Half naked women are common sights in city streets every summer (and all year round in warmer climes.)  We argue about whether this skimpy, sexualized public attire represents the rise or fall of feminism, but there’s virtually no dispute about its legality.  So when municipalities start criminalizing baggy, underwear exposing jeans, generally associated with young black males, you know legislators are motivated by something other than a concern for decency.  Young white women are not arrested for letting their bra straps show (in addition to a fair amount of flesh.)  But as the New York Times recently reported, in some localities, young black males may be arrested for showing their boxers.
      
        Yes, baggy jeans are condemned for imitating prison wear and glamorizing prison culture, as Times story stresses – but that simply means that they’re worn to send a message, (however disturbing or offensive,) which only makes banning them all the more illegal.  In a culture preoccupied with fashion “statements,” the expressive nature of clothing is difficult to deny.  When clothing is condemned precisely because authorities don’t like the statement it makes, the offense to the constitution is clear.  I hope these laws are challenged.  Courts may overlook some restrictions on clothing in public schools, (the Supreme Court has recently cut back on student rights,) but I like to think that even this Court would hesitate to approve clothing restrictions in public streets.  In America, as opposed to, say, Iran, we’re not supposed to take the job of clothing police so literally.

8/31/2007 5:56:18 PM by Wendy Kaminer | Comments [1] |  

        It’s long been apparent from Mitt Romney’s opportunistic political career that he lacks both courage and conviction (except perhaps for a sincere belief in his own goodness and entitlement to power.)  So his swift and spineless denunciations of Larry Craig are no surprise, although as Harvey stresses in his post below, the comparison of Romney to both Lyndon Johnson and Barry Goldwater, who made a principled decision not to engage in gay bashing given a similar opportunity (in a much less tolerant era,) is instructive.  (Covering the story in Slate, John Dickerson notes, “Mitt, You’re no Barry Goldwater.”)

        Still, even in the wake of Romney’s gratuitous description of Craig as “disgusting,” I can’t quite bring myself to feel sorry for the embarrassed, soon to be former Senator, given his entirely voluntary participation in a regime that denies gay people the rights and respect he enjoys as at least a faux heterosexual. There’s some rough justice in his ensnarement in the web of homophobic laws and customs that he helped weave.

        It is, however, hard to ignore the underlying injustice of a legal system that sends police officers into public bathrooms, hoping that some unfortunate gay males will solicit them.  Why should it be illegal for adults to seek out sexual partners in public bathrooms, or other spaces?  Should we start arresting people in singles bars? Should heterosexuals be forbidden to meet and engage in their own coded sexual come-ons in public parks, beaches, or airline terminals?  Should we assign police officers to Amtrak trains in the Northeast corridor to ensure that no strangers begin conversations in Boston that seem likely to lead to sex in New York?

        Defenders of the sting that stung Craig may reply that it’s public sex, not public pickups, that are legitimate public concerns.  Maybe so.  Engaging in public sex, you effectively appropriate a public space, by strongly discouraging other people from using it, (although, personally, I’d rather picnic near a couple having sex than a couple with a boom box.)  But Craig wasn’t arrested for engaging in sex; he was arrested for signifying an interest in engaging in sex.  If laws against that were enacted and indiscriminately enforced, than even Mitt Romney would likely have broken them.

8/31/2007 4:41:40 PM by Wendy Kaminer | Comments [2] |  

    Character is something that’s not always easy to define, but making the attempt does bring to mind what the late Supreme Court Justice Potter Stewart famously said about pornography, “I know it when I see it.”

Well, when you look into the eyes of Mitt Romney, you just know that a weak character resides beneath that smug exterior. I already suspected it after watching his mad dash to the right when his positions did not sit well with the coveted GOP base, and received confirmation this week when I read his response to news that Senator Larry E. Craig (R-Idaho), who served as co-liaison between the Senate and the Romney presidential campaign, had pleaded guilty earlier to a disorderly conduct charge growing out of his arrest by an undercover vice cop in the men’s room at the Minneapolis-St. Paul International Airport in June. The Romney people issued a statement immediately after news broke on August 27th of Craig’s June arrest and his early August guilty plea: “Senator Craig has stepped down from his role with the campaign. He did not want to be a distraction, and we accept his decision.” So, the formerly good Senator, a reliable cultural conservative to help polish the Mitt’s cultural conservative credentials after his more liberal incarnation as Bay State governor, suddenly is relegated, rather unceremoniously, to a distraction.

