July 2009 Archives
If you sign a petition supporting a controversial ballot referendum should your name and address be publicized (posted online) in the interests of transparency? Do you have a right to privacy or relative anonymity when you engage in political advocacy that trumps the public right to know your identity? These difficult, increasingly familiar questions are at the heart of a lawsuit brought by Protect Marriage Washington, which has just won a temporary restraining order enjoining the Washington Secretary of State from publishing the names and addresses of people who signed a petition putting the state domestic partnership law on the ballot. (The law extends to domestic partners all the rights of married couples under state law.)
Protect Marriage Washington alleges that people who signed the referendum petition in support of repealing the law are likely to be harassed and intimidated by the law's proponents if their identities are not protected. "The State cannot allow the release of the names on the Referendum 71 petition when the purpose is to harass and intimidate people who are merely exercising their right to speak," lead counsel James Bopp asserted in a July 28th press release.
Are supporters of the domestic partnership law generally intent on harassing their opponents? Not according to Josh Friedes, campaign manager for a coalition of supporters, Washington Families Standing Together (WAFST), which takes no position on the litigation to enjoin publication of the petition names (and notes that some domestic partners are "troubled" that the domestic partner registry is available online.) Friedes says that the controversy over publicizing the names began with a website (whosigned.org), posted by someone not affiliated with WAFST; he expresses frustration that a coalition of numerous mainstream groups is apt to be blamed when "one individual puts up a website;" and he stresses the Coalition's concern that litigation over publicizing the petition names might "distract people from the fundamental issues" of fairness for domestic partners.
Personally I'm sympathetic to Friedes's position (I strongly support domestic partnerships and same sex marriage and contribute financially to gay rights groups and the equal marriage movement.) But I don't consider the Protect Marriage Washington lawsuit frivolous or dismiss the concerns of people who signed the repeal referendum and oppose publication of their names. Their fears are not unreasonable, or unprecedented. (Similar allegations of harassment followed passage of Proposition 8 in California.)
The claim that publicizing the names of people who sign controversial petitions will chill political participation is not far-fetched or trivial. The countervailing interest in transparency -- when it requires exposing private citizens (not public officials or organizational leaders) -- to public opprobrium for their political views, seems relatively weak by comparison. Transparency is not an end in itself but a means of insuring accountability - of public officials and, arguably, public figures and movement leaders. But why should ordinary, private citizens be held to account for their views in the public sphere? If privacy rights sometimes conflict with free speech, they also enable it.
Protect Marriage Washington alleges that people who signed the referendum petition in support of repealing the law are likely to be harassed and intimidated by the law's proponents if their identities are not protected. "The State cannot allow the release of the names on the Referendum 71 petition when the purpose is to harass and intimidate people who are merely exercising their right to speak," lead counsel James Bopp asserted in a July 28th press release.
Are supporters of the domestic partnership law generally intent on harassing their opponents? Not according to Josh Friedes, campaign manager for a coalition of supporters, Washington Families Standing Together (WAFST), which takes no position on the litigation to enjoin publication of the petition names (and notes that some domestic partners are "troubled" that the domestic partner registry is available online.) Friedes says that the controversy over publicizing the names began with a website (whosigned.org), posted by someone not affiliated with WAFST; he expresses frustration that a coalition of numerous mainstream groups is apt to be blamed when "one individual puts up a website;" and he stresses the Coalition's concern that litigation over publicizing the petition names might "distract people from the fundamental issues" of fairness for domestic partners.
Personally I'm sympathetic to Friedes's position (I strongly support domestic partnerships and same sex marriage and contribute financially to gay rights groups and the equal marriage movement.) But I don't consider the Protect Marriage Washington lawsuit frivolous or dismiss the concerns of people who signed the repeal referendum and oppose publication of their names. Their fears are not unreasonable, or unprecedented. (Similar allegations of harassment followed passage of Proposition 8 in California.)
The claim that publicizing the names of people who sign controversial petitions will chill political participation is not far-fetched or trivial. The countervailing interest in transparency -- when it requires exposing private citizens (not public officials or organizational leaders) -- to public opprobrium for their political views, seems relatively weak by comparison. Transparency is not an end in itself but a means of insuring accountability - of public officials and, arguably, public figures and movement leaders. But why should ordinary, private citizens be held to account for their views in the public sphere? If privacy rights sometimes conflict with free speech, they also enable it.
For free speech advocates, the arrest of Skip Gates was an easy case, involving no conflicts of rights or interests, as I suggested last week: his right to insult a cop was obvious, and his alleged insults posed no appreciable threat of violence or other lawlessness. It's the reaction to his arrest that's producing hard cases: In Boston a police officer has been suspended for allegedly writing a racist email that referred to Gates as a "banana eating jungle monkey." In New York, a press aide to the Manhattan Borough President has resigned, after posting racially charged comments on her facebook page, and referring to Obama as "O-dumb-a." (You can find her comments in the New York Times report.)
A police officer who regards African-Americans as jungle monkeys and a press aide to a democratic politician foolish enough to insult the Democratic president and post puerile, arguably racist comments on her facebook page may indeed be ill-equipped for their jobs. Still, as public employees (I'm assuming that an aide to a borough president is a public employee,) they are imbued with First Amendment rights. These controversies pit their individual speech rights against the public interest in their job performance, or, (put another way,) the government's obligation to provide fair and effective public services.
How might a federal court approach these conflicts? In the 2002 case of Pappas v Guiliani, involving the firing of a NYPD employee for anonymously disseminating racist,anti-semetic anti-Semitic material, the 2nd circuit explained: "Where a government employee suing for violation of the First Amendment establishes that he was terminated by reason of his speech 'upon a matter of public concern,' the Supreme Court has instructed that the court's task is 'to arrive at a balance between the interests of the... citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " The 2nd circuit upheld the termination in this case, with one now prominent dissent from Sonia Sotomayor, who wrote in defense of the employee's First Amendment rights.
