Witt Reinstated To The Air Force; Wittless In The White House

The late, but great, news this fine Friday afternoon is the decision of Western District of Washington (WDWA) Judge Ronald Leighton in the case of Air Force Major Margaret Witt. Witt has been an Air Force reserve flight and operating room nurse since 1987 and was suspended from duty in 2004, just short of retirement, upon her base commanders being informed by an off base nosy neighbor that she was a lesbian.

From NPR:

A federal judge ruled Friday that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but two federal judges have ruled against the policy in recent weeks.

Maj. Margaret Witt was discharged under the “don’t ask, don’t tell” policy and sued to get her job back. A judge in 2006 rejected Witt’s claims that the Air Force violated her rights when it fired her. An appeals court panel overruled him two years later, leaving it to Leighton to determine whether her firing met that standard.

This is indeed a wonderful decision, and one based upon the elevated level of scrutiny that is now clearly the standard in Federal court consideration of the rights based on sexual preference. The full text of the court’s decision is here. The critical language from the decision setting and clearing the table is as follows:

Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, this Court granted the government’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the regulation was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timely appealed.

The Ninth Circuit agreed with plaintiff. It held that Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basis to DADT and predecessor policies. It held that something more than traditional rational basis review was required. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). The Circuit

Court vacated the judgment and remanded to the District Court the plaintiff’s substantive and procedural due process claims. It affirmed this Court’s dismissal of the plaintiff’s equal protection claim. On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest. Witt, 527 F.3d at 821.

Now comes the interesting part of the opinion (and case as argued by the government) and it ties in directly with the Log Cabin Republicans v. USA DOD decision recently rendered in the Central District of California (I will return to that in a bit). Specifically, the 9th Circuit based at least partially upon briefing in the alternative by the government (i.e arguing multiple positions), granted the government’s argument that, at a minimum, they were at least entitled to argue that homosexuals were bad for moral and unit cohesion on a case by case basis.

In essence, the government figured that, rather than lose the whole case, they would be “smart” and roll with being able to at least handle it on a case by case basis. But Judge Leighton saw through the government’s baloney in the remand of the very case they had argued it, Witt:

Added to this calculus, is the government’s plea for uniformity. Lt. General Charles Stenner, the government’s expert, made the unassailable point that uniformity and consistency in the administration of personnel policies is a desirable objective. When similar people are treated differently, morale and cohesion suffer. The government argues that Major Witt’s continued military service necessarily would result in the application of a different personnel policy to her than to other service members, such as those in the First Circuit, where the DADT statute was upheld as constitutional. See, Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008). The argument proves too much, however. The call for uniformity defies as-applied analysis. By definition, if uniformity is required, exceptions cannot be encouraged. And if exceptions cannot be encouraged, as-applied analysis is pointless. The direction to this Court to apply DADT to the specific circumstances of Major Witt compels it to reject any notion that the overriding need for uniformity trumps individualized treatment of Major Witt.


For the reasons expressed, the Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.

In a nutshell, Leighton called bullshit on the government, and rightly so. The government came out of the earlier appeal in Witt with the order that it only seek DADT discharges where it was provably appropriate, and then went and tried to continue to do just that in the most absurd case imaginable, and after having been excoriated on the facts by the 9th Circuit. And the decision to so proceed in the face of such overwhelming absurdity was made squarely by the Obama DOJ, the tools of the Administration that ran for, and took, office promising to do the opposite.

Which brings us back to the aforementioned Log Cabin Republican (LCR) case. Shocking, but true, the Obama DOJ doubled down on the hypocritical two faced argument. In LCR, Judge Virginia Phillips found DADT unconstitutional under both due process and First Amendment analysis and, seeing as how the case sought injunctive relief, told the plaintiff LCRs to submit a proposed injunction and the government to put any objections in writing thereafter. The plaintiff LCRs submitted their proposed injunctive order on September 16th, and the government filed its objection thereto yesterday. (By the way, the reply by the LCRs was literally just filed and is here).

