Perspective: Defending DeLay's Internet assault

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The award for the most half-baked remark of the week goes to Rep. Tom DeLay, the former pest control entrepreneur who's now a top Republican in the U.S. Congress.

"We've got Justice (Anthony) Kennedy writing decisions based upon international law, not the Constitution of the United States?" DeLay told Fox News Radio. "That's just outrageous. And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous."

That was a memorable thing for any politician to say, up there with Hillary Clinton and Rick Lazio critiquing the phantom bill 602p and Al Gore's apparently serious claim to have "created" the Internet.

That said, did DeLay have a point?

Of course, as he should know, there are valuable Internet resources that any jurist should be able to peruse, starting with sites like Lexis, Westlaw and BNA, and including innumerable others such as Federal Register notices, the U.S. Congress' Thomas site, and government agency decisions.

But there are also problems with unfettered Googling from the bench. Is it appropriate for judges to investigate the backgrounds of jurors, perhaps even scrolling through their home pages and family photo albums? Should judges scour the Net for reports on a topic rather than relying on traditional rules of evidence?

"If a judge is taking as proof facts that are reported in any public medium that pertain to individual actions by persons involved in a case, that is troubling," George Fisher, a Stanford University law professor, told me when I was writing an article on this topic last year. "Those are the sorts of facts that are supposed to be proved in the courtroom under the rules of evidence."

The California Supreme Court drew fire after it Googled for evidence showing that stun belts, which jolt prisoners with 50,000-volt electric shocks, can be harmful and should not have been used in a criminal trial.

In a bitter August 2002 dissent, California Supreme Court Justice Janice Brown upbraided her colleagues for relying on Google when deciding that stun belts should not have been used in a trial. The majority opinion cited newspaper and magazine articles, as well as pieces written by law students, that reported accidental activations of the React stun belt.

"We could have waited for a case that raised these questions on an adequate record," Brown wrote. "Instead, the majority, rushing to judgment after conducting an embarrassing Google.com search for information outside the record, has tied the hands of the

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