But, as Sotomayor stressed, Thomas Pappas had a particularly strong First Amendment claim, while the Police Department's interest in firing him was relatively weak: Pappas had no policymaking authority or contact with the public; (he was a computer operator, not a police officer walking a beat;) and he had spoken out anonymously. Any harm to the department occasioned by his speech resulted from the departmental investigation. ("It ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community," Sotomayor noted.)
The Boston Police Department seems to have a stronger case for disciplining, if not firing, Justin Barrett: He's a police officer at least partly responsible for publicizing his remarks about Gates; he reportedly emailed them to his colleagues in the National Guard and, according to the Boston Globe, a copy of his email was sent to a Globe columnist (by whom is unclear.) But the Police Department has also contributed greatly to the publicity surrounding this case. Joined by leaders in the black community, Police Commissioner Edward Davis held a press conference today to condemn Barrett's remarks and affirm that "these racist opinions have no place in our department or our society and will not be tolerated."
The commissioner was maybe half right. "In our society," racist opinions must be tolerated legally; the First Amendment rights of bigots are not limited by an imagined public interest in inoffensiveness. In our police departments, racist opinions should not be tolerated socially, as matter of departmental culture; must they be tolerated legally? That depends. Barrett's email may have displayed his unfitness for his job. He will, however, contest an effort to fire him, according to his lawyer, who noted that the email was "a private email from a private computer at home." Here comes a hard case.
UPDATE: Today's Boston Globe reprints the text of Police Officer Justin Barrett's email. (Aptly described by the Police Commissioner as "venomous," it includes the appalling but not entirely surprising suggestion that suspects have no rights.) The Globe offers additional factual clarifications, noting that Barrett sent his email to columnist Yvonne Abraham in response to her column defending Gates; that he copied it to friends and colleagues; and that it was brought to the attention of his superiors by "furious" fellow patrol officers. The Globe also notes that Barret has no record of misconduct, so despite his "venomous" speech and the disturbing attitudes it reflects, this remains a hard case.
A police officer who regards African-Americans as jungle monkeys and a press aide to a democratic politician foolish enough to insult the Democratic president and post puerile, arguably racist comments on her facebook page may indeed be ill-equipped for their jobs. Still, as public employees (I'm assuming that an aide to a borough president is a public employee,) they are imbued with First Amendment rights. These controversies pit their individual speech rights against the public interest in their job performance, or, (put another way,) the government's obligation to provide fair and effective public services.
How might a federal court approach these conflicts? In the 2002 case of Pappas v Guiliani, involving the firing of a NYPD employee for anonymously disseminating racist,
But, as Sotomayor stressed, Thomas Pappas had a particularly strong First Amendment claim, while the Police Department's interest in firing him was relatively weak: Pappas had no policymaking authority or contact with the public; (he was a computer operator, not a police officer walking a beat;) and he had spoken out anonymously. Any harm to the department occasioned by his speech resulted from the departmental investigation. ("It ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community," Sotomayor noted.)
The Boston Police Department seems to have a stronger case for disciplining, if not firing, Justin Barrett: He's a police officer at least partly responsible for publicizing his remarks about Gates; he reportedly emailed them to his colleagues in the National Guard and, according to the Boston Globe, a copy of his email was sent to a Globe columnist (by whom is unclear.) But the Police Department has also contributed greatly to the publicity surrounding this case. Joined by leaders in the black community, Police Commissioner Edward Davis held a press conference today to condemn Barrett's remarks and affirm that "these racist opinions have no place in our department or our society and will not be tolerated."
The commissioner was maybe half right. "In our society," racist opinions must be tolerated legally; the First Amendment rights of bigots are not limited by an imagined public interest in inoffensiveness. In our police departments, racist opinions should not be tolerated socially, as matter of departmental culture; must they be tolerated legally? That depends. Barrett's email may have displayed his unfitness for his job. He will, however, contest an effort to fire him, according to his lawyer, who noted that the email was "a private email from a private computer at home." Here comes a hard case.
UPDATE: Today's Boston Globe reprints the text of Police Officer Justin Barrett's email. (Aptly described by the Police Commissioner as "venomous," it includes the appalling but not entirely surprising suggestion that suspects have no rights.) The Globe offers additional factual clarifications, noting that Barrett sent his email to columnist Yvonne Abraham in response to her column defending Gates; that he copied it to friends and colleagues; and that it was brought to the attention of his superiors by "furious" fellow patrol officers. The Globe also notes that Barret has no record of misconduct, so despite his "venomous" speech and the disturbing attitudes it reflects, this remains a hard case.
Another day, another casualty in a conflict pitting equality and demographic diversity against free speech and diversity of opinion: "A Singapore law professor who was to teach a human rights course at New York University Law School this fall has withdrawn after students protested what they called her anti-gay views," the New York Times reported last week. The anger at Dr. Thio Li-ann's appointment as a visiting professor was understandable: According to a petition protesting it, she had opposed repeal of a Singaporean law criminalizing homosexual conduct and "supported the imposition of a $15,000 fine on a free-access Singaporean television channel for presenting a gay couple and their child as a family unit." (If the latter claim is accurate, it surely undermines her credibility as victim of censorship.)