Now the hilarity and absurdity of the Obama Administration policy rears its ugly head because, you see, part of the government’s objection in LCR is based on the Witt 9th Circuit decision that they should at least be entitled to make a showing on a case by case basis. When, at almost the same exact moment, the Obama Administration was proving in the further proceedings of the Witt case itself, that they could not, and would not, adhere to the spirit of Witt and proceed intelligently and on a case by case basis where they could prove morale and unit cohesion were at risk.

Instead, what the Obama Administration, by and through the actions of their Department of Justice, have proven that their current rhetoric about being dedicated to ending DADT is as empty as their similar campaign promises were hollow. Yet day after day, the Administration wonders why those on the left are unhappy and chastises them for not clapping loudly enough heading into midterm elections where turnout of the base is critical. Tin ear does not begin to describe this arrogance.

  1. bmaz says:

    The WH had to know all these cases were coming to a head about now; the failure to see the playing field and react accordingly as to their messaging leading up to the midterms – while bitching at the base for not being enthused – is really kind of stunning.

    • MadDog says:

      Which leaves me/us with an either/or proposition:

      Either the Obama Administration lies like a rug about their own principles or they’re so incompetent that they cannot manage/control the federal bureacracy.

      And now that I think about it, there’s a third option: Both.

    • Teddy Partridge says:

      Not having gay or lesbian people high enough up in the White House really hurts Obama. The heterosexual staffers view these as “your issues” and don’t pay attention except when they give the cocktail-weenie DC-based interest groups an audience.

      That’s why they’ve completely overlooked the judicial calendar on these cases.

      • bmaz says:

        Agreed, but you would think political “geniuses” like Axelrod and Plouffe would have figured this out. Since they are so “concerned” about the liberal base turnout for midterms you know….

        • Teddy Partridge says:

          No, they are profound political mal-practitioners who got one thing right. A big thing, yes, but only one. Everything else — everything — has been shit.

          • MadDog says:

            That resonates with me and my comment at 4 above.

            While folks like Andrew Sullivan still drool over Obama, I’m steadily coming to the conclusion that, yes, the man has superb oratory skills, but beyond that, I’m not finding much more to admire with him and his team.

            The increasingly obvious political tin-ear toward his base as well as the principles he ran on are not showing up in his deeds.

            The Witt case is just one more in a long line of examples where there is a profound disconnect between their campaign words and their actual deeds.

            • oldoilfieldhand says:

              “While folks like Andrew Sullivan still drool over Obama, I’m steadily coming to the conclusion that, yes, the man has superb oratory skills” Really? Have uh, you uh, listened, uh to uh, Obama, uh lately, uh, when he is uh talking, uh and trying uh, to uh, to uh…make a point?
              What happened to the great orator? No teleprompter, no oration. And his giggling when confronted by an African American veteran and voter who was demonstrably exhausted defending him was a sure sign of nervousness. He’s not prepared for public speaking these days, he’s winging it.No wonder the WH handlers have kept him out of the limelight. He’s conflicted or off his meds. Either way, we’re in trouble.

            • coral says:

              Yes, this precisely is what stuns, amazes, stupefies me. How can they have run such a successful campaign and be this bad at maintaining the support of their natural base?

              I think they could govern from the center-right, as they appear to wish to do, and still have a more effective political rhetoric aimed at the progressive community, and the less political but essential coalition of non-elites that brought them into office.

      • indianagreen says:

        The problem is Obama himself. He is the one that has a gay problem. His fierce advocacy has been solely focused in defending DADT and DOMA. Let’s face it! Obama is no friend of LGBTs, and never was!

  2. OldCoastie says:

    Does the ODOJ think no one will notice they are idiots?

    Hell, they are every bit as bad as the Prop 8 intervenors…

  3. MadDog says:

    And this rather unusual personal message from the Judge – via the Seattle Times:

    After ruling that retired Major Margaret Witt, a lesbian Air Force Reserve officer, should be reinstated to her unit, U.S. District Court Judge Ronald Leighton on Friday made the following comments from the bench:

    Major Witt, you and I are unlikely to see one another again, in this context, anyway. I’d like to make a couple of points before you go:

    1) I hope you will request reinstatement with the Air Force Reserves and the 446th [her unit]. You will provide the best evidence that open service of gays and lesbians will have no adverse effect on cohesion, morale or readiness in this or perhaps any Air Force or military unit.

