May 30, 2008
The Chicago Tribune is reporting that the owners of the Chicago Cubs are considering enacting a de facto "civility code" at Wrigley field, in response to some Cubs fans who have taken to booing the underperforming left fielder Alfonso Soriano. As Sports Law Blog notes, Wrigley and the Cubbies are privately-owned, so fans don't have First Amendment rights to express their disappointment at their team's defensive performance. At the same time, though, do the owners really think that by ejecting fans who boo the home team, or who make "profane or inappropriate comments" -- as objective a criterion as I've ever heard -- they will eliminate problems of fan disgruntlement? Thought reform through censorship doesn't work in educational contexts -- in fact, it even backfires -- so there's every reason to believe that if Cubs fans are muzzled, their booing will get even louder, and may even get directed toward the Cubbies' owners.
Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site
might see this post misattributed below to Wendy Kaminer because of
software limitations with the old system. The post was penned by James
Tierney, a research assistant for Harvey Silverglate.
May 29, 2008
Following up on Harvey's post about the right to travel to Cuba, a few days ago Israeli security services detained American (ex-)academic Norman Finkelstein and refused to allow him entry to Israel for the next ten years. Salon.com's Glenn Greenwald quotes a Jerusalem Post article explaining that "the decision to deport Finkelstein was connected to
his anti-Zionist opinions and fierce public criticism of Israel around
the world." Even if you disagree with Finklestein's politics, there's something perverse in a country refusing admission to someone based on the content of their speech. It's one thing to keep a visiting scholar out because of real security interests, but it smacks of viewpoint censorship when scholars (like Tariq Ramadan, who writes about Islam and modernity and was denied a teaching visa by the U.S. state department back in 2004) aren't allowed to enter the marketplace of ideas. Finkelstein certainly doesn't toe the Likud party line, but it's also a stretch to call him a security threat, so it seems pretty clear why he was excluded. Ha'aretz had the right response: "It is not for the government to decide which views should be heard here and which ones should not."
Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site
might see this post misattributed below to Wendy Kaminer because of
software limitations with the old system. The post was penned by James
Tierney, a research assistant for Harvey Silverglate.
May 29, 2008
By Harvey Silverglate
The American Civil Liberties Union
of Massachusetts, along with its counterparts in Florida
and Vermont and the Center for Constitutional
Rights, has filed an amicus (“friend of the court”) brief in Vilaseca v.
Paulson, a lawsuit pending in the federal district court in Vermont. The lawsuit challenges the travel
restrictions the U.S. Treasury Department places on American citizens with family
members in Cuba.
The ACLU argues that the U.S.
government's prohibition on American citizens visiting direct family members
living in Cuba
more than once every three years, even in emergency family situations, violates
“the due process right to preserve family relationships… deeply rooted in the
First and Fifth Amendments of the U.S. Constitution.” (The Boston Globe provides good background on the Cuban-American
plaintiffs in this suit.
The ACLU state affiliates’ brief
makes a compelling argument that American courts have, over the years,
established the sanctity of family as a sort of penumbral right within the
constitution. This hinges the legal argument on a series of Supreme Court
opinions in what we can call, I suppose, the “family values” and “familial
relationships” arena. Indeed, one of the most important decisions in this arena
in American history was the pivotal Griswold
v. Connecticut, in which the high court held that it was unconstitutional
for the state of Connecticut
to criminalize the distribution of birth control devices to, and their use by,
married couples for family planning purposes. And it
was only a short hop-skip-and-jump from there to the high court’s protection of
a woman’s right to plan to have, or not to have, children – the “right to
choose” an abortion, protected by Roe v.
Wade.
But it seems to me that these
travel restrictions are not only a civil rights “familial relations” violation,
but even more fundamentally an assault on a fundamental right of free people –
the right to leave the country to visit any damned place they wish, and to then
be able to return unmolested by the goons from the Immigration and Treasury and
other federal bureaucracies that have been enlisted in the tawdry task of
policing the nation’s counter-productive and anti-libertarian restrictions on
travel to, or sending money to relatives and friends living in, nations with
which the United States is unhappy (often for very good reason) at the time. It
seems to me to be a no-brainer that part of what it means to be a free citizen
of the United States, includes the right to travel somewhere in order to see
for oneself what’s going on. There’s no reason to have to satisfy oneself with
the bilge that we get from our government – as if the State Department actually
knows much about the world these days anyway.
