August 29, 2008
I
came upon an article in Wednesday's Boston Globe about
possible reform measures for the Harvard University Police Department (HUPD)
following recent allegations of racist conduct. I felt a sense of indignation,
not only because I had seen this in the HUPD many times before, but because the
reform mentioned in the article was, in my opinion, a prescription for failure.
I was compelled to write those involved a memorandum detailing why they need to
get tougher with the HUPD if they really want to see things
change.
************************
Memorandum
To: Committee to
Review the Harvard University Police Department
Ralph Martin, Esq.
William Lee, Esq.
Professor Mark Moore
Professor Nancy Rosenblum
Matthew Sundquist, President of
Harvard Undergraduate Council
Professor David Wilkins
Cc: Drew Gilpin
Faust, President of Harvard University
Francis D. Riley, Chief of Police,
HUPD
Professor Charles Ogletree
Professor
J. Lorand Matory
Robert
Iuliano, Esq., Harvard General Counsel
Hon.
Margaret Marshall, Chief Justice, Supreme Judicial Court of Massachusetts
Tracy
Jan, Reporter, The Boston Globe
Renee Loth,
Editorial Page Editor, The Boston Globe
James R.
Houghton, Harvard Corporation/President and Fellows
Roger W.
Ferguson, Jr., Chairman of Harvard Board of Overseers
Mitchell L.
Adams, Member of Harvard Board of Overseers
Malcom A.
Glenn. President, The Harvard Crimson
Andrea Saenz, Editor-in-Chief, The Harvard Law Record
John S. Rosenberg, Editor, Harvard Magazine
John
Reinstein, Legal Director, ACLU of Massachusetts
Carol Rose,
Executive Director, ACLU of Massachusetts
Date: August 28, 2008
Re: Harvard
University Police Department and abuse of students and faculty
This memo
is addressed primarily to the members of the newly-appointed committee, chaired
by Attorney Ralph Martin, designated to look into problems that have arisen
(and been recognized) of late in connection with the Harvard University Police
Department's (HUPD) treatment of students and faculty members in a racially
offensive and problematic fashion. I am, however, copying certain other persons
in and out of Harvard who have expressed, or are likely to have, an interest in
this matter. Further, I am posting this memorandum on my weblog, The Free For
All (www.TheFreeForAll.net),
maintained on the website of The Boston
Phoenix (www.ThePhoenix.com), for
which I am long-time legal and civil liberties "Freedom Watch" columnist.
According
to Tracy Jan's front page story in
the August 27, 2008 Boston Globe, the six of you have been
selected by President Drew Gilpin Faust, in Jan's words, "to review the
diversity training, community outreach, and recruitment efforts of Harvard
police." (A follow-up piece appears in today's Globe) If, in fact, this is your Committee's designated approach to resolving
the problem of how the HUPD treats black members of the Harvard community, then
your work is destined to fail. The long-standing problems that beset the HUPD
are not going to be solved with more of the politically-correct, tendentious,
and ultimately unworthy thought-reform efforts connoted by the terms "diversity
training" and "community outreach." Rather, what is needed is some tough-minded
reform in HUPD governance. I have been a close observer of the HUPD for many
decades - ever since I entered the Harvard Law School Class of 1967. As a
criminal defense and civil liberties lawyer, I noticed an explosion in the
mid-1980s of student complaints about mistreatment by HUPD, with a majority
(but hardly all) of those complaints coming from black students and other
racial minorities. I also took some complaints from black faculty members.
In my 1998
book The Shadow University: The Betrayal
of Liberty on America's Campuses (The Free Press, 1998; paperback from
HarperPerennial, 1999), co-authored with Professor Alan Charles Kors, I tell the
story of Inati Ntshanga, a black South African undergraduate who, in 1993, was
subjected to mistreatment by the HUPD. I am enclosing with this memo a copy of
the relevant pages of my book (pp. 323-325), but I will proceed here to
summarize the incident, including how I tried both to obtain justice for
Ntshanga and effect some reform of, or at least supervision over, the HUPD.
To summarize the case: Ntshanga was
a proud student who had struggled against South African apartheid before coming
to the U.S. to
enroll in Harvard's Class of 1995. To support himself, he worked two campus jobs,
and one was at the HUPD headquarters, dispatching vehicles operated by a campus
shuttle service. One day in the fall of 1992, he claimed he was picked on,
without cause, by Sgt. Kathleen Stanford. An argument ensued, and though no
formal charges were brought, an air of acrimony remained. The following month,
Ntshanga was once again the subject of police inquiry. Four HUPD officers
approached him while he was performing his second job, collecting dirty laundry
from dorms during the Christmas period. The officers demanded that he produce
his student ID. Ntshanga did not have his card, he explained, at which point
one officer asked for "a welfare card." As tensions rose, Sgt. Stanford arrived
on the scene. Ntshanga was sure she would identify him as a student, even if
she didn't particularly like him. But, to his surprise and dismay, she denied
knowing him to be a student. The officers proceeded to arrest Ntshanga for
trespassing, breaking and entering, and possession of burglary tools (the keys
he used to enter the building - part of his job).
A county prosecutor, shocked that
the HUPD had gone to such lengths, dismissed the charges. As Ntshanga's lawyer,
I wrote a complaint to Margaret Marhsall, the then-Vice President and General
Counsel of the University, now the Chief Justice of the Supreme Judicial Court
of Massachusetts. She assigned the investigation to University Attorney Allan
Ryan. Ten months later, he issued a report clearing all officers, saying that
none of them - including Sgt. Stanford - knew Ntshanga was a student. He also
deemed the "welfare card" statement to be "standard procedure when a person
says he has no identification." There were obvious holes in the investigation,
such as Ryan's failure to interview witnesses to the first argument who could
attest to Stanford's knowledge of Ntshanga's status as a student. But, appeals
to both the Harvard president and the secretary to the faculty of arts and
sciences produced no response. Ntshanga returned to his native South
Africa with a bitter taste.