    2) You have been and continue to be a central figure in a long-term, highly charged civil-rights movement. That role places extraordinary stresses on you, I know. Today, you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and, hopefully soon, the political branches of government. You said something in the trial that resonated with me. You said the best thing to come out of all this turmoil is the reaction of your parents when you told them of your sexual orientation: their love and support for you.

    Not withstanding the victory you obtained here today, for yourself and for others, I would submit to you that the best thing to come out of all this tumult is still that love and support you have received from your family. You are truly blessed as a family and I am sure they will see you through whatever obstacles and difficulties you may encounter along the road ahead.

    • bmaz says:

      Ooh, I was busy reading the decision and writing the post; didn’t see that. Very sweet! Kind of leaves a mark, eh? The thing that gets me is, if you actually read the government’s pleadings, it is crystal clear that their objections and fight is NOT just perfunctory “as usual to uphold the law” or whatever claptrap they spew. They are fighting hard, with inconsistent arguments and disingenuously; not to mention repeatedly setting themselves up to be excoriated by judges, who are obliging them in that regard. In short, their act are most certainly not those who really want DADT gone and are just going through the motions. It is a full on everything they got, no matter how stupid, to defend the craven DADT policy. If you read their written work in the cases, there simply is no other conclusion.

      • MadDog says:

        I’ve been wondering how to understand, particularly with respect to the work of the DOJ, just who’s in charge and whether the Obama administration is so fearful of repeating the “politicization” faults of the Bush/Cheney regime, that they’ve somehow come to the conclusion that they must never interfere in the judgment of the DOJ workerbees.

        It’s either that or they actually believe this crap, and let me tell you, that’s even scarier.

        • bmaz says:

          For what it is worth, and it is not much since it is 2nd and 3rd degree hearsay, my understanding is there is a LOT of direction in what DOJ does coming from the White House. Now Sheldon Whitehouse’s chart would look nowhere near as egregious as it did under Bush because they have seriously cut down on the number of flow points to where ther are only a few form the WH going to only a few at the top of DOJ Main, but the actual involvement in directing the DOJ conduct remains completely unabated – from what I hear.

          • DWBartoo says:

            However many degrees of separation there may be between such admitted “hearsay” and the truth, appearances would suggest the likelihood of a very close and serious relationship.

            Some days ago, bmaz, you said, in essence, that, in spite of all what we all agree Obama has done, signed-off on, “permitted”, encouraged or ignored, that Obama, is still, basically, a decent person.

            One wonders.

            Now, I realize that I shall be taken to task by some for posing such a concern, and thereby raising what should be a most serious question and the possibility of substantial “doubt”. Yet, at some point it must be understood that it is not the rest of us who have brought the need of this sort of concern to the fore, but, rather, the consistent behavior and the disparaging,destructive, and anonymous language coming from the “White House” itself.

            As a society, we practice, many of us, at some times and in most-all “power-moment-places-or-situations”, an obsequious politeness, even when we are being attacked, lied to, manipulated, talked down to, or “admonished”, as we often are, by the behavior and language of the political classes, in the most bipartisan way, incidentally; professionally, there may be no choice, but politically, and socially, assuming decency where none is in evidence, or assuming capacity, when its opposite is demonstrated daily, or tolerating “gravitas”, when tis nothing but pure self-serving horseshit, does not become us, as a society and as a people, anything but willingly complicit in our own destruction.

            What do “nice” people, what do “decent” people, what do “good” people do?

            And what will they not do?


          • stevedaly says:

            Obama Administration wants to end DADT as unfair.

            DADT was included in the Defense Authorization Act which was defeated in the Senate.

            Voting against the bill was Blanche Lincoln whom Obama campaigned for in her primary against Halter

            Obama’s justice department is filing briefs to uphold DADT. Why does the adminstration say one thing and do the opposite?

      • cbl2 says:

        those in the courtroom reported His Honor choked up when making the statements about the love and support of Maj Witt’s family

        • bmaz says:

          Remember, that judge – Leighton – and the rest of the District and Circuit judges in the 9th Circuit just had a week together in Hawaii at the summer circuit judicial conference. Vaughn Walker was featured at the District judges breakout. I have a suspicion there was a LOT of talk about the constitutionality of continued infringement of civil rights based on sexual orientation/preference. They are just killing the government at every turn on this stuff and it is quite impressive I might say.

