It’s difficult for a libertarian to oppose legalized casino gambling, (and I don’t,) but my heart is not in defending it.  People have a right to get drunk and flush their money down the toilet; but public support for turning what was once publicly owned woodland in Middleborough, Mass. into a giant hotel and casino is a depressing reminder of what we value – tawdriness, and mindless stimulation over repose, not to mention illusions of easy money.  "This is like a Thanksgiving Day turkey," one supporter of the Middleborough casino told the Boston Globe,  "This deal is stuffed with extra money."

        We’ll see.  But whether or not this casino is built and whether or not it proves to be a windfall for the town or its downfall, casino gambling is wildly popular and likely to be legalized soon in Massachusetts.  As the Boston Globe editorial page recently conceded, in rueful support of legalization, “millions of Americans have voted with their feet for the notion that casinos are an acceptable, even desirable part of the US leisure industry.”  The Commonwealth may as well get a piece of it.  People who balk at paying taxes directly to the state will clamor to pay them indirectly through both lotteries and casinos.  I bet here in Massachusetts they’ll get the chance.

7/30/2007 3:28:00 PM by Wendy Kaminer | Comments [2] |  

            For critics of higher education, few campus controversies have been as illuminating as the ongoing saga of Professor Ward Churchill. His case has uniquely intertwined all of the higher education issues du jour – Academic freedom, plagiarism, affirmative action, liberal bias, degraded campus culture – into one messy cloud of controversy that just will not go away. And now that Churchill has sued his former employer, University of Colorado-Boulder, for defamation, more unflattering facts about standard operating procedure on campus may soon be revealed.

            A brief recap: Shortly after the September 11, 2001 terrorist attacks, Churchill, then the tenured chair of the UC-Boulder’s ethnic studies department, published an essay titled “Some People Push Back: On the Justice of Roosting Chickens,” in which he called the civilian victims of the 9/11 attacks “little Eichmanns” and wrote that they were appropriate targets for retaliatory violence. Serious readers of the essay understood that Churchill’s critique was directed toward a capitalist society that enlisted a large number of faceless citizens to turn the wheels of industry. It was a cheap and simple-minded critique masquerading as a profound social and economic analysis of both the American society and the context in which the terrorist attack landed – the sort of nonsense for which post-modern leftist academics have become famous and (in some quarters) popular, and which makes a mockery of serious liberal criticism.

            In any event, Churchill’s scathing critique of the 9/11 victims went completely unnoticed until 2005, when the professor agreed to give a lecture at Hamilton College.  An article in Hamilton’s student newspaper about Churchill caught the eye of a staffer at “The O’Reilly Factor,” which unsurprisingly exploited this delicious bit of faux-liberal lunacy. A media firestorm ensued, followed by calls for Churchill’s head., Of course, casual observers of the story forgot about a little matter called academic freedom. His essay was completely protected – a fact pointed out by very few observers, including, I’m proud to say, The Foundation for Individual Rights in Education, a non-profit organization that I co-founded in 1998.

            As a result of FIRE’s letter and other calls to protect Churchill’s academic freedom, the university kept him on the faculty, although he gave up his chairmanship of the department. But Churchill’s critics were not satisfied, and they initiated an investigation into allegations that suddenly arose that he was involved in academic and research fraud. A university-appointed committee completed the investigation last year and found Churchill guilty of the fraud charges, but disagreed over an appropriate punishment. The issue went before the Board of Regents, which voted 8 to 1 in favor of the university president’s decision to terminate Churchill.

            The problem in the case is this: It is clear that Churchill was protected by academic freedom in the writing and publishing of his essay, which one can fairly criticize as anything from odious to simple-minded. It’s equally clear that he leaves much to be desired as a scholar, since the lapses found by the Committee appear well-documented and real. But had Churchill not provoked a national firestorm with his highly unpopular essay, including calls by state legislators for lowering financial support for the University and its pampered faculty (nearly all university faculties, it seems, are pampered), an investigation into his academic honesty would never have been undertaken. In other words, the investigation and his dismissal can be seen as pretextual.

            Churchill has sued. The difficult question posed by the lawsuit is this: Should a state university have the right and the power to dismiss a tenured professor for good and sufficient academic fraud reasons, where the investigation, and the desire to dismiss him, are a pretext for the real reason he was investigated in the first place – his political views that have become inconvenient to this oh-so-politically-correct nest of vipers and incompetents running a major state university? (They did, after all, make Churchill a departmental chair in the first place.) One is tempted to borrow Mercutio’s solution in Romeo and Juliet: “a pox on both their houses.”

