Philip Berg, Fox News, API, Standing, and the United States Supreme Court

I spoke with Philip Berg this afternoon as he sat in his office, awaiting a crew from Fox News Channel in New York. While interest in his lawsuit among those at Fox has been steadily mounting over the past few days and weeks, Berg does not know exactly in what capacity the end product of the taping will be used.

“At this point,” Berg said, “the nation just needs to know that Mr. Obama is not eligible to serve as president of the United States, that he has so far successfully hidden behind procedure, and that we could very well be headed toward a constitutional crisis unless this is addressed.”

And he is indeed working toward ensuring that the issue is addressed, Berg said, and has been spending the past few days preparing for his appeal to the United States Supreme Court, a move which could happen by the end of the week. This, of course, has caused him to shift other items to the proverbial back burner, including but not limited to the so-called Michelle Obama tapes purportedly possessed by editorial staff at African Press International.

With regard to API, Berg says that he’s not so sure what has come or will come of it. “My name is associated with it,” he said, “but now I see that there’s a Canadian name associated with it too, and that they are claiming to have provided the tapes to Fox News or someone else. I don’t know.”

Still, even with the focus shifting to the Supreme Court appeal, the odds of the highest court in the land actually granting certiorari and hearing Berg’s case are slim. Even though appealing directly to the Supreme Court without first exhausting other options in the Circuit Court level, while a rare move, can be done with regard to substantially urgent matters, the Supreme Court is presented with approximately 8,000 petitions for certiorari each year but only grant about 75 to 120 of those. Personally, if it were me, I’d exhaust my options with the Third Circuit Court of Appeals before going to the Supreme Court — this way, I could avoid a possible procedural error. While that may delay the outcome of the case until after the fourth of November, I’d rather delay it than watch it tossed for an improper appeal.

In the unlikely event, though, that four of the nine Supreme Court Justices decide to hear the case, Berg will first have to establish that, contrary to the arguments put forth by Barack Obama and the DNC and the specifics of the decision rendered by the Hon. R. Barclay Surrick, he indeed has standing to sue. As I’ve pointed out in these pages before, the standing doctrine as it stands today does not bode well for Philip Berg.

To have standing, a plaintiff must satisfy a three-prong test. He or she must prove (1) injury in fact, (2) causation, and (3) redressibility — that they’ve sustained more than just general harm, that the harm can be traced to the conduct of the defendant, and that adjudication of the matter can provide a remedy to that harm. Berg’s biggest hurdle, so far, has been establishing injury in fact.

Now, while there is a three-prong test for standing, there is no such definitive test for establishing what exactly constitutes an injury in fact. Instead, whether or not a plaintiff has sustained an injury in fact depends upon how that plaintiff’s factual allegations are perceived by the judge on what has been described as a sliding scale of speculation, creativity and remoteness. In other words, if the factual support of a plaintiff’s claims is deemed too speculative, too remote, or too creative, then the judge may not find injury, and visa versa.

In the past, the United States Supreme Court has held that a plaintiff must have a “personal stake” in the matter being adjudicated. This, of course, is to ensure that the matter belongs before the court in the first place. More recently, however, the Court has paid greater attention to, and awarded standing for, plaintiffs who can show enough of an injury so as to provide something along the lines of a good contest among legal rivals.

In Constitutional Law class last year, we studied a few cases while looking at the standing issue. One was a case in which a group of environmentalists were given standing by the Supreme Court because the need for preservation of “environmental well-being” was enough to prove injury. In another case, an association in Washington state was deemed to have standing even though it was the individual members, and not the association itself, which could be found to have had the requisite “personal stake.”

That being said, in the unlikely event that this case is heard by the Supreme Court, Berg will need to argue, certainly among other things, that the injury deemed too generalized by Judge Surrick is indeed enough to show injury in fact and therefore gain standing to sue. Only then can this case be heard on its merits.

In the meantime, this election is only a week away. Talk to your friends, talk to your neighbors. Some will be too far gone to the political left. Others will be open to discussion. Regardless, make sure that people get out to vote next Tuesday, because the best way to stop Barack Obama from gaining the presidency is not through the court system but at the ballot box.

