JB: Don't leave us in suspense, PEN. Then what happened?
PEN: Well, after that, nothing happened for months. The case just sat on the bench of the assigned judge with no dispositive action by the Court. Because of the caseload in the DC federal court, which handles the most important questions of federal jurisdiction, this is not unusual for cases being given serious consideration. If our core claims were not meritorious, the Court early on could have easily just dittoed the text of defendants' motion to dismiss, and that happens too.
About five months ago, there was an entry in the docket that our case had been reassigned to a senior judge in the district, kicked upstairs so to speak. This is the same judge who has been handling the 2 billion dollar lawsuit filed by Bank of America against the FDIC. This is big time litigation land. But still no action was taken on the merits in our case.
Then last week, we got notice that our motion requesting permission to file that surreply had been GRANTED. This in and of itself does not prove that we will prevail on the substance of our complaint, but we believe it strongly suggests that the Court is taking our arguments very seriously, and at least in this one matter granted for us a motion despite the opposition of the other side.
JB: So that's definitely encouraging news. What else?
PEN: I might mention that this is not the first lawsuit we have been forced to file related to The Last War Crime movie. Also after we last talked we had a problem getting permission to use in the film some extraordinary pictures taken by the NYPD helicopter photographic unit on the morning of 9/11. Because all news copters were excluded from being within 5 miles of lower Manhattan that morning, only the NYPD photographer was in a position to take some stunning close-in photos of the huge clouds of dust and smoke enveloping 50 and 60 story buildings in the aftermath of the collapse of the World Trade Center towers. And we wanted to use these pictures as a dramatic photo montage in The Last War Crime movie. Almost nobody knew these historically significant photos even existed, but we found them by exhaustively going through the multi-terabyte NIST database, which had collected anything and everything related to these events.
The NYPD tried to blow off our request for use of the pictures in a way that was clearly arbitrary in our view, so we researched how to challenge an administrative decision in New York City. In that case we filed an Article 78 petition, which we determined was the correct remedy. We heard back from New York City's intellectual property attorney. Yes, they actually have someone dedicated for that. He told us, in a very nice way actually, that if he wanted to he could run us around back and forth in court for years. We told him equally nicely that he would find us to be very intellectually stimulating running partners.
JB: Cute!
PEN: We suspect he was astonished at some of the obscure legal citations we were able to find supporting our petition. And the NYPD pretty much surrendered immediately. And the pictures are in the film now.
JB: Good work!
PEN: But the big deal is the federal lawsuit. It's no secret to us that many, many people, especially progressives, have had their political policy related ads censored in the past.
JB: Agreed. In 2005, there was a similar incident when an ad was submitted to WHYY, the National Public Radio station in Philadelphia. It was for Mark Crispin Miller's book, Fooled Again , about the stolen presidential election of 2004. Suddenly, the book was too - that word again - "controversial" and the ad was rejected.
PEN: Wow, when a national public radio station is rejecting ads for political reasons, that is a full blown crisis of democracy! We ourselves have experienced this multiple times just around this one film, and it is still going on all the time. We are asking the federal judge to CHANGE the law on First Amendment grounds, and we have two independent arguments of first impression we are presenting, either of which would create a new precedent binding nationwide. If we prevail on any level, we believe it will fundamentally change the playing field related to political advertising.
The last time we spoke about the forces trying to suppress promotion of The Last War Crime movie, I told you, "If there is a path to get the movie out, it must be directly through the biggest obstacle someone puts in our way." And this is precisely what we are doing now.
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