The
Ntshanga case bears a remarkable resemblance to one of the stories recounted in
the aforementioned Globe article.
Working at his summer job on campus, a Boston
high school student was confronted by HUPD officers as he tried to free his
bicycle from a broken lock. It is likewise similar to the experience told by
Professor S. Allen Counter in 2004, when he was mistaken for a black robbery
suspect while walking across Harvard Yard to his office. It is similar as well
to the 2007 incident when an HUPD officer inquired whether those attending a
black student group-sponsored Field Day were Harvard students or had permission
to be on the Radcliffe Quad, despite their having had a permit to do so.
My point,
of course, is that history has repeated itself many, many times. The first
time, as it is said, might be tragedy, but by the second time it begins to
resemble farce. For every case reported, there were obviously many that went
un-reported. Too many have had to simply swallow the insult and proceed with
life.
Indeed, I
have received so many complaints over the years from affected and offended
Harvard students, that I took the extraordinary step of placing a paid
advertisement in the Harvard Crimson
of October 29, 1993.
I specifically appealed to "Harvard students who have tangled with the Harvard
University Police Department." (A photocopy of the actual advertisement is
appended hereto). In the advertisement, I noted that my law firm had "in recent
years been involved representing students in unfortunate incidents with the
Harvard University Police Department" where the students had been abused. I
asked for other victims to communicate with my firm, and I then collected their
incidents. The results confirmed my suspicion - that abuse was more
widespread than one would have thought. I think that repeating such an outreach
effort today would yield helpful information.
In my view,
I've never been able to get adequate remedial action by the university in any
of my cases because the HUPD, simply put, is more police than Harvard. The
HUPD is unionized, and the university is very hesitant to deal forcefully with
the members of the Department. Many of the same reasons that municipal and
state police departments, in Massachusetts
and elsewhere, are hard to reform with regard to mistreatment of civilians
certainly apply to the HUPD. (Indeed, at the very time the Ntshanga case was
pending, then-General Counsel Marshall, who had jurisdiction over the HUPD, was
negotiating a new contract with HUPD. It proved not to be a propitious time to
get strong action from the university against misfeasance by HUPD officers.)
What the
HUPD needs is, assuredly, not some form of diversity or sensitivity
training. Such programs, for one thing, intrude upon the right of private
conscience - they are more appropriately
the tool of totalitarian governments and are unworthy of a liberal arts university.
Besides, such programs clearly do not work; all they do is make administrators
feel morally superior and give universities public relations opportunities to
claim that they are working to bring about equal rights. They are a public
relations fig leaf - a façade. The goal of the university administration should
be to guarantee citizens of the university the right to fair and equal
treatment, not to make anyone "feel good" and not to seek to force anyone to
believe, or to disbelieve, any particular proposition. The HUPD need not have
their minds and attitudes reformed (that's impossible, of course); they need
simply to understand that failure to abide by the rules will result in
dismissal from the department.
Nor will
"community outreach" or enhanced or reformed "recruitment efforts" make a
difference. There is a certain ill culture at HUPD that is more likely to
transform new recruits than the recruits are likely to reform the organization.
What we have learned in the study of municipal police forces is that black and
Hispanic police officers, once recruited, often have the same tendency to abuse
citizens, including black and Hispanic citizens, as do the white members of
those forces. An organization's culture is very powerful and does not readily
change just because different skin colors and tones are added to the mix. Nor
have I seen any convincing evidence that "diversity training" makes much of a
difference. Dismissal of offenders works - not only to rid the department of
offenders, but also, in the long run, to change the culture.
My
suggestion is that you drop the whole idea of doing an in-depth study of HUPD.
In particular, I urge you to refrain, at all costs, from recommending that the university implement "diversity training" or
any similar "feel-good" program. Instead,
your committee should remain a standing committee of university governance, and
it should examine, with the aid of a small staff, each complaint of mistreatment
of anyone in the Harvard community by
a HUPD officer. When an officer, after receiving due process, is found guilty,
he or she should be fired. I can assure you that in a very short time, the
abusive culture of HUPD will change.
*
* * * *
Enclosures/attachments: (2)
August 27, 2008
"I'm a PUMA," the button festooned woman at the local Box Lunch
declared. "Do you know what that is?"
"I know what that is," I
responded. "I think you're all nuts."
She didn't take offense (I give
her credit for a thick skin, although it may make her impervious to political
realities as well as insults,) and we engaged in a brief discussion. She
acknowledged that McCain was no feminist and said she would not vote for him;
but she "hated" and feared Obama and warned that his "horrible" past, including
unspecified prior "crimes," would be revealed as the campaign progressed. She
may not be voting for McCain, but she appears to be listening to attacks on
Obama made on his behalf. And she declared that McCain would have limited power
as president, because "we're going to have 60 Democratic Senators in
November."
Oh. Her idiotic confidence in the prospects for a Democratic
Senate (along with her ignorance of executive power) was interesting: the
rationalizations of thoroughly irrational people are always a surprise and a
reminder that debating them is futile. With luck, they can be neutralized, but
not persuaded.
Maybe Hillary's convention speech succeeded in convincing
some of her more realistic acolytes to follow her in supporting Obama. It's too
soon to tell. But they can be forgiven for assuming that her speech was more
strategic than sincere, and, in any case, the enmity and contempt for Obama that
she aroused during the primary will not be easily defused. Her praise for
McCain's commander in chief credentials and disdain for Obama's will not be
forgotten, as long as there are Republican attack ads, and an army of Hillary's
harpies.
