Before the court this month is the disastrous McCain-Feingold Act of 2002, the most momentous and well-publicized, and also the most futile, of the many congressional efforts over the last thirty years to limit the extent to which money influences politics. In a 2003 decision that has been rightly derided by free speech advocates, the court by a vote of 5-4 upheld the constitutionality of the Act’s ban on “soft money” and on TV ads that mention a candidate for federal office within 60 days of a general election.

This time around, the court is debating McCain-Feingold’s exception for certain “issue” ads, which are not considered political endorsements when they do not specifically mention the name of a candidate. It’s difficult, if not impossible, to separate ads touting issues from ads touting pols who support those issues. The insanity of this murky attempted boundary is what has occupied an enormous amount of time of judges, bureaucrats, and lawyers – all without achieving any clarity. The constitutionality of this provision is being challenged by the nonprofit Wisconsin Right to Life, an anti-abortion group.  The FEC penalized the group last year for airing ads urging Wisconsinites to contact the state's two U.S. senators and tell them not to filibuster President Bush's judicial nominees. Because one of those senators, Democrat Russell Feingold (coincidentally, one of the campaign finance reforms act’s namesakes), was up for reelection, the group was told that the inclusion of Feingold’s name turned its grass-roots anti-abortion campaign into an "electioneering communication" that could not be legally aired before the election.

          As the Wisconsin Right to Life example proves, the McCain-Feingold act, although well-intentioned, clearly tramples on one of the most fundamentally important guarantees of the Constitution: the right for a citizen to criticize one’s government and to petition for what the First Amendment calls “a redress of grievances.” In my view, there needs to be a major shift in the debate over fair elections and a newfound emphasis on restoring some sense of voter and candidate equality and access to the system without sacrificing free speech. Lawmakers should repeal campaign financing restrictions and instead institute a modest system of public financing of campaigns. Every candidate who demonstrates his or her credibility by collecting enough signatures would be eligible for public money to run a campaign. The American Civil Liberties Union has been proposing a system like this for decades, thus far to no avail. What the current system has gotten us is not a diminution in the role of money in politics – that would be simply impossible to achieve in a free society – but, rather, a system where the benefits of incumbency are huge because current officeholders have so much more access to money and to the news media than do the challengers. If we want to throw the bums out, we need to open up the system by getting rid of McCain-Feingold and other such ill-considered and unconstitutional restrictions on the free speech rights of the electorate.

 Meanwhile, Congress should abandon this absurd notion that support for issues and support for candidates can, or should, be separated. Citizens and political groups should be able to vocally support candidates however they see fit.. Let free speech and fair elections both flourish.

When rules are written to cut off money in one arena, that money inevitably finds its way into the electoral system through a back door. It’s a constant game of cat-and-mouse. Only a strictly enforced publicly funded campaign system could put this tiresome game to an end and, incidentally, put some of the army of campaign finance lawyers out of business.

        We have had some form of campaign finance restrictions for many decades, with the restrictions becoming stricter and stricter with each attempt at “reform.” In order to assess the impact of this effort to “wring big money out of politics,” one has simply to compare the quality of our politics, our political discourse, and our office-holders, with each passing decade. I rest my case.

            Predictably, the massacre at Virginia Tech has unleashed an enormous volume of pseudo-psychiatric babble about developing pre-emptive steps to avoid such tragedies in the future.  The harsh truth is that the science of the human mind – to the extent it can be called a science at all – is insufficiently developed to have much predictive value. Moreover, profiling students that fit certain behavior patterns is not only ineffective, but is also an inexcusable encroachment upon their freedoms. It is my view that the supposed benefits gained by restricting the liberty of a seemingly troubled student are outweighed by the adverse civil liberties consequences that over-predicting violent or other anti-social behavior would have on our society. It is one thing to offer help to a troubled student, but quite another to restrict his or her liberty in some significant fashion.

            We have seen this for years in Massachusetts’ system for obtaining judicial declarations that particular inmates, who are near the end of their sentences for sexual assault offenses, remain “sexually dangerous persons” and hence should be civilly committed for an indefinite period (until “cured”), rather than released. Lawyers who handle these cases will tell you that many of the psychiatrists and other mental health “experts” hired by the state to testify that particular inmates would likely re-offend if released, are simply quacks who shill for the government.