I doubt that the federal courts
anytime soon are going to include the right to travel anywhere in the world, to
spend whatever money it takes for such travel (including food and lodging), and
to then return to the United States unmolested by government agents – among the
fundamental rights to which American citizenship entitles us. Doubtless the
“strict constructionists” would holler that it’s no business of the courts
whether we are treated as free citizens or as tools of what passes these days
for government diplomacy. But if the courts cannot see that this fundamental
right of free people surely should be deemed protected by the Bill of Rights,
then what hope is there?
In any event, if the ACLU chapters
and their allies win this lawsuit on a narrower “familial rights” ground, I’ll
be the first to cheer. But it’s too bad that the right to travel is not more
fully protected by the courts, thus necessitating the family-relations legal
hook.
(With thanks to my research
assistant Jan Wolfe for assisting on
this blog entry.)
May 19, 2008
This morning, the Supreme Court ruled that a law that outlaws promoting or advertising -- "pandering" -- child pornography is constitutional and does not interfere with First Amendment freedoms. In the case, United States v. Williams, decided 7-2, the justices declared that there is no free speech right that protects "offers to provide or requests to obtain child pornography," even if (in fact) there is no pornography to be provided. Free speech expert and blogger Eugene Volokh explains that the case is actually more interesting than a simple child pornography case, as the court has, in his reading, recognized that the First Amendment does not protect solicitations (or offers) to commit a crime. He writes: "[t]rying to buy illegal drugs, for instance, by soliciting someone to
sell them to you is generally a criminal attempt even if the solicited
seller was only going to deliver fake drugs rather than real ones."
Wendy Kaminer wrote about this case on The Free For All back in November.
May 19, 2008
This morning, the Supreme Court ruled that a law that outlaws promoting or advertising -- "pandering" -- child pornography is constitutional and does not interfere with First Amendment freedoms. In the case, United States v. Williams, decided 7-2, the justices declared that there is no free speech right that protects "offers to provide or requests to obtain child pornography," even if (in fact) there is no pornography to be provided. Free speech expert and blogger Eugene Volokh explains that the case is actually more interesting than a simple child pornography case, as the court has, in his reading, recognized that the First Amendment does not protect solicitations (or offers) to commit a crime. He writes: "[t]rying to buy illegal drugs, for instance, by soliciting someone to
sell them to you is generally a criminal attempt even if the solicited
seller was only going to deliver fake drugs rather than real ones."
Wendy Kaminer wrote about this case on The Free For All back in November.
Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site
might see this post misattributed below to Wendy Kaminer because of
software limitations with the old system. The post was penned by James
Tierney, a research assistant for Harvey Silverglate.
May 19, 2008
By Wendy Kaminer
Reacting predictably to spate of noose hanging incidents in late 2007, New York
governor David Patterson has signed legislation criminalizing display of a noose with intent to harass or threaten because of bias against the usual categories, including race, religion, sex, sexual orientation, disability. The legislation amended existing law prohibiting cross burning or display of a swastika with similar intent. All three forms of hate speech are punishable by up to four years in prison. I have little to add to my earlier discussions about this issue, here and here, except to repeat that last fall the New York Civil Liberties Union promised to “study” the noose display amendment; anyone interested in the results of that study should call the NYCLU at 212.607.3300.
May 16, 2008
By Wendy Kaminer
If the indictment of 49 year old Lori Drew for allegedly participating in a cyber hoax that drove teenager Megan Meier to suicide is emotionally gratifying, legally, it’s quite troubling. A middle-aged woman who taunts a troubled young girl deserves to be punished, somehow, but indicting her under a federal statute that was never intended to apply to cyber-bullying and gives no notice of its potential use against cyber-bullying, threatens our liberty as well as hers. Drew was indicted under the Computer Fraud and Abuse Act, an anti-hacking statute enacted in 1986 and amended by the Patriot Act, which enhanced its penalties and broadened its scope; but it is still an anti-hacking, national security law. It is not a law against bad behavior on the Internet.