They are not feminists, if feminism entails reason and a
commitment to advancing equality and reproductive choice. They're female
chauvinists (who may or may not be inspired by racism along with crazed
notions of gender solidarity, considering their visceral hatred of Obama and
susceptibility to smear campaigns against him.) They're hysterics, who stand, or
scream, in opposition to feminism and its insistence that women are rational,
realistic, intelligent beings who can be trusted with power. Hillary shouldn't
trust them with her legacy.
August 26, 2008
Life, as a rule, is not all that simple. One should be wary
of
cries for "moral clarity" in a
world that sometimes makes excessive rigidity dangerous to human life and,
ultimately, to humanitarian values as well. The life and career of the late
Wolfgang Vogel, the subject of
New York
Times former diplomatic correspondent (now assistant managing editor) Craig
R. Whitney's superb
biography Spy Trader:
Germany's Devil's Advocate & the Darkest Secrets of the Cold War (Times
Books, 1993), is only lightly touched upon in Whitney's tantalizing
obituary that
appears in this past Saturday's
Times.
I first recognized
Vogel's
complexity, but also his underlying humanitarian values and devotion to
liberty, during my only face-to-face encounter with him in the winter of 1983.
I had just been retained by Vogel to represent East German
university professor Alfred Zehe, a physicist who had just been arrested by the
FBI when he landed at Boston's Logan Airport
to attend a conference of physicists at MIT. The story of Professor Zehe, and
how he came to be inveigled into a clumsy Cold War "sting" engineered by the
feds, is told by Whitney and will be further explicated in my forthcoming book,
Three Felonies a Day, on the
Department of Justice (second quarter 2009). My encounter with Vogel left an
indelible impression.
Vogel and I met over breakfast in the Parker House Hotel. I
was joined by my then-law partner Jeanne Baker, and Vogel by his wife Helga,
whom he said he needed to translate (even though I suspected that the canny
fellow was actually quite adept in English). I spotted a federal prosecutor having
breakfast at a nearby table, and two men in trench coats, who I suspected were
FBI agents, at the table next to that one. I warned Dr. Vogel that we should
not speak about confidential matters, since there was a prosecutor and two
suspected FBI agents sitting nearby. "How do you know they are FBI agents?"
Vogel asked. "Do you know them?" I admitted that while I knew the prosecutor, I
did not know the agents, but they were actually wearing their trench coats indoors,
and this was a sure tip-off that they were agents and were wired for sound.
"Ah ha," Vogel continued, a slight smile racing across his
otherwise stolid face. "And are you sure that the trench coats are FBI, not KGB?" I was startled by the question, which Vogel then went on to
answer himself: "You know, the FBI and the KGB buy their trench coats from the
same supplier." Thus did Vogel make the
point that the security services of all nations pose a potential threat to
liberty if not subject to adequate controls. It was at that moment that I began
to recognize that this was a devotee of liberty, but wily enough, and
sufficiently a survivor, to speak in the kind of code language not likely to be
understood by either FBI or KGB agents.
After the fall of the Berlin wall and the reunification of Germany,
German prosecutors, employing a revisionist view of history, indicted Vogel for
fraud, embezzlement, and related crimes growing out of his activities as a
lawyer adept at dealing with both sides during the Cold War and negotiating the
release of accused spies as well as Eastern bloc citizens seeking to come to
the West. One of the major charges was related to Professor Zehe's legal fees,
which Vogel had transmitted to me from the East German government. These, and
other monies, the prosecutors alleged, were funds embezzled by Zehe from the
state treasury. These charges were dropped after I executed an affidavit
swearing that Vogel in fact paid the
monies to me. Other lawyers paid by Vogel did the same. Still other charges
were reversed on appeal, leaving only a minor charge resulting in Vogel's
disbarment, but not imprisonment.
Wolfgang Vogel had been responsible for an estimated quarter
million human beings' escaping the clutches of totalitarianism, but he was
treated, after the fall of Communism, like a criminal rather than a hero. May
he rest in piece, and may his good reputation outlive his tormenters and
detractors.
August 14, 2008
August 14, 2008
August 08, 2008
Dear readers: Trust me. I’m a long-time criminal defense and
civil liberties lawyer, and I’m telling you that the “war on drugs” has been
an abysmal and wholly destructive failure. Not only has it been responsible for
the erosion of myriad provisions of
the Bill of Rights, but this “war” has
made it significantly more difficult for those interested in promoting healthy
practices, especially among the young, to speak with credibility and
persuasiveness on the dangers of abusing both lawful and illegal drugs.
Yet, just
as the smoking rate continues to drop – due in large part, state health authorities and
The Boston Globe concede, to
enormously effective anti-smoking advertising campaigns – there is agitation anew for banning cigarettes entirely, or at
least making it so difficult to smoke that it becomes an effective ban. The
latest stealth effort to effectively criminalize tobacco smoking without formally doing so is the United States Food and
Drug Administration’s push for regulatory authority over the industry. It has
already gained approval (by an over whelming 326-102 margin) in the House, and if the Senate does the same by a veto-proof majority,
noted the Globe editorial,
“regulators will have new tools to control the marketing and content of a
deadly and addictive product.” We can then be sure that the government will
make it increasingly difficult to buy, sell, and use cigarettes – right up to
the edge of total prohibition.
The result almost certainly will be
an increase in smoking, especially
among the rebellious young. At worst, an enlarged “war on drugs” will add
tobacco to the ever-growing list of substances on which the feds have increasingly
been cracking down for decades. And caught in this war’s crossfire have been
the cherished American values of freedom of speech, freedom from unreasonable
search and seizures, freedom from Draconian property seizures via asset
forfeitures, and other essential liberties. Adding tobacco will only worsen
these “unintended” casualties.