            One is reminded of the case of Randall Dale Adams, the subject of documentary film-maker Errol Morris’ masterpiece The Thin Blue Line (1988). Adams had been convicted of the high-profile murder of a state police officer and was on Texas’ death row. State law required that, in order to execute a prisoner, there be sufficient proof not only that the prisoner had committed murder, but that he would likely kill again. Morris when down there to make a movie about the infamous psychiatrist, Dr. James Grigson, who was on virtual retainer by Texas prosecutors and who could be relied upon to testify, at the sentencing phase of capital cases, that the defendant was irremediably dangerous and would almost certainly kill again, either in prison or out, and thus should be put to death to assure the public safety. Morris’ movie about Dr. Grigson was going to be entitled “Dr. Death” (Grigson’s nick-name among defense lawyers). Dr. Grigson had testified against Adams, resulting in the predictable death sentence. What Morris learned, instead, was that Adams was entirely innocent of the murder, which he demonstrated in The Thin Blue Line, resulting in an exoneration and the discrediting of Dr. Grigson, who, it was suddenly revealed, had predicted that the defendant, later proven not to have killed at all, would kill again unless executed. So much for the value of the psychiatric “science” of predicting violence.

            The reason the subject comes up now is that there is a well-recognized phenomenon that occurs with alarming frequency after a high-profile massacre such as that in Virginia Tech – other unbalanced individuals sometimes engaged in “copy-cat” shoot-ups elsewhere. Panicked school administrators all over the country look to take pre-emptive steps to prevent repetitions on their campuses. The problem, however, is that the attempted cure is often far worse than the disease, since there is no demonstrated way of either predicting or preventing repetitions, but the logical result of such efforts would entail expelling or even locking up a huge number of students who are seen as being “odd.” In a free society, such pre-emptive action on the basis of expert psychiatric drivel is simply unacceptable.

            The National Research Council (NRC) issued a report in 2003, spurred by the disaster at Columbine High School in Colorado, entitled Deadly Lessons: Understanding Lethal School Violence. The NRC report discussed proposals for methods “to identify likely offenders in instances of lethal school violence or school rampages.”  But the report concluded that “the offenders are not that unusual; they look like their classmates at school.” And a report by the United States Secret Service concluded, similarly, that “there is no accurate or useful profile of ‘the school shooter.’”

            Gary Pavela, an attorney who specializes in social and legal aspects of higher education and who publishes the highly-regarded Synfax Weekly Report, has observed that one problem is “the waning role of college teachers as guides and mentors.” College administrators have jumped into the breach but, because of their very limited actual contact with students, spend more time and effort trying to control rather than listen to or guide students. As a result, the adults on campus appear to know less and less about their students, with a concomitant inability to offer effective guidance and help. Pavela, in his recent post-Virginia Tech newsletter, sagely quotes Harvard Psychiatrist George Vaillant, who wrote in his 1977 book, Adaption to Life, that the educator’s aim should not be to transform the human psyche, but to “help the paranoid’s projection become a novel, an eccentric’s sexual fantasy become a sculpture, and a delinquent’s impulse to murder evolve into creative lawmaking….” Amen.

         At the risk of being considered impolite, I can’t help but add that every one of the five Justices who upheld the ban on a second trimester abortion procedure (in defiance of expert medical opinion) are Catholic.  Four are conservative Catholics.   I expect that some consider the mere mention of this obvious but salient fact an example of religious bigotry, but advocates of more religion in government who praise the influence of sectarian religious ideals on public policy should be prepared to hear it questioned.  And, I’m not suggesting that judges should, or could, jettison their religious convictions on appointment to the bench.  I’m pointing out the need for religious diversity in the judiciary, given the inevitable influence of religious beliefs on individual morality and opinion.  Isn’t it obvious that in a pluralistic country, law should not reflect and the Supreme Court should not be dominated by one sectarian point of view?

         Wendy Kaminer is quite right that one of the most prominent features of the Supreme Court decision in Gonzales v. Carhart, upholding, for the first time, a ban on an abortion procedure that does not make an exception for the health of the woman, is the Court’s arrogant assumption that it need not credit the medical judgments of experts in the field. Instead, the majority of the justices cynically lean on either quacks or the justices’ (and the Congress’s) own sense of good medical practice.

          This is not the first time, alas, that the court has allowed Congress or federal bureaucrats and law enforcement agents to intrude into an area that should be left to the medical profession. In a 2005 decision, the court ruled that the federal government can still punish possession of marijuana in the eleven states that have eliminated sanctions for its use for medicinal purposes, thereby effectively over-riding professional medical opinion in a large part of the country.

         And for most of the 20th century and continuing today, the Court has allowed overzealous anti-drug bureaucrats of the Drug Enforcement Agency to harass and prosecute physicians who treat patients suffering from chronic, debilitating pain.” In U.S. v. Moore (1975), the court reaffirmed the federal government’s power to criminally punish doctors who administer painkilling opiates, ruling that physicians “can be prosecuted when their activities fall outside the usual course of professional practice.” The vagueness of this wording gave the drug warriors considerable wiggle room and unsurprisingly led to a series of high-profile cases in which doctors were treated no differently than street corner drug dealers because they administered pain-killing narcotics in quantities and under circumstances that contradicted the “medical judgment” of federal drug agents and bureaucrats. A chilling effect has ensued, in which doctors frequently underprescribe painkilling medicine out of fear of losing their livelihoods and reputations.

