September 2009 Archives
09/30/09 2:26 PM
Liberty, Self-Esteem and Self-Governance
Our inalienable right to happiness and the rhetoric of self-esteem experts notwithstanding, we do not have a right to feel good about ourselves; instead, thanks to the First Amendment, other people have a right to make us feel bad. While we may be subject to legal restrictions on public smoking or taxes on foods that make us fat, we should be spared legal efforts to regulate photo-shopping. Europeans are not so lucky. The New York Times reported this week that lawmakers in Britain and France have proposed requiring disclaimers and warning labels on photo-shopped images of models. Given increased consumer awareness of photo-shopping and the emergence of blogs devoted to debunking it, government action seems especially unnecessary, as well as intrusive; but advocates of regulation are undeterred: "When teenagers and women look at these pictures in magazines, they end up feeling unhappy with themselves," a British MP explained, as if government power to secure the happiness of women and girls was simply self-evident.
This is not harmless official maternalism: a government that concerns itself with the happiness or psychological well-being of its citizens is a government that will prohibit conduct or speech deemed psychologically harmful, or simply not conducive to happiness. Also known as a government actively hostile to liberty. In Britain, as Reason magazine reported two years ago, you can be served with an "Antisocial Behavior Order (ASBO) for engaging in conduct considered likely to cause others alarm or distress. This past year a woman subject to an ASBO was arrested for indulging in noisy, consensual sex in what is apparently no longer the privacy of her own home. I suppose you could call ASBO's a form of democratization: what was once the prerogative of kings--the power to secure the arrest of people who irritated or "distressed" them--is now extended to peevish citizens who can invoke it against each other. American nannyism isn't quite as advanced as this (except perhaps on college campuses, where policing of presumptively anti-social or offensive speech is common). But while Congress has yet to attack the scourge of photo-shopping, it is considering restricting the right to "distress" other people substantially. Today, September 30, the House is holding a hearing on a cyber-bullying bill, the Megan Meier Cyberbullying Prevention Act, introduced by California Democrat Loretta Sanchez. The Act would effectively criminalize speech that results in people "feeling unhappy with themselves" (You can find a quick analysis of its broad application to internet speech here.)
Like so many crime bills named after deceased children, the Megan Meier Act was prompted by a horrific case involving the suicide of a teenage girl who'd been taunted on MySpace. Her suicide was tragic; the sheer meanness that apparently provoked it was unforgivable, but it wasn't and probably shouldn't be criminal. Human malevolence is a problem the law can't solve and often can't even punish, without grievous infringements on liberty. The cost of a right to feel good about yourself is everyone's right to be free.
Photo Credits: Flickr Users Tammy Manet and LoopZilla
When is thievery not a crime but a personal tragedy? When is lying for personal gain or political expedience a mere error in judgment? The answer is obvious to any partisan. Your political enemies engage in criminal or morally repugnant acts; your allies, friends, and relations make mistakes or bend the rules for the greater good. As Rudolph Giuliani remarked during his presidential campaign, the definition of torture "depends on who does it." Waterboarding was "aggressive questioning," when Americans inflicted it. "It was a judgment call," (not a criminal conspiracy,) ACORN president Maud Hurd said in 2008, describing the decision to cover-up the embezzlement of nearly a million dollars by Dale Rathke, the brother of ACORN founder Wade Rathke.
No, I don't mean to suggest that torture and embezzlement are moral equivalents. I do mean to state that activists, advocacy groups, politicians, and pundits, left and right, display equivalent moral hypocrisy when rationalizing illegal or unethical conduct by some of their own. It's the hypocrisy bred by the self-righteousness of people convinced that they're on the side of the angels, that their commitment to the right cause makes them incapable of doing wrong. It's the hypocrisy that led the ACLU national board to trivialize, misrepresent, or conceal serious misconduct by its staff and lay leaders (the subject of my book, Worst Instincts.) It's the hypocrisy that has consistently characterized the "progressive" response to recent and still unfolding ACORN scandals. By ignoring, minimizing, or rationalizing grossly unethical and even criminal conduct, ACORN's left-wing friends have harmed it more than its right wing enemies ever could.
Today ACORN leaders and supporters strain to contain the damage caused by the video sting of ACORN employees, characterizing the employee's conduct as anomalous and blaming the controversy over it not on any genuine concern about ACORN's recent history of gross dishonesty but on right wing pique at being out of power. ACORN executive Bertha Lewis predictably decried the attacks on her organization as "reminiscent of the McCarthy era."
Well yes, you'd have to be an idiot not to recognize the right wing's glee over ACORN's latest troubles and not to believe that many of its critics would refrain from attacking a conservative organization implicated in similar conduct. So what. ACORN's lack of integrity is not excused or ameliorated by the advantages Republicans derive from it.
