A public menace to public radio

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Fox News commentator Juan Williams and I have a lot in common: we’ve both been banished from public radio.

I’m sure Mr. Williams doesn’t mind. Promptly after being fired from NPR, he received a huge contract from Fox, and will surely reap other benefits from being the poster child for censorship of heterodox opinion.

But, I’ve been there, too, in my own little provincial fashion.

Years ago, I was a fairly regular guest on public radio stations in Wisconsin. Some reporter would be preparing a piece on some legal issue, come across something I had written, and contact me.

In a way, it was quite frustrating. The reporter would interview me for an hour, but when the piece ultimately aired, it would have about two sentences from me.

Worse, it was usually an off-hand, off-topic remark that made it on the air. Twenty minutes of explaining some esoteric doctrine would end up on the cutting room floor.

As I said, I was a fairly regular guest. Nothing I said was ever deemed too controversial, because I wasn’t really giving my personal opinions about issues, but only discussing how the applicable statutes and precedents dictated a particular result in a given case.

Furthermore, in those days, my personal ideology was not that well-known, even to attorneys who read my work religiously. I sometimes had to produce my membership card from the Federalist Society to prove that, indeed, I was not an adherent of progressivism.

It wasn’t until The Dark Side began running that I became a leper among civilized people. As one attorney remarked at the State Bar Convention this summer, “When I met you here last year [before the column had begun], I had no idea you were such an ultra-right-wing extremist.”

But long before I started singing Hosannas to liberty of contract here on The Dark Side every Monday morning, I was persona non grata at public radio. The occasion that triggered my excommunication was a Wisconsin Supreme Court election.

I was one of three guests. The other two took the standard public radio line on the election – Candidate X is a right wing extremist who, if elected, will push an already right wing court even further to the right.

I took a more nuanced position, and supported it with the actual record; I showed empirically that, whatever one’s opinion of the Supreme Court may be, Candidate X had applied the court’s law exceptionally well as a lower court judge, and was reversed much less often than his/her colleagues. I explained that the open records law was the only issue I could find on which Candidate X might be outside the existing court’s mainstream opinion.

That heresy was far too right wing for public radio, I’m afraid, and they’ve never called me since.

The privately-owned, pedestrian, low-brow news outlets aren’t nearly so orthodox. They might be appalled when I say that some convicted murder deserves a new trial. But they don’t blackball me for it (perhaps because the appellate courts almost always ultimately agree with me).

But I am an apostate in the world of public radio. And unlike Juan Williams, I was not offered a big contract from another news outlet as a reward for my impiety.

But at least I no longer have to spend an hour on the phone explaining the intricacies of the recreational immunity statute to some reporter, only to have one flippant remark be taken out of context and become the only part of the interview to make it on the air.