WINTER 2006-07 NEWSLETTER
GEORGIA FOI ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

'Yes, there definitely needs to be a lot of that,' says the senior judge,
meaning freedom of information in Georgia

Judge Marvin H. Shoob of U.S. District Court in Atlanta, a fierce defender of the freedoms guaranteed in the Bill of Rights, will receive the Georgia First Amendment Foundation's annual Charles L. Weltner Freedom of Information Award Jan. 27

By Tom Bennett

Decatur, Ga., Nov. 14, 2006 - By publishing his phone number in the metro Atlanta phone book despite ongoing threats to his life, Marvin H. Shoob is the public servant most reminiscent of former Georgia Chief Justice Charles L. Weltner's admonition that "public men and women are amenable at all times to the people.'

Shoob, 84, is the senior judge of U.S. District Court for the Northern District of Georgia. He will receive the Weltner Freedom of Information Award at a banquet Jan. 27, 2007 in Atlanta. He will be the sixth recipient of the award that is named for his former close friend and presented each year since 2002 by the Georgia First Amendment Foundation.

The banquet will be at the JW Mariott Buckhead, 3300 Lenox Road in Atlanta. The reception will begin at 6 p.m. followed by dinner at 7 p.m.  The dress is business casual.

"The words of Weltner aptly describe Judge Shoob's actions," said Gerald Weber, legal director of ACLU Georgia. "Judge Shoob kept his home phone number in the Atlanta phone book during the years he was ruling on the fate of 1,900 Mariel boatlift Cubans, the 'freedom flotilla.' Publishing his home phone number got Judge Shoob threats; unknown parties driving by at night; and garbage thrown on his lawn."

The 1979 Jimmy Carter appointee to the federal bench is one of the fathers of Internet freedom of speech. Shoob's particular niche in a series of 1997 rulings up and down the east coast for cyberspace free speech came in ACLU v. Miller. In that case, Shoob struck down a state law criminalizing online anonymous speech and the use of trademarked logos on links on theWorld Wide Web. It was "the first-ever challenge to a state Internet censorship law in Georgia," according to ACLU Georgia.

On that same date, a New York federal district judge ruled in American Library Association v. Pataki. He enjoined his state from enforcing its Communications Decency Act. Six days later, the U.S. Supreme Court in ACLU v. Reno, outlawed the federal CDA, saying it violated the First Amendment's guarantee of freedom of speech.

The implications are everywhere from his actions to decriminalize anonymous internet speech. All over the world, people can write on the internet without revealing their identity.

"It makes you a father of blogging," I said to him in a telephone interview today.  "Well, I didn't realize that," Shoob replied. "I'll have to tell my son about that. He will be more impressed with that than any of the other things I've done."

Shoob upheld an adult's right to read what he or she wishes in the 1986 case, American Booksellers Association v. Webb. A Georgia law then on the books "would, in effect, reduce an adult's selection of reading materials to a book list suitable for a fifth-grade class," Shoob wrote.

Shoob halted Georgia Public Television's bid to exclude a Libertarian candidate from a televised debate in the 1990 case, Chandler v. Georgia Public Telecommunications Commission. "A decision on the popularity of a particular candidate necessarily includes a judgment regarding the content of the political speech," Shoob wrote. "An agency of the state cannot make a unilateral decision concerning the views of a minority candidate."

The First Amendment's freedom of religion has been buffeted in recent years by Georgia politicians' race to be the most righteous and post the Ten Commandments in public buildings. In Harvey v. Cobb County in 1993, Shoob wrote: "Any erosion of the Bill of Rights - restraints voluntarily imposed by the majority to protect the rights of the minority - will inevitably produce prejudice and persecution."

CHAMPION OF HUMAN RIGHTS

We citizens live in dread of cell doors closing behind us. In the nearly three decades since his appointment by President Carter in 1969, Shoob has upheld human rights by interceding for the incarcerated in Georgia. He and his federal marshals and a court appointed master are currently monitoring the upgrade of conditions in the Fulton County Jail in Atlanta, following an inmate's suit. Earlier, Shoob ordered the construction of this jail and also new ones replacing dilapidated lockups in the neighboring metro Atlanta counties of Cobb, Douglas and Fayette. In 1980-85, Shoob became "the last lifeline of freedom" for nearly 2,000 Cuban detainees held in Georgia, as R. Robin McDonald wrote in her Oct.31, 2006 article in the Fulton Daily Report entitled, "Judge recalls role of habeas in earlier crisis; He insisted Mariel Cubans had habeas rights."

The key events in a test of a basic constitutional right came in August 1981. "So many habeas petitions had been filed in federal court in Atlanta that Shoob consolidated them as a class action - an approach he acknowledged in subsequent court orders was 'novel,'" McDonald wrote. "He then gave the government 10 days to show why the Mariel Cubans should not be released.  "Twelve days later, on Aug. 20, 1981, Shoob issued a second order saying that the U.S. Justice Department had clearly abused its authority in detaining nearly 400 of an estimated 1,800 Cuban Mariels in custody in the Atlanta Penitentiary. Shoob ordered them released."