Anyone questioning the effectiveness of freedom in combating drug abuse, in
contrast to the disastrous consequences of interdiction by law, needs only to
read a long-forgotten dissenting court opinion by one of the liberal giants in
legal history, Circuit Judge J. Skelley Wright, who sat on the U.S. Court of
Appeals in Washington
from 1962 until 1988. Judge Wright, in the historic tradition of American
liberalism, believed in free speech, free choice, and promotion of public
health – three goals that he found wholly compatible.
The
controversy arose when a group of broadcasters banded together to challenge a 1970
Congressional statute that banned advertising of cigarettes on radio and
television stations. As a result of the ban, cigarette companies pulled their
substantial on-air commercials and instead turned to advertising in various
print media. The broadcasters were furious over this loss of revenue to a
competing medium. It was, oddly enough, the cigarette industry itself that was
lobbying for enactment of the broadcast ban. Why, one asks, would the cigarette
companies actually want a prohibition
against their right to advertise on the air?
The answer
is entirely understandable with the full background in mind. Judge Wright, in
his dissenting opinion, decried the decision of his brethren on the court to
allow Congress to enact such a ban, seemingly in the interests of public
health. Wright pointed out that prior to the advertising ban, cigarette advertising
was subject to the Federal Communications Commission’s so-called “Fairness
Doctrine,” a statute that required equal broadcast time to be given to both
sides of a “matter of public controversy.” The anti-smoking forces of that day
argued that since cigarette advertisers flooded the airwaves with smoking ads,
the opponents of smoking were entitled to “equal time” to inform the public of tobacco’s
deleterious health consequences.
When the federal courts upheld this
position in a 1969 court opinion, the
anti-smoking forces launched one of the most effective public health
advertising initiatives in history. As Judge Wright pointed out, cigarette
companies advertised to gain brand loyalty at the expense of competitors, but
the more they advertised, the more “equal time” was given to the anti-smoking
forces. As a result, Judge Wright noted, “these advertisements triggered the
anti-smoking messages which were having a devastating effect on cigarette
consumption.” While the companies increased their advertising in order to
protect their brands, “for every dollar they spent to advance their product,
they forced the airing of more anti-smoking advertisements and hence lost more
customers.” The era of the “equal time” for anti-smoking electronic
advertisements produced a dramatic reduction in addictive conduct.
It came as
no surprise to realists and cynics alike, then, that the industry sought
congressional legislation banning tobacco advertising on the air altogether. No
single company could afford to cease advertising for fear of losing their
deadly race for brand loyalty. Together, though, the industry could hardly wait
for legislation to ban tobacco advertising, thereby eliminating the
anti-smoking forces’ legal right to air their “equal time” ads. Nor could the
tobacco companies simply have a meeting and agree to stop advertising in order
to get the anti-smoking campaign off the air, since such an agreement would
likely have broken anti-trust laws, both a civil and criminal violation. So the
tobacco companies actually had to lobby Congress to ban their own commercials – and, inferentially,
the anti-smoking campaign as well – from the air. Congress, as usual, did what
the lobbyists, and the campaign contributions, dictated.
As Judge
Wright pointed out, “At the time…the suggestion of voluntary withdrawal [of cigarette advertising
by the companies] was taken by some as a long delayed demonstration of industry
altruism.” But in fact it was the industry’s way of stripping the immense power
of the anti-smoking ad campaign. “The result of the legislation,” wrote the
judge “was that as both the cigarette advertisements and most anti-smoking
messages left the air,” advertisers switched to non-electronic media and there
was “an immediate resumption of the upward trend in consumption.”
“The theory
of free speech is grounded on the belief that people will make the right choice
if presented with all points of view on a controversial issue,” wrote Judge
Wright. This theory was well illustrated when the anti-smoking forces were
given equal time to meet the tobacco companies’ advertisements.
As the
increasingly destructive “war on drugs” has demonstrated, prohibition against
the taking of mind-altering substances has been an utter failure, just as
prohibition was an equal failure in the war on alcohol. In recent years,
largely as a result of public and private charitable funds going into
anti-smoking campaigns, the smoking rate is at its lowest point in memory. No
responsible governmental official should even think of anything that approaches
prohibition. And yet, of course, they surely will, as the law edges closer and
closer to a complete ban
And the axiom well known to every
mother surely applies to Big Brother - you cannot order kids to stop doing
anything. All you can do is to persuade. And without freedom, persuasion is
impossible.
Kyle Smeallie assisted in the preparation of this piece.
August 04, 2008
My Freedom Watch column on the death of parody on American
college campuses, which appears in the Boston
Phoenix ’s August 1st issue, provoked more of a response than
any of my columns in recent memory. My email in-box was jammed with messages,
largely from those who agreed with me, but a few from less-than-convinced (or
at least less-than-happy) readers. I encouraged some of the more perspicacious
writers to direct their comments to the letters-to-the-editor page. Overall, I
got a sense of declining respect for campus culture – which, I have to admit,
has been precisely my own response to the takeover of campuses by the
post-modern sensibility that values propaganda over free speech and elevates
cultural and political goals over due process and fact-finding in student
disciplinary proceedings. (My fuller arguments concerning these dangers are
laid out in Alan Charles Kors’ and my 1998 book, The Shadow University: The Betrayal of Liberty
on America’s
Campuses (paperback from HarperPerennial, 1999).
Among the
more interesting comments, however, were those concerning the central part of
my column: how censorship came to Harvard Law School (HLS) just as Barack Obama
was graduating from both the school and from his position as President of The Harvard Law Review. One
administrator at HLS commented on the piece generally without referring to the
central role the school played in my discussion of the death of parody in
academia at large. In other words, mum’s the word or, as they say in the real
world, “no comment.”
