losers pay” rule helps to discourage unfounded claims from reaching court.22  Despite these protections, the strict scrutiny rule for libel has come under attack from free speech advocates who would prefer a standard more along the lines of the actual malice.

2. Balancing the Canadian Charter of Rights and Freedoms with the Common Law standard in Hill v. Church of Scientology of Toronto

Canadian advocate of a stronger freedom of expression and stricter libel requirements, point to the Canadian Charter of Rights and Freedoms. Specifically, section 2(b) of the Charter identifies a basic freedom of expression:

2. Everyone has the following fundamental freedom:


(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.23

After the implementation of the Canadian Charter, it was increasingly argued that Canada’s strict liability libel law inappropriately infringes upon these free speech rights by offering a legal avenue to censor or chill the press.24 This apparent conflict between Canada’s common law rule of strict liability and a proclaimed fundamental freedom of expression came to blows in the Canadian Supreme Court case Hill v. Church of Scientology of Toronto.25

In that 1995 case, the Supreme Court of Canada actively rejected the actual malice rule and held that the strict liability standard was a proper balance between reputation and freedom of expression. Hill was a lawyer with the Ministry of the Attorney General for the Province of Ontario and acted for the Crown on legal matters concerning the Church of Scientology and a police search and seizure of its documents. The documents were sealed awaiting a search warrant, but another government official initiated a review of the documents to determine whether the Church of Scientology should be allowed to grant marriages like other religions. Even though Hill was not involved in this review, the Church held a press conference and alleged that Hill misled the court and helped to open and inspect the sealed documents, and initiated a contempt prosecution against Hill. However, even though the Church’s own agent monitored the documents and found no evidence that they had been tampered with, the Church continued its rhetoric against Hill and sought to disqualify him from the proceedings.26 Hill sued the Church for damages from the libel at the press conference. The jury awarded Hill $300,000 against the Church in general damages, and $500,000 and $800,000 against the Church for aggravated and punitive damages.27

Upon appeal, the Church argued that the common law standard was contrary to the Charter and encouraged the adoption of an actual malice standard. The Supreme Court rejected these arguments and found that common law defamation was not contrary to the Charter. First, it held that Hill’s employment as a Crown attorney did not automatically make his action into state action, and therefore did not submit the resulting defamation suit to direct Charter scrutiny: “The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employment status.”28 The court explained that basing a standard for libel cases on one’s employment would essentially create two different systems of laws. According to the Canadian Supreme Court, the importance of one’s personal reputation does not change based on government employment, but exists for everyone.29

This analysis stands in contrast to the U.S. standard in Sullivan. In that case, the court found a parallel between the privilege granted to government officials and the extent to which officials’ work could be considered government action. In Barr v. Matteo, the Supreme Court found the utterances of a federal official to be absolutely privileged if made ‘within the outer perimeter’ of his duties.30 This privilege was granted because the threat of damage suits would otherwise “inhibit the fearless, vigorous, and effective administration of policies in government” and “dampen the ardor of all but the most resolution, or the most irresponsible, in the unflinching discharge of their duties.”31  Therefore, analogously the citizen-critic of the government should be allowed to comment on government actors to the same outer perimeter of the actors’ duties. If the protections for the public were not as broad as those for the government actors, public servants would have an unjustified preference over the public they serve.32

Secondly, the Canadian Supreme Court held that because there was no state action, the Charter could not be directed applied. Rather, the court held that in the context of civil litigation involving only private parties, the Charter only applies to the common law merely to the extent that the common law itself is found to be inconsistent with Charter values.33 Furthermore, because common law is the product of incremental cases and decisions, it should be protected from overwhelming constitutional changes, thus requiring a more flexible balancing test than traditional analysis used in cases involving governmental action cases.34 For the Hill test, the burden would lie on the party that seeks to prove that the common law is inconsistent with Charter values and that common law should be changed as the result of a balancing.35

In applying this test, the court emphasized that freedom of expression was never understood in the Canadian context, both before and after the Charter, to be an absolute value.  Freedom of expression has been regularly subject to legal restrictions in Canada, and weighed against the other values of a free and democratic society.36 Specifically, the court explained that false and injurious statements do not relate to the protected core values of a democratic society,  and fail to contribute to healthy participation in society. As a result, they harm self-development, and are inimical to the “search for truth.”37 On the other side of the balancing test is the protection of the reputation of the individual, which the court admited has a somewhat scarce written history. Despite this, the court asserted that most people cherish a good reputation above all else and that it is closely tied to the innate worthiness and dignity of the individual, and therefore it must be protected by society’s laws and much as freedom of expression.38

Finally, the court actively considered and rejected the Church’s proposal of adopting the actual malice rule developed in Sullivan. The court emphasized the supposed adverse effects of the actual malice standard in the years since Sullivan. Among the consequences, the court identified shifting to the plaintiff the burden of proving the truth of a statement, requiring an unnecessary spotlight on media proceedings to prove malice, increased litigation costs, and the social costs of undermining discourse with false and denigrating statements.39 The court also demonstrated how the United Kingdom and Australia had rejected the actual malice standard, in contrast to the United States.

