Wendy Kaminer

Mammograms and Me

2009-11-18T22:51:48Z

It's about time the medical profession began taking seriously the costs as well as the debatable benefits of annual mammograms for women over 40 (among other routine screening procedures). If the controversial new set of guidelines constitutes rationing, it may be one form of rationing that's overdue; the challenge is for women who consider "clean" mammograms clean bills of health to recognize that their value is limited, partly by the ability of doctors to interpret them.

I've been a little lax about obeying the annual mammogram mandate for some years, since reluctantly submitting to a biopsy because of an anomaly in a hard to read film. "It doesn't look evil," an oncologist assured me, and nothing that looked evil was revealed subsequently by two ultra sounds and an MRI. Against my instincts (and the judgment of one radiologist who advised a series of follow-up mammograms), I was eventually persuaded to undergo a needle biopsy -- an unpleasant procedure that entailed an overnight hospital stay (of which I have no memory, thanks to some wonderful drugs). "In Europe, they wouldn't operate; their protocols are different," the surgeon acknowledged, when I discussed my doubts about our protocols with him.

This sorry experience was, however, an education in medical decision making: the clinicians advising me (a radiologist, oncologist, and internist) were compassionate, generous with their time, focused on my welfare, and honest about what they didn't know. But an additional radiologist consulted for a second opinion insisted that he could enable a meaningful biopsy, and his insistence inevitably drove the process. My strong belief that he was mainly invested in proving an ability to locate cancers that others couldn't, was no match for the advice of other cautious, trustworthy doctors disinclined to dismiss the claims of a respected radiologist. But they weren't patients, exposed to the boundless egoism exhibited by him and his hospital superior: "Let's hope we're right," the department head said, taking my hand and feigning concern, after I agreed to the biopsy. "Let's hope you're wrong and I don't have cancer," I replied.

The biopsy was negative, but it didn't mean that I didn't have cancer: it meant that tissue extracted in what may have been a meaningless operation was benign -- which is not to say I wasn't relieved. But along with relief, I gained an understanding that yearly screenings and even biopsies can offer no guarantees of being cancer-free. So I wonder how many women will welcome the new recommendations for fewer mammograms, perhaps greeting them with a silent "I told you so," and how many will continue the yearly screening regimen, with its false positives and, perhaps, even falser sense of security.

(Photo: Scott Meis Photography/Flickr)

Response to Comments on Independent Voters

2009-11-17T20:16:51Z

By questioning the presumed virtues of independent voters as a group, I was not suggesting that individual voters have paramount civic obligations to identify with either major party. Independents share Democratic perspectives on some issues and Republican perspectives on others (according to Pew,) so I'm not denigrating them for eschewing party membership. There are also logistic reasons not to enroll in a party: I'm officially un-enrolled partly in the hope of cutting down on junk mail and partly in response to the Massachusetts primary system.

But individual voters do have obvious civic obligations to remain politically informed and engaged as well as principled -- not whimsical or simply self-interested - when they enter the voting booth. Of course, self-interest is a powerful motivator for partisan as well as non-partisan voters, which is why presidents like to hand out tokens of their affection, like $300 tax rebates or $250 in recovery assistance to social security beneficiaries (regardless of actual need). But the less voters know, the less attention they pay to politics and policy and the less they trust the basic processes of democracy (elections,) the more likely they seem to be guided by self-interests unmitigated by information and ideals. And, (again, according to Pew) "independents score far lower than either Democrats or Republicans" on "an index of political interest and engagement." They are also "consistently skeptical about the electoral process."

You can take pride in this skepticism, considering it a sign of sophistication (and when skepticism means a disinclination to believe what you want to believe, regardless of evidence, I applaud it). But you might also ask yourself why, if skepticism is on the increase, so is misinformation: facts have rarely seemed to matter less. You might regard skepticism about representative democracy with some wariness: As I suggested earlier, it can devolve into cynicism, crude situational ethics, and a tolerance for self-interested lies, none of which signals sophistication so much as surrender.

(Photo: Logan Mock Bunting/Getty Images)

Independent Voting: Virtue or Vice?

2009-11-12T23:35:33Z

"Partisanship and ideology" are the enemies of "true representation in Washington," according to Lou Dobbs, who apparently sees himself as the last objective man standing. David Brooks laments that independents (increasing in number) are underrepresented politically and in the media, which offers relatively few commentators who "come from an independent perspective" (he doesn't cite Dobbs as one of them). Media outlets addressing liberals or conservatives simply "deliver streams of prejudice-affirming stories," Brooks notes, implying that independents are the last objective people standing.