A faculty member said that things
at HLS were as bad as ever, although it had been my personal impression that the current dean, Elena Kagan, was a significant improvement over her
predecessor Robert Clark, who seemed willing to sacrifice just about any
principle in order to keep the restless natives quiet and calm on his watch.
Still another faculty member reminded
me that the overwhelming faculty vote for adoption of the infamous HLS Sexual
Harassment Guidelines, which swept within its prohibition a broad variety of
speech traditionally protected by academic freedom, perhaps understated the
degree of faculty opposition to the censorship inherent in the measure. As I noted
in the piece, the radioactive atmosphere led some fair-minded faculty to vote
for the Guidelines as the lesser of the available evils.
I did, in
my column, point out that the HLS faculty’s peripatetic fighter for liberty,
Alan Dershowitz, voted for the Guidelines with major reservations and only
after certain modifications were made to the Code. Dershowitz did, indeed,
defend the rights of the parodists, arguing vociferously that the parody was
protected speech under both the First Amendment and principles of academic
freedom. He managed to get a provision inserted into the Guidelines that purported
to exempt from prohibition any speech that would be protected under the First
Amendment. (However, this “First Amendment savings clause” provision found its
way into only one section of the Guidelines, and it was still the student’s
risk that he or she would potentially guess
wrong as to whether a particular parody would fall within the protected
category.) Dershowitz and perhaps a
few others voted for the Guidelines only because it was the best alternative in
a situation that was rife with faculty and administration anger at free speech.
A couple of faculty members, utterly disgusted with the goings-on, refused to
show up for the faculty vote at all. It is hard to say that these were “purists”
for heroically boycotting the whole
scene, or whether they simply threw in the towel and thereby enabled the
censors.
All in all,
it was a very unhappy time at HLS, and it may well be that there would be more
opposition to the Guidelines had the parody arisen today rather than in 1992.
But I wouldn’t bet on it. The small
number of faculty members who opposed the Guidelines, including Dershowitz who
voted for them, are much nearer to the end of their careers than to the
beginning, and they are being replaced by younger faculty members whose
fidelity to academic freedom in the face of a demand for politically-correct placating has not yet been sorely tested. The
sad fact, in my estimation, remains: There are still things Harvard Law students
could safely say in Harvard Square that they wouldn’t dare utter in Harvard
Yard.
August 01, 2008
Boston Mayor Thomas M. Menino treads a shameful, unwise,
constitutionally dubious, and ultimately ineffective path when he orders his
goons to keep the untidy street performers from the plaza surrounding City Hall
and Faneuil Hall Marketplace. Relegating the
clowns, artists and other performers
to a small sliver of territory, outside of the main arena of activity, not only
forecloses more than one performance at a time, but relegates the performers to
an inconsequential status. In fact, they are – or should be – the life of the
party. Only adding irony is the fact that the center of life and excitement in
the Faneuil Hall area should be interrupted by a mayor whose speeches and other
public statements are so dull as to make Sominex unnecessary.
The concept
of “free speech zones” has had a checkered history in the Boston area and elsewhere around the country. In the 1988-89 academic year, Jean Mayer, then-President of Tufts
University, ordered that student speech and demonstrations should be limited to
certain “free speech zones” located at certain inconspicuous places on the
campus to better maintain order. Students the next morning marked the entire
campus with chalk, denominating “free” and “unfree” zones. When the major daily
newspapers got wind of the plan, and news photographers showed a campus that
looked like Berlin
in 1946, Mayer backed off. After all, how would it look to the world if the
administration of a liberal arts campus turned out to be a censor of free
speech and academic freedom?
Unfortunately,
such “free speech zones” (they are in fact censorship zones, since 99% of the
typical campus is off-limits for free speech when small areas are designated as
“free speech zones”) are increasingly common in an era where universities
function more like businesses than institutions of higher education.
Administrations tend to back down, though, when they attract the attention of organizations such as The Foundation
for Individual Rights in Education, www.TheFire.org.
(Disclosure: I am Chairman of the Board of FIRE.) Recent cases at the University
of Nevada-Reno, Clemson
University, and Texas Tech
University prove that,
like bottom-line focused businesses, today’s colleges and universities abhor
negative press.
And state
and federal authorities turned Boston
into an “unfree” speech zone during the 2004 Democratic National Convention. When the restrictions were challenged by the
ACLU of Massachusetts and others, U. S. District Judge Douglas Woodlock wrote a
sad opinion saying that he simply did not have the time and expertise to second-guess
the law enforcement experts providing
security for attendees.
One would
think that the Faneuil Hall and City Hall area is more akin to the quad of a
college campus than to the arena outside of a political convention – the latter
being a place where security becomes of utmost (even if regrettable)
importance. The mayor wants his office in City Hall “protected” from the din
below. Restaurant owners want their patrons
to enjoy the kind of quiet they would get in a suburb or a farm rather than a world-class city. But what makes
a city great is the vibrancy of its daily life. And the street performers
outside Faneuil Hall offer more life than, for example, the guy that Boston Herald columnist Howie Carr appropriately,
even if somewhat cruelly, refers to as “Mumbles Menino.”
July 25, 2008
“Hide your children! The British are coming!!”
From the mouths of militiamen came the now-famous warning:
the British had invaded, and the time to fight for independence had arrived.
Today, nearly a quarter-millennium after the colonists’
struggle, some citizens see a new threat after the U.S. 3rd Circuit Court of
Appeals handed down two key free speech decisions this week. Their warning
would sound something like this:
“Hide your children! The Nipples are coming!!”
“[N]ine-sixteenths of one second”
worth of nipple, to be precise. That was the exact amount of time that halftime
viewers were exposed to Janet Jackson’s breast during the 2004 Super Bowl,
according to the court. A three-judge panel declared Monday that the FCC was
wrong to slap CBS with a $550,000 fine following the “wardrobe malfunction,”
saying that the regulatory body could not hold broadcasters responsible for
actions of the “independent contractors hired for the limited purposes of the
halftime show.” In other words, because CBS did not know that Jackson’s nipple would indeed slip, it could
not be held responsible.