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  1. Anonymous says:

    CHANGE

    In the late 1950′s most Cubans thought Cuba needed a change, and they were right. So when a young leader came along promising Change, every Cuban was at least receptive. When the young leader spoke eloquently and passionately and denounced the old system, the press fell in love with him… They never questioned who his friends were or what he really believed in.

    He said he would help the farmers and the poor and bring free medical care and education to all, and everyone followed. He said he would bring justice and equality to all, and everyone said “Praise the Lord!”

    The young leader said, “I will be for change and I’ll bring you change,” everyone yelled, “Viva Fidel!” But by the time the executioner’s guns went silent, the people’s guns had been taken away. By the time everyone was equal, they were equally poor, hungry, and oppressed. By the time everyone received their free education it was worth nothing. By the time the press noticed, it was too late, because they were now working for him. By the time the change was finally implemented Cuba had been knocked down a couple of notches to Third-World status. By the time the change was over more than a million people had taken to boats, rafts, and inner tubes fleeing to Florida .

    Luckily, we in America would never fall for a young leader who promised change without asking, WHAT change? Would we?

  2. Anonymous says:

    This is a really odd little sad corner of the wrold

  3. Anonymous says:

    People have been asking:

    Posted by africanpress on October 29, 2008

    A final agreement has been reached between African Press International (API) and Fox News Network (USA) on the dates to air the Michelle Obama tape arising from a discussion Mrs Obama had with the API two weeks ago. The show will take place any day/time from now, with a 15 minutes alert on when it is to take place. Other programmes will be interrupted. This is a precaution taken to avoid interference from any quarter.

    In the agreement, Fox News Network will broadcast 39 minutes of the 54 minutes long tape. The whole tape cannot be aired unedited due to security reasons and especially due to the explosive political temperature in the country because of US Presidential elections that is just around the corner.

    The tape will be aired in two portions by two separate units in the Network. API’s representative will appear live in one of the shows.

    The parties have agreed that the information to be released to the public on the agreement will not include the naming of the units at Fox News Network that will air the tapes in order to avoid outside pressure and influence of any kind before the show has taken place. Nondisclosure of the name of the shows that will air the tapes has become necessary due to pressure from groups interested to block the release of the contents to the public.

    Due to a huge interest in the tapes shown by some private individuals, groups belonging to some political camp(s) and persons connection to a section of intelligence network, it has been decided that the 54 minutes long unedited tape is to be kept outside the United States in safe custody of one of API’s Lawyers based in Ontario, Canada.

    The day and time schedules of the broadcast will only be announced 15 minutes before the Show begins in order to avoid attempts to block the Show from airing the tapes.

    Any pressure from any outside forces that may want to know the day and time schedules of the Show before-hand or any other details in the agreement will get no answers to their requests either from API or Fox News Network.

    Chief Editor Korir/ African Press International – API

    http://africanpress.wordpress.com/2008/10/29/the-michelle-obama-tapes-to-be-aired-any-daytime-from-now-api-and-fox-news-network-usa-in-a-final-agreement-on-the-airing-daystime/

  4. Anonymous says:

    Bob,

    You’re right. The situation is so pathetic that it makes me want to puke. I cannot believe that half the country are like zombies and this fraud got this far.

    Keep up the good work Jeff. Thanks for the update. Tell Phil he really really needs to release the Obama granny audio tapes before the weekend. Millions of people have voted already, we’re running out of time fast. Thanks.

  5. Anonymous says:

    We have 7 more days to find the truth about Obama’s Birth place. I’m believing he was born in Hawaii, but at the sametime I don’t believe he was not born in Hawaii.

    i’m praying that obama won’t to be the next president. if he becomes the president united states will be finish..

    Obama’s “online BC” imagine is so faked jmo.. my BC has more info, raised seal. and i was born in 1977in CA

    So, the tape of Kenya grandma IS TRUE?

  6. Anonymous says:

    Focus, Focus, Focus-this is like a whole bunch of firecrackers going off all over the place. Pick the best issue (some lawyerly input needed) and stage a protest (not that many people are always needed-this doesnt require a cast of thousands-but it would be better) in a very public place-so it cant be ignored-in many cases in our past, it wasnt until public protests or demonstrations occurred that there was any attention paid or any results achieved. Attention needs to be drawn to this now-the media keeps sweeping it under the rug as the musings of wingnuts-and will continue to do so along with the Courts and Congress. Think about it-there has got to be a right to redress by the citizens under the Constitution-there cannot be any situation where the words in that document cannot be enforced by the Citizens-it is all about the rights of the “People” not the Government. The way this situation has played out doesnt make any sense-and when things dont make sense-theres usually something wrong-and this is very very wrong. The Founding Fathers might be a little disappointed in us thus far on this one. Time to stand up Chuck.