ACORN's progressive supporters, not to its mention leaders, should begin by taking responsibility for its decline. The depth of ACORN's dishonesty and dysfunction was clearly indicated over a year ago by New York Times reporter Stephanie Strom's stories revealing Dale Rathke's embezzlement of about $950,000 and its nearly decade long cover-up. (ACORN had been accused of misconduct before, but the Times story could not simply be dismissed as another right wing smear campaign.) The Times reported that not even the ACORN board had been informed of the theft, ("a small group of executives decided to keep the information from almost all of the group's board members and not to alert law enforcement.") ACORN executives probably told themselves and each other that the cover-up was in the organization's interests, but the organization was not even reimbursed for its loss: The embezzlement reportedly occurred in 1999 and 2000; in July 2008, when the first Times story appeared, only a reported $210,000 had been paid back, and Dale Rathke had been allowed to remain on the payroll until mid 2008 when "disclosure of his theft by foundations and other donors forced the organization to dismiss him."
The follow-up to this story was equally disturbing: ACORN's leadership seemed to persist in concealing misconduct instead of acknowledging and correcting it. In August 2008, a small group of ACORN activists, led by two members of an interim management committee, filed a lawsuit against the organization in a reported effort to separate it from the Rathke family, "protect financial records from destruction and enhance board access to documents." In October 2008, a report released by an ACORN lawyer pointed to managerial and financial improprieties that "may have led to violations of federal laws." In November 2008, the dissenting interim management committee members were removed; their lawsuit was dropped, and the dissenting group (the ACORN 8) subsequently sought a federal investigation of the embezzlement.
This point is worth repeating: after allowing an embezzler to remain on the payroll for some 8 years, ACORN's leadership quickly expelled two dissident board members who seemed intent on providing transparency and accountability. The two dissidents were found to have violated ACORN's code of conduct (which apparently deemed whistle-blowing a graver offense than stealing,) and they were "aggressively trying to distract the organization from its core mission," ACORN chief executive Bertha Lewis recently explained to the Washington Post.
Reading these stories, you didn't need to be familiar with not for profit governance issues to recognize a profoundly compromised organization; you only needed to be awake. But ACORN supporters probably told themselves that thefts and cover-ups by the leadership were relatively minor governance problems that did not and would not hamper or corrupt ACORN's substantive work. That's how ACLU supporters frequently responded to compelling evidence of internal misconduct: characterizing repeated malfeasance as a series of "mistakes," they tended to dismiss as "tempests in teapots" or "inside baseball," controversies over "mistakes" like lying by the leadership or spying on staff or revelations that the executive director had quietly approved a government blacklisting agreement and, when he was caught, misrepresented the timing and substance of counsel's opinion regarding the agreement and the ACLU's potential criminal liability for non-compliance. So I recognize the evasions and denials offered by ACORN supporters in the wake of the very serious embezzlement and cover-up scandals of 2008 that presaged the current scandal over the video sting.
Consider Peter Dreier's response to the theft and cover-up in the Huffington Post: In a lengthy piece dominated by praise of ACORN's "fight for social justice" and protests of right wing smear campaigns, Dreier excuses the "brilliant" Wade Rathke's decision to conceal his brother's embezzlement as mere misjudgment, attributed not to dishonesty or self-interest but brotherly compassion and concern for ACORN's reputation. He writes misleadingly that the stolen funds were repaid, without noting that until the theft was revealed after 8 or 9 years, about 80% of it remained unpaid. He laments that "Rathke's remarkable organizing work for almost 40 years will now have to be judged against this tragic example of poor judgment." He characterizes the theft and prolonged cover-up as "missteps," stressing that they did not begin to compare to "swindles" by villainous corporations like Halliburton or Enron involving billions; (although it's obvious that the difference between the "missteps" at ACORN and the "swindles" at Halliburton is not measured in dollars but in partisan loyalties.) He notes that "progressive groups have to be squeaky clean. They must live by a higher standard...," as if only a unusually scrupulous organization with unusually high standards would prohibit and punish embezzlement.
Today, ACORN apologists persist in trivializing its offenses: The video sting is not a major story, mediamatters.org insists, suggesting that the real story is - what else - right wing scapegoating and "fear-mongering." Founder Wade Rathke still seems filled with sorrow, not remorse, noting that the "sneak films are too sad and painful for me to watch." ACORN is suing the video-tapers and distributors for violating state surveillance laws.
But, as Barney Frank cogently observes, "The defense against sting operations is not to ban them, but to behave properly so that they do not reveal as they did in this case clear evidence of gross impropriety." Facing the cut-off of federal funds and the prospect of becoming politically untouchable, ACORN is, once again promising reform. It has hired former Massachusetts Attorney General Scott Harshbarger to conduct the "robust, no-holds barred review" that should have been commenced at least a year ago, after the embezzlement scandal broke. Harshbarger may recommend new internal structures and processes, but I suspect that reforming ACORN will require removing staff and lay leaders who have already demonstrated their lack of integrity. New processes won't respond to a need for new personnel. Indeed, if people involved in covering-up embezzlement and purging apparent whistle-blowers had a functional sense of honor or concern for ACORN's mission, they'd resign.
