October 2009 Archives
Stressing the paramount importance of transparency and accountability, the ACLU has been commendably relentless in seeking the release of government documents exposing post 9/11 torture and detention practices. But while ACLU staff attorneys combat government secrecy, ACLU board members promote the secrecy of their own deliberations: a policy proposal now pending before the national board would end the longstanding practice of regularly taping national board, executive committee, and foundation board meetings and would require the destruction of historic meeting tapes, of which there are many. ACLU staff members would have discretion to tape meetings, in order to assist in preparing minutes, and the Deputy Executive Director or General Counsel would have discretion to retain some records for "compelling reasons;" but pursuant to this policy, board members would have no right to ensure that meetings are taped and no right previously enjoyed to obtain meeting tapes. Staff members would enjoy the power to create and destroy important pieces of the organization's historical record.
What prompted this remarkably unabashed rejection of transparency and accountability within the ACLU? Recently, for a few years beginning in 2004, the organization's leadership was embarrassed by meeting tapes that exposed gross violations of principle and misstatements of facts (chronicled in my book Worst Instincts and documented in a publicly accessible Beacon Press archive at the Harvard Divinity School library.)
Naturally, tapes can greatly complicate efforts to deny or distort inconvenient truths. At the ACLU, for example, tapes of 2004 executive committee and national board meetings confirm what the leadership tried hard to obscure -- that executive director Anthony Romero rather proudly acknowledged privately advising the Ford Foundation to "parrot" the Patriot Act in its post 9/11 grant agreements and that the national board rejected a motion to rescind a 2004 blacklist agreement between the ACLU and the Bush Administration, which Romero had quietly authorized. Listen to the tape (or read the transcript) of a June, 2006 national board meeting, and you'll hear some board leaders rationalizing a proposal prohibiting ACLU board members from criticizing the ACLU (the proposal was withdrawn only after its public exposure).
Some tapes may be retained under the new, proposed taping policy only because (as a footnote to the policy memorandum observes) some tapes are now publicly available in the Beacon Press archive; but much will be destroyed. What's the official excuse for destroying tapes? "(V)erbatim recordings are actually 'working papers,'" the committee that drafted the policy explains. "Thus, once adopted the minutes, not the 'working paper' recordings, are the official NB (national board) record."
Of course, a tape is the most accurate and only entirely objective meeting record; minutes are easily and regularly sanitized, which is precisely why they're valued in the new, increasingly corporate ACLU: "Minutes are a board's way of managing the public view of what happens in a board meeting in an accurate manner," the erase history committee explains. The committee also worries about the "chilling effect" of recording exchanges, the possibility that remarks may be taken "out of context," and that taping may encourage "grandstanding" -- the sort of concerns usually raised by officials eager to write their own histories, free of objective, factual records.
One excuse for erasing tapes the ACLU cannot use, is limited storage space -- a problem back when cassette tapes were used (and sometimes recycled). In recent years, meetings have been recorded digitally, and, in any case, meeting records that the ACLU prefers not to keep, or make publicly accessible in the near future, may be deposited at the ACLU archive at Princeton University, where, at least someday, they would be available to researchers. If the ACLU leadership has its way -- as it usually does -- that day will never come.
(Photo: Flickr/Liz Henry)
You have no right to ask someone to commit a murder, obviously, but it's hard to say if the First Amendment protects the right to extol or encourage murder - not just murder in general but the murder of a person, or class of people, in particular. Advocacy of violence is protected speech (prohibitions on advocacy inevitably restrict unpopular political speech, as early and mid 20th century red scares demonstrated.) Conversely, neither incitement to violence nor "true threats" of violence ("where the speaker means to communicate ... intent to commit an act of unlawful violence to a particular individual or group ...") are, in theory, constitutionally protected; but, in practice, courts still struggle to define and distinguish between incitement, threats, and mere advocacy.
The state courts of Texas will get another chance in a lawsuit filed by Michael Weinstein, founder of the Military Religious Freedom Foundation (MRFF) charging that imprecatory prayers (that Weinstein's "days be few") and "virulent" anti-Semitic "rants" against him constitute "terrorist threats," proscribed by Texas law. Weinstein alleges that Elmer Ammerman, founder of the Chaplaincy of Full Gospel Churches (CFGC) and his associate, Gordon Klingenschmitt, issued an effective fatwah against him (along with Barry Lynn, executive director of Americans United for Church and State.) You can find the offending prayers, offered by Klingenschmitt, here. They include this plea:
"Let us pray. Almighty God, today we pray imprecatory prayers from Psalm 109 against the enemies of religious liberty, including Barry Lynn and Mikey Weinstein, who issued press releases this week attacking me personally. God, do not remain silent, for wicked men surround us and tell lies about us. We bless them, but they curse us. Therefore find them guilty, not me. Let their days be few, and replace them with Godly people. Plunder their fields, and seize their assets. Cut off their descendants, and remember their sins, in Jesus' name. Amen."