How do prosecutors justify Drew’s indictment? She has been charged with having “conspired... intentionally to access a computer used in interstate and foreign commerce without authorization and in excess of authorized access and, by means of interstate communication obtain information from that computer to further a tortuous act, namely intentional infliction of emotional distress.” In other words, she allegedly gained unauthorized access to a computer for purposes of inflicting emotional distress. What constituted her unauthorized access? She allegedly provided false information to MySpace in order to establish an account for a fictitious teenage boy, the account that she and others used to bait and belittle Megan Meier.
So, before applauding the effort to punish Lori Drew, as many have and many will, consider whether violating the MYSpace terms of service provisions should be a federal offense (Drew faces up to 20 years in prison.) Even if you think that she deserves a lengthy prison sentence for her alleged role in Meier’s suicide, stop and think about the fact that she could be facing the same charges had Meier not killed herself and only suffered mild “emotional distress.” The prosecution’s case rests on Drew’s conduct, not Meier’s reaction to it.
This indictment will be challenged, and millions of computer users should hope that it’s dismissed. Federal criminal law has expanded greatly in the past few decades. (According to one frequently cited 1999 ABA study, 40% of all federal criminal laws enacted after the Civil War dated back only to 1970.) Federal prosecutors already have enormous power to prosecute people for acts that were once considered the business of the states, or no body’s business at all. (Harvey Silverglate‘s forthcoming book describes the federal criminalization of everyday life.) It’s worth noting that local authorities in Missouri, where Drew and Meier lived, declined to bring charges in this case, citing the lack of any applicable law. Even federal prosecutors in Missouri declined to prosecute. Drew was indicted by the U.S attorney in Los Angeles, where MySpace is based, and where, not surprisingly, U.S. Attorney Thomas P. O’Brien held a press conference denouncing her actions.
May 15, 2008
By Harvey Silverglate
As engines of creativity and innovation, colleges are always pushing the envelope on scholarship. While this is usually good – since it broadens our culture’s collective knowledge – occasionally you see some really idiotic proposals and research agendas coming out of the American academy. And each time you think you’ve seen the last truly dumb idea – at least for a while – emerge from a college campus, along comes an even dumber one to challenge your grasp on reality.
The Chancellor of the University of Colorado at Boulder, G. P. “Bud” Peterson, has proposed a new endowed chair in “Conservative Thought and Policy” that would (not necessarily, but most likely) be held by a politically conservative professor. The announcement comes as Peterson is seeking to raise the funds necessary to create the professorship. Peterson is a rare Republican at the helm of an American public university – especially one of national prominence like Colorado’s. Indeed, the picture is the same at most private universities, though less so at private religious institutions and the service academies. With this kind of background, it’s understandable that he would notice the grip that the academic left has on higher education.
It’s important to note that the academic left is not coterminous with traditional liberalism. Quite the opposite is true. I’m referring to the whackjob sociological, political, literary and other such theories and authoritarian tendencies of critical theorists and others in dubious academic disciplines. Alan Charles Kors and I dealt with this phenomenon – I hope – in our 1998 book, The Shadow University.
Despite Peterson’s political leanings – and his presumptively good-faith desire to develop more ideological diversity in higher education – if the problem is higher education’s intolerance for views outside the left’s agenda du jour, the solution of hiring a token conservative professor would exacerbate rather than cure the problem.
For one thing, the problem on campuses isn’t a perceived schism between “liberals” and “conservatives.” The idea that campuses are “liberal” is a myth. As I said earlier, the academic left differs markedly from those who fit the mold of traditional liberalism, with its focus on, for example, free speech. Though the litany of censorship cases on American campuses is legion, it’s not that “liberals” and “conservatives” are suppressing student and faculty speech. Instead, that’s the job of campus totalitarians on the far right and the far left alike. (That today there are far more totalitarians of the far left than of the far right on college campuses is not a comment on the relative merits of one over the other. It is just that the crazy left happens to have the upper hand right now in academia.)
For another, the notion that only a conservative is qualified to hold a chair in “Conservative Thought and Policy” is a parody on affirmative action. Should universities require that endowed chairs in Judaic Studies, for example, be held by a Jew? (So far it’s not clear that Peterson’s proposal would limit the position to conservatives, but the implication is that the school would be looking for a scholar/true-believer to fill the spot.) Is it the academic discipline – the study of conservative thought – that Chancellor Peterson wishes to bring to Colorado, or just a conservative? It doesn’t seem like a well-thought-out plan. (And besides, what does it say for the general conservative distaste for affirmative action programs when they drop their presumptively principled opposition when the policy instead benefits a group they do happen to like – namely, themselves?)
