DAN MARGULIS APPLIED COLOR THEORY

Ralph Adam Fine 1941-2014

From: Dan Margulis

Date: January 4, 2015 9:49:54 AM EST

Subject: Ralph Adam Fine 1941-2014

I am very sorry to announce the passing of an important member of our list, although few of you would know his name. He was an avid amateur photographer. I met him when he took the ACT course in San Diego, in April 2006 and we became close friends. I last saw him at his home in Milwaukee, when I was in the region for the printing of MPCW, but we have always been frequent correspondents. It was only when I hadn’t heard from him for a while that I googled and found he had died about three weeks ago after a brief illness.

He followed the list avidly and sent me a lot of comments about it offline, some of which I published anonymously. He, for example was the one who started a 2008 thread called “Retouching Reagan”, in which he took me to task for, in preparing a cover for Newsweek magazine, condoning an art director’s instruction to make Reagan look older. The thread still reads well today, about the ethics of political retouching, with many examples.

There were other threads, too, as the topic of journalistic ethics was important to him; I have a lot of his private commentary. You may ask why he didn’t post these things himself instead of hiding behind me. The answer is that he couldn’t make comments that were even remotely political, because of his day job. He was an appeals court judge, and a very good one indeed, not to mention an outstanding writer. He ran a well-respected series of workshops for trial lawyers.

I’ve read a lot of Ralph’s decisions. He would be hard to classify from the political point of view, which is a virtue regrettably not shared by many U.S. judges. He bitterly denounced the conservative wing of the U.S. Supreme Court, as being politicians rather than judges. But he felt the same way about the anti-business slant of Wisconsin’s own supreme court, the friend of the plaintiff’s bar, whose greatest pleasure appeared to be extracting money from out-of-state corporations who had done nothing wrong.

Because he had a strong but flexible philosophy, his decisions could put him on an unexpected side of the issue. He condemned excessive use of sharpening to “age” Ronald Reagan; I condoned it on the grounds that nobody could ever police the practice. On the other hand, when there were editorial alterations to a picture that *could* be policed, as when an overzealous newspaper photographer essentially blacked out most of the background of an image because it distracted from his presentation of the foreground objects, I condemned it. Ralph disagreed so strongly that he agreed to let me post his name. He wrote as follows:

It seems to me that an analysis of ethics of photo journalism reproduction, requires an answer to two questions: (1) was the image worthy of publication--that is, ‘newsworthy’; and (2) did the ‘manipulation’ distort the scene the photo journalist tried to capture? In image 1, the scene was consolation. The background was wholly immaterial to that. The happenstance of the white and yellow blobs in the background was not part of anything that was newsworthy and taking them out neither added nor subtracted from the reality of what anyone at the scene would have seen...

It seems to me that unless the photograph is part of a ‘look how lucky I was to be there when...the background was not marred by distracting inconsequentia’ contest, that [the photographer’s] removal of the inconsequentia was good, not unethical, photo journalism.

The same thought pattern could be found on the bench. Ralph would be considered tough on criminals. He wrote a book called “Escape of the Guilty” in which he excoriated current methods of plea-bargaining. Yet in one of his very last cases, published in November, he found himself on an unusual side. The current governor of Wisconsin is a national figure in the Republican party for his extreme positions, and a frequent target of law enforcement for his manifold ethical lapses, such as requiring subordinates to use public time and funding to campaign for him. Ralph was not one of his admirers.

The governor’s deputy chief of staff was sentenced to six months in jail for having violated public trust as above. The evidence against her came as a result of subpoenas and search warrants served on Google and Yahoo for her e-mails over a long period of time. Prosecutors were investigating someone else for a similar offense, and had found a pattern of incriminating e-mails. They reasoned that he might have deleted many of them himself, in which case Google or Yahoo would no longer have them, but that anyone who received them, such as the deputy chief of staff, still might. Hence, the warrants. In compliance, Yahoo and Google turned over 16,000 e-mails, which proved not only that the other guy was guilty, but that the recipient was, too.

The defendant moved to suppress the e-mails on the grounds they were illegally obtained. This would have ended the case against her, but the judge denied her motion. The case was appealed to Ralph’s court, which ruled by 2-1 that the search of the e-mails was permissible and the evidence could be used against the defendant.

I’ll let Ralph, the tough-on-criminals judge, the corruption-equals-sleaze human being, speak for himself, because he was also a fan of privacy--and our constitution.

FINE, J. (dissenting). Simply put, we are governed by our Constitution, not expediency.

We are bound by the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yet, the Majority eschews the Fourth Amendment’s command and permits the government to rummage through [the defendant’s] digital files for evidence of her crime even though the search warrants sought evidence in those files of another crime by another person and lacked probable cause to believe that [her] digital files had any evidence of any crime that [she] might have committed. Contrary to this enshrined Fourth-Amendment law, the search warrants for [her] digital files did not:

• set out probable cause that [she] had done anything wrong (as the Fourth Amendment requires); and

• describe any place where any evidence that she had done anything wrong could be found (as the Fourth Amendment also requires).

The danger in this type of case is palpable...

The Fourth Amendment prohibits the government to legitimately go into a person’s voluminous files looking for evidence that someone else may have violated the law. and then root around those voluminous files to see if the subpoenas’ subject may have also violated the law. Yet, the State admits in its brief that it did precisely that...

The Majority legitimizes a general warrant and nullifies our Constitution. I respectfully dissent and would grant the motion to suppress the data.

This may have been his last decision before the final illness.

Ralph was highly respected everywhere. Even the governor issued a gracious statement praising his memory. I will miss him greatly—and so will you.

Dan Margulis