Weinstein plausibly claims that as a result of Ammerman's tirades and the curses rained upon him by Klingenschmidt, "threats and hate mail (against Weinstein and his family) have increased exponentially; (they) justifiably live in fear of imminent violence..."
This is not a simple case: The defendants can cite their religious freedom, as well as their free speech rights, in defense of their prayers. While they have no special religious right or license to threaten people, courts may well be less likely to find that a prayer constitutes an actual threat, which is sufficiently difficult to define anyway. People indulge in hyperbole, especially when riled. I knew someone who joked about taking a contract out on his mother-in-law. If simply uttering the words "I could kill you," were a crime, we might have to stop locking up non-violent drug offenders. This prospect of punishing people for off-hand references to murder or imaginary hit lists may seem fanciful, but in post-Columbine, zero tolerance, bullying-sensitive public schools, for example, it's not an uncommon practice. In Texas, in 2005, the Houston Press reported, a teenage girl was expelled from school for making a terrorist threat against a teacher, when she vented on an online chat room, calling the teacher "a bitch" and "a fat head" and adding "shez now the first person on my to kill list."
Maybe I'm naïve, but I doubt that this girl would actually have been convicted under Texas law, though I don't mean to trivialize Weinstein's concerns by mentioning this case. I do mean to point out the inevitable abuses of laws that punish speech. What constitutes a "terrorist threat" pursuant to the Texas penal code? It's a threat uttered with "intent to place a person in fear of imminent serious bodily injury." (Intent is a matter of fact, for juries and occasionally judges to determine, or infer; for an example of insufficient factual evidence of intent to threaten, under Texas law, see Jones v Texas.)
States may criminalize intentional threats, the Supreme Court confirmed in a 2003 case holding that cross burning (symbolic speech) may be criminalized if "carried out with the intent to intimidate" (but intent may not be inferred from the mere act of burning a cross.) So how might a judge or jury determine actual intent to threaten or intimidate? The law is confused: "True-threat jurisprudence remains a muddled mess," David L. Hudson notes in a post for the First Amendment Center.
The 9th Circuit court of Appeals grappled with this mess in Planned Parenthood v. American Coalition of Life Activists, otherwise known as the Nuremberg Files case, in which the court ultimately upheld a multi-million verdict against an anti-abortion group sued for threatening abortion providers by posting their personal information on the Internet, (including names, addresses, and license numbers) and targeting them with "wanted posters." Three of the named doctors were killed. (I supported this decision in a 2002 column, but I'm still not sure I was right. For a strong, contrary opinion, see this post by Ronald K.L. Collins and Robert Corn-Revere.)
So, at the risk of seeming like a ditherer (or serving as an example of why people hate lawyers) I could perhaps argue either side of Michael Weinstein's case charging that, under the circumstances, imprecatory prayers directed against him and his family constitute intentional threats. But Weinstein's intention or expectations in filing this lawsuit are unclear. His complaint, posted on his website, reads more like political than legal advocacy: "MIKEY TAKES ON THE RELIGIOUS FRONT PUT UP BY THE DEFENDANTS," one paragraph heading declares. And, if it's easy to sympathize with Weinstein and his family, whose fears of violence don't seem unfounded, it's hard to imagine a ruling effectively punishing people for asking God to smite their enemies -- a ruling that could chill quite a lot of religious speech indeed.
(Photo: Flickr/laura padgett)
Tomorrow, October 7th, the Supreme Court will hear arguments in Salazar v. Buono, a case with a complicated litigation history that now poses a simple, potentially devastating challenge to constitutional prohibitions on establishing religion. In Salazar, the Court is being asked to limit dramatically--or virtually eliminate--the right of taxpayers to sue the federal government for maintaining sectarian religious symbols on public property. If the Court seizes the opportunity and denies taxpayer standing to challenge federally sponsored religious displays, then constitutional prohibitions of such displayys will be effectively unenforceable; in other words, at least in part, the establishment clause will be merely hortatory. The Salazar case began in 2001, when a former national park service employee, Frank Buono, sued the government seeking removal of an eight-foot cross from federal land. (The cross was erected by the Veterans of Foreign Wars in 1934 in commemoration of World War I vets and has long enjoyed favored religious status. In 1999, the Parks Service declined a request to erect a Buddhist memorial in the vicinity of the cross.) Buono won his case in Federal District Court and the 9th Circuit Court of Appeals in 2004, prompting Congress to transfer the property underlying the cross to the VFW. Buono went back to court for another round and obtained a second ruling from the 9th Circuit, in 2007, invalidating the property transfer and ordering removal of the cross. It is this 2007 ruling that is now before the Supreme Court, and it is in this second round of litigation that Buono's standing to sue has become a central issue on appeal.