The court went on to say that the FCC, in handing down such
a large fine, had failed to give broadcasters advance notice of changing its
policy of “practiced restraint” in regulating airwaves for the past 30 years.
While the decision was a victory for free speech advocates,
some social conservatives and federal regulators saw it as a blow to American
families. Kevin J. Martin,
FCC Chairman, said in a statement, “I am surprised by today’s decision and
disappointed for families and parents.” (Martin should not have been so
surprised, in fact. The notion that people should be punished only for
transgressions that they intend and
over which they have some reasonable degree of control has long been written into the Anglo-American legal system.
Only those with no respect for law would fail to understand this fundamental
precept.)
Just one day later, another decision favoring free speech
was delivered. The same Court of Appeals ruled that the 1998 Child Online
Protection Act (COPA{http://en.wikipedia.org/wiki/Child_Online_Protection_Act})
was unconstitutional, as it blocked too much content to be consistent with the
First Amendment. The law, which has been under a permanent injunction since its
creation in 1998, would block Web sites from making objectionable content
available to minors.
Again, there was frustration from family advocacy groups. “The 3rd Circuit has once again come to the aid of
online pornographers,” Bruce Hausknecht, judicial analyst for Focus on the
Family Action
said. “In effect, the court said we
can’t protect our children from online filth if the law might make some adult
seeking his porn ‘fix’ uncomfortable.” [emphasis added]
What is most interesting about this statement is Hausknecht’s
use of the word “we.” Who exactly is “we” in this case? Is it the federal
government? Is it the advocacy group, Focus on the Family? Or does it refer to
actual families?
If he is referring to families, he is simply wrong. Leaving moral judgments in the
hands of federal regulators would give families less ability to control what
their children watch. And that is precisely what the court recognized. Rather
than have Big Brother regulate online material, allowing less restrictive
methods such as filtering technologies and other parental tools would both
retain basic First Amendment freedoms and allow individual families to choose
what material is appropriate in their view.
Trading the freedoms for which our forbearers fought in exchange
for retaining a standard of “decency” (as defined by the federal government) is
simply ludicrous. And, if there must be a government body like the FCC to
monitor our airwaves, they must apply their “indecency” statutes with consistency.
If they are not told of changing standards at the FCC, how do avant-garde
programmers make new content? In short, they don’t.
The court, in these two important decisions, has shown that it
favors a less restrictive approach to regulation. Far from neglecting the
well-being of our youth, the decisions recognize the inability of Washington to
effectively monitor and enforce decency – a task better suited to the family.
But there is also a larger issue at stake – one of
government thought-control and the free flow of ideas. The late Supreme Court
Justice Hugo Black noted the importance
attached to these issues by those who gave us the American Revolution. “The
Framers [of the Constitution] knew that free speech is the friend of change and
revolution,” he said. “But they also knew that it is always the deadliest enemy
of tyranny.”
Kyle Smeallie assisted in the preparation of this piece.
July 15, 2008
By Harvey Silverglate,
My wife and I wish to commend the
staff of The New Yorker. They have
finally realized that the level of political rhetoric in this country has
fallen so low that the only appropriate response is satire. There is no way
that I could have possibly responded to my critics and detractors as
effectively as has the artist who drew that cover. It demonstrates once again
that a picture is worth more than a thousand words.
I’ve been unable to convince the
nation that I am not a Muslim, for one thing. Now, mind you, I would not feel ashamed
if I were a Muslim. It would be a sad day in America if citizens have to be
ashamed of their religious beliefs and affiliations. But my hidden critics and
enemies are seeking to ‘tar’ me with the brush of being a Muslim. And somehow
that rumor takes on a life of its own. I hesitate to even deny it, because one
should be proud to be a Muslim in America, much as Catholics are
proud, Protestants are proud, Jews are proud, Buddhists are proud,
Scientologists are proud – but you get the point. However, facts and truth seem
not to matter in the realm of the Political Attack Machine, or perhaps I should
call it the Hate Machine.
And this Hate Machine spares not
even my better half. Vile whispers have cast Michelle as a modern-day 1960s
black radical, carrying with her the racial hatred that any sensible person
would have long ago rejected. Will my
children be the next objects of these attack dogs? We can only hold our breath
and wait and see.
So when unreality begins to take
over reality, and truth and facts cease to matter, our only effective remaining
weapons are satire and parody. My wife would never carry an AK-47 assault
rifle, just as she would never carry the racial hostility so readily placed
upon her shoulders. I would never burn an American flag (although I believe
that such burning is and should continue to be constitutionally protected by
our First Amendment), but a lack of lapel pins signals, to some, a “lack of
patriotism.” Sadly, such is the reality of our political culture in 2008. Far
from advancing racist ideology, The New Yorker has well served the
national dialogue by, at long last, exposing the ludicrous – and evil –
underbelly of the Hate Machine.
If you want to understand the
importance of parody and satire in the life of a free nation, you cannot do
better than to sit down and read the Supreme Court’s unanimous 1987 opinion in
the historic case of Hustler v. Falwell,
found at 485 U.S. 46.
It was written, interestingly, by the late Chief Justice William Rehnquist, not
always a friend to freedom. But in the realm of protection of satire and parody
as an essential method by which social and political evils may be effectively exposed
and criticized, the justices were unanimous in joining the Rehnquist opinion. In
that case, the justices ruled that the First Amendment protected Hustler Magazine’s vicious parody directed
at the now-deceased Reverend Jerry Falwell. Hustler
publisher Larry Flynt suggested that the good reverend experienced his first
sexual encounter in a drunken orgy with his mother in an outhouse. Not only was
this vicious satire deemed constitutionally protected, but the court went on to
review the importance of satire and parody in the American political discourse
from the very earliest days of the founding of the Republic. Many of the
satires and parodies that helped advance American political life were as or
more biting even than The New Yorker’s
well-crafted assault on my and my wife’s cowardly whispering critics who spread
anonymous rumors rather than announce their lies openly.