The trouble is that the petition in opposition to Professor Thio imagines her appointment as a violation of NYU's "own policy of nondiscrimination." In other words, gay students (and members of other historically disadvantaged groups) are said to suffer actual discrimination when the administration hires faculty members who argue against anti-discrimination laws. This confusion of speech and action -- of advocating for discrimination and actually engaging in it -- is common in academia, where academic freedom is too often limited to the freedom to advance prevailing ideals of equality. (See thefire.org)
The refusal of law students even to hear opposing views, reflecting opposing moral codes, is particularly worrisome. I wouldn't want one of these future lawyers ever advocating for me. They're unlikely to learn how to argue effectively if they limit their law school debates to matters about which only presumptively reasonable people disagree. Uniformity of opinion breeds complacency, close-mindedness, and a tendency to mistake attitudes for arguments.
I offer no opinion about the wisdom of Dr. Thio's original appointment. In responding to her withdrawal, NYU law school dean Richard Revesz smartly finessed questions about her appointment by noting that while her views should not have disqualified her, despite their variance from the university's ideals, the quality of her arguments in support of her views were relevant to her evaluation. "Leading academic institutions benefit greatly from a diversity of perspectives, not from hiring only people who share the same views," Revesv observed (he is quoted at length at abajournal.com). "At the same time, our evaluation of Professor Thio's strength as a scholar might have been usefully informed by an assessment of the analytic cogency and methodological integrity of the arguments and evidence she marshaled for her position." If Thio did defend her views with "analytic cogency"' and empirical integrity, the students who successfully forced her withdrawal may miss the opportunity to spar with her more than they'll ever know.
The trouble is that the petition in opposition to Professor Thio imagines her appointment as a violation of NYU's "own policy of nondiscrimination." In other words, gay students (and members of other historically disadvantaged groups) are said to suffer actual discrimination when the administration hires faculty members who argue against anti-discrimination laws. This confusion of speech and action -- of advocating for discrimination and actually engaging in it -- is common in academia, where academic freedom is too often limited to the freedom to advance prevailing ideals of equality. (See thefire.org)
The refusal of law students even to hear opposing views, reflecting opposing moral codes, is particularly worrisome. I wouldn't want one of these future lawyers ever advocating for me. They're unlikely to learn how to argue effectively if they limit their law school debates to matters about which only presumptively reasonable people disagree. Uniformity of opinion breeds complacency, close-mindedness, and a tendency to mistake attitudes for arguments.
I offer no opinion about the wisdom of Dr. Thio's original appointment. In responding to her withdrawal, NYU law school dean Richard Revesz smartly finessed questions about her appointment by noting that while her views should not have disqualified her, despite their variance from the university's ideals, the quality of her arguments in support of her views were relevant to her evaluation. "Leading academic institutions benefit greatly from a diversity of perspectives, not from hiring only people who share the same views," Revesv observed (he is quoted at length at abajournal.com). "At the same time, our evaluation of Professor Thio's strength as a scholar might have been usefully informed by an assessment of the analytic cogency and methodological integrity of the arguments and evidence she marshaled for her position." If Thio did defend her views with "analytic cogency"' and empirical integrity, the students who successfully forced her withdrawal may miss the opportunity to spar with her more than they'll ever know.
You have a constitutional right to talk back to a police officer; and whether Skip Gate's account of his arrest or the police version is closer to the truth, it seems clear that Gate's speech rights were violated and his arrest was illegal. Less clear are the officer's motivations for the arrest. Naturally, the prevailing assumption and apparent, primary source of Gates' outrage is the belief that the officer, James M. Crowley, is a racist; but that ignores the equally plausible possibility that he's simply a bad cop, (or maybe a not-so-bad cop having a very bad day,) who would also have arrested a late middle-aged white guy whom he deemed insufficiently deferential. (If you find this scenario implausible, you never met my father.)
I'm not denying the persistence of racism in the criminal justice system, which is apparent to anyone familiar with the abuses of capital punishment, the drug war, or racial profiling. I am simply pointing out another problem, which may account, at least in part, for Gates's arrest: police officers, and other law enforcement agents, can become quite jealous of their authority, (as even a routine airport encounter with a bad TSA agent may demonstrate.) Wearing a badge and uniform and carrying a gun does not always bring out the best in people.
Class resentments, as well as race, may effect an officer's response to challenges. An affluent white guy who responds to questioning from a working class cop by referencing his superior social, intellectual, or political credentials doesn't deserve to be treated abusively but should not be surprised if he is. Even middle class white women (like me) may be taught early on not to be rude to cops.
So I remain agnostic about the role of race in Skip Gates's apparently illegal arrest and find discussions about racism the case has sparked to be generally unenlightening. Officer Crowley seems to think that he can disprove the charge of racism by telling us that, years ago, as a Brandeis police officer, he tried hard to revive the late Reggie Lewis when he collapsed on a basketball court. (Some of my best friends are African-American, he might as well have said.) Others have reflexively accused the police of racial profiling, but police did not stop or question Gates initially simply or primarily on account of his race. He was treated abusively perhaps because he was black, or perhaps because he exercised a right, more often honored in theory than in fact, to offend a police officer.
I'm not denying the persistence of racism in the criminal justice system, which is apparent to anyone familiar with the abuses of capital punishment, the drug war, or racial profiling. I am simply pointing out another problem, which may account, at least in part, for Gates's arrest: police officers, and other law enforcement agents, can become quite jealous of their authority, (as even a routine airport encounter with a bad TSA agent may demonstrate.) Wearing a badge and uniform and carrying a gun does not always bring out the best in people.
Class resentments, as well as race, may effect an officer's response to challenges. An affluent white guy who responds to questioning from a working class cop by referencing his superior social, intellectual, or political credentials doesn't deserve to be treated abusively but should not be surprised if he is. Even middle class white women (like me) may be taught early on not to be rude to cops.