Whether or not ACORN recovers, this crisis of its own making should serve as a cautionary tale for other groups, like the ACLU, that consider themselves too pure to fail; but I doubt that it will. Lying is a habit that's very hard to break, especially when people justify their lies in the service of a greater good. Wade Rathke said he concealed his brother's embezzlement so as not "put a "weapon" into the hands of enemies of Acorn." And, people who begin covering up the misconduct of others out of concern for an organization's reputation (as well as their fear of being ostracized,) inevitably end covering up for their own complicity, and perpetuating conspiracies of silence.
No, I don't mean to suggest that torture and embezzlement are moral equivalents. I do mean to state that activists, advocacy groups, politicians, and pundits, left and right, display equivalent moral hypocrisy when rationalizing illegal or unethical conduct by some of their own. It's the hypocrisy bred by the self-righteousness of people convinced that they're on the side of the angels, that their commitment to the right cause makes them incapable of doing wrong. It's the hypocrisy that led the ACLU national board to trivialize, misrepresent, or conceal serious misconduct by its staff and lay leaders (the subject of my book, Worst Instincts.) It's the hypocrisy that has consistently characterized the "progressive" response to recent and still unfolding ACORN scandals. By ignoring, minimizing, or rationalizing grossly unethical and even criminal conduct, ACORN's left-wing friends have harmed it more than its right wing enemies ever could.
Today ACORN leaders and supporters strain to contain the damage caused by the video sting of ACORN employees, characterizing the employee's conduct as anomalous and blaming the controversy over it not on any genuine concern about ACORN's recent history of gross dishonesty but on right wing pique at being out of power. ACORN executive Bertha Lewis predictably decried the attacks on her organization as "reminiscent of the McCarthy era."
Well yes, you'd have to be an idiot not to recognize the right wing's glee over ACORN's latest troubles and not to believe that many of its critics would refrain from attacking a conservative organization implicated in similar conduct. So what. ACORN's lack of integrity is not excused or ameliorated by the advantages Republicans derive from it.
ACORN's progressive supporters, not to its mention leaders, should begin by taking responsibility for its decline. The depth of ACORN's dishonesty and dysfunction was clearly indicated over a year ago by New York Times reporter Stephanie Strom's stories revealing Dale Rathke's embezzlement of about $950,000 and its nearly decade long cover-up. (ACORN had been accused of misconduct before, but the Times story could not simply be dismissed as another right wing smear campaign.) The Times reported that not even the ACORN board had been informed of the theft, ("a small group of executives decided to keep the information from almost all of the group's board members and not to alert law enforcement.") ACORN executives probably told themselves and each other that the cover-up was in the organization's interests, but the organization was not even reimbursed for its loss: The embezzlement reportedly occurred in 1999 and 2000; in July 2008, when the first Times story appeared, only a reported $210,000 had been paid back, and Dale Rathke had been allowed to remain on the payroll until mid 2008 when "disclosure of his theft by foundations and other donors forced the organization to dismiss him."
The follow-up to this story was equally disturbing: ACORN's leadership seemed to persist in concealing misconduct instead of acknowledging and correcting it. In August 2008, a small group of ACORN activists, led by two members of an interim management committee, filed a lawsuit against the organization in a reported effort to separate it from the Rathke family, "protect financial records from destruction and enhance board access to documents." In October 2008, a report released by an ACORN lawyer pointed to managerial and financial improprieties that "may have led to violations of federal laws." In November 2008, the dissenting interim management committee members were removed; their lawsuit was dropped, and the dissenting group (the ACORN 8) subsequently sought a federal investigation of the embezzlement.
This point is worth repeating: after allowing an embezzler to remain on the payroll for some 8 years, ACORN's leadership quickly expelled two dissident board members who seemed intent on providing transparency and accountability. The two dissidents were found to have violated ACORN's code of conduct (which apparently deemed whistle-blowing a graver offense than stealing,) and they were "aggressively trying to distract the organization from its core mission," ACORN chief executive Bertha Lewis recently explained to the Washington Post.
Reading these stories, you didn't need to be familiar with not for profit governance issues to recognize a profoundly compromised organization; you only needed to be awake. But ACORN supporters probably told themselves that thefts and cover-ups by the leadership were relatively minor governance problems that did not and would not hamper or corrupt ACORN's substantive work. That's how ACLU supporters frequently responded to compelling evidence of internal misconduct: characterizing repeated malfeasance as a series of "mistakes," they tended to dismiss as "tempests in teapots" or "inside baseball," controversies over "mistakes" like lying by the leadership or spying on staff or revelations that the executive director had quietly approved a government blacklisting agreement and, when he was caught, misrepresented the timing and substance of counsel's opinion regarding the agreement and the ACLU's potential criminal liability for non-compliance. So I recognize the evasions and denials offered by ACORN supporters in the wake of the very serious embezzlement and cover-up scandals of 2008 that presaged the current scandal over the video sting.
