Should a public university build footbaths for Muslim students who are required by their faith to wash their feet before prayer?  Yes, according to the University of Michigan-Dearborn, which is renovating two bathrooms on campus to include two new “foot washing stations.”  The footbaths reportedly cost about $25,000, (out of a total renovation cost of $100,000,) raising questions about the expenditure of public funds for sectarian religious purposes.  
   
        This is not a simple case; providing students with footbaths (so they don‘t have to use bathroom sinks) seems like a well-intentioned effort to accommodate the religious beliefs of Muslims without infringing on the rights of non-Muslims –- unless you consider the right to choose not to subsidize other people’s religious practices.  To preserve this right, and religious freedom for all, the First Amendment bars the state from funding any religion (although the Bush Administration funds one of them anyway, with the tacit approval of the Supreme Court.)     
   
        Of course, in practice, the use of university funds to build footbaths may be one violation of religious freedom that many students would not notice, or mind, absent a public furor about it. (Right-wing bloggers made an ugly issue of the University of Michigan-Dearborn case.) But that doesn’t diminish the importance of the principle barring public support for religious practices, a principle that could perhaps have been preserved if the footbaths were built with private funds.  In fact, local Muslim leaders were reportedly prepared to raise private funds until the local ACLU declared that the use of public funds in this case presented no constitutional problems. 
 
        It’s unclear how the Detroit ACLU squared this position with ACLU policy, which states, “No public resource shall be used to construct or maintain any facility which is designed for religious functions or ceremonies.” There's no question that the ACLU opened itself up to charges of hypocrisy by backing off from this case, given its policies, its historic commitment to separation of church and state, and its current, strong opposition to the Bush Administration’s use of public funds to support sectarian religious activities.  Right-wingers pounced on the ACLU’s approval of the publicly funded footbaths, and, sad to say, they seem have a point.

6/29/2007 4:24:31 PM by Wendy Kaminer | Comments [0] |  

By Wendy Kaminer         

         Civil libertarians have good reason to mourn the Supreme Court’s latest rulings eviscerating student speech rights and empowering the president to divert public funds to sectarian religious groups.  In the wake of the Court’s earlier decision this term upholding bans on second trimester abortions, these cases confirm that the Court is now pretty firmly under the control of authoritarian (not libertarian) conservatives.  Occasionally the conservative majority will rule in favor of liberty; expect it to do so when the liberty interests align with the interests or biases of conservatives, as they do in debates about campaign finance restrictions.  
       
        The “liberal” wing of the Court, which in saner times would be described as centrist (with the possible exception of Justice Ginsberg,) dissented from Chief Justice Robert’s majority opinion in the campaign finance case, which limited a provision of the McCain Feingold law that greatly restricted the political speech of corporations and unions.  Naturally, many liberals and other reformers intent on somehow divorcing money from politics (an effort akin to trying to divorce teenagers from sex,) considered this ruling another defeat.

        But McCain Feingold is an illiberal bill that restricts much more than the speech of presumptively “evil” corporate speakers.  The provision struck down by the Court also applied to not for profit advocacy groups, like the NRA, NARAL, and the ACLU, and it prohibited these groups, as well as corporations and unions, from using general funds to broadcast “electioneering communications” that merely mentioned a candidate’s name 30 days before a federal primary and 60 days before a general election.  What was an electioneering communication under McCain Feingold?  It included “issue ads,” like an ad by a gay rights group that said, “Call Congressman X and tell him how you feel about a constitutional amendment prohibiting gay marriage.” 

        It should be obvious that this restriction on “issue ads” was an unconstitutional restriction on core political speech, which the Court rightly rejected.  And, surely, reformers interested in good government should vigorously oppose laws like McCain Feingold that criminalize ads criticizing members of Congress (or their positions on public issues) during their re-election campaigns.  (No one should be surprised that a campaign law enacted by incumbent legislators benefits incumbents.) But I suspect that a lot of people reflexively support campaign finance restrictions in the mistaken belief that they simply muzzle fat cats bent on corrupting the process.  In fact, they muzzle ordinary citizens (as former FEC chair Bradley Smith explains in the WSJ.) And, in some ways, they enhance rather than restrict the advantages of the ultra-rich in election campaigns, as the proliferation of 527's has shown.
       