The government did not appeal the 9th Circuit's 2004 ruling supporting Buono's challenge, meaning that it did not then challenge its initial standing. Buono, represented by the ACLU, argues that the government is procedurally foreclosed from raising the standing question now, giving the Court a good reason to avoid answering it. But the Court's conservative majority has been relatively hostile to establishment clause challenges (Justice Thomas would not even apply prohibitions on establishing religion to the states), and in 2007, in Hein v. Freedom From Religion Foundation, the Court held that taxpayers lack standing to challenge executive branch expenditures that allegedly violate the establishment clause. (Hein involved an ill-conceived challenge by the Freedom from Religion Foundation to executive branch actions promoting the Administration's "faith-based" initiative; the Court didn't decide the merits of FFRF's establishment clause claim since it denied the group standing to sue.) Salazar, however, involves Congressional action; and in Hein, the plurality opinion distinguished challenges to congressional appropriations from challenges to discretionary executive spending.
But the distinction in Hein between congressional and executive expenditures in establishment clause cases seemed merely politic (if not downright cynical); it allowed the Court to appear respectful of precedent (mainly Flast v. Cohen), allowing taxpayers to mount establishment clause challenges to Congressional spending. Justice Scalia, who at least has the courage of his theocratic convictions, chided the plurality in Hein for its incoherent "minimalism," stressing that the logic of the Court's opinion required it to overrule Flast; as he trenchantly stated, the plurality relied on
"the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently ... laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive."
Salazar gives the Roberts court an opportunity to take Flast off life support, ending taxpayer suits against congressional as well as executive branch expenditures in many--if not most, if not all--establishment clause cases. In Hein, the 7th Circuit had upheld FFRF's right to challenge executive branch actions promoting religion; as Judge Posner observed (hypothetically), recognizing a controlling difference between congressional appropriations and discretionary executive spending in an establishment clause case could prohibit taxpayer suits against such gross constitutional violations as a decision by the Homeland Security Department to "build a mosque and pay an Imam a salary to preach in it," in the hope of reducing terrorism. Or as FFRF argued before the Supreme Court, denying taxpayer standing to challenge executive branch expenditures establishing religion would effectively immunize from taxpayer suits the use of discretionary executive branch funding to purchase and distribute sectarian religious symbols, award government contracts on the basis of religious belief, or otherwise engage in direct proselytizing.
'Hallelujah," groups opposing taxpayer establishment clause challenges might respond; enabling government funding of sectarian religious (especially Christian) symbols and activities as their goal. People who object to officially sponsored sectarianism or official religious favoritism (at issue in the Salazar case) are merely "offended observers," the American Center for Law and Justice asserts, implicitly characterizing the constitutional prohibition on establishing religion as a mere form of political correctness.
Madison and Jefferson might disagree, but Justice Scalia has already made clear his support for government promotion of religious belief: the First Amendment "permits (the) disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists," Scalia declared in a 2005 case, dissenting from a decision invalidating an official Ten Commandments display. (Not that the Court is generally or categorically hostile to official religious displays; in a companion case, it rejected a challenge to a Ten Commandments monument on the grounds of the Texas state capitol.)
Scalia's support for official expressions of bias against non-theists or polytheists partly reflects a majoritarian approach to church/state issues, generally shared by opponents of taxpayer establishment clause cases. The remedy for government action establishing religion should be political, they argue: if you suffer discrimination or simply alienation as a result of state sponsored religion, or if you object to discrimination suffered by religious minorities, your remedy is said to be political, not judicial. You should seek redress from your elected representatives, not from the courts. The trouble is that your elected representatives respond to majority opinion and majority biases in favor of religious beliefs (especially mainstream beliefs), which is precisely why freedom of and from religion was enshrined in the Bill of Rights, to be protected by the courts from majority rule.
That was then. The Supreme Court has already effectively immunized the executive branch from taxpayer lawsuits challenging establishment clause violations. In deciding Salazar it could immunize Congress as well. In these cases, the Court would then save itself the trouble (that Chief Justice Marshall imposed on it 200 years ago,) of deciding "what the law is," and "whether an act, repugnant to the constitution, can become the law of the land." As veteran legal aid attorneys used to say, decades ago, "The Constitution has no standing in Brooklyn." It will be no joke if the Salazar case helps ensure that the establishment clause has no standing, and not just in Brooklyn.
Photo Credit: Flickr User functoruser
Naturally, ACORN chief Executive Bertha Lewis assails the report of a $5 million theft as "completely false;" but I hesitate to take her denials at face value. This is the same Bertha Lewis who dismissed attacks on ACORN as McCarthyism, the same Bertha Lewis who justified the 2008 removal of two dissident ACORN board members (who'd filed suit against ACORN as a result of the cover-up) by stressing that the dissidents had violated ACORN's code of conduct--a code that apparently did not require the firing of admitted embezzler Dale Rathke until the cover-up of his embezzlement collapsed.
Just as naturally, right-wing bloggers have been covering the ACORN scandal with delight, while progressives try ignoring or minimizing it, and focus on defending ACORN from a right wing-smear campaign--as if the cover-up of a six or mid seven figure embezzlement had somehow been orchestrated by its enemies on the right, or as if it should only be of interest to the right. As I noted in my earlier post, ACORN is less a victim of its political enemies than of the dishonesty of its friends (or leaders) and the moral hypocrisy that partisans left and right share.
Wendy Kaminer