The fundamental problem with the proposal is that it does not deal with the underlying outrage that besets higher education today: the fact that our university campuses are among the least free institutions in our society. Ideally, campuses should be among the most free since academic freedom is, at least in theory, central to the pursuit of knowledge and the practice of higher education. Until we solve this central problem, one has to give conservative polemicist George Will some credit for his response to the Wall Street Journal's query: “Like Margaret Mead among the Samoans, they’re planning to study conservatives. That’s hilarious.” By the way, Will’s name has been bandied around as a possible candidate to fill the new chair, but it looks like they’ll have to find another specimen – perhaps one less sensitive about being treated like the subject of an anthropological study.
May 14, 2008
By Harvey Silverglate
The constant war between kids who want to say what they
believe and high school administrators who want, above all else, to keep the
peace on their watch rages on. The latest battle is at Albemarle County and
Charlottesville Public Schools in (appropriately enough) Virginia, where
certain teachers reportedly asked culturally conservative teenage girls to turn
inside-out t-shirts with the slogan “Virginity Rocks,"
so as to hide the message.
The non-profit Rutherford
Institute, which seeks to promote, through legal activism, Christian
conservative and religious causes and issues, jumped into the fray and wrote
the school system a letter threatening litigation. It appears that litigation
will not be necessary, since the school officials replied that Rutherford was under a misapprehension, and that the
officials were not prohibiting the wearing of the t-shirts after all.
And it’s a
good thing, too, since the First Amendment to the Constitution
would very likely protect the wearing of such t-shirts, as well as t-shirts
with a counter message (although one can imagine illustrations to the counter-message
that might not make it through the Supreme Court’s Fraser opinion
that draws a line at vulgarity. And, under an even more recent (and very
unfortunate, for liberty) Supreme Court decision, there’s an exception for
pro-drug-use messages.
Admittedly,
the lines drawn in the constant wars between high school (and sometimes younger)
students who want to express themselves, and administrators who are comfortable
only with their own views on things, are not the model of constitutional and
legal clarity. And notions of academic freedom, in theory more absolute at the
college level than in lower grades, have limited applicability in high school
and even less in elementary school. But the question one asks time and again in
these cases is why school administrators get involved in the first place. These
kids seem capable of having sometimes uncomfortable yet civil (or at least
non-violent) dialogues. It’s too bad the same can’t be said about all of their
teachers and administrators.
May 12, 2008
By,
Wendy Kaminer
Hillary Clinton has a new excuse for continuing a campaign that is most likely doomed and clearly destructive: genetic determinism: “ I’ve come to believe that hard work, determination and resiliency are encoded in our DNA,” she declared, speaking to a group of female supporters in West Virginia, the New York Times reports. “We know that we have the ‘worry’ gene. We know we have the ‘put your coat on because it’s cold outside’ gene. But we also have the ‘stand up and fight for what you believe in’ gene.’ ”
It’s hardly surprising to hear Clinton appealing to female chauvinism, given the demographics of the race. (According to the Times, her remarks “brought thunderous applause.”) And if she is a feminist, she would not be the first caught joining the majority of people who believe that biology is destiny, instead of fighting them. The feminist movement has always been divided over theories or biases about natural cognitive and characterological sexual differences. But it is discouraging to hear an intelligent woman like Hillary Clinton frame a tribute to femininity quite so stupidly. Maybe her anti-intellectualism is genuine, after all, but I doubt she really believes that women have a “worry” or “fight” gene, anymore than men have a “science” gene, (and any feminists who applaud Clinton’s remarks should refrain from criticizing the speculations about men’s superior scientific abilities that got former Harvard President Larry Summers into so much trouble.) Clinton has often characterized criticisms of her conduct as sexist, but a woman who exploits stereotypes of femininity shouldn’t complain about being disadvantaged by them.