        Restrictions on issue ads and similar “reforms” also translate into law the familiar, lamentable, de facto principle that a free press belongs to those who own it.  As many of us have observed, McCain Feingold potentially amplifies the voices of press titans, like Arthur Sulzberger and Rupert Murdoch, who retain their rights to publish editorials discussing issues or directly attacking candidates whenever they choose, while advocacy groups, representing millions of individual citizens who don’t own newspapers or radio stations, effectively lose the right to purchase broadcast time for similar purposes.  But, you’d never know this from reading the New York Times editorial page; in criticizing the campaign finance decision, the Times accused the Court of “magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens,” resorting to precisely the kind of misleading sloganeering that laws like McCain Feingold are supposed to restrict.
   
        So while the Court is not consistent or intellectually honest in its defense of free speech, as the rulings this week show, neither are the New York Times and the many liberals who support McCain Feingold (sometimes without understanding its reach.)  This Supreme Court will hand liberals and civil libertarians many more defeats in the coming years; let’s make the most of occasional victories.

6/27/2007 2:58:16 PM by Wendy Kaminer | Comments [0] |  

By Wendy Kaminer       

        Last month, a British union of college and university professors called for a boycott of Israeli academics, revitalizing a vituperative debate.  The presidents of NYU, Columbia, and Yeshiva University have strongly protested the proposed boycott, which is officially opposed by the American Association of University Professors.  Last year, the AAUP issued a statement affirming and explaining its opposition to academic boycotts in general and a targeted boycott of Israeli universities in particular.

        Academic boycotts pose obvious threats to free speech and the exchange of ideas:  “(P)lainly the search for truth and its free expression suffer if a boycott is in place,” the AAUP report stressed.  But, not surprisingly, this general proposition doesn’t impress people who condemn Israel as a brutally oppressive, racist state that systematically denies Palestinians basic rights and freedoms, including educational rights, with the tacit support of Israeli academics.  In their view, extending what are framed as academic courtesies to Israelis effectively “privileges” the speech rights of oppressors over myriad human rights of the oppressed.  So, the debate about the boycott inevitably entails comparisons of Israel to the former regime of South Africa – comparisons that Israel’s defenders dismiss as anti-Semitic.

        Is it possible to stand for or against the boycott proposal without staking out a position on the merits of this case against Israel (or the charge of anti-Semitism?)  I think so. Assuming that Israel is not Nazi Germany (as its most extreme critics charge) but accepting for the sake of argument some comparisons of Israel to South Africa, I’d still oppose the boycott (partly for reasons expressed in the AAUP report.)  And I’m troubled by the way some self-identified civil libertarians critical of Israel dismiss the threats that boycotts pose to free speech.

        Some stress the obvious – that private groups have the right to engage in boycotts – ignoring the potential influence of private boycotts on the marketplace of ideas.  Hollywood studios had the legal right to engage in blacklisting in the 1950’s and private universities had the legal right to require loyalty oaths of professors, but I know of no civil libertarian today who would defend McCarthyism or deny its effect on the exercise of speech and associational rights. 

        (Lamenting excesses of the past is always easier than standing up to them in the present: For instance, it took some 30 years for the ACLU to acknowledge and apologize for the fact that ACLU officials cooperated with the FBI and even informed on ACLU activists during the McCarthy years; perhaps 20 years from now, the ACLU will apologize for its post 9/11 complicity in government blacklisting.)

        In any case, it’s not hard to imagine that people arguing against the free speech interests threatened by an academic boycott of Israel would be arguing in favor of those interests if confronted with a proposed boycott of gay, socialist, Muslim, Cuban, or Iranian scholars (name your category.)  In fact, human rights are best served not by boycotting writers and scholars from repressive regimes, like Iran, but by engaging them, or by aiding them with fellowships and teaching jobs.

        Finally, academic boycotts impart troubling messages to students.  We cannot expect them to grow into citizens who will appreciate and protect free speech and association if they’ve been taught to blacklist politically unpopular groups.  (Indeed, proponents of the Israel boycott describe it as a moral imperative.)  Students are already encouraged by speech and “anti-harassment” codes not to speak freely; boycotts would encourage them not to listen.