So I remain agnostic about the role of race in Skip Gates's apparently illegal arrest and find discussions about racism the case has sparked to be generally unenlightening. Officer Crowley seems to think that he can disprove the charge of racism by telling us that, years ago, as a Brandeis police officer, he tried hard to revive the late Reggie Lewis when he collapsed on a basketball court. (Some of my best friends are African-American, he might as well have said.) Others have reflexively accused the police of racial profiling, but police did not stop or question Gates initially simply or primarily on account of his race. He was treated abusively perhaps because he was black, or perhaps because he exercised a right, more often honored in theory than in fact, to offend a police officer.
New York Congresswoman and possible Senate candidate Carolyn Maloney made news this week by uttering "the N-word." Too bad Lenny Bruce wasn't around to hear her. He used racial and ethnic slurs purposefully, repeatedly, to deprive them of their power. As free speech stalwart Nat Hentoff recalled in a 2000 interview, Bruce "used to come into the Vanguard Stage, and at this time, that was probably the most integrated audience of all kinds, sexual preference, color, religion, no religion. He'd come up and look around and say, "Any kikes here tonight? Any niggers? And spicks?" The place would freeze. What dybbuk got into this guy? Then he'd say, "All right, now, why do you get paralyzed by words? Why don't you try to figure out why those words have that effect?"
Fifty years later, we're still paralyzed, terrified, and fascinated by words, at least officially. In 2007, the New York city council passed a symbolic moratorium on the "N-word," to the delight of The Daily Show, which boldly went where Bruce had gone before. In 2008, Brandeis University Professor Donald Hindley was found guilty of racial harassment (after a secret investigation) for uttering the word "wetback" while explaining its use. As the Foundation for Individual Rights in Education reported: "In his Fall 2007 course on Latin American politics, Hindley allegedly used terms that at least one student found objectionable. Despite his repeated demands to Brandeis administrators to disclose in writing precisely what offended some students in his class, they have refused to tell him. According to Hindley, he explained to his class that Mexican migrants in the United States are sometimes referred to pejoratively as 'wetbacks' "
Hindley, a tenured faculty member did not back down, but naturally Congresswoman Maloney is already groveling, the New York Daily News reports: "I apologize for having repeated a word I find disgusting. It's no excuse but I was so caught up in relaying the story exactly as it was told to me that, in doing so, I repeated a word that should never be repeated." Naturally, Al Sharpton is already blustering: "If in fact this quote is accurate, Congresswoman Maloney should issue a public apology for allowing that kind of dialogue to go un-challenged by her and for repeating it," he pronounced (according to the Daily News.) "Congresswoman Maloney should reveal the person that she was talking about so we know that in fact this conversation did occur and the way in which it occurred."
Sharpton laid down the law: "No public official even in quoting someone else should loosely use such an offensive term and should certainly challenge someone using the term to him or her." It's worth stressing that Sharpton's law is generally obeyed by the press as well as politicians. Neither politico.com nor the New York Daily News dared spell out the word "nigger." When the FCC punishes use of even "fleeting expletives," (with the Supreme Court's approval,) media moguls often have little moral standing to complain.
Fifty years later, we're still paralyzed, terrified, and fascinated by words, at least officially. In 2007, the New York city council passed a symbolic moratorium on the "N-word," to the delight of The Daily Show, which boldly went where Bruce had gone before. In 2008, Brandeis University Professor Donald Hindley was found guilty of racial harassment (after a secret investigation) for uttering the word "wetback" while explaining its use. As the Foundation for Individual Rights in Education reported: "In his Fall 2007 course on Latin American politics, Hindley allegedly used terms that at least one student found objectionable. Despite his repeated demands to Brandeis administrators to disclose in writing precisely what offended some students in his class, they have refused to tell him. According to Hindley, he explained to his class that Mexican migrants in the United States are sometimes referred to pejoratively as 'wetbacks' "
Hindley, a tenured faculty member did not back down, but naturally Congresswoman Maloney is already groveling, the New York Daily News reports: "I apologize for having repeated a word I find disgusting. It's no excuse but I was so caught up in relaying the story exactly as it was told to me that, in doing so, I repeated a word that should never be repeated." Naturally, Al Sharpton is already blustering: "If in fact this quote is accurate, Congresswoman Maloney should issue a public apology for allowing that kind of dialogue to go un-challenged by her and for repeating it," he pronounced (according to the Daily News.) "Congresswoman Maloney should reveal the person that she was talking about so we know that in fact this conversation did occur and the way in which it occurred."
Sharpton laid down the law: "No public official even in quoting someone else should loosely use such an offensive term and should certainly challenge someone using the term to him or her." It's worth stressing that Sharpton's law is generally obeyed by the press as well as politicians. Neither politico.com nor the New York Daily News dared spell out the word "nigger." When the FCC punishes use of even "fleeting expletives," (with the Supreme Court's approval,) media moguls often have little moral standing to complain.
Last week, the House of Representatives repealed a 10 year old provision of the D.C. appropriations bill that blocked implementation of a voter approved medical marijuana law for the District: joining the lobbying effort to repeal this amendment was its author, former Georgia Congressman Bob Barr. Like Arianna Huffington, Barr once palled around with Newt Gingrich; but after losing his seat in 2002, he became a friend of the ACLU and the Marijuana Policy Project, a libertarian candidate for president (in 2008), and an opponent of anti-libertarian measures he once championed: Barr now opposes the federal Defense of Marriage Act (which he authored) as well as the war on drugs.
