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CNN BREAKING NEWS

Toobin: Moore Incorrectly Cited First Amendment Rights

Aired August 27, 2003 - 09:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SOLEDAD O'BRIEN, CNN ANCHOR: Jeff Toobin, we're going to you back to continue our discussion. The protesters have now said that they've been told this monument will move potentially to a back hallway, only visible by employees and not by the public.
How legally does this change the argument? Couldn't someone still argue, no it needs to be out of the building? That's what we wanted the first time around in our lawsuit?

JEFFREY TOOBIN, CNN LEGAL ANALYST: It could, Soledad. That is where matters of degree get involved, and you can be sure they'll be more litigation about it.

It's a little like what you mentioned about the Supreme Court. There are -- there is no prohibition on the Ten Commandments being in a government building. They're in books all over government buildings, and they are occasionally displayed.

The question that judges have to consider is is the display an endorsement of a religion? That's really the question. And I think most constitutional scholars believe that the current situation with the 5,000-pound monument in the middle of the courthouse is clearly an endorsement, and that's why it's been ordered out. If it's in a back room accessible only by employee, I could see a court saying that's not an endorsement.

But the one thing you can be sure of is there will probably be more litigation about it.

O'BRIEN: I've got a couple questions for you about the chief justice, Roy Moore, here. We talked to him a couple days ago. He said he only -- I said, do you think you're above the law? He said, Well I don't think I'm above the law. I think you should obey the law, except when the courts themselves are not going by the law. And then he quoted his First Amendment rights in his argument.

Give me a sense of what you think of his argument?

TOOBIN: With all respect, I think that argument is completely off the wall. The federal courts have the last word in our system. You can like it, you can dislike it but...

O'BRIEN: Jeff, I'm going to interrupt you. I'm sorry. And hold that thought for one second because I just want to update folks on what they're seeing.

Once again, you're seeing people from a moving company measuring and assessing. And looks like they're ready to do movement on this 5,300-pound monument. So we're going to continue to watch this while we listen to Jeff Toobin explain to us what he thinks of the chief justice's argument that this is really, this monument, is really symbolic of his First Amendment rights to ignore the law in this case.

Sorry, Jeff. Go ahead.

TOOBIN: That is, as I say, with all respect to the chief justice of Alabama, a completely incorrect legal argument. The federal courts in our society have, in our government, have the last word on what the law is. You are welcome to protest those -- the rulings by federal courts, complain about them, criticize them, but state court officials have to honor them.

And if the state -- if the federal courts say the monument has to go, the monument has to go. And you don't have a First Amendment right to defy that ruling. You have a First Amendment right to complain about it. And I think that's the confusion.

O'BRIEN: Let me ask you a question about the former now chief justice, because he's been suspended pending a hearing in the state judiciary court. What exactly is his status? What happens to him? When's this hearing? What does it involve?

TOOBIN: Well I think he is temporarily out of office, and he could be restored.

But you know I think people who haven't been following this story need to know about Chief Justice Moore. The Ten Commandments is his issue. This isn't something that he just latched on to at the last minute.

Alabama has an elected judiciary. He was elected chief justice because he was an obscure local judge in Alabama who put up the Ten Commandments in his courthouse. As a result of that, there were lawsuits, very much similar to the one going on now. And as a result of that publicity, he was elected chief justice of Alabama.

So this is his issue. It's not like he just latched on to it at the last minute, and this is why he is pushing it and pushing it and pushing it. He's not gone forever as chief justice, as I understand it, but he will need to be restored.

O'BRIEN: It is unclear what moving company is helping out and doing it this time the measuring and the assessment of the monument. But the protesters have called for and have threatened a nationwide boycott of whatever moving company that is. And they've also said that whoever owns that company or the people who are involved in this moving will be sorry that they cooperated. What do you make of these threats?

TOOBIN: Well you know, this is where you get into the realm of people's First Amendment rights. They are welcome to boycott a moving company that they don't approve of. But they are not welcome to block the progress of the moving company. They are not -- they're not allowed to threaten, intimidate, certainly commit any act of violence. But if they want to denounce the moving company, that's what the First Amendment is all about.

(CROSSTALK)

BILL HEMMER, CNN ANCHOR: Hang with us a second here. We're going to go back outside the judicial building there and listen, drop in on what's being said.

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