May 12, 2008
By,
Wendy Kaminer
Last month, I criticized the Texas ACLU for its timidity in defense of liberty when Texas authorities raided the polygamous “Search for Zion,” compound, forcibly removed some 460 children from their parents, on the basis of one anonymous phone call (since determined to be a hoax,) and then ordered mandatory DNA testing for everyone. ("Defending the Mormon Polygamists") So it's a bit of a relief to hear the ACLU finally speaking up with a little conviction about the consequent violations of individual rights. Actually the ACLU didn’t go so far as to accuse the state of constitutional violations; it expressed “serious concerns that the state’s actions so far have not adequately protected the fundamental rights at stake,” stressing that hundreds of children were taken from their parents absent individualized determinations of abuse and objecting to mandatory DNA testing. The ACLU doesn’t appear to be taking any action in the case, but it does promise to continue “to monitor unfolding events .. . making our views known to the Texas courts at appropriate points in the judicial proceedings.” In other words, at some future point the ACLU is likely to submit an amicus brief in a case brought by one of the parties. It’s the least the ACLU can do (and perhaps the most it will do.)
Meanwhile, hundreds of hapless children raised in a Mormon fundamentalist compound have been consigned to the notorious Texas foster care system, where according to a 2006 study cited in the New York Times, “more than half of all foster children ages 13 to 17 were being given psychotropic drugs to control behavior.” According to a 2004 report, “children with violent criminal records were being mixed in the general foster care population and …medically fragile children were underserved.” It seems likely that some children who escaped abuse in the Search for Zion compound will encounter it in the Texas child welfare system.
May 09, 2008
By Wendy Kaminer,
Why is polygamy illegal? Why don’t Mormons have a First Amendment right to enter into multiple marriages sanctified by their church, if not the state? There’s a short answer to these questions but not a very good one: Polygamy is illegal and unprotected by the Constitution because over 100 years ago, the Supreme Court decided it was “an offence against society.” In Reynolds v U.S., the Court upheld the criminal conviction of a man convicted of taking a second wife in the belief that he had a religious duty to practice polygamy, a duty he would violate at risk of damnation. The Court compared polygamy to murders sanctified by religions belief – human sacrifice or the burning of women on their husbands' funeral pyres.
Even in Victorian American, this comparison made little sense. (Most Victorian women, I suspect, would have chosen polygamous marriages over death by burning.) Today, the Court's analogy is as anachronistic as a ban on adultery. What’s the difference, after all, between an adulterer and a polygamist? And if it’s not illegal for a married man to support a girlfriend or two and father children out of wedlock with them, how can it be illegal for him to bind himself to them, according to the laws of his church? What’s the moral and practical difference between a man who maintains multiple families without the approval of any church and a man who maintains multiple families with his church's approval?
"Polygamy encourages child abuse," people say, citing instances involving the marriage of older men to underage girls. Assuming that’s true, it still doesn’t justify categorical prohibitions on polygamy. Alcohol consumption may encourage sexual violence too. Should we prohibit its use, as members of the Women’s Christian Temperance Union demanded over 100 year ago? Or should we prosecute alcohol fueled rape cases whenever we find them?
All things considered, it seems impossible to enforce polygamy prohibitions fairly and indiscriminately, without also enforcing archaic laws against adultery; and there’s no reasonable basis for banning polygamy, especially when it’s considered a religious obligation. No matter how distasteful some may find it, polygamy is simply not the equivalent of human sacrifice, and constitutional rights should not be determined by judicial hyperbole.
May 06, 2008
Today's newspapers carry the obituary for the somewhat accidental civil rights pioneer Mildred Loving, who died last Friday at 68. Loving and her late husband Richard were the plaintiffs in one of the most important civil rights cases ever to reach the Supreme Court. Their exquisitely- and aptly-named case, Loving v. Virginia, brought what was essentially an "equal protection of the law" challenge to a Virginia state law that not only banned but also criminalized interracial marriage. The court unanimously declared that Virginia's anti-miscegenation law was unconstitutional because it violated the Fourteenth Amendment's requirement that state laws not discriminate on the basis of race.