Maybe Barr had a genuine conversion experience after leaving Congress; maybe he was always a closet libertarian successfully passing as a right wing extremist; maybe he's a cynical opportunist whose shifting allegiances anticipated the power shifts reflected in the '06 and '08 elections. I welcome his newly found or recently uncovered libertarianism, in any case; but -- like the Sotomayor confirmation follies or the extra-marital escapades of Senatorial bible thumpers -- the spectacle of Bob Barr lobbying against his former self seems unlikely to increase or restore faith in the legislative process.
From afar, it looks merely like self-interested gamesmanship, which may be partly why people sometimes combine low opinions of Congress with relatively high opinions of their own representatives. (Oddly enough, a glimpse of how the sausages are made can actually increase your regard for some of the people who struggle to make them.) There are smart, thoughtful, hard-working members of the House and Senate who believe what they say and take seriously the burdens they promise to bear, and -- considering the company they keep -- must recognize we're in more trouble than we know.
Maybe Barr had a genuine conversion experience after leaving Congress; maybe he was always a closet libertarian successfully passing as a right wing extremist; maybe he's a cynical opportunist whose shifting allegiances anticipated the power shifts reflected in the '06 and '08 elections. I welcome his newly found or recently uncovered libertarianism, in any case; but -- like the Sotomayor confirmation follies or the extra-marital escapades of Senatorial bible thumpers -- the spectacle of Bob Barr lobbying against his former self seems unlikely to increase or restore faith in the legislative process.
From afar, it looks merely like self-interested gamesmanship, which may be partly why people sometimes combine low opinions of Congress with relatively high opinions of their own representatives. (Oddly enough, a glimpse of how the sausages are made can actually increase your regard for some of the people who struggle to make them.) There are smart, thoughtful, hard-working members of the House and Senate who believe what they say and take seriously the burdens they promise to bear, and -- considering the company they keep -- must recognize we're in more trouble than we know.
Here's a quick response to comments on my post last week re Sarah Palin's stylistic debt to popular liberalism, or more precisely, the culture that popular liberalism helped shape. Mainly I want to respond to the suggestion that I have maligned liberalism by associating it with Palin's illogic, solipsism, sense of aggrievement and tendency to dismiss criticism as hate speech or libel.
I probably should have explicitly acknowledged the obvious -- that, like most isms, (feminism, conservatism, socialism, or libertarianism) liberalism is not monolithic. It is, however, marked by dominant trends, especially in its popular incarnations. The liberalism of John Stuart Mill, for example, (notably his defense of free speech) is difficult to reconcile with what passes for liberalism on college campuses today. It's true that, back in the 1980s, when Catherine MacKinnon and Andrea Dworkin proposed restricting pornography as a civil rights violation, they met with resistance from many traditional, liberal civil libertarians, (like me.) It's true that a federal appeals court struck down a local ordinance based on their model anti-porn statute almost 25 years ago. But while anti-porn feminists lost that battle, they won the war to cast censorship as a respectable, even necessary means of advancing equality.
Anyone who doubts the diminished regard for free speech and the enhanced support for censorship among many liberals and progressives might consider the ACLU's recent absence from some important free speech battles; (on the ACLU board, sympathy for restrictions on hate speech has increased significantly in recent years.) Or review (at thefire.org) speech and harassment codes, sensitivity training or attitude adjustment programs common on presumptively liberal campuses. (The sanctimonious, small-minded disregard for individual rights reflected in these policies has been sharply criticized and satirized for some 15 years; still it flourishes, and as a result, students with libertarian or civil libertarian sympathies, are apt to view liberalism as synonymous with repression.)
The connection between the rise of liberal censorship and pop therapeutic notions of victimization, abuse, and self-esteem is evident, and I have explored it in at least a couple of books. (Analyses and arguments bear repeating when the problems they address persist.) Like censorship, pop psychologies prosper right and left, of course. (The recovery movement that feminism helped popularize in the 1980s and 90s was rooted in religion, and its customs were eventually adopted by modern evangelicals, as Alan Wolfe documented in The Transformation of American Religion.)
So I would not characterize censorship, solipsism, self-aggrandizement, or a preference for feelings over facts as either liberal or conservative impulses, but I do think it's more than fair to say that the forms they take in contemporary culture owe much to pop liberalism and not incidentally, the drive for diversity and equality. To persist in believing that popular American liberalism today is dominated by regard for reason and civil libertarianism is to remain in what a recovering person would probably describe as a dangerous state of denial.
I probably should have explicitly acknowledged the obvious -- that, like most isms, (feminism, conservatism, socialism, or libertarianism) liberalism is not monolithic. It is, however, marked by dominant trends, especially in its popular incarnations. The liberalism of John Stuart Mill, for example, (notably his defense of free speech) is difficult to reconcile with what passes for liberalism on college campuses today. It's true that, back in the 1980s, when Catherine MacKinnon and Andrea Dworkin proposed restricting pornography as a civil rights violation, they met with resistance from many traditional, liberal civil libertarians, (like me.) It's true that a federal appeals court struck down a local ordinance based on their model anti-porn statute almost 25 years ago. But while anti-porn feminists lost that battle, they won the war to cast censorship as a respectable, even necessary means of advancing equality.
Anyone who doubts the diminished regard for free speech and the enhanced support for censorship among many liberals and progressives might consider the ACLU's recent absence from some important free speech battles; (on the ACLU board, sympathy for restrictions on hate speech has increased significantly in recent years.) Or review (at thefire.org) speech and harassment codes, sensitivity training or attitude adjustment programs common on presumptively liberal campuses. (The sanctimonious, small-minded disregard for individual rights reflected in these policies has been sharply criticized and satirized for some 15 years; still it flourishes, and as a result, students with libertarian or civil libertarian sympathies, are apt to view liberalism as synonymous with repression.)