Long live satire! Long live parody!
Long live truth! May God bless you all, and our beloved United States of
America which, I have the duty to advise you, is in some trouble if The New Yorker suffers for telling the
truth with such moral clarity and, even more importantly, good humor.
And, oh yes, one more thing: Please
remember to vote!
July 10, 2008
By Wendy Kaminer,
Barack Obama is poised to become “our first president who is a civil libertarian,” Jeffrey Rosen wrote hopefully and not without reason, less than 6 months ago. But it didn’t take long for the audacity of politics to expose the naivete of hope. Today, given Obama’s support for the grossly and gratuitously anti-libertarian FISA amendments (painstakingly explored by the tireless Glenn Greenwald,) civil libertarians are likely to vote for him with a lot more resignation than enthusiasm. Today, Obama is merely poised to become a president who would be more sensitive to civil liberty than John McCain and would leave us with a centrist Supreme Court rather than a right wing extremist one. That’s change we can manage to tolerate.
Too bad that a candidate who ran against political cynicism is now encouraging it, but we should have known better than to hope that a presidential candidate would look favorably upon limiting presidential power. It’s no coincidence that a nation founded on a dream of individual liberty (for some) over 225 years ago still awaits a civil libertarian president. Jefferson had his moments, as Harvey Silverglate suggested here, but no slaveholder can be called a civil libertarian. James Madison had his moments too, but both Jefferson and Madison made their primary contributions to liberty in imagining the nation, not presiding over it. If Obama wins the presidency (and I continue to hope that he does) he will (like virtually all presidents) guard the prerogatives of power that civil libertarians seek to restrict.
Congress and the courts will often fail us too (as passage of the FISA amendments showed,) but for all their faults, Congress and the courts probably offer the best checks against the apparently irresistible temptations of the imperial presidency. Even a right of center Supreme Court has required the Administration to provide at least minimal due process to Guantanamo detainees. Even the reliably craven Congress includes some good civil libertarians (see who voted against the FISA amendments,) and Democrats in Congress derive whatever strength they can muster from numbers. The ’08 Senate races are perhaps as important as the race for the White House, which civil libertarians should always regard as alien territory. Approach the president as a friend or allow him to embrace you as one, and instead of opposing his power you’ll probably be seduced by proximity to it. Civil libertarianism is a game for outsiders.
July 08, 2008
By Harvey Silverglate
Three cheers for Margery Eagan for her July 8th Boston Herald column’s deft skewering of those who have reacted with horror and, even worse, threats of future censorship toward this year’s Beverly Farms Horribles Parade, posted on YouTube. Eagan alone appears to understand the appropriateness of the biting – even crude and vicious – satire directed at the whole brouhaha over whether a group of teenage mothers-to-be in Gloucester got together to plan their deliveries at about the same time.
Most of the controversy has revolved around the question of whether the girls planned this gala as a group pregnancy, or whether so many pregnancies in one high school were simply a coincidence. (Dan Kennedy has written about this bizarre controversy competently, as usual, on his blog). But Eagan has addressed another aspect that gets to the heart of the matter: What’s wrong with satirizing the bad judgment of these girls, whether they have gotten pregnant as a group project or individually, in bringing babies into the world in a manner statistically likely to wreck the lives of both babies and mothers?
True, the satire, as reported by Eagan, was as crude as it was vicious; the parade included “floats featuring women’s legs splayed as if at the gynecologist and signs like: ‘We got Humped, Now We’ve Got Bumps.’” The good townspeople are criticizing the satirists, but, as Eagan argues persuasively, the real problem is the bevy of pregnant teens who have earned the criticism, not for having sex, but for producing a small army of babies under very unpromising life-circumstances.
If parents in town don’t want their 5-year-olds to view such a risqué Horribles parade, suggests Eagan, they should keep the kids at home. After all, the nature of the parade floats is by now well-known and utterly predictable. “The Horribles parade is a long-standing, thoroughly offensive tradition in town, fully advertised as such,” reported the columnist.
There is a point to be made in delivering harsh and heartless criticism of reckless conduct such as that exhibited by the teenaged mothers. The heartaches that accompany single-parent motherhood at such a young age invariably impact the young mothers far more than the teenaged fathers, Eagan notes. “In real life it’s girls who get left. It’s girls whose minds we must change.” Satire and parody are among the most potent social formats for delivering withering critiques in an effort to change views and behavior, even if that satire comes, unappetizingly, from over-privileged residents of a tony suburb.
One of the more disturbing developments of contemporary society is the widespread hostility to parody and satire, demonstrated by people and institutions that should know better. I’ve written and agitated at length, for example, over the hostility demonstrated by institutions of higher education toward student-authored parodies and satires about important social and political issues. That our society criticizes the satirists rather than the people being satirized tells us that we’re unprepared to face up to difficult social problems, and so we try to shoot the messenger.
June 24, 2008
By Wendy Kaminer,
“(M)ost Americans have a non-dogmatic approach to faith,” the Pew Forum happily announced this week. Pew’s widely reported, 2008 “Religious Landscape Survey” found that Americans combine religiosity (92% profess belief in God or a “universal spirit”) with tolerance: “Most Americans agree with the statement that many religions – not just their own – can lead to eternal life.” This portrait of America as an open-minded, religiously diverse nation comports with the national self-image, perhaps not surprisingly, considering that Pew’s findings are based on a survey of 35,000 Americans, many of whom may profess beliefs that they haven’t quite internalized.