Consider Peter Dreier's response to the theft and cover-up in the Huffington Post: In a lengthy piece dominated by praise of ACORN's "fight for social justice" and protests of right wing smear campaigns, Dreier excuses the "brilliant" Wade Rathke's decision to conceal his brother's embezzlement as mere misjudgment, attributed not to dishonesty or self-interest but brotherly compassion and concern for ACORN's reputation. He writes misleadingly that the stolen funds were repaid, without noting that until the theft was revealed after 8 or 9 years, about 80% of it remained unpaid. He laments that "Rathke's remarkable organizing work for almost 40 years will now have to be judged against this tragic example of poor judgment." He characterizes the theft and prolonged cover-up as "missteps," stressing that they did not begin to compare to "swindles" by villainous corporations like Halliburton or Enron involving billions; (although it's obvious that the difference between the "missteps" at ACORN and the "swindles" at Halliburton is not measured in dollars but in partisan loyalties.) He notes that "progressive groups have to be squeaky clean. They must live by a higher standard...," as if only a unusually scrupulous organization with unusually high standards would prohibit and punish embezzlement.
Today, ACORN apologists persist in trivializing its offenses: The video sting is not a major story, mediamatters.org insists, suggesting that the real story is - what else - right wing scapegoating and "fear-mongering." Founder Wade Rathke still seems filled with sorrow, not remorse, noting that the "sneak films are too sad and painful for me to watch." ACORN is suing the video-tapers and distributors for violating state surveillance laws.
But, as Barney Frank cogently observes, "The defense against sting operations is not to ban them, but to behave properly so that they do not reveal as they did in this case clear evidence of gross impropriety." Facing the cut-off of federal funds and the prospect of becoming politically untouchable, ACORN is, once again promising reform. It has hired former Massachusetts Attorney General Scott Harshbarger to conduct the "robust, no-holds barred review" that should have been commenced at least a year ago, after the embezzlement scandal broke. Harshbarger may recommend new internal structures and processes, but I suspect that reforming ACORN will require removing staff and lay leaders who have already demonstrated their lack of integrity. New processes won't respond to a need for new personnel. Indeed, if people involved in covering-up embezzlement and purging apparent whistle-blowers had a functional sense of honor or concern for ACORN's mission, they'd resign.
Whether or not ACORN recovers, this crisis of its own making should serve as a cautionary tale for other groups, like the ACLU, that consider themselves too pure to fail; but I doubt that it will. Lying is a habit that's very hard to break, especially when people justify their lies in the service of a greater good. Wade Rathke said he concealed his brother's embezzlement so as not "put a "weapon" into the hands of enemies of Acorn." And, people who begin covering up the misconduct of others out of concern for an organization's reputation (as well as their fear of being ostracized,) inevitably end covering up for their own complicity, and perpetuating conspiracies of silence.
Do you have a right to indulge in consensual public sex? In Massachusetts, at least, that's not a simple question. The answer depends on whether you "intended public exposure or recklessly disregarded a substantial risk of exposure to one or more persons...," the state's highest court observed in 1981, reversing a conviction for "lascivious" public conduct in a car parked in a deserted lot, at night (deserted except for the police officers who trailed the car.) The law against public sex "is not designed to punish persons who desire privacy and who take reasonable measures to secure it," the court explained.The policing of public or quasi-public sex has long been entangled with gay rights issues, since gay men have frequently been targeted by overly aggressive enforcement efforts. In 2002, GLAD (Gay Lesbian Advocates and Defenders) unsuccessfully sought a declaratory judgment from the Massachusetts high court protecting consensual sexual conduct in "wooded outdoor areas; vehicles parked in a parking lot; and secluded areas of public beaches." As Don Gorton, president of a gay rights group recently complained to the Boston Globe, "(W)henever police go into a gay cruising area, civil rights problems result.'' Gorton was expressing concern about increased police patrols of the Back Bay Fens, where community gardens co-exist with gay couples (or triples for all I know) more or less hidden in high reeds.
The police plausibly claim to be focused on deterring serious crimes -- assaults, robberies, drug dealing -- not consensual sex, although, according to the Globe, "If the police presence also has the effect of deterring public sex, many of the parkgoers see that as a welcome development," as I would, if I frequented the Fens. Still, I also welcome a police decision not to make public sex arrests, especially during a reign of sex offender registries, when convictions for minor offenses can result in major deprivations of liberty.
But while the idiocies and abuses of the criminal justice system are good reasons to decriminalize discreet, consensual public sex, there's virtually no civil liberty interest in legalizing it. Public cell phone conversations are bad enough. Public sex is an even more obnoxious appropriation of public space for a particularly exclusive private purpose. Arguments for legalization often rest on privacy claims, but it's a perverse assertion of privacy that comprises this invasive exercise in publicity.