            My prediction: Churchill and the University will settle. Churchill will not want to shine more of a spotlight on his shoddy scholarship and lack of credentials for the position he holds. (Churchill does not hold an advanced degree.  He got his start in academia as an affirmative action officer, leading many to question whether Churchill himself was an affirmative action hire. Even this is complicated because his claimed Native American ancestry has since been questioned.)  The University will not want to disclose the contents of communications and meetings that would show that its expressed concern for academic honesty is really a cover for its lack of concern for academic freedom. Neither side is going to want the intrusive process of pre-trial “discovery,” in which each side has access to the other side’s documents and testimony-under-oath, to demonstrate to the public precisely how sausages are made in our hallowed institutions of “higher” education.

7/30/2007 12:14:18 PM by Harvey Silverglate | Comments [2] |  

        If money isn’t speech, as advocates of campaign finance restrictions wishfully insist, then why does your local NPR station persist in conducting those annoying pledge drives?  If money isn’t speech, why does Rupert Murdoch want to own the Wall Street Journal?  Why do unprofitable political publications require financial angels to survive?  Of course, money is speech, in effect, as Harvey observes below, (and as crtitics of campaign finance restrictions regularly point out; we have been having this argument for years.)   Money translates into speech, just as money translates into reproductive choice or access to equal education.  Like it or not, money facilitates the exercise of rights.  You can protest or lament that fact, but you cannot wish or declare it away. 

        Because money is speech, (at least until the revolution,) just as money is reproductive choice, some civil libertarians advocate alternative, public financing schemes for political campaigns, as Harvey describes.  Their goal is to expand, not restrict, opportunities for political speech.  Similarly, liberal supporters of abortion rights advocate publicly funded abortions for women in need. They seek to subsidize reproductive health care for poor women, not limit the care that rich women can buy for themselves.

        Public financed political campaigns are complicated and rightly controversial.  How should government officials determine who is eligible for campaign subsidies; should taxpayers be required to provide financial support for candidates they oppose?  But, for all their flaws, at least proposals to subsidize political candidates are efforts to address reality, not deny it. 

7/29/2007 5:12:11 PM by Wendy Kaminer | Comments [1] |  

There was a show-tune ditty that was popular back when I was a kid, which younger readers might also identify as the theme song to Married With Children. “Love and marriage,” went the lyric, “go together like a horse and carriage. This, I tell you, brother: You can’t have one without the other.” In quite the same way, in the context of electoral politics, you can’t have speech without money.

While the internet has made engaging in free speech without a lot of money more feasible than ever, it remains true—especially in the context of campaigning for public office—that money remains the mother’s milk of politics. Of course, that is why the monthly reports on the relative viability of various candidates in both major parties focus not so much on opinion polls, but on fund-raising totals. Even though the amount of popular support a candidate enjoys ultimately affects his or her success at the ballot box, candidates without substantial cash on hand find it prohibitively difficult to make their case.

The problem is that the Bipartisan Campaign Reform Act— better known as McCain-Feingold—has significantly interfered with the ability of third party candidates and other political mavericks to gather together enough funds to inject dynamism and fresh ideas into a political system badly in need of change. (That act recently survived its latest examination by the Supreme Court even though its impact on pure political speech was significantly diluted.)

It’s hard to avoid the suspicion that Congress’ professed concern about the corrupting role of money in the political system may simply be a case of crocodile tears, since the percentage of incumbents being re-elected is about as high these days as it’s ever been. This logic leads to the conclusion that the advent of campaign financing law—beginning with The Federal Election Campaign Act of 1971—failed to create a cleaner, more vigorous political system. Instead, it led to a system in which the obstacles that new and maverick candidates face when launching electoral challenges to incumbents have become so overwhelming that during every election cycle nearly all incumbents get re-elected to the House and Senate. The cost of challenging an incumbent has skyrocketed. All of this might lead a cynic to conclude that campaign finance “reform” is simply a palatable cover for incumbent protection.

The reality of campaign finance restrictions is that they make it harder, not easier, for new voices to be heard, or for challenges against incumbents to be launched. This has occurred because the restrictions make it difficult for newcomers to the political system to overcome the inherent fund-raising and communications advantages of incumbency. In the celebrated 1976 case of Buckley v Valeo, the Supreme Court upheld campaign finance restrictions in principle and rejected rejecting an overall First Amendment attack, even though the court held that certain kinds of money flows, such as personal funds spent by a wealthy candidate for his own campaign, could not be restricted. I hear my fellow liberals chant about the necessity of freeing politics from the grip of big money, but in fact big money manages rather well to find its way into the political system. It’s those who oppose business-as-usual who are unable to buy the time and venues for being heard by the voters.