Why differences?

A. Historical role of the press in politics

The position of the press in the U.S. political system and history offers an insight into differing attitudes towards libel law between the United States and Canada. Indeed, the prominent role the press plays in the U.S. political process was a key argument in Sullivan for  the protection of defamatory speech against public officials. Indeed, the press played an active role in the creation of the United States itself in the Revolution War. The Salem Gazette printed a full account of the battle of Lexington, providing a colored account of the burning, pillaging, and barbarities charged to the British, while praising the American militia.40 When Congress published the Declaration of Independence on July 6, 1776, it chose to do so in the Philadelphia Evening Post. Founders saw the press as part of the government process. In America’s earliest years, the press served as a force to unify the nation and awaken a common purpose, interest and destiny among the separate colonies, helping to form them into a United States.41 During the debates of what the U.S. government should be, the writers of what would become the current constitution turned to the press to make their case. When Alexander Hamilton, James Madison, and John Jay united to write the Federalist papers, they chose to publish them in The Independent Journal and The Daily Advertiser.42 When the U.S. government was finally established, the new Congress actively included the press in congressional sessions. While state legislative proceedings had always been permitted in the colonies, upon the convening of the first  Congress, a Congressman Burke moved that the representatives of the press should be excluded from the sessions. At a time when taking of notes in the British Parliament was still forbidden, the U.S. Congress quickly rejected this notion of banning the press, never to revive the notion.43 Judging from these actions, it is as if instantly in its first Congress, the United States actively broke from common law attitudes towards the press. Indeed, the U.S. Government was created with the idea that the press should be treated differently than in other nations. Given this history, it should be no surprise that the Supreme Court would put the press on a pedestal, granting it treatment beyond what other common law nations see as necessary.

In the Sullivan decision, the Supreme Court drew on the rhetoric of the founders, specifically James Madison, to explain how the U.S. Constitution provides for a government where absolute sovereignty lies with he people, and their press, rather than with the government. Pointing specifically to Madison, the court explained that the U.S. System is supposed to be “‘altogether different’ from the British form.”44

“‘Is it not natural and necessary, under such different circumstances,’ he asked, ‘that a different degree of freedom in the use of the press should be contemplated?’”45

From the perspective of one of the key authors of the constitution, a new government meant a new attitude towards the press. Madison even foresaw and observed expansion of press freedoms beyond the previous common law standards:

“‘’In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands.’”46

For Madison, and the Supreme Court, the right of free public discussion of the actions and activities of public officials is a fundamental principle and inherent character of the American form of government.

In an almost Freudian reaction to events in nation’s origins, scholars have viewed Sullivan as securing the role of the U.S. Constitution protection of free speech in the First Amendment as a refutation of the Sedition Act of 1798. In his analysis of Sullivan, Harry Calvin, Jr. determined that “the Touchstone of the First Amendment has become the abolition of seditious libel and what that implies about the function of free speech on public issues in American democracy.”47 Indeed, the United States experimented with a stricter standard for libel in the form of the Sedition Act, which made it a crime to publish any “false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress, or the President, with intent to defame or bring them, or either of them, into contempt or disrepute.”48 The Act allowed truth as a defense, and provided that the jury was judge for both law and fact. However, despite these qualifications, as the Sullivan court identified, the Act was condemned by both James Madison and Thomas Jefferson as contrary to the standards of the constitution.49 From its founding, the United States had imagined a different standard for its press and for its government.

In contrast, Canada does not have a history that elevates the press to any heightened position. Canadian courts have actively rejected the idea of the press having any greater protection than the rest of the public. As the Canadian court made clear in Arnold v. R:

“The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher.”50

Indeed, the Canadian press does not have much in the way of judicial recognition that it is anything special or should be treated as such, unlike in the United States. These differing attitudes from political leaders, national history, and the judiciary help explain divergent attitudes between two geographically and culturally similar nations.

B. Comparative government structures

In addition to historical differences in the comparative governments, the actual structure of the governments themselves helps explain different attitudes towards the press. In Canada’s parliamentary system, ministers are directly accountable to the legislature. As part of this system, forty-five minutes of every day that Parliament is in session is reserved for what is know as Question Period. During this period, Members of Parliament may ask any question of any Member of the House.51 Members of opposing parties often use this opportunity to “launch scathing and biased attacks on the government of the day.”52 Under this system, members are protected by absolute immunity from civil liability, and their potential defamatory attacks may be printed by the press under a qualified privilege.53 What Americans may see as partisan bickering is the Canadian press’ source for coverage and commentary. While the American press controls the potential defamations themselves, talk radio for example, the Canadian press may look to Parliament for its material.54 In contrast, the United States republican system of government is built around the separations of powers. Under the Constitution, the President is only obligated, from time to time, to provide Congress with information concerning the State of the Union and recommend measures.55 The President is never required to field questions from Congress. Rather, the President’s communications with the public and Congress are often forged through the press, with carefully staged press conferences and tightly controlled information releases.56 Given this separation of powers and abilities by the branches to control their own messages, journalists play a very important role in the political process. Therefore, as Madison argued, the press in the United States requires a great degree of freedom in order to adequately carry out its crucial role as a check on government.57 Indeed, when one compares the two different checks on government, Question Period in Canada and the press in the United States, both are granted similar privileges. The difference between Canadian and American views is not the amount of protection that the institutional check on the government merits, but rather just who the check on the government is.