(Photo: Flickr User D.C.Atty)
Tea Party Expressers who rallied in the capitol last week to protest big government will have another chance to defend "freedom of the individual in this great nation" next week when the Senate Judiciary Committee considers proposed amendments to federal surveillance laws. The Judicious Use of Surveillance in Counterterrorism Efforts (JUSTICE) Act introduced yesterday by Wisconsin Senator Russ Feingold would limit the virtually unilateral power of law enforcement and national security agencies to conduct surveillance on American citizens, under the Patriot Act and FISA, with no meaningful judicial review. It would also repeal the retroactive immunity granted last year to telecom companies that broke the law by enabling the Bush Administration's warrant-less surveillance program. (The bill is here, the sponsor's outline of it here, and analyses here and here.) I'm not going to review descriptions and analysis of the bill already available elsewhere. I do want to underscore one crucial, general problem it addresses - the concentration of unaccountable power in the executive branch, which trades a lot of liberty for little if any apparent security, or even efficiency.
Consider the FBI's misuse of national security letters, which give FBI agents power to seize personal information about you from your bank, telephone company, or ISP, for example, without a court order. The Justice Department's Inspector General has found repeated abuses of NSL's, which is a lot less surprising or instructive than the excuse offered by FBI general counsel Valerie E. Caproni: According to a 2007 report in the Washington Post, Caproni actually blamed the abuses partly on the agency's expansive power to operate without judicial review: She "attributed the 'F report card' from (Inspector General) Fine partly to the bureau's inexperience in conducting its national security work in secrecy, away from a judicial system that threatens to expose any flaws."
The threat of exposure - of "flaws," mistakes and gross abuses by law enforcement since 9/11-- is one subtext of national security debates today, especially those involving torture or surveillance. The threat of exposure made telecom immunity essential: as the riveting, 2009 Inspectors General's report on the President's extra-legal, warrant-less surveillance program noted, the program, secretly initiated in 2001 and partly exposed in 2005, included still classified surveillance described only as "other intelligence activities," which could conceivably be exposed by lawsuits against the telecoms. (The threatened resignations of Acting Attorney General James Comey and FBI Director Robert Mueller were, in part, reactions to these "other intelligence activities.") The Inspectors General's report also noted the difficulty of evaluating the effectiveness of this secretive, unsupervised program.
Congress responded to news of the warrent-less surveillance program by authorizing it, in effect, retroactively - passing amendments to FISA that allowed executive branch agencies to continue conducting wholesale surveillance of Americans as well as foreign nationals with very little pesky second guessing by courts that might "expose the flaws" in their operations. Opposition to the JUSTICE act will partly reflect opposition to that exposure. Judicial oversight of law enforcement and intelligence agencies doesn't deprive the government of power (as opponents will claim;) oversight diffuses power, (courts are government agencies too) in the hope of ensuring its relatively fair, rational, and effective exercise, and the freedom that the right wing claims to cherish.
(Photo: Flickr User cliff1066)
09/10/09 4:50 PM
Sympathy for the Principal
Tensions between constitutional guarantees of religious freedom and constitutional prohibitions on religious establishment are great fun to debate, unless you're a public school administrator apt to be sued if you do or sued if you don't allow expressions of religious belief in school. Consider two recent federal cases: in Washington state, District Superintendent Carol Whitehead was sued for barring a student group from playing Ave Maria at a 2006 high school graduation ceremony; the previous year, the school had come under fire for a graduation performance by the choir that included references to God, heaven, and angels. In Pennsylvania, elementary school principle Thomas Cook was sued, (along with the school district) for prohibiting the mother of a kindergarten student from reading Bible passages to her son's class. Cook advised her that a Bible reading would violate "the law ... of separation of church and state... the Bible is holy scripture ... reading that to kindergarten students is promoting religion."Federal appellate courts upheld both decisions barring religious speech (in Busch v Marple Newtown School District, and Nurre v Whitehead) and the Rutherford Institute is seeking Supreme Court review of both cases, neither of which is easy to resolve. Personally I could argue either side of either case, but if pressed, I'd probably rule against the school in the Busch case, (involving the thwarted Bible reading) while upholding school policy allowing only secular songs at graduation.
The strict separationist view adopted, not surprisingly, by Americans United for Separation of Church and State, (an organization I support,) characterizes "hymns (as) appropriate for church, but not public school graduations." (I tend to agree.) AU also argues that the Culbertson Elementary School would indeed "have violated the Establishment Clause," as the principal feared, if it allowed a parent to "read the Bible to a kindergarten class." I tend to disagree, given the particular circumstances of this case.
Kindergartner Wesley Busch was participating in a class program called "All About Me." (Isn't it always, especially for children?) As the Court observed, this was a "socialization" exercise; "students would 'identify individual interests and learn about others' and would 'identify sources of conflict with others and ways that conflicts can be resolved.' " Parents were invited to participate, and Wesley's mother, Donna Kay Busch, claimed that her son chose the Bible as his favorite book, asking her to read it to his class; (providing a "source of conflict" the school probably didn't anticipate.) Busch is a self-identified evangelical Christian and, the Court noted, with a straight face, "Wesley shares his mother's religious belief."