In addition to this reality comes what should be obvious to readers of The Free For All—that restricting campaign contributions is a backdoor way of restricting free speech that is, or should be, protected by the First Amendment. This has long made me a supporter of the ACLU’s proposed solution. In 2001, it wrote a letter to the Senate opposing McCain-Feingold, in which it noted sarcastically that the act was “misnamed as ‘The Bipartisan Campaign Finance Reform Act of 2001,’” and was in reality “a destructive distraction from the serious business of meaningful campaign reform.” What is needed, noted the ACLU’s letter, is “a more First Amendment-friendly way to expand political opportunity.” This would entail “public financing for all qualified candidates…without the imposition of burdensome and unconstitutional limits and restraints” on political fund-raising. The ACLU’s commonsense – and constitutional – position on campaign finance is consistent with the position championed for decades by the organization’s now-retired executive director, Ira Glasser, who recommended that the law remove the ceiling from political fundraising by abolishing restrictions on how much a candidate may raise and from whom. Instead, the proposed solution would institute a floor – a minimal amount of public funding for viable and credible candidates so that they might increase the amount of political speech heard at election-time. “Examinations of many campaigns,” testified Glasser before the Senate Committee on Rules and Administration on 3/22/2000, “suggest that if the floor of support is adequate, there is no need to impose a ceiling.” The goal, after all, should be to expand rather than contract the amount of political speech. Liberals who support campaign finance laws that restrict free speech by restricting money are barking up the wrong tree. All they will assure is that we won’t be able to throw the damned rascals out.

7/25/2007 6:00:41 PM by Harvey Silverglate | Comments [1] |  

        Prostitution is a crime for women but a “personal matter” for men.  That’s the lesson of the latest Washington sex scandal involving ultra conservative Louisiana Senator David Vitter and alleged D.C. madam, Deborah Jeane Palfrey.  Palfrey, charged with running a prostitution ring, faces federal racketeering charges.  Vitter, exposed as one of Palfrey’s clients, enjoys the support of his right wing Republican Senate colleagues, who have accepted his apology for committing a “serious sin,” which they characterize as personal.  We should forgive, not condemn, Vitter’s conduct, Oklahoma Republican Tom Coburn suggests: “Have you ever done anything wrong?” he asked reporters for The Hill.  “So have I.”  Vitter’s conduct is simply a "personal issue,” law and order presidential candidate Rudy Giuliani agrees.  (Vitter is southern regional chair of Giuliani’s campaign.)
       
        Feminists have long protested the gross inequities of prosecuting women for selling sex while forgiving or ignoring men for buying it.  (Ruth Marcus points out the problem with personalizing Vitter's conduct in the Washington Post.) Personally, (unlike Marcus,) I favor legalizing or de-criminalizing prostitution, but neither Vitter nor any of his conservative supporters share my libertarian views.  As far as I know, none of them have advocated treating prostitution as a private matter, or refraining from prosecuting women for their sexual “sins.”  Indeed, Vitter is a particularly self-righteous proponent of right wing “family values” -- except when he’s caught violating them.  Apologizing for his conduct, Vitter said, "Several years ago, I asked for and received forgiveness from God and my wife in confession and marriage counseling.  Out of respect for my family, I will keep my discussion of the matter there -- with God and them.”  
   
        Out of respect for equal justice, prosecutors and journalists should ignore Vitter’s plea. If Deborah Jeane Palfrey committed a crime, then so did he. 
 
       
   

7/18/2007 1:45:17 PM by Wendy Kaminer | Comments [1] |  

            “Sometimes a cigar is just a cigar.” Attributed to Freud, this insight reaches beyond psychoanalysis. It is equally applicable to the industry of self-proclaimed “terrorism experts” who have sprung up in our terrorism-obsessed times. These “experts” often sell their services to convince government officials, and sometimes criminal trial juries, that common everyday blather might be – and likely is – disguised plotting against the public safety.        

            I recalled Freud’s observation while reading the news reports of the man billed by the Miami Herald as “the federal government’s leading expert witness in the case against terrorism suspect Jose Padilla.” I have written about the long, tortured history behind the federal government’s effort to put Padilla, a United States. In short, President Bush authorized Padilla’s arrest in 2002 and promptly designated him an “enemy combatant,” a classification that was thought at the time to endow the government with the power to hold him, incommunicado and without criminal charge and trial, for the uncertain duration of the “war on terror.” After years of legal wrangling, and as the Supreme Court was deciding whether to review Padilla’s claims to violation of his most fundamental rights, the government re-designated Padilla a common (or uncommon) criminal and indicted him in 2005. He is now standing trial in federal court in Miami, along with two co-defendants. (Disclosure: One of the co-defendants is being represented by my friend and former law partner, Jeanne Baker.)