          • cbl2 says:

            wow bmaz, was actually thinking that while reading some of Judge Leighton’s ruling – seemed to have some Walker ‘flavor’ to it.

            and thank you for keeping it real on where the Admin is really coming from – lay folks like me know it, just helpful to see it spelled out

    • Arbusto says:

      This, to me, is even more astounding given the 9th agreed with Witt’s appeal and schooled the Judge to consider the case from a specific set of standards. Not only did he do that, I believe he had a learning moment and not only issued an apology from the bench, but has found a higher truth in civil rights. To bad Obama and his Admin. aren’t’t similarly teachable

  4. matutinal says:

    Tin ear? I’m more inclined to say they’re just poseurs. I guess this is the Obama-style White House. Promises mean nothing; their betrayal barely causes embarrassment. They transmute into mealy-mouthed platitudes of the “we don’t torture” variety, while nothing changes.

  5. orionATL says:

    my guess is thst every action the doj/fbi have taken has been monitored by the white house, from the most benign to the most egregious.

    attorneys general are normally the friends, pals, even brothers, can you believe, of the prez.

    with respect to this doj, what is impressive is the amount of federal lawlessness the doj activily supports IN COURT, thru filings.

    this situation is just one of many that raise the question:

    “what is the obama admin trying to achieve?”

    the answer is always the same-

    re-election in 2012.

    • MadDog says:

      OT, but tangentially related, and as was predicted – via the AP’s Peter Yost:

      WH: lawsuit for cleric would reveal state secrets

      The Obama administration on Saturday invoked the state secrets privilege which would kill a lawsuit on behalf of U.S.-born cleric Anwar al-Awlaki, an alleged terrorist said to be targeted for assassination under a U.S. government program.

      In a court filing, the Justice Department said that the issues in the case are for the executive branch of government to decide rather than the courts.

      The department also said the case entails information that is protected by the military and state secrets privilege.

      • MadDog says:

        And oh, yes, if someone somewhere has a Pacer account, I bet Emptywheelers would much appreciate reading the government’s filing…hint, hint. *g*

          • MadDog says:

            Hey there early bird in AZ. Either you’re up really early or you haven’t been to bed. *g*

            As to classified, the very next sentence that I didn’t include from Charlie Savage is the following:

            …The brief also included a classified annex…

            That seems to indicate the filing itself is unclassified, but I do know from your comments at other times that finding stuff on Pacer is hard unless one has the actual case number.

            Thanks for looking!

        • MadDog says:

          Another reason that I personally want to read the government’s filing, is that I myself predicted just what Charlie Savage of the NYT states the DOJ would use as their arguments:

          …While the government’s brief did not confirm that Mr. Awlaki was being targeted, it contended, among other things, that his father, Nasser al-Awlaki, had no legal standing, that targeting decisions are for the executive branch to determine and that litigating the matter would jeopardize state secrets…

      • DWBartoo says:

        Appalling, MadDog, but the “heads up!” is much appreciated.

        Is this what nice, decent, and good human beings do?

        Secret law, of, by, and for the Executive, not even for the courts to know about, let alone peruse, even ever so slightly or so very superficially.

        Will the courts “go along” … to get along?

        Will Congress notice?

        Will “the people” yawn?


        • MadDog says:

          And doesn’t this latest government filing fit right into the discussion we’ve had here about the Obama administration’s purported principles versus their actual governing deeds.

          • MadDog says:

            And this part of Charlie Savage’s reporting is “interesting” given the discussion we’ve had here:

            …Within the administration’s legal team there is wide consensus that it is lawful to target Mr. Awlaki. But some lawyers had disagreed on what arguments they should muster to have the lawsuit dismissed. In the end, the faction favoring a more expansive approach won out

            (My Bold)

          • DWBartoo says:

            The discussion, here, has described, in great detail, supported with ample evidence, the behavior we now witness; that discussion also anticipated the worst of these behaviors as well as their implications, for the rule of law, due process, and Constitutional principle.