6/20/2007 2:25:24 PM by Wendy Kaminer | Comments [1] |  

6/15/2007 7:03:35 PM by Wendy Kaminer | Comments [2] |  

        Last month a student magazine at Tufts University, The Primary Source, was hauled before a disciplinary committee and punished for publishing a satire of affirmative action in December '06 (a Christmas carol entitled “O Come All Ye Black Folk”) and then a harsh critique of Islam, during an official Muslim Awareness Week.  The Committee on Student Life found The Primary Source guilty of harassment and consequently prohibited it from publishing any anonymous material “from now on.” The Primary Source has appealed to Dean of Undergraduate Education, James Glaser, although its right to appeal is unfairly limited to procedural, not substantive questions.  (You can find detailed updates and analysis of the case at the thefire.org, commentary on this blog, “Gag Orders,” and at http://thephoenix.com/article_ektid40095.aspx)

        Fortunately, free speech advocates, in addition to FIRE, are paying attention to this case: the American Civil Liberties Union of Massachusetts has written to Tufts President Lawrence Bacow and Dean Glaser, urging them to reverse the decision of the Committee on Student Life.  As the ACLUM letter stresses, the right to publish anonymously is fundamental to free speech; and the finding against The Primary Source violated the university’s own anti-harassment and free speech policies: Tufts guarantees students rights of free expression and prohibits harassment directed against particular individuals, but not demographic groups.  

        The ACLUM letter is clear and unequivocal in opposing official actions against The Primary Source, which should welcome its support.  But in suggesting alternative approaches to “obnoxious or offensive” speech, the ACLUM tacitly endorses unofficial speech policing that can also stifle the expression of controversial minority views.  While rightly stressing that speech deemed offensive should simply be countered with more speech (not censorship,) the ACLUM praises a call for a campus forum on journalistic integrity "to promote dialogue on responsible journalism [but] not to involve itself in censorship of any form,” and cites approvingly a recent “meeting of members of the campus media with professional journalists to discuss the rights and responsibilities of the student press.”

        On their face, discussions of journalistic integrity, or rights and responsibilities, seem beyond reproach, (especially when they explicitly disavow censorship;) but consider their potential effects in cases like this:  In a college community, (or any social group) peer pressure can police speech much more effectively than formal rules and regulations.  Peer pressure is discreet, covert, immeasurably powerful, and much more difficult to counter than obviously and intentionally censorious rules or disciplinary proceedings.  (Indeed, the ACLU national board was recently embarrassed by its own, aborted attempt to enact a fiduciary “rights and responsibilities” policy prohibiting board members from criticizing the ACLU, but it has been quite successful in stifling internal dissent by socially marginalizing or demonizing dissenters.)

        I don’t mean to denigrate efforts to instill high journalistic standards in students. (I’d encourage these efforts, of course.)  I don’t mean to suggest that the ACLUM harbors any desire to silence students; (it has a long, strong, record of defending free speech.)  I do mean to stress the potential silencing effect of forums on journalistic integrity that are organized in direct response to “offensive” articles in a student publication. 

        Conservative students at The Primary Source seem to revel in their outsider status at Tufts: good for them.  But the majority of students (like the majority in any group) generally prefer being insiders.  To silence them, you don’t need rules against speech offenses; you need only signal the social costs of committing them.

6/12/2007 3:43:20 PM by Wendy Kaminer | Comments [0] |  

        Language policing suffered a setback this week: a federal appeals court struck down a new Federal Communications Commission indecency policy imposing sanctions on the broadcast of occasional or “fleeting" expletives.  The FCC has long held the inappropriate power to regulate “dirty words,” pursuant to a famous 1975 Supreme Court decision upholding the sanctioning of a provocative George Carlin radio monologue; but that decision was interpreted narrowly so as not to prohibit occasional or isolated utterances.  During the Bush Administration, the FCC changed its policy, rather abruptly, and in the view of the 2nd Circuit Court of Appeals, rather illegally:  The Court held that Fox could not be fined because Cher uttered the word “fuck” during a music awards show, while Nicole Ritchie used the words “shit” and “fucking,” and that NBC could not be fined because Bono described his Golden Globe Award as “fucking brilliant.”