The connection between the rise of liberal censorship and pop therapeutic notions of victimization, abuse, and self-esteem is evident, and I have explored it in at least a couple of books. (Analyses and arguments bear repeating when the problems they address persist.) Like censorship, pop psychologies prosper right and left, of course. (The recovery movement that feminism helped popularize in the 1980s and 90s was rooted in religion, and its customs were eventually adopted by modern evangelicals, as Alan Wolfe documented in The Transformation of American Religion.)
So I would not characterize censorship, solipsism, self-aggrandizement, or a preference for feelings over facts as either liberal or conservative impulses, but I do think it's more than fair to say that the forms they take in contemporary culture owe much to pop liberalism and not incidentally, the drive for diversity and equality. To persist in believing that popular American liberalism today is dominated by regard for reason and civil libertarianism is to remain in what a recovering person would probably describe as a dangerous state of denial.
Listening to Republican attacks on Sonia Sotomayor's alleged biases and the undue influence of her "personal experiences" on her judgment, you could be forgiven for inferring that, just like a woman, Sotomayor thinks with her heart, not with her head. You might also infer that she has a rather post-modern take on justice - one that denies both the possibility and the virtue of relatively objective decision-making, in the belief that facts are mere perceptions. But pondering this vision of presumptively left-wing, emotive, feminine relativism, you might find yourself thinking less about Sonia Sotomayor than Sarah Palin.
Palin embodies a post-modern ideal that conservatives have delighted in deriding. Self-referential, unembarrassed by solipsism and un-tethered by logic or facts she doesn't argue; she declares. Declining to engage in reasoned argument, she can't be defeated by it. You can measure the success of her tactics, or instincts, by the frustration of her reality based critics who persist in trying to make facts matter.
Palin doesn't need to traffic in facts or truths; she recites her refrigerator magnet nostrums, affirms her self-esteem, (like a right-wing Stuart Smalley) and offers "feeling realities," which resonate with the feelings of her fans: Pointing out that ethics investigations did not cost Alaska millions of dollars as she has claimed is, for example, non-responsive -- irrelevant -- to Palin's emotional insistence that she has been unfairly targeted by liberal elitists and the politics as usual gang, at great cost to the state of Alaska as well as her family. From this perspective, fidelity to facts is partisan nitpicking, at best. Insensitivity to Palin's "feeling realities" is a form of abuse. Criticism, or satire of her adolescent ramblings is "hate speech:" As a letter to the Boston Globe complained in response to an op ed: "The recent humor piece (mocking Sarah Palin) follows the worst tradition of liberal media hate speech. Just like the pieces on "Saturday Night Live," and on Jon Stewart's and Bill Maher's show ..."
Sonia Sotomayor would understand the constitutional protections extended to presumptively hateful liberal or conservative "media speech" (she has recognized the First Amendment right to engage in racist, anti-Semetic diatribes.) But, as a liberal media ironist might note, the expansive notion of hate speech that Palin supporters sometimes invoke was popularized by the liberalism they decry (which Sotomayor allegedly represents.) Indeed, anyone familiar with pop therapeutic notions of victimization and abuse, the concomitant rise of campus speech codes and mandatory sensitivity training, and the elevation of feelings or the moral authority of experience over reason and verifiable facts will recognize the debt Palin owes to social, political and intellectual movements that right wing pundits have long denounced as left-wing pathologies. If Palin represents much of what's wrong with America, as her most vehement liberal and progressive critics assert, she also indicates what's wrong with the culture that popular liberalism helped shape.
Palin embodies a post-modern ideal that conservatives have delighted in deriding. Self-referential, unembarrassed by solipsism and un-tethered by logic or facts she doesn't argue; she declares. Declining to engage in reasoned argument, she can't be defeated by it. You can measure the success of her tactics, or instincts, by the frustration of her reality based critics who persist in trying to make facts matter.
Palin doesn't need to traffic in facts or truths; she recites her refrigerator magnet nostrums, affirms her self-esteem, (like a right-wing Stuart Smalley) and offers "feeling realities," which resonate with the feelings of her fans: Pointing out that ethics investigations did not cost Alaska millions of dollars as she has claimed is, for example, non-responsive -- irrelevant -- to Palin's emotional insistence that she has been unfairly targeted by liberal elitists and the politics as usual gang, at great cost to the state of Alaska as well as her family. From this perspective, fidelity to facts is partisan nitpicking, at best. Insensitivity to Palin's "feeling realities" is a form of abuse. Criticism, or satire of her adolescent ramblings is "hate speech:" As a letter to the Boston Globe complained in response to an op ed: "The recent humor piece (mocking Sarah Palin) follows the worst tradition of liberal media hate speech. Just like the pieces on "Saturday Night Live," and on Jon Stewart's and Bill Maher's show ..."
Sonia Sotomayor would understand the constitutional protections extended to presumptively hateful liberal or conservative "media speech" (she has recognized the First Amendment right to engage in racist, anti-Semetic diatribes.) But, as a liberal media ironist might note, the expansive notion of hate speech that Palin supporters sometimes invoke was popularized by the liberalism they decry (which Sotomayor allegedly represents.) Indeed, anyone familiar with pop therapeutic notions of victimization and abuse, the concomitant rise of campus speech codes and mandatory sensitivity training, and the elevation of feelings or the moral authority of experience over reason and verifiable facts will recognize the debt Palin owes to social, political and intellectual movements that right wing pundits have long denounced as left-wing pathologies. If Palin represents much of what's wrong with America, as her most vehement liberal and progressive critics assert, she also indicates what's wrong with the culture that popular liberalism helped shape.