  7. Koyaan says:

    kathy wrote:

    therefore Barry Soetoro aka Barack Hussein Obama II would no longer be a US citizen and is still a legal citizen of Indonesia.

    That’s incorrect.

    Obama would not have lost his US citizenship even if he were nationalized as an Indonesian citizen.

    According to the 1952 Immigration and Nationality Act, the only way he could have lost his US citizenship is if he had not established permanent residence in the US by his twenty-fifth birthday.

    Oh, and by the way, you left out:

    Fact 7. There’s not one shred of credible evidence that Obama was born anyplace other than Honolulu, Hawaii.

    k

  8. Anonymous says:

    Jeff,

    Thanks for the great reporting on this issue. Your blog is a lot easier to monitor than Berg’s site.

    I found an interesting, and very disturbing, article just published comparing Obama to Malcolm X.

    http://www.condonshaw.com

  9. Righton says:

    If this appeal gets denied, it would be time for Petreaus to take over and liberate the US.

  10. Anonymous says:

    A wise man’s heart directs him toward the right, but the foolish man’s heart
    directs him toward the left.
    Ecclesiastes 10:2

    My son, fear the LORD and the king; Do not associate with those given to
    CHANGE; For their calamity will rise suddenly, And who knows the ruin those
    two can bring?” – Proverbs 24:21-22

  11. Anonymous says:

    Latest from API-

    The Michelle Obama tapes to be aired any day/time from now: API and Fox News Network (USA) in a final agreement on the airing days/time.

    Posted by africanpress on October 29, 2008

    A final agreement has been reached between African Press International (API) and Fox News Network (USA) on the dates to air the Michelle Obama tape arising from a discussion Mrs Obama had with the API two weeks ago. The show will take place any day/time from now, with a 15 minutes alert on when it is to take place. Other programmes will be interrupted. This is a precaution taken to avoid interference from any quarter.

    In the agreement, Fox News Network will broadcast 39 minutes of the 54 minutes long tape. The whole tape cannot be aired unedited due to security reasons and especially due to the explosive political temperature in the country because of the Presidential elections that is just around the corner, November 4th.

    The tape will be aired in two portions by two separate units in the Network. API’s representative will appear live in one of the shows.

    The parties have agreed that the information to be released to the public on the agreement will not include the naming of the units at Fox News Network that will air the tapes in order to avoid outside pressure and influence of any kind before the show has taken place. Nondisclosure of the name of the shows that will air the tapes has become necessary due to pressure from groups interested to block the release of the contents to the public.

    Due to a huge interest in the tapes shown by some private individuals, groups belonging to some political camp(s) and persons connected to a section of an intelligence network, it has been decided that the 54 minutes long unedited tape is to be kept outside the United States in safe custody of one of API’s Lawyers based in Ontario, Canada.

    The day and time schedules of the broadcast will only be announced 15 minutes before the Show begins in order to avoid attempts to block the Show from airing the tapes.

    Any pressure from any outside forces that may want to know the exact day and time schedule of the Show before-hand or any other details in the agreement will get no answers to their requests either from API or Fox News Network.

    The decision to have the above information public was a difficult one due to the sensitivity of the case and huge interest against, and for, the release of the contents of the tape for public consumption.

    Chief Editor Korir/ African Press International – API

    http://africanpress.wordpress.com/2008/10/29/the-michelle-obama-tapes-to-be-aired-any-daytime-from-now-api-and-fox-news-network-usa-in-a-final-agreement-on-the-airing-daystime/

  12. Nick says:
  13. bluewater says:

    This is how you contact the person who told Fox News that the LA Times isn’t interested in revisiting the video:

    Nancy Sullivan
    Executive Director, Communications
    213-237-6160
    nancy.sullivan@latimes.com

    Slam her inbox.