C. Ideas of truth and falsity

In addition to different attitudes towards and roles for the press, Canada and the United States also have different perspectives on the consequences of false statements in public dialogue. In Hill, the court rejected the idea that any sort of false statement can help contribute to the goals of a free and democratic society. The court, instead, lists “the search for truth” as a goal of society.58 To the contrary, the United States has recognized that false statements are often unavoidable in a constructive dialogue. Even at its founding, Madison recognized the inevitably of false statements: “Some degree of abuse is inseparable from the proper use of every; and in no instance is this more true than it that of the press.”59  From a philosophical perspective the court in Sullivan recognized that error is inescapable, quoting John Stuart Mill’s On Liberty: “Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.”60  Indeed, false statements in argument were viewed by the court as inevitable. However, the Sullivan court accepted false statements not just because they are an inherent part of debate, but also because the line between false and true is often difficult to distinguish.

As the Sullivan court cited from Cantwell v. Connecticut, political debate is often like religious debate, in which no side can prove their own side: “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor.”61 Indeed, what is true to one man may not be true for another. The Supreme Court inherently recognizes the flexibility of truth and falsity. It should be no surprise that the Sullivan decision was written in 1964. The Civil Rights movement, like the Civil War before it, saw a nation turned against itself. At trial, Sullivan saw a judge who refused to integrate seating, reject the 14th Amendment, and promise to uphold “what man’s justice.”62 In the United States, it is possible for a judge, and a state, to see truth where another state, or the Federal government, sees lies. Given these conflicts, one can understand how the Supreme Court could view truth as a tenuous topic.63


Cultural and geographically, Canada and the United States are extremely close. Judging from its adoption by various nations worldwide, the U.S. actual malice standard for libel cases does not suffer from severe flaws, and has been extremely influential. However, Canada has contemplated and refused to adopt this Sullivan standard. Differing history and government structure helps shine a light on to why these two similar nations would adopt opposing standards.

1 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 

2 Argentine Supreme Court of Justice 310 Fallos 508 (1987). 

3 Kyo Ho Youm, Impact on Freedom of the Press Abroad, 22 Comm. Law. 12, 12 (2004).

4 Law on Protection Against Defamation of the Federation of Bosnia and Herzegovina, art. 6(4) & (5) (October 2000), quoted in Youm.

5 Constitutional Court of Hungary, Decision 36/1994, on Defamation of Public Officials and Politicians (June 24, 1994), quoted in Youm.

6 Ibid.

7 [1995] A.I.R. India 264 (Oct. 7, 1994), quoted in Yuom.

8 P.L.D. 1996 Lahore 410 (Pakistan), quoted in Yuom.

9 Sullivan, 376 U.S. at 256-57. 

10 Sullivan, 376 U.S. at 257-58.

11 Ibid. at 256. 

12 Ibid at 283. 

13 Charles Tingley, Reputation, Freedom of Expression and the Tort of Defamation in the United States and Canada: A Deceptive Polarity, The Alberta Law Review, 37 Alberta L. Rev. 620, 627 (1999).

14 Ibid. at 627.

15 Sullivan, 376 U.S. at 283. 

16 Tingley at 629. 

17 Tingley at 624. 

18 Tingley at 624.

19 R. Martin, Essentials in Canadian Law — Media Law (Concord, Ont.: Irwin Law, 1997) at 126, 151, quoted in Tingley at 625. 

20 Tingley at 625.

21 R. Martin, “Does Libel Law have a ‘Chilling Effect’ in Canada?” in R. Martin & G.S. Adam, eds., A Sourcebook of Canadian Media Law (Ottawa: Carlton University Press, 1989) 757, quoted in  Tingley at 626. 

22 Tingley at 626. 

23 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

24 M.G. Crawford, The Big Chill (1992) 16:3 Can. Law 14.

25 [1995] 2 S.C.R. 1130

26 [1995] 2 S.C.R. 1130, ¶ 20-27.

27 [1995] 2 S.C.R. 1130, ¶ 53.

28 [1995] 2 S.C.R. 1130, ¶ 74.

29 Ibid. at ¶ 74. 

30 Sullivan, 376 U.S. at 282, citing Barr v. Matteo, 360 U.S. 564, 575 (1959).

31 Barr v. Matteo, 360 U.S. 564, 571 (1959).

32 Sullivan, 376 U.S. at 282-83.

33 [1995] 2 S.C.R. 1130, ¶ 98.