In the wake of several serious, widely publicized accidents involving apparently confused or otherwise incompetent elderly drivers, the Massachusetts legislature is considering new safety regulations, including mandatory tests for drivers 85 years and older. Naturally this modest proposal is controversial, as anyone who has tried to persuade an elderly parent to stop driving can imagine. Call it TSS -- Ted Stevens Syndrome -- the resistance of the very elderly to surrendering their licenses or their jobs. If our degenerating health care system doesn't start killing off baby boomers soon, TSS will only worsen.
It now threatens Senate Democrats, whose alleged super-majority includes (in addition to two independents, one former and at least one virtual Republican) the ailing, often absent 91 year old Robert Byrd and three octogenarians -- Hawaii Senators Akaka and Inouye and New Jersey Senator Lautenberg (all born in 1924). Inouye is up for re-election in 2010. Maybe he expects to live forever, with his faculties intact, and I wish him well.
Then there are the Senate's numerous septuagenarians (I count about 20 of them) including valuable senior Senators from both parties. Of course, some are both wiser and sharper than younger colleagues, but I expect that some will seek re-election or decline to step down when they're not. Then their staffers will effectively hold office. As the late Strom Thurmond demonstrated, the Senate is a kind country for old men.
It now threatens Senate Democrats, whose alleged super-majority includes (in addition to two independents, one former and at least one virtual Republican) the ailing, often absent 91 year old Robert Byrd and three octogenarians -- Hawaii Senators Akaka and Inouye and New Jersey Senator Lautenberg (all born in 1924). Inouye is up for re-election in 2010. Maybe he expects to live forever, with his faculties intact, and I wish him well.
Then there are the Senate's numerous septuagenarians (I count about 20 of them) including valuable senior Senators from both parties. Of course, some are both wiser and sharper than younger colleagues, but I expect that some will seek re-election or decline to step down when they're not. Then their staffers will effectively hold office. As the late Strom Thurmond demonstrated, the Senate is a kind country for old men.
Last month, Christopher Handley, a collector of comic books, pled guilty to federal charges of importing and possessing obscene cartoon drawings of children; he faces a maximum prison sentence of 15 years, for a crime involving neither actual children nor actual child porn. Last week, a Tennessee prosecutor charged Michael Wayne Campbell with aggravated sexual exploitation of a minor, for photo shopping the faces of three girls onto the nude bodies of three adult women. How might this constitute a crime (outside Iran)? The prosecutor explained: "when you have the face of a small child affixed to a nude body of a mature woman, it's going to be the state's position that this is for sexual gratification and that this is simulated sexual activity." It is also a crime - a federal crime -- to share your sexual fantasies about children in private communications with other adults: Two weeks ago, the 4th circuit court of appeals declined to review the conviction of Dwight Whorley for sharing fantasies about sexual abusing children in purely textual email exchanges between consenting adults. Like Christopher Handley, Whorley was also convicted of receiving obscene Japanese cartoon drawings of children. Be careful what you imagine.
Dwight Whorley is a decidedly unappealing defendant: a convicted sex offender, he had received sexually explicit photographs of actual as well as imaginary children. But while his record and his traffic in actual child porn makes him undeserving of much sympathy, it also makes the government's troubling case against his fantasy life unnecessary: his actual child porn offenses were sufficient to convict and imprison him. Nor does the perverseness of Whorley's imaginings justify their prosecution. Our right to fantasize ought not be contingent on the moral content of our characters or fantasies; and if Whorley can be imprisoned for email discussions of repellant sexual fantasies, then so can you.
At least one federal judge was deeply troubled by this case. Dissenting from the 4th circuit's refusal to re-hear Whorley's appeal, Judge Gregory encouraged him to seek Supreme Court review: "The (Court's) obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this governmental intrusion into individual freedom of thought are incredibly worrisome," Gregory wrote.
Equally worrisome is the likelihood that the Supreme Court would not accept this case for review, much less rule in Whorley's favor - even though the prosecution of people for sexual fantasies, or thought crimes - speech involving no illicit conduct and no conspiracies, solicitations, or attempts to engage in illicit conduct - was considered unconstitutional by the Court as recently as 2002: In Free Speech Coalition v Ashcroft, in a 6-3 decision, the Court struck down the Child Pornography Prevention Act bans on producing or possessing non-obscene, virtual (including computer generated) child porn. Invalidating these provisions did not require a subtle or arcane legal analysis; it required only a basic understanding of First Amendment freedoms.
The government may not criminalize speech based on claims about its indirect potential harm, as the Court stressed: "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it." (And, in this case, even the tendency of virtual porn to encourage child abuse was unproven.) "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." Justice Kennedy wrote for the majority.
That was then. Last year Justice Kennedy joined the majority in a 7 - 2 decision that effectively overruled the defense of free speech he had offered a mere four years earlier. In Williams v U.S., the Court upheld the PROTECT act, which includes a ban on pretending to traffic in sexually explicit images of actual children or obscene virtual child porn. Really. (PROTECT is an acronym for the shamelessly entitled, Prosecutorial Remedies and Other Tools to end the Exploitation of Children Act of 2003," which was enacted in response to the Court's decision in Free Speech Coalition v Ashcroft.)
In other words, having held that Congress could not criminalize production or possession of all virtual child porn, the Court held that it could criminalize soliciting or advertising virtual child porn in the mistaken belief or with intent to persuade others to believe that it's the real thing. (The PROTECT Act also criminalizes obscene virtual child porn.) The soon to be missed Justice Souter pointed out the obvious, in a dissent joined only by Justice Ginsburg: Allowing prosecutions for pandering or soliciting non-obscene, virtual images dramatically undermines First Amendment protections the Court extended to them only a few years ago.