           And so it is not so surprising to see the justices kick around the medical profession (and its patients) as if they, or Congress, or the President, somehow know better. But what is quite dismaying is to see a majority of the justices take baby steps (you’ll pardon the double entendre) to begin a return to a darker age, when the state was able to dictate when a pregnant woman must continue the process and produce a baby for the state – a baby that the state will be shockingly indifferent to once it’s born. (As Rep. Barney Frank has acidly observed, the pro-life crowd consists largely of people who believe that life begins at conception but ends at birth.)

            It is also useful to note that in this case, the court arriving at such an unwise (and, it must be said, unconstitutional, no matter what five justices claim) result was dealing not with some state legislature’s attempt to restrict abortion within its own benighted boundaries, but with a congressional statute that will impose a uniform tyranny on women throughout the land. This is not one-fiftieth of a disaster for liberty, but a 100% disaster, crimping liberty from sea to shining sea.

            My former law partner (now federal judge) Nancy Gertner, who did a significant amount of important pro-choice litigation back in the 1970s and 80s, used to have a poster in her office that said: “If men could get pregnant, abortion would be a sacrament, not a crime.” Amen, brothers and sisters.

         The justices on the Massachusetts Supreme Judicial Court (SJC) recently wrote one of their best, and bravest, decisions in years, but the Herald and Globe both missed it. I almost did too, if it weren’t for a piece in Massachusetts Lawyers Weekly. So allow me to, belatedly, extol the SJC’s opinion in Commonwealth v. Murphy (text), which has finally ended, as a practical matter, this state’s long-running practice of using dubious jailhouse informant testimony in criminal cases.

         As any criminal defense lawyer will tell you, jailhouse snitch testimony is always self-serving, often embellished, and rarely accurate. According to a 2005 report from Northwestern University’s Center on Wrongful Convictions, of the 111 men exonerated from death row since 1977 through DNA testing, a staggering 51 of their cases involved jailhouse snitch testimony.  The Innocence Project estimates that fifteen percent of the cases that it has overturned using DNA testing hinged largely on false testimony from a jailhouse informant.

         The SJC likely had these chilling figures in mind when it all-but-banned the practice in Commonwealth v. Murphy. But, perhaps in an effort to spare prosecutors embarrassment, the high court did not mention these disturbing statistics and instead effectively abolished snitch testimony on what some will see as “technical” grounds, concluding that for the authorities to allow an informant to snooker another prisoner into confessing is just a back-door way of interrogating the prisoner without his lawyer present, thereby violating the right-to-counsel “Miranda rule” that everyone knows from television. Of course, as practicing lawyers and probably the justices well-understood, more often than not the jailhouse snitch makes up the “confession” that his fellow prisoner supposedly confided to him while the two happened to be having a friendly chat during, say, lunch.

         As a result of this barely noticed opinion from our state’s highest court, one more pernicious and corrupting practice has been eliminated from a criminal justice system much in need of repair. Let’s hear it for the Justices!

         The would-be censors of “hate speech” are at it again. This time the target is irrepressible radio talkmeister Don Imus, who mouthed off (nothing new in that) on his nationally syndicated radio talk show, carried in Boston by WTKK 96.9 FM. Imus had the bad judgment to refer to the members of the Rutgers University women’s basketball team as “rough girls” and “nappy-headed hos.” The team is predominantly black, resulting in an uproar from a variety of do-gooder speech police always on the look-out for insult.

            It is, of course, fine to lambaste such puerile broadcast patter. And there’s nothing to stop the station’s management from suspending Imus – as they did for two weeks in the face of the uproar – in order to make clear its dissatisfaction with the extent to which Imus crosses some line when insulting this or that person or group. It is not as if the government has stepped in to censor politically incorrect broadcast speech (although, sadly, the Federal Communications Commission has indeed been given some such power, by Congress and the Supreme Court, when it comes to sexually “indecent” speech).

            I find it odd, though, that forays like Imus’ into the realm of insulting speech should continue to raise such hackles. One would have thought that the Supreme Court had the last word on the social benefits of offensive speech when the court unanimously reversed a jury’s verdict against Hustler Magazine and its publisher Larry Flynt, in a 1988 lawsuit brought by the Rev. Jerry Falwell for “intentional infliction of emotional distress.” The magazine published a parody advertisement claiming that the good reverend’s “first time” was with his mother, in a drunken orgy that took place in an outhouse. The court noted that, although the faux ad was “gross and repugnant in the eyes of most,” no one with half a brain would assume the story to be “reasonably believable”; it was an insulting parody lodged against a holier-than-thou public figure. The court went on to discuss the important role played by vile parody in the history of the nation, before concluding that “it is clear that our political discourse would have been considerably poorer without [it].”