        Yes, federal judges should have weightier matters to ponder than Nicole Ritchie’s vocabulary, but blame the FCC for making a federal case of it.  Or blame Congress for giving federal bureaucrats the power to decide what words broadcasters may and may not air and the discretion to impose prohibitive fines that make even media conglomerates shudder.  Or blame the obsession with the “dirty” or “hateful” words shared by virtually all censors, right and left.  Liberals who think words like “kike,” “nigger,” or “cunt” should be unprintable ought to refrain from mocking conservatives who want to ban the words “fuck” and “shit.” 

        To people obsessed with “indecency,” the broadcast of these common expletives is a very unfunny, virtual assault on America’s families.  FCC Chair Kevin Martin worries that someone may now say “fuck” during prime time, “when children are most likely to be in the audience.”  Martin excoriated the decision by a “New York Court” and warned “if we can’t prohibit the use of the words “fuck” and “shit” during prime time, Hollywood will be able to say anything they want, whenever they want.”   As an AP report in the New York Times slyly noted, however, Martin himself “used the 'F-word' six times and the 'S-word' four times in his statement.”  Minors beware. 

    A New York Times editorial praised the 2nd Circuit’s decision in this case, but over at the Wall Street Journal, editorialists are exercised about the fracas over another word:  Liberals opposing the nomination to the federal bench of Mississippi state court judge Leslie Southwick have condemned his concurrence in a decision holding that a state social worker should not be fired for using the word “nigger.” 
   
        This case, Richmond v Mississippi Department of Human Services, involved an effort by a state agency to fire social worker Bonnie Richmond for referring to a co-worker (outside her presence) as a “good ole nigger.”  Richmond apologized to her co-worker, who testified at an administrative hearing that she found the comment offensive and derogatory and suggested that she had been hurt by it; but she said “it was not like there was any real big problem associated with the incident.”   The state board hearing this case found that the Department of Human Services had insufficient cause for firing Richmond; the state court on which Leslie Southwick sat upheld that finding (in a decision that Southwick did not write.)
   
        Liberal groups like the Alliance for Justice (a group that I respect and support) may have good reason to oppose Southwick’s nomination, but they do not include his concurrence in this case.  Richmond’s isolated racial slur, however deplorable, her “fleeting expletive” (for which she apologized) should not be considered actionable workplace harassment and a firing offense anymore than uttering the word “fuck” during prime time should be considered actionable indecency.  People so obsessed with words should take seriously the meaning of these two: Free Speech.

6/7/2007 5:59:25 PM by Wendy Kaminer | Comments [0] |  

        Everyone once in a while, justice prevails.  Julie Amero, the substitute teacher who faced 40 years in prison for risking injury to children when a computer in her class was bombarded by pornography, has just been granted a new trial. Her claim that she was unable to control the pornographic images that popped up did not deter her prosecution or sway the jury in her case but did persuade an array of experts to denounce her conviction, to good effect.  She is not expected to be re-tried. 

6/6/2007 5:33:56 PM by Wendy Kaminer | Comments [1] |  

        Last month, Ronald Liebowitz, President of Middlebury College, delivered a Baccalaureate Address that should perhaps be required reading at Tufts, Brandeis, and all the other "liberal" schools that promote the censorship of politically incorrect speech, often in the name of diversity.  (Read all about them at thefire.org) 
    
        In a speech entitled "Diversity:The Value of Discomfort," Liebowitz pointed out the irony of "progressive" efforts to suppress speech that offends students or makes them uncomfortable:  Censorship sabotages diversity, he stressed:  "In order for the pursuit of diversity to be intellectually defensible and valuable to those seeking a first-rate education at places like Middlebury ... it cannot simply facilitate the exchange of one orthodoxy or point of view for another. .. if the wariness about discomfort is stronger than the desire to hear different viewpoints because engaging difference is uncomfortable, then the quest for diversity is hollow no matter what the demographic statistics on a campus reflect."

    You can find Liebowitz's speech here: read it and hope.
   

6/5/2007 9:18:33 PM by Wendy Kaminer | Comments [0] |