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Friday, May 16, 2008


It's a Crime to Lie to MYSpace?


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. 



5/16/2008 2:05:21 PM by Wendy Kaminer | Comments [0] |  




Thursday, May 15, 2008


A conservative academic for Colorado: A specimen Margaret Mead would love?


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.


5/15/2008 4:04:31 PM by Harvey Silverglate | Comments [0] |  




Wednesday, May 14, 2008


The Virginity Battle and the T-shirt Wars


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.


5/14/2008 4:30:03 PM by Harvey Silverglate | Comments [0] |  




Monday, May 12, 2008


Candidate Clinton: The Girl Can't Help it


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.



5/12/2008 1:48:18 PM by Wendy Kaminer | Comments [2] |  


Defending the Rights of Polygamists/ACLU Re-Considers


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 juicily 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.



5/12/2008 1:11:31 PM by Wendy Kaminer | Comments [0] |  




Friday, May 09, 2008


Why is Polygamy Illegal?


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.

   

5/9/2008 3:26:13 PM by Wendy Kaminer | Comments [1] |  



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It's a Crime to Lie to MYSpace?
A conservative academic for Colorado: A specimen Margaret Mead would love?
The Virginity Battle and the T-shirt Wars
Candidate Clinton: The Girl Can't Help it
Defending the Rights of Polygamists/ACLU Re-Considers
Why is Polygamy Illegal?
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