I doubt there are many five year olds who don't share their parent's religious beliefs; (five is a bit young for intellectual or spiritual rebellion.) I'm skeptical too that Wesley named the Bible as his favorite book without at least a little prompting from mom. (His babysitter testified that Brown Bear, Brown Bear was his favorite.) Wesley could not read or write and probably would not even have understood the Bible passages his mother proposed to read, a concurrence in Busch observed. But, it would hardly be helpful or appropriate to interrogate a five year old about his beliefs and preferences, and the majority took his mother's assertions about them at face value. So, assuming that Wesley is a precocious tyke committed to evangelical Christianity, why shouldn't his mother read passages from his favorite holy book in an exercise designed to tell the class "all about" Wesley?
Because "[p]arents of public school kindergarten students may reasonably expect their children will not become captive audiences to an adult's reading of religious texts," the Court explained. It was unpersuaded that a parent invited to speak to a class should not be subject to limits on religious speech necessarily imposed on teachers. "[P]arents, much like teachers, are typically held in high regard and viewed as authoritative by young children. By inviting participation in curricular activities, educators do not cede control over the message and content of the subject matter presented in the classroom."
This concern about maintaining official school control of classroom activities is central to Busch: Wesley's classmates would probably not have been converted to Christianity or otherwise harmed had his mother read a few psalms to them; but school administrators would have suffered harmed had she successfully challenged their control over classroom activities. This solicitude for school officials should give pause to civil libertarians who applaud the prohibition of a parental, classroom bible reading. Deferring to school authorities in recent cases, (like Morse v Frederick and Doninger v Neihoff) federal courts have sharply eroded the individual rights of students, especially in free speech controversies. Maybe, by barring classroom proselytizing, maintaining separation of church and state, the Busch decision vindicated First Amendment freedoms; and maybe it undermined them, by vindicating the authority of administrators.
Photo Credit: Flickr User Caveman 92223--On the Road Again!
Right and left, activists in California are organizing against publicly honoring people they don't like:
"Assembly Democrats attack children's innocence, parental rights," the headline of a recent press release from SaveCalifornia.com declares, attacking a bill establishing a day of recognition for Harvey Milk and exhorting the governor to veto it (as he did last year.) "The Democrat politicians are telling schoolchildren to honor a sexual predator of teens, a homosexual sex addict who advocated polygamous relationships, and a public liar who justified his deceit," SaveCalifornia president Randy Thomasson fulminates.
Meanwhile, the NAACP and ACLU are protesting a decision by the Auburn, California parks board to accept a gift of land establishing a park named after late Nobel laureate and eugenicist William Shockley and his wife. "It is an insult to people of color and anyone in the Placer area with an IQ under 100," Jim Updegraff, chair of the ACLU's Sacramento chapter declared, playing the Hitler card. "Would (the parks board) have accepted land to be named after Adolf Hitler? (If only Adolf Hitler had been no worse than William Shockley.)
Of course, the First Amendment is on the side of the protesters in these controversies. (The state has power, not rights; the people have rights to restrict state power.) From the ACLU's perspective, it is standing up for free speech in organizing against the Shockley Memorial Park: "This act of petitioning the government is not just consistent with the First Amendment, it is in fact an exercise of core free speech values," Alan Schlosser, Legal Director of the Northern California ACLU stresses.
That's a legally accurate statement, obviously. And the ACLU regularly petitions the government, when it engages in lobbying at the state and federal level. But generally its lobbying efforts are aimed at securing rights and liberties - none of which are at stake in the Shockley Park controversy: it involves a content-based protest of government speech which, unlike government mandated speech about the alleged dangers of abortion (for example) does not infringe on the exercise of any individual rights. The decision of a civil liberties group to organize a protest like this is problematic, (as a matter of policy, not law) precisely because it entails choosing sides in a political dispute over the content of speech, instead of acting as a neutral arbiter or guarantor of disputant's rights on all sides.
Taking sides, the ACLU also effectively suggests that government decisions to memorialize controversial figures should be determined by citizen protests and either the reality or appearance of majority rule, which could put the organization in the awkward position of implicitly approving decisions denying recognition to a gay rights leader or extending it to a racist, so long as the decisions enjoyed majority support. That, however, is democracy. How might legislators fairly resolve these controversies without consulting the majority?
But apply this principle of majority rule over the content of government speech to disputes over the content of corporate speech, and you confront the interesting, complicated questions of de facto marketplace censorship raised by both corporate control of speech and citizen protests of that control, like boycott threats against Glenn Beck's advertisers, (partly reflecting outrage over Beck's comparisons of Obama to Adolf Hitler) or protests of Pat Buchanan's apologies for (who else?) Adolf Hitler, or demands that CNN bar Lou Dobbs from appearing at an anti-immigrant rally.