            You, EW, bmaz, Mary, EOH, and others of similar capacity, conscience, and courage, have educated any who care to listen and understand … and, together, you have all established an undeniable, verifiable, and terribly important history.

            Should this nation and our society, somehow, survive these deliberate assaults, by concentrations of wealth and power, it will be in no small measure owing to the Wheel House Gang.


            My appreciation to all of you knows no bounds, MadDog.


      • fatster says:

        “State secrets” seems to be in their world kind of the equivalent of what “all-purpose household cleanser” is in mine.

  6. MadDog says:

    And I find this part of the government’s filing particularly sickly humorous – via Reuters:

    …”If Anwar al-Awlaki wishes to access our legal system, he should surrender to authorities and be held accountable for his actions,” he said…

    Ummm…how does one actually surrender when under a Presidential “shoot to kill” order?

    • bobschacht says:

      how does one actually surrender when under a Presidential “shoot to kill” order?

      Through the offices of a foreign government embassy that is known not to comply with the Presidential order?

      Bob in AZ

  7. bobschacht says:

    It’s not Lent, but as a kind of penitential task, I have set about reading Obama’s The Audacity of Hope book. Chapter Three is devoted to “Our Constitution,” and I think it provides a helpful perspective. In my words, Obama does not revere the Constitution and the Rule of Law the way Mary does because he sees them in historical context: As written, the Constitution provided for slavery and the unequality of men. Lincoln eventually brought the Constitution and the Declaration of Independence into greater harmony, as did LBJ in getting the Civil Rights law passed. Until the Civil Rights laws were passed, the Rule of Law served to keep Blacks disenfranchised. So Obama does not look at the Constitution in quite the way many of us do (as if you needed me to tell you that.)

    He also seems to view the present situation as an ongoing dialogue among the branches of government. Which is cold comfort, I know. Anyway, if you are really interested in Constitutional government and Obama’s attitude towards it, I recommend the third chapter of The Audacity of Hope.

    Bob in AZ

    • Bluetoe2 says:

      After nearly two years of Obama’s flip flops I wouldn’t be surprised to see an unauthorized biography entitled “The Audacity of a Dope.”

  8. MadDog says:

    I kept digging around for a link to the al-Awlaki filing, and Charlie Savage at the NYT finally included one in his updated version of his story.

    The link to Charlie’s updated story is here.

    And the links to the actual documents are at the tail end of Charlie’s updated story:

    …Here are links to the late-filed brief, along with three public declarations in support of the assertion of the state-sercrets doctrine by Robert M. Gates, the Secretary of Defense; Leon E. Panetta, the director of the Central Intelligence Agency; and Leon Panetta, and James R. Clapper, the Director of National Intelligence.

    • spanishinquisition says:

      Scary stuff:
      “The Judiciary is simply not equipped to manage the President and his national security advisors in their discharge of these most critical and sensitive executive functions and prescribe ex ante whether, where, or in what circumstances such decisions would be lawful. Whatever the limits of the political question doctrine, this case is at its core.”
      The filing goes on and on with on one hand how Obama can use “necessary and appropriate force,” but then on the other hand says that the courts are too dumb to provide checks-and-balances to determine whether or not “necessary and appropriate force” is being used.

  9. Bluetoe2 says:

    The professional appeasers in the WH have a hard time understanding why the professional left does buy their BS. They are indeed witless.

  10. timncguy says:

    “This is indeed a wonderful decision, and one based upon the elevated level of scrutiny that is now clearly the standard in Federal court consideration of the rights based on sexual preference. The full text of the court’s decision is here. The critical language from the decision setting and clearing the table is as follows:”

    In the above paragraph where you used the term “sexual preference”, I’m sure you really meant to say “sexual orientation” as “preference” implies a choice.

  11. 1der says:

    Yet day after day, the Administration wonders why those on the left are unhappy and chastises them for not clapping loudly enough heading into midterm elections where turnout of the base is critical. Tin ear does not begin to describe this arrogance.

    That’s not all folks:

    AP Poll: Repeal? Many wish health law went further

    A new AP poll finds that Americans who think the law should have done more outnumber those who think the government should stay out of health care by 2-to-1. http://news.yahoo.com/s/ap/us_health_care_poll

  12. onitgoes says:

    Heard about this decision yesterday which followed directly on the heels of Obama’s objection to the DADT injunction.