In South Carolina, at least, religious sectarianism prevails. There, state government has decreed production of special Christian license plates, picturing a cross against a stained glass window and emblazoned with the words, “I Believe.” The state does not sponsor license plates signifying belief in any other religion, or no religion; in fact, as Americans United has stressed, state regulations of vanity plates insure that “other religions will not be able to get similar license plates expressing different viewpoints, nor can a comparable ‘I Don’t Believe’ license plate be issued.”
Americans United is challenging this clearly unconstitutional practice in federal court, and, so far, proponents of the “I Believe” plate have reacted to the lawsuit with predictable, crowd pleasing stupidity: “I think this has less to do with the First Amendment and more to do with their disdain for religion generally,” the Republican House speaker opined. Never mind that plaintiffs in the AU case are four clergymen and the American Hindu Foundation. The Lieutenant Governor, who has offered to loan the state $4000 to facilitate production of the “I Believe” plate, defended state sponsorship of the plate as a “freedom of speech issue.” Never mind that it’s the people who have freedom of speech against the state, which has no freedom of speech against the people. The state has power; the people have rights, designed to check abuses of power, like state sponsorship of sectarian religious practices and beliefs, as Lieutenant Governor Bauer might learn from an elementary civics class. “Most Americans have a non-dogmatic approach to faith?” South Carolina didn’t get Pew’s memo, I guess.
June 24, 2008
By Harvey Silverglate
This is
partially a free speech blog, so we’d be remiss in failing to note the passing
of George Carlin. He failed to convince the Supreme Court of the absurdity of
the Federal Communications Commission’s “broadcast indecency” rules that
scrubbed the airwaves during the day and evening (when, presumably, the kiddies
are awake) of those naughty words that we all hear and (if the truth be told)
many of us use quite regularly. The real outrage of the high court’s idiocy in that case was that Carlin
had clearly used the “seven dirty words” in the context of a parody of
broadcast censorship. The FCC has no self-recognition, apparently, and the
Supreme Court justices have no sense of humor.
But, of
course, Carlin had the last laugh.
In addition to bringing his biting wit and jokes into his audiences’ lives, he
also was a hero to those who take
the First Amendment seriously, as well as to those who try hard to understand
some of the less proud legacies of Puritan America. As H. L. Mencken has noted,
a Puritan is someone who has the nagging feeling that somewhere, somehow,
someone is enjoying himself. Well, Carlin has proven Mencken correct, and
that’s no small service for him to have performed before dying, all too soon,
of heart failure.
Even in his
death, the ironies of his anti-censorship message continue to resonate. Today’s
Boston Globe’s Opinion Page, in the VoxOp feature, excerpts blogger Jill at Brilliant at Breakfast, lamenting Carlin’s passing: “I suppose one can’t have as finely honed a [garbage] detector as
he had, and use it so expertly for so many years, and have much of it left
after the last eight years of the Bush administration. But no one cut through …
modern life the way Carlin did…” Phoenix
readers may recall my gripes with the Boston
Globe’s censorship policy (which I wrote about here and here), so I was curious as to whether “[garbage]” was in Jill’s original text,
or whether it was the word Carlin would have used – bullshit. Turns out that
the Globe censored not one, but two
bits from the post: garbage replacing “shit,” and the “cut through … modern
life” replacing “cut through the bullshit of modern life.” Carlin was a lone
pop culture voice for free speech, but sadly he died before his work was
finished.
George
Carlin – Rest in Peace. What are we going to do without you??
June 12, 2008
This morning’s Boston
Globe reports on the criminal prosecution and college disciplinary
proceeding simultaneously pending against two Wentworth Institute of Technology
male students who had the bad sense (and bad grace) to videotape two female
Massachusetts College of Art and Design students having an intimate moment in
bed in a dormitory within all-too-easy sight range. The video ended up on
Wentworth’s file sharing system and was widely disseminated around the city, although
it is believed that a friend of the videographers was responsible for that.
Massachusetts law does not criminalize the
surreptitious video recording of unsuspecting people; currently, only
secret audio recording is a crime.
However, Massachusetts
does have a more general “peeping Tom” statute that has formed the basis for
the pending prosecution. And Wentworth, being a private college, can penalize
such conduct under any number of rubrics. So, it’s pretty clear that these two
morons will not get away with their indiscretion.
This said,
one has to admit that defendant David Siemiesz, one of the Wentworth juniors
being prosecuted, had a bit of a point when he told the Globe’s Maria Cramer: “This all would have never happened if their
windows were closed” and if the shades were drawn and the lights turned out.
Sometimes a peeping Tom takes affirmative steps to evade another person’s
privacy measures, but in this case the viewing was easy.
One is
reminded of an attempt by the administration of the University of Pennsylvania
a few years ago to discipline a student who, from his dorm window, photographed
a student couple who were making love in a dorm room across a courtyard. The lovebirds
not only were taking no steps to protect their privacy, but were seemingly
reveling in the exhibitionism of the moment, as the female of the couple was
pushed up against the window while the male did his thing – all obviously meant
for the eyes of the passers-by in the busy courtyard below.Campus
disciplinary officials, facing an outcry in support of the student
photographer, dropped the investigation.
The
Wentworth case seems to be in the middle: The two women were not seemingly
trying to advertise their tryst, but they did not take adequate and simple
steps to try to protect their privacy either. The two “Toms” did not have to
take any extraordinary steps in order to peep. So it’s not quite as clear-cut a
criminal “peeping Tom” case as one might suppose, or wish. Still, the betting
here is that Wentworth will take severe action – if for no other reason than
that the two male students embarrassed the institution. But the prosecutors
likely will be a bit more moderate.