Privately organized boycotts and other campaigns to pressure corporate media obviously enjoy First Amendment protection; you might even describe them the way ACLU describes the Shockley Park protests, as "exercises of core free speech values." But as an official (and often ignored) ACLU policy suggests, protests by private pressure groups sometimes effectively restrict rather than expand the marketplace of ideas. Naturally, liberals tend to be sensitive to this problem when boycotts threaten liberal speech while conservatives are sensitive to it when boycotts threaten conservative speech, which is why the ACLU's traditional role as an honest broker of free speech disputes is so essential. In fact, ACLU policy requires the organization to "call attention" to the dangers of private protests, even as it affirms the right to engage in them:
Are there dangers in liberal boycotts of Glenn Beck's advertisers? Did the furor over Don Imus's cracks about the Rutger's women's basketball team, resulting in his 2007 firing by CBS, restrict or expand the marketplace of ideas? Civil libertarians argue endlessly about the wisdom or desirability of private protests aimed at silencing hate-mongers, lunatics, or provocateurs who enjoy corporate support: "There is something disturbing about the fact that the self-appointed PC police have accumulated sufficient power to cause talk-show hosts to look warily over their shoulders every time they say something remotely offensive," my friend Harvey Silverglate wrote lamenting protests by "the would-be censors of 'hate speech.'"
I share his concerns about speech policing but doubt that it poses an appreciable threat to many provocative talk show hosts, whose popularity is directly proportionately to their offensiveness. Besides, in the battle between private citizens groups and private corporate media there are de facto censors or "would-censors" on both sides, exercising their respective First Amendment rights to engage in content based discrimination against speech. When media moguls decide what to air and who to hire and fire, whether they act in the interests of corporate profits or their own partisan ideologies, they do not act as disinterested civil libertarians, aiming to extend everyone's right to speak. Are private corporations better defenders of a healthy, diverse marketplace of ideas than ideologically driven private citizen pressure groups? As I've noted before, that is not a rhetorical question.
Photo Credit: Flickr User Marcin Wichary
"Assembly Democrats attack children's innocence, parental rights," the headline of a recent press release from SaveCalifornia.com declares, attacking a bill establishing a day of recognition for Harvey Milk and exhorting the governor to veto it (as he did last year.) "The Democrat politicians are telling schoolchildren to honor a sexual predator of teens, a homosexual sex addict who advocated polygamous relationships, and a public liar who justified his deceit," SaveCalifornia president Randy Thomasson fulminates.
Meanwhile, the NAACP and ACLU are protesting a decision by the Auburn, California parks board to accept a gift of land establishing a park named after late Nobel laureate and eugenicist William Shockley and his wife. "It is an insult to people of color and anyone in the Placer area with an IQ under 100," Jim Updegraff, chair of the ACLU's Sacramento chapter declared, playing the Hitler card. "Would (the parks board) have accepted land to be named after Adolf Hitler? (If only Adolf Hitler had been no worse than William Shockley.) Of course, the First Amendment is on the side of the protesters in these controversies. (The state has power, not rights; the people have rights to restrict state power.) From the ACLU's perspective, it is standing up for free speech in organizing against the Shockley Memorial Park: "This act of petitioning the government is not just consistent with the First Amendment, it is in fact an exercise of core free speech values," Alan Schlosser, Legal Director of the Northern California ACLU stresses.
That's a legally accurate statement, obviously. And the ACLU regularly petitions the government, when it engages in lobbying at the state and federal level. But generally its lobbying efforts are aimed at securing rights and liberties - none of which are at stake in the Shockley Park controversy: it involves a content-based protest of government speech which, unlike government mandated speech about the alleged dangers of abortion (for example) does not infringe on the exercise of any individual rights. The decision of a civil liberties group to organize a protest like this is problematic, (as a matter of policy, not law) precisely because it entails choosing sides in a political dispute over the content of speech, instead of acting as a neutral arbiter or guarantor of disputant's rights on all sides.
Taking sides, the ACLU also effectively suggests that government decisions to memorialize controversial figures should be determined by citizen protests and either the reality or appearance of majority rule, which could put the organization in the awkward position of implicitly approving decisions denying recognition to a gay rights leader or extending it to a racist, so long as the decisions enjoyed majority support. That, however, is democracy. How might legislators fairly resolve these controversies without consulting the majority?
But apply this principle of majority rule over the content of government speech to disputes over the content of corporate speech, and you confront the interesting, complicated questions of de facto marketplace censorship raised by both corporate control of speech and citizen protests of that control, like boycott threats against Glenn Beck's advertisers, (partly reflecting outrage over Beck's comparisons of Obama to Adolf Hitler) or protests of Pat Buchanan's apologies for (who else?) Adolf Hitler, or demands that CNN bar Lou Dobbs from appearing at an anti-immigrant rally.
Privately organized boycotts and other campaigns to pressure corporate media obviously enjoy First Amendment protection; you might even describe them the way ACLU describes the Shockley Park protests, as "exercises of core free speech values." But as an official (and often ignored) ACLU policy suggests, protests by private pressure groups sometimes effectively restrict rather than expand the marketplace of ideas. Naturally, liberals tend to be sensitive to this problem when boycotts threaten liberal speech while conservatives are sensitive to it when boycotts threaten conservative speech, which is why the ACLU's traditional role as an honest broker of free speech disputes is so essential. In fact, ACLU policy requires the organization to "call attention" to the dangers of private protests, even as it affirms the right to engage in them:
Defending the right of all to advance their points of view by whatever nonviolent methods they may choose, however, does not mean that the ACLU should refrain from objecting when the likely consequences of private pressure group activities would be inimical to civil liberties, and particularly if the consequences would be to restrict a free and diverse marketplace of ideas. Under such circumstances, the ACLU will call public attention to the dangers of such consequences.