34 Ibid. at ¶ 100.

35 Ibid. at ¶ 101.

36 Ibid. at ¶ 106.

37 Ibid. at ¶ 109.

38 Ibid. at ¶110.

39 Ibid. at ¶130-136.

40 Revolutionary Newspapers, in The Cambridge history of English and American literature: An encyclopedia in eighteen volumes (W.P. Trent, J. Erskine, S.P. Sherman, and C. Van Doren, eds., 1907-21), available at

41 Ibid.

42 Reporters Admitted to the Debates in Congress, in The Cambridge history of English and American literature: An encyclopedia in eighteen volumes (W.P. Trent, J. Erskine, S.P. Sherman, and C. Van Doren, eds., 1907-21), available at

43 Ibid.

44 Sullivan, 376 U.S. at 274. 

45 Ibid. at 274-275. 

46 Ibid. at 275. 

47 H. Calvin, Jr., “The New York Times Case: A Note on the Central Meaning of the First Amendment” 1964 Sup. Ct. Rev. 191, 209 (1964). 

48 Sullivan at 274. 

49 Ibid at 274.

50 83 L.J.P.C. 299 at 300 (P.C.)

51 M.J. Bryant, “Section 2(b) and Libel Law: Defamatory Statements about Public Officials” 2 Media & Communic. L. Rev. 335, 362. 

52 Tingley at 635.

53 Ibid. at 636. 

54 Ibid. at 636. 

55 U.S. Const. Art. I, §3, cl. 1

56 Bryant at 362. 

57 Tingley at 634.

58 [1995] 2 S.C.R. 1130, ¶ 109

59 4 Elliot’s Debates on the Federal Constitution (1876), p. 571., cited in Sullivan at 271. 

60 Mill, On Liberty (Oxford: Blackwell, 1947), at 15.

61 Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).

62 S. Wasby, “A Transformed Triangle: Court, Congress, and Presidency in Civil Rights” 21:3 Pol’y Stud. J. 565 (1993).

63 It should also be noted that the early 1960s saw the publication of Thomas Kuhn’s The Structure of Scientific Revolutions. This work was a landmark publication that documented how scientific systems become overthrown and previous concepts of scientific truth are replaced with new models. This shows that not just in the courts, but elsewhere in American society, the concept of truth as a tenable concept was increasingly being questioned.

Cigarettes are not magic, comma, don’t mess with Texas.

I wrote a column. The style reminds me a lot of my later work on the Thresher, where I had a point, but only through a layer of jokes or metaphors. I didn’t know what I was going to write for this issue, and then suddenly the topic came to me after the first day of the semester and I saw overflowing ash trays and cigarette butts all over the sidewalk in front of Cardozo. Honestly, majority of the time writing this column was spent trying to determine the perfect band to fit the tableau of a high school, weeknight concert. Some people recommended the Strokes, but I thought it was a bit too mainstream. Joy Division was too old. Republica, I think, was a good choice and also a subtle Venture Brothers reference.

Once I got through there, the rest flowed pretty well. The cigarette fairy part is stolen from Brett and Dan, though I think any jokes coming from 251 are officially joint works under WIPO. Honestly, this is a column I have been wanting to write since junior year at Rice, when we would mock the girls and their gay friend who smoked cigarettes outside the Hanszen servery, and then just throw their butts on the ground.

And the part about cigarettes as some Antionettian opulence is stolen directly from an IM conversation with Sara Franco.

Originally, the column had a different ending, but I wanted something punchier, and was reminded of an old commercial titled “Jimmy,” about a kid who just goes around collecting old cigarette butts. And it is nice to remember that Don’t Mess With Texas is an anti-littering campaign. Now only if fracking, or pollution, were considered littering.

Anyways, my column from this month’s Cardozo Jurist: Cigarettes are not magic, don’t mess with Texas. (pdf: Mintz cigarette texas column)

Another Evan Mintz column for the cardozo jurist, this time about littering

A paper I wrote for law school about KTRU and Internet Radio

For my Entertainment and Media Law class at Cardozo, I wrote a paper about the legal ramifications of Rice University selling the KTRU license and transmitter. I think it was an A- paper, which I suppose is pretty good. (The professors never responded with a direct grade for the paper, only for the overall class.) Anyways, here in the paper, in which I quote myself (pdf: Mintz KTRU legal) :

I. Introduction and History

A. Selling College Radio Stations

On December 5, 2010, the New York Times ran an article titled “Waning Support for College Radio Sets Off a Debate.”1 The article brought to national attention the problem of universities selling their college radio stations, notably addressing the recent controversies surrounding the sale of Rice University’s KTRU and Vanderbilt University’s WRVU. Since the article was published, Vanderbilt has not solidified any sale of its station. However, Rice University has continued with a sale marred by secrecy and controversy, and is currently waiting for the FCC to approve the license transfer that would allow the University of Houston to take over the frequency, turning KTRU into a classical music KUHC and the University of Houston’s current station KUHF into a 24-hour NPR station.2

Opponents of the sale have provided many reasons for their anger about and opposition to the sale. On the student and alumni side, Rice University has not provided any formal study justifying the sale and sold the station without discussion with the students and alumni who created and managed the station.3 The resulting sale will eliminate a source of media and broadcast education for students and will destroy a link with the surrounding city, local art establishment, and minority community, all contrary to the university’s previously stated goals.4

From the perspective of non-student or alumni opponents to the sale, removing KTRU from the airwaves would eliminate a unique, and award winning, source of music that cannot be found elsewhere in the local radio market.5 Furthermore, the secrecy of the deal was in potential violation of Texas’ Open Meetings Act.6