A calm, rightward leaning centrist like David Brooks has relatively little in common with the demagogic, birther sympathizing Lou Dobbs, but they do share a popular tendency to romanticize independents. Celebrating his own imagined independence from ideology, Dobbs promises that his next act will entail "constructive problem solving," characterized by the "rigorous empirical thought and forthright analysis" that partisanship has allegedly banished from the public square. What do independents want from such eminently reasonable policymaking? According to Brooks they want "a frame of stability and order, within which they can lead their lives," as if people infected by ideologies (in other words, ideals) crave chaos.

But if independents value systematic order and stability, they have an odd way of forging it: their behavior contributes to disorder and instability. Independents are, predictably, the most labile of voters (with no apparent irony, Brooks describes them as "astonishingly volatile"). Unmoored by party allegiances, "their political thinking is likely to be chaotic," political scientist Nancy Rosenblum observes.

In a persuasive defense of partisanship that debunks the "faux luster" of independents:

"Research reveals that they are the least interested in politics, the most politically ignorant, the lightest voters. Independent voters know less about politics and policy, appointments and their consequences... (they) are detached and weightless...Independents neither assume responsibility for the institutions that organize elections and government nor do they owe allegiance, or even justification, to other like-minded citizens."

So while it may be tempting to celebrate independents as pragmatic centrists, at a time when parties are associated with extremism, it's worth remembering that political pragmatism, un-guided by political ideology, is a dubious virtue, as Rosenblum suggests. Independents "score far lower than either Democrats or Republicans" on an "index of political interest and engagement," according to the Pew Research Center. They are "consistently skeptical of the electoral process and the responsiveness of officials."

Skepticism can inform voters, of course, and arm them against political hucksters; but it can also devolve into cynicism, and cynicism enables gullibility. Hannah Arendt argued when people are "ready to believe the worst" and also believe that "every statement is a lie anyway ... one could make (them) believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism."

I'm not suggesting that independent voters resemble the political mobs that Arendt analyzed. I am hypothesizing that what we celebrate as the virtues of independents are not so far removed from the vices attendant upon disengagement, discontent, and a view of electoral politics as a self-serving game. Independents who mistrust the political process and unprincipled partisans who exploit it may have more in common than they know.

Woman in Combat

2009-11-08T22:10:27Z

"The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people," the U.S. Senate declared in 1980. In 1981, in Rostker v Goldberg, the Supreme Court relied on prohibitions of women in combat when it declined to strike down provisions of the Military Selective Service Act authorizing the mandatory registration of men, and not women. "The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops," the Court reasoned.

The plaintiffs in Rostker had not challenged the ban on women in combat: The case had been initiated in 1971, when women were generally considered unfit for combat, or service as firefighters and police officers; the ERA, approved by Congress in 1972, would fall prey, in part, to concerns about a gender neutral draft and combat rules. Conventional wisdom held (as one general noted in his congressional testimony,) that "women should not be placed in a forward fighting position.

Tell that to police officer Kimberly Munley, recovering from gunshot wounds received when she confronted alleged Fort Hood shooter, Nidal Malik Hasan. Tell it to the women effectively engaged in combat in Iraq and Afghanistan. Tell it to 53% of people who professed support for sending women into combat in a New York Times/CBS poll. Most of all, tell it to Congress, which has yet to repeal, or seriously considering repealing, the legal exclusion of women from combat. Sometimes the law is a sword for social change, and sometimes it shields the status quo. Sometimes it's a battering ram and sometimes it's the wall.

(Photo: The U.S. Army/Flickr)

Equality, Marriage, and the Right to Discriminate

2009-11-04T22:48:10Z

Hannah Arendt characterized the "right to marry whoever one wishes" as elementary, locating it among the "inalienable human rights to 'life, liberty and pursuit of happiness proclaimed in the Declaration of Independence.'" She was concerned with miscegenation laws, which in her view "constitut(ed) a much more flagrant breach of the letter and spirit of the Constitution than segregation of schools." She even considered political rights, including the right to vote, "secondary" to "the right to home and marriage."

This defense of marriage rights appears in "Reflections on Little Rock," Arendt's controversial critique of federal efforts to desegregate public schools, written over 50 years ago. She was wrong to oppose forcible school desegregation, but she was wrong for good reasons that remain relevant today, to battles over speech and association, as well as gay marriage (which, as Andrew Sullivan observes, seems destined to be legalized, eventually).

Arendt's opposition to federal enforcement of equal education rights was partly pragmatic, partly a reflection of her strong distaste for thrusting children into the front lines of a vicious, often violent political battle, and partly a demand to limit government intervention in private life and liberties (which also underlay her regard for marriage rights). Arendt was sympathetic to the private associational rights of parents who wished to control their children's education. In this instance, her defense of associational rights was inapt: if mandatory desegregation violated the rights of white parents to send their children to all-white schools, mandatory segregation had long trampled the analogous rights of African-American parents; in any case, laws governing public education ought not be written by private biases.

