Legal Learning Differences

Somebody on the Dallas City Council skipped school the day they taught the U.S. Constitution

I happen to be a lawyer fan. I like them. I actually enjoy watching them. So I have some theories about them. This particular theory is about why very smart lawyers sometimes do very dumb things.

It's not common. Aside from marrying a serial killer or buying a Ford Explorer or adopting a year-old "spirited" Irish setter or something like that, really smart lawyers don't very often do really dumb things. The one circumstance under which you do see smart lawyers do dumb things is when they have really dumb clients.

Case in point: the decision last month by Dallas City Attorney Madeleine Johnson to pay a federal civil litigation lawyer in Austin several grand of our tax dollars to write an opinion about whether the Dallas City Council can get out of obeying the United States Constitution.

No, I'm not kidding. You wish I were kidding. Sorry. This is another Ripley's-Believe-It-or-Not about the Dallas City Council. At the request of some person or persons on the council, as yet unnamed, Johnson asked a lawyer in Austin if the council could sort of ooch out from under the federal Constitution in order to shut down a bunch of Internet Web sites where people are saying bad things about the council.

In particular--BRAINSTORM ALERT!--someone wanted to know if the council could get around the First Amendment right of free speech by going to a foreign country where they don't have any rights and filing suit against a Dallas citizen there.

On the one hand, the person who commissioned the lawyer in Austin to answer this and other related questions was Madeleine Johnson. Johnson told me that the content of the request from the council as well as the specific identity of the asker is a matter of attorney-client privilege and confidentiality--a secret. And I do get that.

But on the other hand, do you and I believe Madeleine Johnson is the one who thought up the question about the foreign country?

Johnson is a former star member of the staff of the U.S. Attorney for the Northern District of Texas. She's a Bryn Mawr graduate with a law degree from Tulane. Do you believe that Johnson is sitting around at her desk one day not doing much--da de-da de-da--and out of the blue she asks herself, "Hey, I wonder if the United States Constitution applies to the Dallas City Council?" Come on. If they ever found anybody that dumb actually enrolled at Bryn Mawr, they would take the person down to Mingo Creek at midnight and no one would ever hear of her again.

You and I can picture this the way it really happened. Johnson works for the city council. She is their employee. She's at her desk. Some Einstein from the city council comes in and asks if there isn't some maneuver the council could pull in order to get out from under the U.S. Constitution. Put yourself in Madeleine Johnson's shoes. What are your choices of ways to respond?

"What grade did you get to in school?"

"Have you been drinking?"

"You do understand that the things Letterman says on the show are jokes, right?"

No. I don't think she responds that way, much as you and I might like her to. I think she says something more like, "That's a very interesting question." Then, because she's quick on her feet, she says, "You know, there's a guy in Austin who deals with the Constitution all the time. I really think it would be worth our while to throw him a few bucks and see if he can come up with any legal tricks that would exempt you from the Constitution. Because, I'll tell you what: If this guy can't come up with a way to do it, nobody can."

So at the end of last year, the City of Dallas paid $3,600 to Max Renea Hicks, a civil lawyer in Austin, to come up with answers to the question of what the council can do about Web sites that say bad things about the council. This expenditure was not of the type or amount that required approval by the full city council. Few council members even knew about it. The only reason you and I know about it is that council member Donna Blumer eagle-eyed it on a list of everyday expenditures and demanded the details.

Blumer got her hands on the report that Hicks, the Austin lawyer, made to Johnson. Exercising her own right as a council member to do so, Blumer released Hicks' report to the owners of three Web sites, the Fort Worth Star-Telegram, and myself. The Dallas Morning News never asked for it (more on that later).

I called Hicks, as did the Star-Telegram, and he hasn't responded to me or to them.

In his report, Hicks explains at some length that the Constitution actually applies to American citizens no matter where you sue them, as far as American courts are concerned. And let's all think about this for a minute. Let's say the Dallas City Council goes to court in Afghanistan and gets a verdict ordering not only that the Web sites critical of the city council be shut down but that their proprietors' right arms be hacked off in front of City Hall. Do we see federal Judge Barefoot Sanders upholding that one?

Hicks concludes his treatise: "Because of the high standards set by the First Amendment in the United States, it is highly unlikely a libel judgment obtained in some foreign country for Internet libel could ever be enforced in the United States."

What is the Latin word for duh?

No Web sites are mentioned by name in Hicks' report to Johnson, but three in particular are likely targets. One is Avi Adelman's muscular community-activism site, Barkingdogs.org. Another is Sharon Boyd's site, Dallasarena.com. The third (in alphabetical order) is Fred Gwinn's Dallas.org.

Gwinn's site has been presenting an ongoing investigation of council member Mary Poss' campaign finances. I'm not going to vouch for somebody else's reporting, but I will say that the Poss story on Dallas.org raises some very tough questions.

Adelman's site sometimes carries pictures of drunken louts on Lower Greenville urinating on people's lawns--his way of making the point that the city and the police are not adequately protecting the neighborhoods that abut the Lower Greenville entertainment district. Adelman also has published some very pointed stories about businesses on Greenville that seem to get away with zoning violations forever and ever.

Sharon Boyd goes after everybody at City Hall. Lately she has been on the warpath against Councilman Leo Chaney, who is a full-time employee of the school district. Boyd thinks it's wrong for the school district to pay somebody to work full time at City Hall. My own caveat here is that Leo Chaney is one of the smarter, politically more sophisticated members of the council. But Boyd certainly has every right to raise hell about him if she wants to. She's an American.

Chaney told me he had nothing to do with asking Johnson to find a way to shut down the Web sites. He said he doesn't even look at them. "As God is my witness, I don't have time or the energy to read these Web sites," he said. "I didn't even know one of my colleagues had requested that."

Poss told me that she was one of "several council members and staff" who had posed questions about the Internet sites to Johnson. She said her concerns were technical issues related to "domain names" and had nothing to do with libel.

Brett Shipp on Channel 8 did a good story on this, as did the Fort Worth Star-Telegram. But the Morning News gave the story its trademarked belated and begrudging acknowledgment--coverage deep inside the paper, written in that marble-mouthed Morning News journalese that never tells you what's really happening, under a headline whose subliminal message was, "Nothing going on here, show's over, return to your homes."

Unfortunately, that's what many council members have been trained to think is fair coverage. That's what's wrong with this picture. Many of them suffer from morbidly thin skin, because they're not used to having anybody take real shots at them.

The Web site owners are in the process of pursuing a legal demand under the Texas Public Information Act for the name or names of the council members who asked Johnson to pay a lawyer in Austin to find a way to deprive them of their Constitutional rights. Johnson, citing the same attorney-client privilege she told me about, is refusing to release that information. The question is now before the Texas attorney general. Johnson, meanwhile, is firm about one aspect of all this: She says the question was asked; the answer is in; and no one is going to sue anybody in a foreign clime.

"The city certainly is not taking any action against any Web sites." OK. That's good. Maybe we owe her one for putting that piece of it away. But there's another piece waiting: We still need to know who on the council was behind it.

It's not a small matter. For one thing, this may be somebody who will want to run for higher office one day. And another thing the person who made this request might want to keep in mind about the concept of a foreign end-run around the Constitution: In some of those countries, very uncool things can happen to leaders who fall suddenly from grace.

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