Recently in law Category
"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)
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)
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."
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
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)
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
In 2002, while federal law enforcement agents at the SEC were busy ignoring warnings about Bernie Madoff's massive Ponzi scheme, federal agents at the Justice Department were launching an aggressive investigation into steroid use by major league baseball players. With Barry Bonds identified as a public enemy and Madoff as an honest businessman, the government conducted a wholesale seizure of major league drug testing records, with unsurprising disregard for the 4th Amendment. ("The Fourth Amendment has been virtually repealed by court decisions, most of which involve drug searches," Yale law Professor Steven Duke told Wired Magazine back in 2000.) This time, however, the courts struck back. Last week in United States v Comprehensive Drug Testing Inc., the case spawned by the BALCO (Bay Area Lab Cooperative) investigation, the 9th Circuit Court of Appeals upheld lower court rulings that federal agents acted illegally when they seized test results for hundreds of athletes, in violation of a warrant authorizing the seizure of test results for only ten named baseball players. The court ordered the records returned and barred prosecutors from using them (noting that some players, had "already suffered harm" when their names were leaked from the illegally seized lists.) "This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause," Judge Alex Kozinski observed, in a relatively mild rebuke of federal agents in this case. "All three judges below expressed grave dissatisfaction with the government's handling of the investigation," Kozinski noted, "some going so far as to accuse the government of manipulation and misrepresentation."
Federal judges do not issue accusations like this casually, or often, although they may be merited as often as not. Prosecutorial misconduct is a familiar source of injustice and one that's been exacerbated in recent decades by dramatic expansions of federal criminal jurisdiction, increases in prosecutorial discretion under mandatory minimum sentencing laws (at both the state and federal level), and by the war on drugs, which eviscerated fundamental civil liberties and skewed law enforcement priorities. Combine these policies with unprecedented opportunities for surveillance available to unscrupulous prosecutors in the digital age, and the urgent need for judicial oversight is impossible to overstate.
The 9th circuit tries to provide it in the BALCO case. Its procedural history is complicated (the majority opinion offers a summary of it;) but the case turned on important, general questions involving the practical and legal challenges of segregating data that the government is expressly authorized to seize from data that it has no right even to see.
The Court explained: "the government here did seek advance authorization for sorting and segregating the seized materials off-site. But, as Judge Cooper found, '[o]nce the items were seized, the requirement of the Warrant that any seized items not covered by the warrant be first screened and segregated by computer personnel was completely ignored.' Brushing aside an offer by on-site CDT personnel to provide all information pertaining to the ten identified baseball players, the government copied from CDT's computer what the parties have called the "Tracey Directory" which contained, in Judge Cooper's words, "'information and test results involving hundreds of other baseball players and athletes engaged in other professional sports.' "
Having refused to allow the segregation of data not covered by the warrant, the prosecution then claimed the power to seize all the data under the "plain view" doctrine (which allows agents to seize evidence of a crime that they stumble upon in good faith, in plain view.) You might call the plain view claim chutzpah, given the government's apparent, bad faith effort to "stumble" upon the test records. The Court called the claim "too clever by half," adding that in the future, the government should "agree to forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn't consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether."
In other words, as their conduct in this case made clear, law enforcement agents cannot be trusted to respect constitutional limits on their power. They must be supervised closely and held accountable by the judiciary. This, of course, is not a new concept; it's a foundational one, which, if decreasingly invoked by courts is increasingly essential to liberty, as government agents persist in trying to turn technological opportunities for surveillance into the legal authority to engage in it.
(Photo: Flickr User billaday)
Who cares if American intelligence agents or private contractors tortured terrorism suspects? That is not a rhetorical question. A widely discussed, 2009 Pew Forum poll suggests that the public is evenly divided over the use of torture, with 49% agreeing that it is "often or sometimes justified" and 47% objecting that it is "rarely or never justified." These results may have been skewed by assumptions about torture's effectiveness in extracting information implicit in Pew's multiple choice question: "Torture to gain important information from suspected terrorists is justified... often, sometimes, rarely, never." What if Pew has posed some variation of this question: "Torture is likely to produce important information from suspected terrorists that might not be produced by other means (often, sometimes, rarely, never)?" What if Pew had asked "Is torture more or less likely to gain important information than other means?"
Still, public support for torture seems likely to reflect partisan allegiances, however questions about it are posed. As Pew noted, "party and ideology are much better predictors of views on torture than are religion and most other demographic factors," sensibly adding that, naturally, religion plays a role in shaping political ideology. (Some atheists reveled in the finding of disproportionate, white evangelical support for torture, regarding it as evidence of religion's tolerance for cruelty; but I imagine that one religious response to the atheists might be -"You simply don't understand the nature of evil and are unwilling to combat it.")
In any case, I suspect that the public view of torture is essentially pragmatic, turning on whether it is regarded as a necessary or reliable means of obtaining information to save American lives. But, I'd also be willing to bet that people will evaluate competing claims about torture's effectiveness through partisan colored glasses, which means that, in the end, public opinion will be determined mainly by partisan loyalties (and maybe indirectly by religious ideologies). Relatively few people will take (or have) the time to examine objectively available evidence of torture's effectiveness; instead, they'll assume the truth of claims asserted by their political heroes or opinion leaders, right and left. Surely the success of demonstrably false claims about "death panels" allegedly embedded in health care reform proposals demonstrated the irrelevance of facts when confronted with lies (or emotional "truths") circulated by influential political partisans.
The battle lines over torture, and torture investigations, are obvious: Ari Fleischer tells the Huffington Post that Attorney General Holder's decision to investigate interrogation abuses is "disgusting ... It's amazing to me that the people who kept us safe may now become the people our government prosecutes." Fleischer smoothly assumes an affirmative answer to the essential question, "did people who engage in torture 'keep us safe?' " Cheney repeats that torture saved lives.
Meanwhile, at salon.com, the admirably indefatigable Glenn Greenwald urges all Americans to read the Inspector General's report describing torture in horrific detail (despite significant redactions). Greenwald, (like other civil libertarians) persuasively objects to Holdler's focus on low level interrogators who engaged in torture, not the lawyers and policy makers who authorized it; but while I share his desire to hold "high-level officials" accountable, I'm skeptical that many people will be moved to oppose torture by reading about it in detail (which relatively few people seem likely to do anyway). The torture debate will probably not be won by moral arguments and disgust over torture's methods (which some may find titillating) or even empirical truths, but by what a majority of people are led to believe is the answer to the question "did torture keep us safe?" Torture opponents had better start declaring that the answer is "No."
(Photo: Flickr User Gribiche)
