The Case of poetry laurette and 9/11 attacks

Will the high court hear his case? Probably not, but his petition raises a question of legislative and executive immunity on which lower courts are divided. This is the situation.

In 1999, following the example of 39 other states, the New Jersey legislature created the post of state poet laureate. The two-year job would carry a total stipend of $10,000. In return for the emolument, the honoree would give two public readings each year. Gerald Stern of Lambertville was the first laureate. In July 2002 the State Council for the Humanities nominated Baraka as its second. Two months later, at an arts festival in Stanhope, the outspoken bard delivered his first official effort.


Inspired by the 9/11 attack, it was titled, "Somebody Blew Up America." It was not met with universal acclaim. In one stanza, the poet inquired: (FOLO COPY) "Who knew why five Israelis were filming the explosion/And cracking they sides...?" In a further battery of interrogatories, he asked:

Who knew the World Trade Center was gonna get bombed?

Who told 4,000 Israeli workers at the Twin Towers to stay home that day?

Why did Sharon stay away?

Responding to the outcry, Gov. James E. McGreevey demanded that Baraka resign the post he had so recently assumed. The offended laureate refused. The governor then directed Sharon Harrington, chairperson of the arts council, to hold up the $10,000. (It is not clear whether the stipend ever had been actually appropriated, but no matter.) Adding insult to insult, the governor then asked the state legislature to abolish the post of poet laureate it had so recently created. The solons complied. As Will Shakespeare knew, every decent poet suffers for his art. Off with his head! So much for Baraka Buckingham!

The aggrieved lyricist responded with a brief statement, running on to many thousand words, in which he denounced the governor, the legislature and the Anti-Defamation League for their "dishonest, consciously distorted and insulting non-interpretation of my poem." Their disingenuous slander and character assassination was largely "the feces of a very small cow."

Baraka's suit followed against the governor, the acting governor, the State Council on the Arts and its chairman, 10 John Does, 10 Mary Does, and 10 Unknown Government Agencies. He charged them with violating his First Amendment right of free speech and his 14th Amendment right to due process.

Judge Garrett E. Brown Jr. dismissed the action in U.S. District Court. A panel of the U.S. Court of Appeals for the 3rd Circuit affirmed the dismissal. Now the poet's petition awaits a decision from the high court. We will know in October. Don't bet on his chances. A poet's lot, even a poet laureate's lot, is not a happy one.

Counsel for Baraka rely chiefly upon the argument that only state legislators — not a governor and his aides — are entitled to immunity from suit for their official acts. Circuit Judge Anthony Scirica had ruled that governors also have at least a degree of immunity: Executive actions leading up to repeal of the laureate law, in his view, were "substantively legislative." On another front, Scirica found it far from clear that the $10,000 stipend ever had been appropriated at all. In sum, "Baraka, like any person, was free to speak his views. But he had no protected legal interest in the maintenance of the position of poet laureate of New Jersey."

Judge Richard Nygaard filed a strong dissenting opinion: "In my view, the majority holding expands the legislative immunity privilege to insulate almost every action taken by executive branch officials having some connection, however remote, with the passage of legislative acts, subsumes in part the qualified immunity doctrine, and effectively abolishes accepted causes of action against executive branch officials who meddle in the affairs of, or otherwise insinuate themselves into, the legislative process."

It was a clumsy sentence but it sounded a timely warning against the excesses of legislative immunity. Nothing may have become this poet laureate's brief career like the leaving of it.

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)

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