  14. Anonymous says:

    http://mainehuntingtoday.com/bbb/2008/10/27/obama-says-constitution-flawed-framers-didnt-get-it-right/
    “Obama Says Constitution Flawed, Framers Didn’t Get It Right”

    2 videos

  15. Anonymous says:

    I don’t know what exactly is meant by injury but I haven’t slept more than 3 hours at a time in over a month becasue of this. I can’t function due to the stress and the overwhelming fear that Obama will be able to run for President. I may need to see a therapist.

  16. Anonymous says:

    Hannity is also advertising this: http://forums.hannity.com/showthread.php?t=1059821

  17. Anonymous says:

    Everyone needs to turn your TV on to ABC at 8:00p.m. today (Wednesday, Oct 29).

    ABC is the only major network not running the Obama 30-minute commercial.

    NBC, CBS and Fox will all be showing his $1million infomercial from 8:00-8:30p.m.

    ABC initially refused to make scheduling changes to accommodate the commercial. When ABC later changed its mind, the Obama campaign told ABC it was too late; they said they no longer had the funds (!!!).

    http://latimesblogs.latimes.com/entertainmentnewsbuzz/2008/10/democratic-pres.html

  18. Anonymous says:

    If there was anything to this in fact, the Bush/Cheney/Rove machine would be working overtime to get it out in the public eye. Every second-tier republican would be pushing every possible button they could to get this looked at closely.

    My guess is simply that there is nothing to any of this, which is why republican leadership hasn’t done anything with it.

  19. halva says:

    “The best way to stop Obama from becoming President is not through the court system but through the ballot box,” says Jeff.

    This is precisely the argument that is keeping dissident Democrats supporting Obama.

    There is another problem too, fraud. Take a look at Lynne Landes site:
    http://www.thelandesreport.com/VotingSecurity.htm

    Lynne Landes says: Today in America there is no reason to believe in election results.

    Republicans have not much supported campaigns against the kind of vote fraud that is facilitated by computerisation.

    Perhaps they have thought that the fraud would always favour the Republicans. But why should this be so? Electoral fraud can cut two ways.

    Jeff is not giving good advice.

  20. Anonymous says:

    Must be a Obama supporter translating the tape. It shouldn’t take that long.

  21. Anonymous says:

    I do not like the new format at the Berg site. It is impossible to find and read the new postings. they are random throughout a maze. Also the typeset is very small and hard to read.

    I used to read everything now that is impossible. I can only skim a few items.

    Also it now is getting filled up by obot trash talk. This is destroying the site as people argue with them. I do not think the new site is really for the better.

    I can not even post a message there that I can expect Berg to eventually read. Here I can expect this to be read and you will let him know.

  22. Anonymous says:

    Why can’t Mr Berg claim that if Obama is President then his taxes will be much higher as a direct cause and therefore there is direct personal harm

  23. Anonymous says:

    Say What!?! Camp Obama Offers API 3 Mil For Michelle Rant
    October 29, 2008 at 12:45 am (Barack Obama, Politics) (African Press International, audio tapes, Just Say No Deal, Michelle Obama, PUMA)

    Oh, baby, bay-bay! It’s getting hot in herre! African Press International claims they’ve been offered 3 million dollars for tapes they swear to possess of Michelle Obama spilling the beans about her husband’s adoptive status during a far-ranging general rant at them and the world. Angered that a black site would question Barack about anything, Ms. O supposedly strongly implied that if they played nicer, she’d hook ‘em up once hubby became prez. Now that API has reported a deal in place with FOX News to air the tapes, they say the O Team is in a panic:

    Six hours after the release of information by API on the planned broadcast by Fox News Network of�the Michelle Obama tape, in accordance with an agreement that has been reached between API and Fox News Network, API� was contacted by Obama’s Campaign Manager.

    Those who are close to the democratic presidential candidate must be�desperate to win the elections no matter what, otherwise they would not have taken such bold step to contact API with an offer of a bribe in order to stop the airing of the tape.

    �Obama’s campaign manager�contacted API by telephone and�email offering 3 million US dollars followed with a request to�API to�cancel the deal with Fox News Network.

    Ten days ago API�received the first request�to accept 2 million US dollars�by Mr Ed Hale, President�of Plains Radio, Texas -�USA, in an effort to suppress the information from reaching the public before the coming US Presidential elections.