            The prosecution is seeking to utilize extensive wiretaps of phone conversations involving the defendants, in order to prove the charge that they conspired to commit murder and to provide “material support” for “jihadist” terrorist groups overseas (Padilla’s voice is reportedly heard on only eight of the more than 300,000 conversations tapped from 1993 to 2001). Many of those tapped conversations appear to be rather innocuous, filled with everyday talk, while others have slightly more enigmatic language.

             The prosecutors claim that because the defendants knew they were being wiretapped, they spoke in code. To decipher this supposed code and to testify as to its “true” meaning, the prosecution has called various expert witnesses. An FBI agent, John Kavanaugh, testified at the Miami trial that “tourism” actually meant “jihad.”  “Cheese” was code for “money,” and “iron” meant “weapons.” Meanwhile, to “get married” meant to be killed, testified Dr. Rohan Gunaratna. The names of fruits and vegetables actually referred to weapons; thus, “eggplant” was actually a rocket-propelled grenade launcher. And so forth and so on.             

            Dr. Gunaratna, who has a degree in international peace studies from Notre Dame and a doctorate from a Scottish university, has become the belle of the terrorism-industry ball. He has testified, mostly for the Department of Justice, as a “terrorism expert” for $300 an hour. (Not bad for someone who isn’t even fluent in Arabic.) Meanwhile, the sources used by Gutaratna, who was born in Sri Lanka, remain unreviewable--as defense lawyers in the Padilla trial learned when they tried to ascertain who exactly supplied this “expert” with his insider’s “knowledge.”  Nonetheless, trial judge Marcia Cooke has qualified Gunaratna as an expert and has allowed the jurors to listen to him prattle on about the true meaning of what the jurors are hearing but presumably are not understanding without “expert” help. 

            Dr. Gunaratna, by the way, testified as a government expert in another infamous case – the trial in Boise, Idaho, of a Saudi grad student attending the University of Idaho who was charged with lending material aid to terrorism by maintaining websites through which one could follow links to jihadi websites. Dr. Gunaratna’s testimony was not sufficient to scare, nor fool, a jury of twelve solid citizens of Idaho. The student, Sami Omar al-Hussayen, was acquitted in 2004 when the jurors concluded that all he was doing was exercising his First Amendment protected right to free speech by helping people see what stuff was out there, publicly available, on the Net. Sometimes a website is just a website.

7/10/2007 11:28:43 AM by Harvey Silverglate | Comments [0] |  

            Only two words are necessary to say all that needs to be said about the rapidly expanding scandal over the dangerous food, toiletries, and manufactured goods arriving on our shores and shelves from The Peoples Republic of China: Silent Spring. That, of course, is the title of Rachel Carson’s 1962 classic book that launched the environmental movement by exposing the deleterious consequences of the over-use of the pesticide dichloro-diphenyl-trichloroethane (DDT).

             It was not the government that blew the whistle on the extent to which we were poisoning our own backyards. Had we left it to the government to discover, and then to remedy, the dangers of environmental poisons and pollution, we would all still be slowly simmering to death in a far larger variety and number of toxic stews than we currently face. The whistle was blown by a scientist-author who belonged to the enormous and vibrant civil society that the nation’s constitutional framework has allowed to prosper.

            Much of the environmental movement’s success in fighting pollution must be credited to the First Amendment, which encouraged and allowed Carson to spread her message. And while Ralph Nader ruffled a few feathers on both sides of the political divide in recent Presidential elections, the publication of his epochal Unsafe At Any Speed triggered the start of the enormously successful effort to mandate and produce safer cars. While many of our nation’s problems emanate from the private sector, so do most of the solutions. If we left it to the government to focus initial attention on these problems, we’d see cover-ups that would make the recently-released CIA “family jewels” secrets look like minor blips on the nation’s radar.