B. How Has the FCC Looked At Selling Radio Stations?

While monetary concerns, misleading university administrators, and musical aesthetics may make for good protest rhetoric, they do not make a cohesive legal argument against the sale of the KTRU frequency. In fact, in its Opposition to the Petition to Deny, Rice University specifically latched onto this framing of arguments against the transfer as programming-related arguments.7 From this perspective the Commission’s precedent is established: “the Commission does not scrutinize or regulate programming, nor does it take potential changes in programming formats into consideration in review assignment application.” 8

In the past the courts have scrutinized programming out of concern of preserving unique content on the airwaves. In Citizens Committee to Keep Progressive Rock v. F.C.C., the D.C. Circuit stated that it was “in the public interest, as that was conceived of by a Congress representative of all the people, for all major aspects of contemporary culture to be accommodated by the commonly-owned public resources whenever that is ethnically and economically feasible.” 9 While the court refused to distinguish between types of music — “one man’s Bread is the next man’s Bach” — it held that it was “in the public’s best interest to have all segments represented.”10 However, since 1977 the FCC has established that it would allow market forces to determine the broadcast station’s format.11 Furthermore, deregulation of the airwaves at the end of the Carter Administration and beginning of the Reagan Administration eliminated the 1971 Ascertainment Primer and the Renewal Primer that the court relied upon in Citizens Committee, creating less stringent requirements for license applications and renewals.12

While the FCC no longer concerns itself with the content of broadcasts, there is still the question of whether the specter of localism should influence the FCC’s approval of the KTRU sale. In this paper, I will address the concerns of localism as they apply in FCC regulations, and specifically look at Rice University’s recommendation in its Opposition to Petition to Deny that Internet radio over cellular phones serve as an adequate substitute for FM radio.13

II. Localism on the Radio

A. How Does Localism Apply?

1. Localism and KTRU

The Commission has in the past recognized localism as an important part of its charge. In its recent Report on Localism, the FCC has called the concept of localism “a cornerstone of broadcast regulation.” 14 As Friends of KTRU pointed out in its Petition to Deny, this localism mandate extends not just to the availability of a radio signal in a local community, but rather to the ability of that community to transmit issues of local importance over the airwaves and provide “their own media for local expression.”15 Indeed, the Commission has held that “broadcasters are obligated to operate their stations to serve the public interest — specifically, to air programming responsive to the needs and issues of the people in their communities of license.16 From the perspective of FCC rhetoric, KTRU supporters are in a proper position to argue that transferring the license would result in an important loss of local music and media. KTRU programs such as the Local Show, MK Ultra, Vinyl Frontier, Genetic Memory, and the Revelry Report showcase local artists and discuss issues specific to the Houston music community that cannot be found elsewhere on the local airwaves.17 Furthermore, KTRU also provides minority-oriented programing, such as Navrang, which focuses on music from the Indian subcontinent, and Africana, which focuses on music from the African diaspora. In a city where the Nigerian ex-patriot population totals more than 80,000 and more than 4 percent of the entire city population was born in Asia, these shows provide for the local community in ways that other FM stations do not.18 As the Commission instructs, “[t]he principle of localism requires broadcasters to take into account all significant groups within their communities when developing balanced, community-responsive programming, including those groups with specialized needs and interests.”19 These niche shows, with their local DJs, certainly are community-responsive. On the other hand, not one single program will be added to the station after the sale that will be specific to the local Houston community, only adding syndicated and national shows like BBC World News, the Diane Rehm Show, Fresh Air With Terry Gross, BBC World Have Your Say, Talk of the Nation, The World, Beutche Welle Newslink Plus, Tell Me More, and The Story.20 Given the comparison between the station offerings before and after the sale, it seems like the transfer could be denied on localism grounds. However, the Commission has not always applied its ideals of localism in a strict manner.

2. Localism as applied by the FCC and Media Bureau

While rhetoric and written policy by the Commission has emphasized the importance of localism in broadcasting, this importance has not always transferred into enforceable rules. For example, in the case of the assignment of a license of a noncommercial educational station WQEX(TV), a coalition of public-interest groups petitioned to deny the application on the ground that proposed assignee’s broadcasts “would consist almost entirely of sales presentations, with little or no noncommercial local content.” 21 However, the Commission refused to consider the argument, explaining that “the courts and Commission have repeatedly rejected arguments that would require intrusion into the format choices of broadcast licensees.”22 While WQEX concerned application of television license, the FCC Media Bureau has applied similar rationale to FM radio licenses. In the case of C-SPAN’s application for assignment of an FM radio license, some listeners objected to assigning the license because it would change “WDCU(FM)’s current jazz format to a format dedicated primarily to public affairs and news programming.” 23 Other objectors argued that the grant of application was not in the public interest “because C-SPAN’s proposed national programming does not the problems, needs and interests of the [local community].24 However, the Media Bureau letter rebutted these arguments, stating that the Commission “‘has had the appropriately limited role of facilitating the development of the public broadcasting system rather than determining the content of its programming,’” and that under well-established precedent, rather than having to actually demonstrate how it responds to the community needs, “an applicant is required to provide only a brief narrative description of its proposed community issue-responsive service.”25 In the end, the Commission approved the license. Indeed, in a this case concerning sacrificing a music station for news, with similar arguments about localism and public interest, the FCC has made its position clear, leaving KTRU supporters with little legal recourse. However, comparing application in cases with FCC rhetoric still provides a mixed message.