But while Arendt was wrong to place public schools outside the public realm, while she was insufficiently attentive to the relationship between educational and political equality, she was quite right to defend the freedom to discriminate in private and social realms. "[D]iscrimination is as indispensable a social right as equality is a political right," she stressed. "What equality is to the body politic - its innermost principle - discrimination is to society...without discrimination of some sort, society would simply cease to exist and very important possibilities of free association and group formation would disappear."

Today, those "very important possibilities" are indeed in danger of disappearing, thanks, in large part, to illiberal attacks by liberals on the private right to discriminate. Prohibitions on allegedly offensive or abusive speech and exclusionary private associations are common on college campuses (as I repeatedly lament), where generations of students are being taught that verbal insults are actionable virtual assaults, where an imagined right not to be insulted often trumps rights the fundamental right to speak, and where private associations are expected to comply with public rules prohibiting discriminatory membership requirements.

If campus crusades against speech and associational freedom eventually flourish off-campus, as today's students age into tomorrow's bureaucrats, the U.S. could eventually resemble Britain, where official illiberalism is rampant. The far right British National Party, for example, is being forced by the government to revise its constitution and membership criteria that discriminate on the basis of race, sex or religion. Membership is message, which means that the message of the BNP--and other groups--may be subject to government approval. Meanwhile, the repressive campaign to eradicate racism--not simply from education or employment but from everyone's hearts and minds--has resulted in reports of 40,000 incidents of racism a year involving children, according to a recent story in the Daily Telegraph (relying on an account by a local civil liberties group). "Primary schoolchildren and toddlers in nurseries are being punished for making racist insults...even if they do not understand the terms they use...At the same time, diversity 'missionaries' sent into schools to teach pupils about bigotry are said to be increasing the divide between white and black children by forcing them to see everything in terms of race."

Diversity zealots like this eviscerate everyday freedoms without advancing equality. It may seem counter-intuitive, but the fight for equal marriage requires a commitment to preserving the fundamental rights of bigots--racists, sexists, and homophobes--to think and express discriminatory thoughts and to act on them in private and social life. "Social standards are not legal standards," Hannah Arendt pointed out, "and if legislature follows social prejudice, society has become tyrannical."

This was an argument against mandating equality in private life (when social mores demand it) and prohibiting it in public (when social mores condemn it). "The moment social discrimination is legally abolished the freedom of society is violated...The moment social discrimination is legally enforced it becomes persecution...." The day that opponents of equal marriage are required to attend gay weddings or socialize with gay couples or prohibited from expressing disdain for them will be the day they suffer the sort of persecution now visited upon gay people denied the right to marry.

(Photo: ProComKelly/Flickr)

Quick Question

2009-11-04T19:43:23Z

Can someone explain to me why it is a criminal offense to have sex with animals but entirely legal to kill and eat them? Surely laws against bestiality don't reflect concern about the rights of animals, (who would probably opt for sex over death.) I don't mean to denigrate meat eating (I'm a carnivore;) I do mean to point out the absurdities of imprisoning people for "buggery."

Erasing History at the ACLU

2009-10-20T20:50:05Z

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)

Murder, He Said

2009-10-16T20:20:15Z

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)

The Nobel Hope Prize

2009-10-09T13:19:16Z

It's a bit like awarding the Nobel Prize in Literature to someone who reviews novels, beautifully, but has never written one. Some might even consider that a charitable analogy, considering President Obama's moves to cover or ignore strong evidence of American war crimes or his decisions and indecisions about the war in Afghanistan. There are just and unavoidable wars, but whether or not Afghanistan is one of them does not seem like an argument for the Peace Prize.

State Sponsored Religion: Whose Cross to Bear?

2009-10-06T20:35:14Z

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

ACORN: A Cautionary Tale

2009-10-06T18:06:49Z

A brief item buried in the national section of today's New York Times reports that the embezzlement of ACORN funds some 10 ~~days~~ years ago by Dale Rathke, brother of ACORN founder Wade Rathke, may have involved 5 million dollars instead of the nearly one million dollar theft that ACORN leaders covered up. This fact was uncovered inl 2008, when a whistle-blower "forced disclosure," the Times reported, when it broke the embezzlement story last year. (A fuller account of the current investigation into what is now alleged to be a $5 million embezzlement was posted yesterday at NOLA.com.)

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.

Liberty, Self-Esteem and Self-Governance

2009-09-30T18:26:54Z

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

ACORN: A Cautionary Tale

2009-09-24T21:03:10Z

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.

Doing It In The Road

2009-09-22T21:53:08Z

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)

The Justice Act

2009-09-18T21:31:23Z

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)