The Supreme Court's decision in Loving was a triumph for not only the Lovings, but for the rights and freedoms of all citizens: it determined that states could not prohibit people from marrying whomever they loved just because they happened to be of a different race. Though the Lovings lived in Virginia, they got married instead in Washington D.C., which did not have an anti-miscegenation law. However, Virginia's law provided that out-of-state interracial marriages were invalid in Virginia. Several weeks later, on July 11, 1958, the New York Times reports, they were arrested in bed for having violated Virginia's Racial Integrity Act. After they pled guilty, they moved to Washington to remain together, but eventually "could stand the ostracism no longer." The ACLU brought their case to the Supreme Court -- and, nine years after they were arrested, the Lovings won.
The entire nation owes a huge debt to Mildred Loving, an unassuming litigant who wanted to marry and live with the man she loved -- and to do so in the community she called her home. Several years ago, at the height of the controversy centering on the Massachusetts Supreme Judicial Court's decision declaring marriage (including gay marriage) a right protected by the state's constitution, I wrote in the Boston Phoenix that the road to equal marriage rights in Massachusetts was paved by Mildred and Richard Loving. The Supreme Court was right in 1967 to ensure marriage rights to interracial couples, and the Massachusetts SJC was right in 2004 to ensure marriage rights to same-sex couples. Our society has come a long way since the time of anti-miscegenation laws, but anti-same-sex-marriage laws like the federal Defense of Marriage Act infringe gay Americans' rights just as fundamentally as Virginia's old law once did. And when one group of citizens is treated differently under the law from others, for no demonstrable reason based in logic and experience, equality under the law cannot be said to prevail. I predict that someday courts all throughout the country will recognize that these laws raise very similar constitutional questions as did the law challenged in Loving v. Virginia. For that, the Lovings will again – or still – merit our thanks. May these modern-day heroes for liberty and equality rest in peace.
May 02, 2008
New York Governor David
Paterson signed into law yesterday the “Libel Terrorism Protection Act,”
according to the New York Sun.
This bill, for which Harvey and his
colleague Samuel A. Abady have lobbied in the Boston Globe
and the New York Post,
is the direct result of the recent censorship of New York journalist and
counterterrorism expert Rachel Ehrenfeld. In her book, Funding Evil, Ehrenfeld
named Saudi billionaire Khalid bin Mahfouz as a leading financier of Islamic
terrorism based on an exhaustive review of government documents. While
Ehrenfeld’s scholarship, particularly her characterizations of Muslim
charities, are controversial, there’s no doubt that her attack on bin Mahfouz
is fully protected speech and does not even approach the threshold set for
libel by New York Times v. Sullivan. Nonetheless, bin Mahfouz has been
able to effectively muzzle Ehrenfeld by suing her in England, where 23 copies of her
book were ordered online and where libel laws are much more plaintiff-friendly.
Like most journalists, Ehrenfeld could not afford to battle a litigious
billionaire in a foreign country. She had no choice but to accept a declaratory
judgment that she pay $225,000 in damages and pulp remaining copies of Funding
Evil. The “Libel Terrorism Protect Act” now allows her to challenge the British court’s judgment on American
soil, where she will enjoy the full protections of the First Amendment. Let’s
hope that civil libertarian groups around the country understand the importance
of rallying their state legislatures to pass similar legislation
May 02, 2008
The ACLU has found itself a strong test case for determining
whether a student’s right to privacy is violated when he or she is
“outed” to the community by their school. A principal in Memphis, Tennessee,
apparently in order to cut down on public displays of affection in school,
asked her staff to put together a list of school couples, both straight and
gay, and then posted that list publicly, thereby outing an untold number of
student romances, including that of a 17-year old gay student, who is now suing
for damages. It is a somewhat complex case, from a legal point of view, not only because gay and straight couples were treated equally by the overbearing principal, but because the gay couple obviously was sufficiently public about their romance to broadcast it within the school community and end up on the list. So from the point of view of a complaint for discriminatory treat, and for violation of privacy, they might have an uphill climb.
The ACLU took on a similar case in 2005,
involving a student in California who was outed when her principal called her
mother and complained about her kissing and holding hands with a female
classmate in school. In that case, a federal judge that the student had
"sufficiently alleged a legally protected privacy interest in information
about her sexual orientation.”
Regardless of how one feels about the privacy of students
inside the schoolhouse gates, one has to acknowledge the bizarreness of this
war on cuddling. Surely there are more pressing concerns in our public schools
than too much affection – especially of the reciprocal, monogamous sort. It causes one to wonder why schools aren't spending more time and energy teaching the kids math.