This was on a Friday, and the warden took the afternoon off, and the assistant warden delayed enforcing the order. Shoob telephoned. "I'm sending two federal marshals over to your penitentiary right now," the judge told the assistant warden. "They are going to arrest you... You will spend the weekend in the Fulton County jail. Then you will be brought before me on Monday." The assistant warden enforced the order.

During that constitutional crisis, the white-haired senior judge hired translators to come to the Russell Building in Atlanta and work in a meeting room down the hall from his office. They assisted the Marielitos in preparing the words in English for their petitions for habeas corpus. Indoing so, he was underscoring the importance of their SPEECH.

(At this writing, Cuban soil is the setting for a new crisis testing the U.S. Constitution put into effect in 1787. President George W. Bush's Military Commissions Act of 2006, signed Oct. 17, asserts that he has suspended the habeas rights of U.S. prisoners in the U.S.' Guantanamo Bay Prison.)

'I WAS MAD'

Far from inspiring the young civil lawyer Marvin H. Shoob as an act of courage, Charles L. Weltner's resignation from Congress in 1966 infuriated his close friend Shoob. Weltner then was Atlanta's U.S. Fifth District congressman. He walked away from office and a career in politics to protest a Democratic Party "loyalty oath" then in place. It was required for allunder the party banner. They had to pledge loyalty to the gubernatorial candidate. In 1966 this was the pick handle-waving segregationist Lester Maddox.

"I was mad as hell," Shoob told me in our telephone interview. "He didn't consult anybody. He was one of my best friends. I was chairman of the Fulton County Democratic Campaign Committee. When Weltner withdrew, I immediately offered him space in my law firm for himself and his secretary.   They came down and occupied space in our offices until he could get on his feet. He didn't have clients or business, and he hadn't saved much money.

He was the kind of guy who was kind of above all those things."

Shoob has attended at least three of the Weltner banquets held so far. I asked him, does that show he is glad to see an organization working to increase freedom of information in the state?  "Oh, yes," Shoob said. "There definitely needs to be more of that."

 'THERE, THAT SOLVES THE PROBLEM'

The 1940s were the pivotal decade for what author Tom Brokaw calls "The Greatest Generation."  Marvin Shoob of Savannah, Ga., attended Armstrong State, Georgia Tech and finally Virginia Military Institute, where he was president of the Army Student Body, according to FindLaw. During World War II in Europe, he rose to the rank of staff sergeant in the Infantry in the 3rd Army of Gen. George Patton. Shoob received the Bronze Star.

The event that is told in every Shoob portrait, and one that he says shaped his commitment to human rights, occurred near Metz, France. "Five teenage German soldiers approached him with hands held high in surrender," wrote "Lil" on "Thus Blogged Anderson" on the Internet.  "When Shoob, then 20, told a lieutenant he didn't know what to do with the prisoners, Shoob said the officer gunned them down. 'There, that solves the problem,' the lieutenant told him. Shoob spent the night huddled beside the dead Germans in the crater, wrapped in the overcoat he took off one of them."

The details of this story are familiar to every student of Shoob. They are repeated here from "Lil" in honor of ACLU v. Miller.

'I JUST LIKED THE ENGLISH'

He came home to enroll at UGA and he decided to study journalism.  "Reading Ralph McGill (in the Atlanta Constitution) had something to do with it," he told me, "but I just liked the English, and I love the classics. My son went that route. He's a writer and director in Hollywood."

After an aptitude test showed he was right for it, Marvin Shoob switched to law. He graduated from UGA Law School cum laude in 1948, received his Doctor of Jurisprudence.

His Atlanta law firms were Andrews and Nall; Brown and Shoob; Phillips, Johnson and Shoob; and from 1956 to 1979, Shoob, McLain and Merritt.

Wendy Lee Shoob, Judge Shoob's daughter, is also a lawyer and judge. She graduated with distinction from the University of Virginia and then went on to receive her Doctor of Jurisprudence from Mercer School of Law in 1977.  She was appointed a judge of the Fulton County Superior Court in Atlanta in 1996.

THE FIVE WELTNER AWARD recipients so far have been:

Eason Jordan, then chief of newsgathering, who said, "Open government and freedom of information are the lifeblood of our craft at CNN."  Thurbert Baker, Attorney General of Georgia, who said, "Open government has become my mission."  Roy Barnes, who had just completed his term as governor, and used the occasion to begin a drive for a constitutional amendment for open government in Georgia.  Norman Fletcher, Chief Justice of the Georgia Supreme Court, who said,  "Openness is the greatest preserve of truth and honesty"; and Johnny Isakson, U.S. senator from Georgia, who said, "I hope you will always hold me to my pledge of openness."

All their dreams, and Georgia First Amendment Foundation's, for the reality of open government to take hold depend upon sponsorship of the annual Weltner Banquet. If the money is there, then this 501(c)(3) non-profit organization incorporated in 1994 can exist for another year. To join me as a sponsor, contact Hollie Manheimer, executive director, by telephone at404-526-3646; via e-mail at info@gfaf.org; or in a letter to 150 East Ponce de Leon Avenue, Suite 350, Decatur 30030.

Tom Bennett writes about open government issues for Georgia FOI Access.