Are there dangers in liberal boycotts of Glenn Beck's advertisers? Did the furor over Don Imus's cracks about the Rutger's women's basketball team, resulting in his 2007 firing by CBS, restrict or expand the marketplace of ideas? Civil libertarians argue endlessly about the wisdom or desirability of private protests aimed at silencing hate-mongers, lunatics, or provocateurs who enjoy corporate support: "There is something disturbing about the fact that the self-appointed PC police have accumulated sufficient power to cause talk-show hosts to look warily over their shoulders every time they say something remotely offensive," my friend Harvey Silverglate wrote lamenting protests by "the would-be censors of 'hate speech.'"
I share his concerns about speech policing but doubt that it poses an appreciable threat to many provocative talk show hosts, whose popularity is directly proportionately to their offensiveness. Besides, in the battle between private citizens groups and private corporate media there are de facto censors or "would-censors" on both sides, exercising their respective First Amendment rights to engage in content based discrimination against speech. When media moguls decide what to air and who to hire and fire, whether they act in the interests of corporate profits or their own partisan ideologies, they do not act as disinterested civil libertarians, aiming to extend everyone's right to speak. Are private corporations better defenders of a healthy, diverse marketplace of ideas than ideologically driven private citizen pressure groups? As I've noted before, that is not a rhetorical question.
Photo Credit: Flickr User Marcin Wichary
Should Virginia voters care about the views expressed by gubernatorial candidate Robert McDonnell in his graduate school thesis 20 years ago? Today's headline in the Washington Post implies that voters should ignore McDonnell's thesis, and that ideologically, he is a changed man; the thesis is merely a record of his "past views." Despite his disapproval of wage earning women, his view of feminism as an "enemy" of the family, and his condemnation of homosexuals (he equates homosexuality with other "evils" -- drug abuse and pornography -- that the government should "punish and deter"), McDonnell claims that he now opposes workplace discrimination based on sexual orientation and has revised his views of gender roles. I have some sympathy for anyone confronted with an inflammatory paper written by his younger self. I don't always agree with articles I wrote last year, much less 20 years ago; sometimes an article or column is simply an argument with myself. And I tire of efforts to characterize (or smear) political candidates and nominees with ideas expressed or merely explored in papers or speeches years ago. (Intellectually exploration has become absurdly perilous politically, as Cass Sunstein might attest.)
But reading McDonnell's thesis, I am not convinced of its irrelevance. Maybe he is more tolerant or even supportive of at least some civil rights for women and gay people, as the Post suggests. The views of thinking people, and politicians, on particular social issues do evolve. What's perhaps most troubling are not the micro questions but his macro-vision of civil government as divinely ordained. "The civil ruler is a minister of God to execute judgment and encourage good," McDonnell explained.
It is this belief in the propriety, even the necessity of a government guided by particular religious ideals that appears to underlie his approach to social and economic issues, from gay rights to tax preferences and the legality or availability of contraception. Viewing fornication as sinful, for example, McDonnell lamented the Supreme Court decision extending a right to use contraception to unmarried couples, "at a time when every state in the union made sexual intercourse between unmarried persons a crime." Maybe McDonnell would now oppose criminalizing consensual intercourse between unmarried adults. The question is does he still believe that, in general, particular religious (in other words sectarian) notions of sin should shape the criminal law?
These are the questions I'd pose to McDonnell: is he still convinced that "Man" can only do good in an environment shaped by "faith" not "atheism"? Does he still agree that "a people that reject the importance of the family in its God ordained covenantal form must assuredly reap the consequences," and how might government promote the "God ordained covenantal form" of family life? Does he still oppose "a public school system in which textbooks and courses of instructions are increasingly oriented to humanist values and a secular philosophy"? And, if so, which non-secular philosophies and non-humanist values should public schools seek to inculcate in their students?
Reading McDonnell's thesis, which relies on slogans, political talking points, and declarations of faith more than argument, I also wonder if he's developed his capacity for nuanced, rational thought. Twenty years ago, he described the Supreme Court decision in Griswold v Connecticut (affirming the right of married couples to use contraception) as an attempt "to create a view of liberty based on radical individualism, while facilitating statist control of select family issues." Whatever did he mean by that? Can he elaborate on his previously stated view that "the giftedness of the Republican philosophy is that it embraces the talents and worth of all peoples, while Democrats seek to Shepard a nation of powerless incompetents." How did McDonnell then reconcile his tribute to "the worth of all people" with his opposition to extending "special rights for homosexuals or single parent unwed mothers" and his view of atheism as inimical to goodness? What is his view of non-theism (and non-theists) and the role of sectarian religious beliefs in government today?
Photo Credit: http://www.flickr.com/photos/9313013@N04/1510078088