    Kudos to Judge Leighton, who stands on the correct side of the law, and best to Witt & thanks to Witt for her excellent service to our nation.

    How anyone can find favor with the BHO Admin is way beyond me. Tone deaf is way too polite. I’m leaning towards outright and egregious incompetence. Pathetic, embarressing, ridiculous.

    If I’m supposed to be “happy” simply because this is “better than the other side,” I might as well hang it up now. Obama, you stink as POTUS, and I see no way that I’d ever vote for you ever again. Sorry that I voted for you the first time.

  13. frankBel says:

    It is my belief that BHO made a deal in ’07 w/ Wall Street and K Street similar to this: “If you folks fund the BHO campaign and if it is successful, I will betray the base to such an extent they’ll never be a problem again.”

    • mattcarmody says:

      I believe the second part of the deal was made with Hillary Clinton: Obama’d screw up so badly that the base would be pissed off enough to primary him giving her the nomination for 2012 and the people who were disappointed with Obama would feel maybe Hillary would be the one to deliver.

      Only to be shot down after the election when Rahm is brought back to the WH and that toad Carville starts making more appearances.

      • bmaz says:

        Nope, there is no such deal; and Hillary will not primary Obama. Say what you will about the Clintons, they are creatures of the Democratic party and such an idea was not in her or their head then, and it is not now. If Obama refused to run again, maybe she would consider it, but i am not even sure about that; as long as he runs (a certainty because that is where Axe and Plouffe are going) Clinton will not come close to even thinking about it.

  14. arcadesproject says:

    …tin ear does not begin to describe the arrogance.

    I’ve wondered for some time now whether the meteoric trajectory of O’s career and the adulation he thought he received (which was really aimed at the progressive change people thought he would bring, and not at him personally) proved toxic, and rendered him narcissistically deaf, dumb and blind to the rights and claims of other people.

  15. danw5 says:

    The ruling by the Bush appointed judge who applied the now applicable “Witt Standard” to cases which cannot be proved. There are no studies which have any correlation to the point the military tries to make.

    In Witt’s case she had over 16 years of honorable service, including combat service treating wounded military.

    In the Colonels case, he is an 18 YEAR veteran fighter-pilot with more combat time than McCain ever thought of having. the Colonel is a decorated combat pilot that McCain should meet. I am sure his F-16 could care less that he is gay.

    The “Witt Standard” should be the coup de grâce for DADT. Perhaps it is a standard that Obama should inform Sec of Defense Robert Gates to apply or resign.

    We already know that Gates believes that the Medal of Honor should only be awarded to those who are KIA. We know in Vietnam 3 of 4 enlisted who earned the award were posthumous awards while only 1/2 of the officers were. I would like Gates to provide some factual basis for that idiotic stand as well! We already know enlisted who earn the honor are discriminated against!

    Secretary Gates, your resignation would be helpful to the cohesion of the military as your rationale is fatally flawed, so to speak! And unconstitutional!

  16. b2020 says:

    Unfortunately, that’s not true for all courts or all decisions

    The Ninth Circuit has made a liar out of Uncle Sam and a mockery of its duty to uphold the law proscribing torture.


    The first-sale doctrine is an affirmative defense to copyright infringement that allows legitimate owners of copies of copyrighted works to resell those copies. That defense, the court said, is “unavailable to those who are only licensed to use their copies of copyrighted works.”


  17. labrador says:

    bmaz, thank you for your posts on DADT and Prop 8. The opening brief was due last Friday on Prop 8. Is that public? Thanks again.

    • bmaz says:

      There are literally a shitload of them. I’m not kidding, there must be 12 to 15 I have seen come through my ECF noticing. There are only two or three that mean much, and I will likely sort through them in the next few days. I will say this though, the 9th Circuit is looking awfully damn consistent on this issue at this point. And it is not on the side of the H8ters either.

  18. mzchief says:

    Congratulations Air Force Major Margaret Witt upon your reinstatement! May you receive every penny of your retirement and full benefits without any further cheesy, hypocritical excuses or delays by your former employer.