    �API has now taken a decision to contact the American Embassy in Oslo, Norway as soon as possible in order to report the matter and hand over the�evidence�for investigative purposes.

    API’s Canadian lawyer is expected to fly�to Oslo shortly in order to assist in the legal matters that arise from the bribery attempt.

    API’s Chief editor is expected to travel to New York, together with the Canadian lawyer, where he will appear live in one of the shows that� will air the Michelle Obama tape.

    Okaaaaay? Wonder if they’ve got a tape of that?

    Gotta hand it to API, though. If this is a hoax, it’s a damned good one.

  24. Anonymous says:

    http://hillbuzz.wordpress.com/

    http://hillbuzz.wordpress.com/2008/10/29/breaking-transcript-of-obama-khalidi-tape/

    BREAKING: Transcript of Obama-Khalidi Tape (please send to everyone you know, and people you have not met yet. Meet people today just to send this to them)

    While Sam Zell is selling out the future of his own people by refusing to release the tape of Barack Obama toasting known anti-Semite and
    PLO functionary, Rashid Khalidi, I have been fortunate enough to receive a probable transcript of the toast…
    HERE IT IS:
    ****BEGINNING OF TRANSCRIPT***********
    Um, ah….Salaam
    Um….My distinguished guests….ughh….it is an honor to be here…
    uhh….It is truly refreshing to be surrounded by such a large group of people in which…uh.. I can truly see eye-to-eye with…uh…and completely agree…
    Reverend Farrakhan..ughh…great to see you tonight…you always look great in a yellow bow-tie…and..uhh…tonight is no exception….
    Bill..Bernadine….I see you everyday…so I don’t need to say much…but…ughh…you know I love you….keep doing the work you do….it’s time to start a revolution
    Reverend Wright…..ughh…you are the father that I never had….I’ve never missed a sermon…and…uhh….I never will…
    Michelle, while I find your frown so beautiful….I hope to one day make you proud of this country..and uhh…happy…and finally see you smile….
    uhhhhh…with that being said…If everyone could please hold off from hitting the hookah…I would like to say a toast..to my, and Yasser Arafat’s, best friend….Mr. Rashid Khalidi….
    Rashid…..you are my best friend….spiritual compass…..and baby sitter (crowd laughs..and cries)
    I want to thank you for your constant indoctrination….I want to thank you for your imput..and..uhhh…reminders…that Israel is a constant sore….and..uhh…needs to be eliminated off the map….
    I also want to thank you for introducing me to your many contacts in the middle east…I am sure…uh…that their imput……and uh…money…..will be of great use to me as I run for President of these great 57 states…..
    While David Axelrod may be forcing you to move away from me during the campaign….I am confident…that..uhh…our friendship will not only remain..but actually prosper..during our time of absence….
    Rashid…you ARE my middle east adviser….and you ALWAYS will be…
    Here’s to Rashid……(A chant of Messiah can be heard in the background….also audible…is a voice (thought to be Ayer’s) screaming REVOLUTION…REVOLUTION..over and over…)
    Salaam….
    **************END OF TRANSCRIPT*************
    IN LIGHT OF THE LOS ANGELES TIMES NOT RELEASING THEIR COPY OF THE TAPE….CONSIDER THIS PROBABLE TRANSCRIPT TO BE ACCURATE, AND FEEL FREE TO DISTRIBUTE IT TO ALL OF YOUR FRIENDS AND FAMILY SO THAT THEY CAN MAKE AN HONEST ASSESSMENT OF SENATOR OBAMA, PRIOR TO CASTING THEIR VOTE
    If any Obamabots object to my writing, please call the Los Angeles Times, and convince them to release the original copy to prove me wrong.
    L.A Times Contact Information:
    Los Angeles Times
    202 W. 1st St.
    Los Angeles, CA 90012
    Phone: (213) 237-5000
    Fax: (213) 237-7679

  25. Anonymous says:

    IF FOX reveals the alleged MO tape that allegedly states that BO was adopted in Indonesia BEFORE the Supreme decision to hear or not, wouldn’t that give Berg more evidence backing up his own case of O’s ineligibility? I thought that Berg had included that second situation in his case…just did not have evidence.

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