Romney personally went even further than his campaign’s fairly clinical separation from the disgraced senator.  In his first reported public comments on the matter, the presidential candidate appeared on CNBC’s “Kudlow & Company” program and thoroughly trashed his erstwhile supporter. Accusing Craig of displaying “not up to the level of respect and dignity” expected of a senator, Romney explained that one cannot simply “just forgive and forget” such conduct. “We’ve seen disappointment in the White House, we’ve seen it in the Senate, we’ve seen it in Congress. And frankly, it’s disgusting.”

It’s not clear whether another of today’s presidential wannabes would have handled a similar situation much differently from Romney, although hope does spring eternal that there is place for gumption, compassion, and loyalty in presidential politics. There’s at least one prior precedent that comes to mind indicating that not all aspirants for election or re-election to the White House are devoid of the traditional virtues.

In October 1964, just three weeks before the presidential election, Walter Jenkins, a personal friend and high-level adviser to President Lyndon B. Johnson, was arrested for having gay sex in a men’s room at a Washington D.C. YMCA. Johnson, who had inherited the White House after the traumatic assassination of President John F. Kennedy, was running for his first full and elected term against Republican challenger Barry Goldwater. The full story is told by Al Weisel in the December, 1999 issue of Out magazine.

When the story of Jenkins’ arrest hit the papers, he had a severe nervous breakdown, prompting presidential aide (and later Supreme Court Justice) Abe Fortas to call a physician, who admitted the distraught Jenkins to the psychiatric ward of the George Washington University Hospital, under a 24-hour suicide watch. The public announcement was made by Johnson’s press secretary, George Reedy who, Weisel wrote in Out, was “weeping as he made the announcement.” (This alone separates the Johnson White House from modern times. Can you imagine a presidential press secretary today shedding tears of sympathy for a disgraced White House staffer?)

For me, the shocking aspect of the story was not that a closeted pol got caught leading a double life (what else is new under the sun?). Rather, it was the compassion President Johnson and his wife, Lady Bird Johnson, showed to their disgraced confidante and, it must be added, long-time personal friend of the president and first lady.

Lady Bird Johnson, in a gesture that reveals both her courage and her tolerance, told the press that she would stand by her and her husband’s friend Jenkins, as Jesus would have wanted. She reportedly urged the President to make a similar “gesture of support” as well. LBJ considered following her advice, writes Weisel, but eventually decided not to defend Jenkins because “we just can't win it.” “The average farmer just can't understand your knowing it and approving it or condoning it,” he lamented. However, Johnson did nothing to inflict further pain on Jenkins and took care not to seek points with the electorate by bashing the distraught staffer.

I was a first year law school student in October 1964, and I can remember to this day watching the news reports on television. President Johnson left the White House in order to pay a personal visit to Jenkins at the hospital. A television news reporter stopped Johnson in order to ask whether he had come to the hospital to fire Jenkins. I cannot remember Johnson’s precise words nearly 43 years later, but I remember the general tone and tenor of Johnson’s response as he spit out his words, with signs of visible contempt toward the reporter: I’m here to visit an ill friend.

Jenkins quietly resigned a few weeks later, and Johnson split his work among colleagues. LBJ later regretted not defending his friend more vociferously. Joseph Califano, who was undersecretary of defense for both John F. Kennedy and Johnson, told Weisel: "I heard Johnson say often that when he left the White House there were two things he was going to do: He was going to start smoking again, and he was going to throw his arms around Walter Jenkins and hug him. And he did it. He started smoking on the plane on the way back, and he met Walter Jenkins at the airport in Texas." Jenkins and Johnson rekindled their friendship as retirees in rural Texas, the same place where they formed a close bond as young legislative aides in the late 1930s.