3. FCC Report and Rhetoric on Localism

The FCC’s 2008 Report On Broadcast Localism And Notice Of Proposed Rulemaking spends several dozen pages lamenting the problem of a lack of localism in the broadcast spectrum. Specifically, it identified the problem of broadcasters failing to serve the interests of local communities in developing and promoting local artists and in fostering musical genres.26 The report also addressed the issue of licensees grossly overstating the amount of locally oriented news programming that they offer by including commercials, weather, sports, entertainment, video news releases, and redundancy, with locally produced public affairs programming almost entirely absent.27 Furthermore, the report found that significant groups within communities were not being taken into account by broadcasters when attempting to apply the principle of localism.28

FCC Commissioners have personally expressed concern about trends against localism in the broadcast marketplace. In an address to the Columbia University Graduate School of Journalism, FCC Commissioner Michael Copps lamented the “homogenization and monotonous nationalized music at the expense of local and regional talent,” and proposed a system where a certain percent of programming is locally or independently produced.29 Former FCC Commissioner Rachelle Chong even used her Twitter feed to state support for KTRU and concern about the sale.30 So while past cases may not give much hope to KTRU supporters, FCC reports and statements from past and current commissioners may put enough pressure on the Media Bureau to take a hard look at localism concerns in the license transfer. However, in its Opposition to Petition to Deny, Rice University offered an alternative to assuage concerns about losing a unique and local source on the radio: Internet radio.

B. Is Internet Radio An Adequate Replacement for FM Radio?

In its Petition to Deny, KTRU stated that Web radio is not an adequate alternative to FM broadcast because it is not available in the car. Rice contends that this “ignores the increasing available of Web radio via cell phone.” 31 However, there are technological, monetary, and legal concerns as to whether Web radio over cell phones can replace FM radio for listeners.

1. Technological and Monetary Concerns

As of a Nov. 2010 report by Canalys, the most popular smartphone in the United States is the Apple iPhone, which has a 26.2 percent share of the U.S. market.32 The iPhone is currently available only on the AT&T network.33 AT&T’s high use, DataPro plan provides 2GB of data for $25 per month, and $10 for every additional 1GB.34 The average radio stream is 128 kilobits per second, equaling 16 kilobytes per second, equaling 57.6 megabytes per hour. By this math, it would take approximately 34.7 hours of listening to the radio per month to exceed the set data allotment by AT&T and incur additional charges. Merely a bit more than one hour of radio via an iPhone per day would use more data than what AT&T foresees in its highest use plan. In a city where the average commute is around 28 minutes, it is not difficult to imagine someone spending more than 34.7 hours listening to the radio in the car over the period of a month.35 Therefore, in addition to the one-time cost of purchasing an iPhone 4 for $199, or iPhone 3GS for $99, a regular KTRU listener would spend $25 per month to listen in the car, and an avid listener would spend $35 or more per month, meaning $300 or $420 per year. At the high end, this would require the average American to spend 15 percent more on entertainment than the current average annual expenditure of $2,698.36 This additional spending may be cost restrictive for many listeners. On the other hand, one can buy an FM radio for the one-time cost of $9.99.37 While Rice University may have an optimistic view about the ability of Web radio over cell phones to replace FM radio, crunching the numbers reveals that the hardware investment and price of use may make access overly cost restrictive for former KTRU fans. Unless the university is willing to help pay for listeners’ new cell phone bills, it may have an ill-informed perspective on current Internet costs and availability.

2. Legal Concerns

Even if there were not a monetary restriction on the ability of Web radio to replace FM radio, there is still a concern as to whether the FCC could justify eliminating a local source in the FM spectrum because it is otherwise available in the Internet. The Federal Communications Law Journal argues that inherent scarcity of the electromagnetic spectrum mandates that public interest obligations still remain enforced, stating that “despite the motley of other media outlets available-Internet radio, satellite radio, cable and digital television, and the like-the reason underlying such obligations in the first place is still present: electromagnetic spectrum is still scarce.”38 However, unlike various other media sources, radio’s pervasiveness in combination with its scarcity necessitates regulation. Furthermore, a strictly enforced market-based approach will only lead to, and arguably has led to, the creation of technology haves and have nots.39 Indeed, the cost restrictiveness of Web radio emphasizes the public interest charge of the FCC.

