April Fooled

Reports of Supreme Court Fantasy Baseball Case Are Wildly Exaggerated

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Updated: A blogger created quite a stir yesterday when he reported that the U.S. Supreme Court had agreed to decide whether fantasy sports players had a First Amendment right to use statistics provided by Major League Baseball.

Eric Turkewitz of the <a “href=”http://www.newyorkpersonalinjuryattorneyblog.com/2008/04/supreme-court-grants-cert-in-fantasy.html” title=”New York Personal Injury Law Blog”>New York Personal Injury Law Blog wrote that five justices participate in a fantasy baseball league, but only three decided that their participation required their recusal. According to Turkewitz, those who recused were Justices John Paul Stevens, Samuel A. Alito Jr. and Stephen G. Breyer. But Justices Antonin Scalia and Ruth Bader Ginsburg declined to disqualify themselves.

Other blogs noted the news, including the San Diego Tribune’s America’s Finest Blog, Above the Law and the Volokh Conspiracy.

Funny, but SCOTUSblog didn’t note the cert grant. Some commenters pointed out that Turkewitz’s blog post also contained the news that Siddhartha Finch was trying to get back in baseball even though he is now over the age of 50. The story of Finch, who learned to pitch a 168 mile-an-hour fastball from a Tibetan master, was originally published in Sports Illustrated in 1985 and was part of an April Fool’s Day hoax.

So too, was Turkewitz’s story, a fact later noted on America’s Finest Blog. Although the MLB dispute is a real case, and a petition for certiorari has been filed with the U.S. Supreme Court, there was no cert grant and no Supreme Court recusals.

In an interview with ABAJournal.com, Turkewitz said David Lat of Above the Law was in on the joke, placing the link to Turkewitz’s website above a New York Times story in his morning roundup. And he notes that the Volokh Conspiracy, written by UCLA law professor Eugene Volokh, highlighted one of his clues: a reference to the supposed name of the Supreme Court fantasy team, Articles for Deletion, or AFD (also the initials of April Fool’s Day).

“I don’t know if Volokh knew if it was a joke when he posted,” says Turkewitz. “I’d like to think that he was taken, but he’s a smart guy.”

A third clue was Turkewitz’s reference to Justice Stevens’ retired administrative clerk, Ernie Thayer. The author of Casey at the Bat is Ernest Thayer.

The three clues “were deliberately buried,” Turkewitz says. “The post was longer than it needed to be on the theory that people don’t read to the end of things.”

Updated at 8:20 a.m. to include information from Turkewitz interview.

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