Dennis Whorley's conviction was based, in part, on the PROTECT Act (he was the first person convicted under it;) his conviction for sending "obscene" emails to other adults rested on an older obscenity statute, but it might easily be justified by the same impulse to prohibit virtual child porn that underlies the PROTECT Act and imprisons people for pretending to pander child porn or actually collecting obscene cartoons. It doesn't take a great leap of law of law to criminalize discussion of a cartoon - the depiction of a desire or an idea -- once you've criminalized possession of it.
Outside the respective subcultures of free speech advocates, comic book collectors, and pedophiles, not many people will mourn the loss of a right to imagine or discuss abusing children. But the rationales for censorship developed in these cases can always be extended, by carving out additional exceptions to the First Amendment. In fact, they could conceivably be extended next year, when the Supreme Court decides whether, like child porn, depictions of cruelty to animals should be denied constitutional protection. In the fall, the Court will consider the case of Robert J. Stevens, convicted and sentenced to 37 months under a federal law criminalizing the production, sale, or possession of material depicting animal cruelty; Stevens's crime was selling videos of pit bulls on the attack.
His conviction was reversed by the 3rd circuit court of appeals, which declined to create a new category of unprotected speech. The federal ban on animal cruelty depictions was based in part on assumptions about their indirect harm, the 3rd circuit observed; the government claimed an "interest in discouraging individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings." If the Supreme Court rules that Congress may criminalize speech in the mere hope of deterring "future anti-social behavior," what speech may Congress not restrict? It's hard (and may eventually be illegal) to imagine.
Dwight Whorley is a decidedly unappealing defendant: a convicted sex offender, he had received sexually explicit photographs of actual as well as imaginary children. But while his record and his traffic in actual child porn makes him undeserving of much sympathy, it also makes the government's troubling case against his fantasy life unnecessary: his actual child porn offenses were sufficient to convict and imprison him. Nor does the perverseness of Whorley's imaginings justify their prosecution. Our right to fantasize ought not be contingent on the moral content of our characters or fantasies; and if Whorley can be imprisoned for email discussions of repellant sexual fantasies, then so can you.
At least one federal judge was deeply troubled by this case. Dissenting from the 4th circuit's refusal to re-hear Whorley's appeal, Judge Gregory encouraged him to seek Supreme Court review: "The (Court's) obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this governmental intrusion into individual freedom of thought are incredibly worrisome," Gregory wrote.
Equally worrisome is the likelihood that the Supreme Court would not accept this case for review, much less rule in Whorley's favor - even though the prosecution of people for sexual fantasies, or thought crimes - speech involving no illicit conduct and no conspiracies, solicitations, or attempts to engage in illicit conduct - was considered unconstitutional by the Court as recently as 2002: In Free Speech Coalition v Ashcroft, in a 6-3 decision, the Court struck down the Child Pornography Prevention Act bans on producing or possessing non-obscene, virtual (including computer generated) child porn. Invalidating these provisions did not require a subtle or arcane legal analysis; it required only a basic understanding of First Amendment freedoms.
The government may not criminalize speech based on claims about its indirect potential harm, as the Court stressed: "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it." (And, in this case, even the tendency of virtual porn to encourage child abuse was unproven.) "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." Justice Kennedy wrote for the majority.
That was then. Last year Justice Kennedy joined the majority in a 7 - 2 decision that effectively overruled the defense of free speech he had offered a mere four years earlier. In Williams v U.S., the Court upheld the PROTECT act, which includes a ban on pretending to traffic in sexually explicit images of actual children or obscene virtual child porn. Really. (PROTECT is an acronym for the shamelessly entitled, Prosecutorial Remedies and Other Tools to end the Exploitation of Children Act of 2003," which was enacted in response to the Court's decision in Free Speech Coalition v Ashcroft.)
In other words, having held that Congress could not criminalize production or possession of all virtual child porn, the Court held that it could criminalize soliciting or advertising virtual child porn in the mistaken belief or with intent to persuade others to believe that it's the real thing. (The PROTECT Act also criminalizes obscene virtual child porn.) The soon to be missed Justice Souter pointed out the obvious, in a dissent joined only by Justice Ginsburg: Allowing prosecutions for pandering or soliciting non-obscene, virtual images dramatically undermines First Amendment protections the Court extended to them only a few years ago.
Dennis Whorley's conviction was based, in part, on the PROTECT Act (he was the first person convicted under it;) his conviction for sending "obscene" emails to other adults rested on an older obscenity statute, but it might easily be justified by the same impulse to prohibit virtual child porn that underlies the PROTECT Act and imprisons people for pretending to pander child porn or actually collecting obscene cartoons. It doesn't take a great leap of law of law to criminalize discussion of a cartoon - the depiction of a desire or an idea -- once you've criminalized possession of it.
Outside the respective subcultures of free speech advocates, comic book collectors, and pedophiles, not many people will mourn the loss of a right to imagine or discuss abusing children. But the rationales for censorship developed in these cases can always be extended, by carving out additional exceptions to the First Amendment. In fact, they could conceivably be extended next year, when the Supreme Court decides whether, like child porn, depictions of cruelty to animals should be denied constitutional protection. In the fall, the Court will consider the case of Robert J. Stevens, convicted and sentenced to 37 months under a federal law criminalizing the production, sale, or possession of material depicting animal cruelty; Stevens's crime was selling videos of pit bulls on the attack.
His conviction was reversed by the 3rd circuit court of appeals, which declined to create a new category of unprotected speech. The federal ban on animal cruelty depictions was based in part on assumptions about their indirect harm, the 3rd circuit observed; the government claimed an "interest in discouraging individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings." If the Supreme Court rules that Congress may criminalize speech in the mere hope of deterring "future anti-social behavior," what speech may Congress not restrict? It's hard (and may eventually be illegal) to imagine.
Wendy Kaminer