However, the FCC has addressed new technology supplanting old broadcasting in the realm of television. Currently, cable systems must carry the signals of local commercial and noncommercial broadcast stations in their local markets, while satellite carriage of local broadcasts is only required in Alaska and Hawaii.40 The FCC has expressed concern that in a small group of cases, the system used to define local broadcast stations results in the required carriage of the broadcast signal of an out-of-state station rather than an in-state station, potentially weakening localism.41 This concern demonstrates that the underpinnings of the must- carry requirements is the protection of localism. If Web radio, or satellite radio, were to serve as an adequate alternative to FM radio, the FCC should first create similar must-carry regulations for telecom providers and satellite radio companies to ensure that localism is not weakened. However, these regulations do not yet exist. Without guarantees of a must-carry provision, the same sort that were imposed on the cable industry as it replaced broadcast television, alternate radio sources cannot serve as a proper guarantors of localism.

III. Conclusion

The rise of Internet music and the perceived declining importance of radio, combined with an economic downturn, has led many universities to sell their college radio stations. The plight of Rice University’s KTRU has risen to prominence as fans and staff of the student-created and student-run, award-winning station have moved from usual campus protests to legal appeals in an attempt to stop the sale of the station. While FCC publications and commissioners’ rhetoric have emphasized the importance of localism, legal precedent does not give KTRU supporters much in the way of support. However, Rice University’s recommendation that the Internet serve as a proper alternative does not stand up to scrutiny. Monetary restrictions and lacking must- carry requirements prevent the Web from serving as a proper replacement for FM radio.

1 John Vorwald, Waning Support for College Radio Sets Off a Debate, THE NEW YORK TIMES, Dec. 5, 2010, available at http://www.nytimes.coml2010/12/06Ibusiness/medial06stations.html.

2 Chris Gray, KTRU Sale Now Totally In FCC’s Hands, HOUSTON PRESS, Dec. 20, 2010, available at

Save KTRU made it to the New York Times, BURN DOWN BLOG, Dec. 5, 2010, available at

BURN DOWN RICE!: Selling KTRU violates V2C, BURN DOWN BLOG, Aug. 17, 2010, available at violates-the-v2c/


6 Steve Miller, KTRU radio station not named in generic Regents meeting agenda; descriptions must be specific under Open Meetings Act, TEXAS WATCHDOG, Aug. 19, 2010, available at http:// 1282261406.column

7 Rice Opposition at 2.

Application for Assignment of License of WQXR-FM, Letter, 24 FCC Rcd 11761, 11762 (2009).

Citizens Committee to Keep Progressive Rock v. F.C.C., 478 F.2d 926, 929 (D.C. Cir., 1973).

10 Ibid. at 929.

11 Changes in Entertainment Formats of Broadcast Stations, Memorandum Opinion and Order, Docket No. 20682, 60 FCC 2d 858, 863 (1976).

12 In the Matter of Deregulation of Radio, Report and Order, Docket No. 79-219, 84 F.C.C.2d 968, 971 (1981).

13 Rice Opposition at 7.

14 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 5 (2008).

15 Petition, citing Utica Observer-Dispatch, Inc., 11 F.C.C. 383, 391-92 (1946).

16 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 6

17 Petition at 10.

18 Ibid. at 11; Reply to Oppositions at 10.

19 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 69.

20 Petition at 12-13.

21 Application of WQED Pittsburgh (Assignor) and Cornerstone Television, Inc. (Assignee) for Consent to the Assignment of LIcense of Noncommercial Educational Station WQEX(TV), Memorandum Opinion and Order, 15 FCC Rcd 202, 231 ¶57 (1999), vacated in part on other grounds by 15 FCC Rcd 2534 (2000).

22 Ibid. at 232 ¶ 57.

23 Application for Assignment of License of WDCU(FM), Letter, 12 FCC Rcd 15242, 15244 (1997).

24 Ibid. at 15244.

25 Ibid. at 15244-15245, citing Revision of Programming Policies and Reporting Requirements Related to Public Broadcasting Licensees, Notice of Proposed Rulemaking, 87 FCC 2d 716, 732 (1981); Report and Order, 98 FCC 2d 746 (1984); Request for Declaratory Ruling Concerning Programming Information in Broadcast Applications for Construction Permits, Transfers and Assignments, 3 FCC Rcd 5467, 5467-5468 (1988).

26 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 35.

27 Ibid. at ¶ 37.

28 Ibid. at ¶ 69.

29 FCC’s Copps Proposes Public Value Test for License Renewal, RADIO, Dec. 3, 2010, available at index.html.

30 Growing opposition to the KTRU sale OR Know Your FCC Commissioners,BURN DOWN BLOG, Nov. 15, 2010, available at opposition-to-the-ktru-sale/.

31 Rice opposition at 7.

32 Tim Stevens, Canalys: iPhone becomes most popular smartphone in the US, Android continues as most popular OS, ENGADGET, Nov. 1, 2010, available at 2010/11/01/canalys-iphone-becomes-most-popular-smartphone-in-the-us-andro/.

33 (iPhone is configured to work only with the wireless services provided by AT&T.)


35 Stephen Ohlemacher, Believe it or not, average communting time drops, HOUSTON CHRONICLE, Aug. 30, 2006, available at 4152068.html.

36 How The Average U.S. Consumer Spends Their Paycheck, VISUAL ECONOMICS, available at


38 Deliberative Democracy on the Air: Reinvigorate Localism – Resuscitate Radio’s Subversive Past, 63 Fed. Comm. L.J. 141, 188.