            And there is something disturbing about the fact that the self-appointed PC police have accumulated sufficient power to cause talk-show hosts to look warily over their shoulders every time they say something remotely offensive. Among the main critics of Imus, who is rightly considered by some to be a serious if acerbic observer of modern-day hypocrisy and idiocy, are the gruesome twosome of Rev. Al Sharpton and Jesse Jackson, who long ago lost the moral authority to attack a man like Imus, thanks to, respectively, Sharpton’s infamous Tawana Brawley hoax scandal and Jackson’s adulterous sex scandal involving a former aide.

            Certain topics have become taboo in our modern culture, considered inappropriate for frank, even humorous discussion. It started with college speech codes in the 1980s, as college administrators decided that uncomfortable speech concerning “historically disadvantaged” groups constituted a form of “harassment” and banned it. Since then, the categories of people whose sensibilities are being protected by the censors among us have grown like Topsy, until it is now inadvisable to make fun of anyone on radio or television unless he happens to be a governmental official. In the latter case, one has to worry not about self-appointed censors, but about wiretaps and dirty tricks. Sad.

         I seem always to be at a disadvantage in arguing for toleration of ugly speech even if it creeps right up to the edge of being a direct threat, as some of the sexist rants noted by Wendy Kaminer and in Joan Walsh’s Salon post to which Wendy linked. My disadvantage comes from the fact that I do not appear to be a member of what today has come to be called a “historically disadvantaged group.” Hell – when I was a freshman at Princeton in 1960, I was not thus characterized, even though I was a Brooklyn-born and public school-educated short Jewish kid suddenly transplanted to a decidedly waspy, preppy, Southern-boys’ finishing school campus. In fact, the category “historically disadvantaged group” had not yet become part of the language (that was to happen with the advent of “political correctness” in the 1980s).

         Still, I think I’ve earned some bona fides in the unpopularity arena, having spent a career representing accused criminals, pornographers, draft dodgers, rioters, and other assorted perceived mis-fits (many of whom, I must say, often seemed more normal to me than the people prosecuting and persecuting them). And I’ve not yet come across an exception to my sense that more speech, no matter how uncomfortable, is better than even a modest amount of narrowly-delineated censorship. I’m OK with outlawing speech that in itself constitutes a crime – such as extortionate threats – but not with banning comments that simply make one uncomfortable. The problem with such censorship is that there is no way of containing the “narrow” exception, and eventually censorship becomes the rule.

         I co-authored (with Professor Alan Charles Kors) a book on the problem of censorship on college campuses, The Shadow University: The Betrayal of Liberty on America’s Campuses (the paperback from Harper/Perennial was published in 1999 and remains in print). One chapter in the book, “Not on My Watch,” puts forth the thesis that most campus administrators who promote speech-restrictive codes are less concerned with the welfare of the “historically disadvantaged groups” represented on campus, than with being able to avoid trouble and disruption that would hinder the administration’s real job – to keep things peaceful and quiet to facilitate raising massive funds.

         The theory behind campus speech codes, dubbed “harassment codes” in order to cover up the fact that there is censorship of speech in higher education, is that if members of historically disadvantaged groups – women, African-Americans and other black students, gays and lesbians, and such – have to listen to words and ideas that insult and disturb (“harass”) them, they will not be able to take advantage of all that the colleges offer them, or might even leave college entirely. Hence, allowing the free use of such speech becomes a civil rights violation, namely depriving minority group members of equal access to education.

         Just before publication of The Shadow University, I gave a talk at the Harvard Law School in order to see how the book’s thesis would be received by students. After the talk, I took questions, and a white first year student asked me: “Mr. Silverglate: I don’t mean to imply that you are a racist or a sexist, but don’t you think that your call for the abolition of harassment codes covering speech gives aid and comfort to racists and sexists?” Before I could answer, a third-year black student jumped up, visibly angry. His response to the white student, which I paraphrase from a quite vivid memory of an event dating back to 1998, went like this: “I grew up in the South Bronx, with bullets flying by my bedroom window and hardly an intact family on the block. I nonetheless did well enough in school to get a scholarship to a good prep school, and from there I went on to Harvard College and am now a few months away from graduating Harvard Law School. Are you [looking the white kid right in the eye] telling me that if someone in this school calls me a ‘nigger’ I should, or would, pack up my suitcase and head back to the South Bronx? Is that what you really think of me?”

         The white kid who asked the demeaning question was cowering. I did not have anything to add and simply called for the next question. I went on to publish the book and, I should add, to co-found a non-profit foundation to promote free speech ad due process on campuses of higher education.