             Given all this, it should have come as no surprise that we began to learn in a series of page-one news stories that pet food, then toothpaste , and most recently, children’s toys, manufactured in China for export to the United States contained potentially deadly chemicals. Another shocker was the discovery that automobile tires exported to the United States posed the danger of tread-separations likely to lead to deadly automobile accidents

             And then came the clincher: that while “99% of the food exported to the United States [from China] was up to safety standards over the past two years,” a staggering 20% of the fruit and vegetable juice surveyed were substandard, and other canned and preserved fruit and dried fish were contaminated with bacteria.  Of course, it would be foolhardy to take much comfort from the 99% figure, or even to believe the 20% figure as a maximum, since the survey was conducted by the PRC’s General Administration of Quality Supervision, Inspection and Quarantine, reported by a Chinese governmental official to the state-run Xinhua News Agency. Given China’s record on press freedom and regulatory control over its industries, somehow I’d feel more comfortable taking the word of, say, the Natural Resources Defense Council or Consumers Union as reported to The New York Times and The Wall Street Journal.

7/6/2007 9:32:01 AM by Harvey Silverglate | Comments [0] |  

The unwarranted uproar among the punditocracy over President Bush’s commutation of part of I. Lewis “Scooter” Libby’s sentence is indicative of the sorry state of this nation’s public political discourse. The left is agitated because Bush spared Vice President Cheney’s right-hand man a humiliating prison sentence for lying in an investigation about his knowledge of the leak of CIA agent Valerie Plame’s identity. Additionally, there are protestations against the right’s inconsistent stand between the Libby case and President Clinton’s impeachment for perjury nearly ten years earlier. On the other side, the right is equally agitated over Bush’s failure of nerve in granting what they see as an incomplete, equivocating, partial commutation of the sentence rather than a full and unconditional pardon. Such a pardon would have wiped out the criminal conviction itself, along with the fine and the probation that Bush’s partial commutation left intact.

But this uproar is over a red herring, since it misses the real injustice of the case. Bush should have granted Libby a full pardon precisely because Special Prosecutor Patrick Fitzgerald’s investigation was the latest in a long train of abusive federal criminal investigations. These investigations are symptoms of an underlying disease: a Department of Justice that is out of control, and a special prosecutor who emulates the tactics of the department from which he is supposed to have some independence. As such, there was no reason to expect Fitzgerald to show restraint when faced with the rule of law. Few federal prosecutors show restraint these days. In practice, he didn’t: even though Fitzgerald knew virtually from the start of the investigation that there was no prosecutable crime that had been committed—Plame was almost certainly not protected by the statute prohibiting the disclosure of certain clandestine CIA agents’ identities—he bulldozed through the ranks of the Fourth Estate like a common drunkard (on power, however, rather than on booze).

Fitzgerald managed to put then-New York Times reporter Judith Miller in jail for eighty-five days for contempt, on account of her principled refusal to hand over her confidential source notes. She changed her mind when her source—Libby—waived his confidentiality. Similarly, Fitzgerald forced Norman Pearlstine, the editor-in-chief of Time Magazine, to hand over the notes of Time reporter Matthew Cooper, despite Cooper’s pledge to keep his source confidential. In the process, any naïve notion that something remained of a federal confidential source privilege for reporters was dashed beyond repair.

When no crime has been committed, there is something fundamentally wrong – and dangerous – when a federal prosecutor nonetheless constructs an indictable crime by finding some witness who will tell something other than the truth, the whole truth, and nothing but the truth. (It is a felony, it should be noted, to lie to a federal investigator, even when not under oath, and it is perjury to lie under oath.)

For that reason, conservatives correctly argue that Bush should have thrown out the entire conviction, not just part of the sentence. Indeed, I predict that is what Bush will do if Libby loses his appeal in the Court of Appeals for the District of Columbia Circuit. Part of the purpose of the commutation was to leave the conviction intact—and the appeal alive. The appeals court could then do what Bush did not see fit to do—throw out the case. However, if the appeals court affirms Libby’s conviction, the odds favor Bush giving Cheney’s right-hand man a full and unconditional pardon. Libby would deserve it, not because he acted well or wisely in lying to Fitzgerald, but rather because Fitzgerald abused his power by luring Libby into a lie when there was nothing legitimate for Fitzgerald to investigate.

In my opinion, there is one crime that Libby, in addition to his boss Cheney, might usefully and properly be investigated for. They have arguably committed gross violations of the Constitution, federal laws, and the international humanitarian law of war in the course of waging the war on terror, and have opened themselves to credible accusations of war crimes. Now there is an investigation that friends of the Rule of Law could support. But the phony conviction for lying to the special prosecutor, on a subject on which the prosecutor had no right to inquire, should not garner support from any self-respecting liberal.

(UPDATE: 7/5/07 to fix bad links)

7/3/2007 5:37:39 PM by Harvey Silverglate | Comments [5] |