39 Ibid. at 190. 40 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 47, 48. 41 Ibid. at ¶ 49.


Flashback Fridays: Nuclear Bongs, North Korea, and Pot at Cardozo

[EDIT: As seen on Above the Law]

Last month North Korea launched a small attack against a South Korean island. This was probably North Korea’s biggest provocation since its (failed?) test of a nuclear weapon. At the time, I referenced this event with a Rice Thresher Backpage titled: North Colleges Test Nuclear Bong. (pdf: North Colleges Test Nuclear Bong)

James Baker asked for an original copy of this Backpage.

I was rather proud of the Backpage at the time. The original drafts were a little too blunt (haha!) with some of the pot jokes, but then EIC David Brown helped smooth them out. In a depressing turn, apparently some Rice students did not quite get that map of Rice was supposed to be in the shape of North and South Korea, with North and South colleges at appropriate ends. But perhaps worse, some students didn’t even realize that was a map of Rice. Maybe if you don’t know what to look for, it is hard to see. Oh well.

Anyways, this Backpage is rather appropriate for a flashback this week. The Korean conflict may be a bit tardy, but it does demonstrate my habit of writing pot-related columns that will surely damn attempts at finding a job. Just this month, I wrote a column for The Cardozo Jurist about how the law school should provide free marijuana for students. It is supposed to be a satirical reaction to the law school’s new restrictions on alcohol and alcohol advertising, and also to the study aids pills that are normally popular during finals. And I’m sure I made some other points in the column, which you most certainly will find to be an exemplar of Swiftian wit. (pdf: Mintz cardozo jurist pot article)

However, this column is not the only reason why that Backpage was appropriate for this flashback friday. At the time, James Baker had just released a new book, titled: “Work Hard, Study…and Keep Out of Politics! Adventures and Lessons from an Unexpected Public Life.” I used the occasion to mock one of Rice’s resident talking clubs, the Baker Institute Student Forum, which did a very good job of discussing current events and then handing out name tags at Baker Institute speaking events.

Anyways, apparently James Baker’s wife, Susan Baker, has just written a book titled Passing It On. In an interview with the Houston Chronicle about her new book, Mrs. Baker demonstrated that either she is hilarious, or just doesn’t care anymore, or funny third thing, as she used the interview as an opportunity to talk about her sex life with the former Secretary of State, Secretary of Treasury, and Chief of Staff James Baker. I guess she wanted him to do to her what he did to the country during the 2000 election recount. (My jokes are so funny and topical!)

“I used to think I needed to be a good supportive wife, so I shouldn’t fuss or stomp around or be angry. But holding all that in makes you emotionally sick. So I started expressing my feelings. Jimmy was surprised at first, but over time, it gave him a new respect for me, and without a doubt deepened our relationship.”

She pauses for a second.

“Thank heavens for good sex. It can get you through a lot.”

I doubt that James Baker would request the original version of whatever Backpage is associated with this recent news event. As Tim Faust put it: The Baker Institute for Pubic Policy. Zing!

The Anti-Defamation League, American Jews, and John Bolton’s Mustache

Last month, the Anti-Defamation League held a conference at Cardozo featuring famed mustache-haver John Bolton. I am not entirely sure why Bolton was there. He is not Jewish. According to Wikipedia, he is a Lutheran. But beyond this, he does not seem to have any actual experience concerning Judaism.

This is how most people see John Bolton

This is how the Anti-Defamation League sees John Bolton

Even ignoring my concern that ADL focuses too much on Israel rather than overarching Judaism, it seems a bit odd that the ADL would invite such a divisive political figure. I could explain why this would be a bad thing, but why say when you can show: (pdf: bolton ADL cardozo fight)

Leaving out Bolton’s actual policy positions, one cannot deny that he is a divisive political figure and a living totem of the controversial cowboy style diplomacy of the Bush administration. Touting Bolton as an ADL ally sends a message to liberal Jews (aka, most Jews) that the ADL is not a the organization for them. At Cardozo, this message was put into action when someone in the audience chewed out a young woman for expressing her difficulty reconciling liberal leanings with the conservative agents supporting Israel.

I guess you could say she was defamed to a certain extent. Irony!

Right now, the ADL is riding on its history and reputation. But scandals like this, and ADL chief Abe Foxman’s own controversial moments, risk damaging this important organization beyond repair. If the ADL keeps up like this, it will lose a generation of American Jews. And that is the actual problem (pdf: Mintz ADL column):

America is slowly losing its Jewish population. If the ADL actually cared about Judaism, it would work to create an atmosphere in the United States where young Jews feel proud of their heritage. However, pride is not exactly what one feels when the ADL condemns Borat, or Jewish settlers throw stones at IDF soldiers for protecting Palestinians. If the ADL wants to help protect Jewry in the long run, it should focus on projects that help make more Jews and keep current Jews Jewish, rather than play up divisive political projects.

Certainly Israel faces threats. But Israel has done a good job standing for itself. The ADL should perhaps worry about Jewish problems at home — the problems facing the American Jews at the ADL’s own panels.