What would Jesus say? One wonders. We know what Lady Bird said, and what Lyndon did to keep from making his friend’s pain worse. And we know, too, that Barry Goldwater rejected advice from his campaign staffers to exploit Jenkins’ troubles for the candidate’s political advantage in an electoral race where Goldwater was running substantially behind Johnson. And we know what Mitt said. If character is an important test for the presidency, one hopes that Romney gets eliminated from the electoral contest early and decisively, as the voters realize just how short he falls when compared to some of the men and women that have come before him.

8/31/2007 1:22:06 PM by Harvey Silverglate | Comments [0] |  

        Exhibiting all the scripted smarminess of its genre, “Kid Nation,” the new CBS “reality” show has distinguished itself by prompting an investigation into its compliance with child labor and safety laws.   CBS recruited 40 children between the ages of 8 and 15 and planted them in an abandoned New Mexico town for an experiment in civilization building.  The You Tube promo for the show promises to show us “40 kids with no parents, no teachers, anywhere” coping with “hot button” issues.  Can these “incredible kids” succeed where adults have failed and build a better society, the pitchman asks.  Disney meets Deadwood. 

        The “Kid Nation” story, still unfolding, is being widely reported, and now that CBS is under investigation for exploiting children, it’s “trying to have it both ways,” the New York Times observes; the network is “taking pains to assert that ‘Kid Nation’ was, in fact, crawling with adults: child psychologists, pediatricians and paramedics, all of them closely watching over the children.”  

        Whatever.  CBS’s shamelessness is unsurprising.  I’m more interested in the alacrity with which people sign away their own autonomy (or that of their children) for a shot at celebrity.  Civil libertarians should take note of how little some Americans value what might quaintly be characterized as inalienable rights – the right to speak freely about your own experiences and tell your own life story – or contradict someone else’s version of it.
Consider the terms of the contract signed by the parents of “Kid Nation” contestants, described in the New York Times:

        It “imposes extensive confidentiality requirements on the parents and the children, including that any interviews they grant must be approved by CBS. Those confidentiality conditions extend for three years beyond the end of the show, not the individual 13-episode cycle in which a child participates but the entire series, however many cycles it includes. The producers of ‘Kid Nation’ have already begun interviewing children to take part in the second installment.”
       
    “Violating the confidentiality agreement carries a $5 million penalty. CBS and the production companies, Good TV Inc. and Magic Molehill Productions, retained the rights to the children’s life stories “in perpetuity and throughout the universe.” And that right includes the right to portray the children either accurately or with fictionalization ‘to achieve a humorous or satirical effect.’”
       
        Parents also “agreed not to hold the producers and CBS responsible if their children died or were injured, if they received inadequate medical care, or if their housing was unsafe and caused injury.” 
      
    This, in a society obsessed with child abuse: for a lousy $5000 stipend and the possibility of winning an additional $20,000, CBS purchased from parents immunity from liability for killing or injuring their children as well as the right to broadcast outright lies about their kids, forever, in this or any other galaxy:  “in perpetuity and throughout the universe.” Objecting publicly to CBS’s portrayal or commercial use of your child will cost you $5 million dollars. (Do the numbers: The cost of violating the contract is 1000 times the reward for complying with it.)   

    Apparently, at least one parent complained to New Mexico authorities about abusive conditions on the set anyway, but, remarkably, like a child, he or she remains under CBS’s control: According to the Times, “CBS declined to allow a reporter to speak to the parent who complained to New Mexico authorities about the conditions at the production site.” 
   
    Kid Nation indeed.  This is, in part, a story about the infantilization of adults, and its political implications are unsettling.  Only a nation of grown-ups can be free.

8/27/2007 5:12:46 PM by Wendy Kaminer | Comments [0] |  

            Boston’s small but feisty Armenian lobby scored its biggest “victory” yet earlier this week, when it finally cornered Anti-Defamation League President Abe Foxman into describing the slaughter of Armenians during and after World War One as “tantamount to genocide" (see press release). I put “victory” in quotation marks because, in my view, neither side emerges from this controversy looking like a real winner.

            I’ve written in the past about the strong-armed, censorship-prone tactics used by Watertown’s Armenians to advance their cause, and on the importance of leaving questions of history to scholars, not interest groups. You can check out my op/eds on this topic, both in Massachusetts Lawyers Weekly and The Boston Globe. 

  I’m equally dismayed at the ADL’s poor handling of this fiasco. I wrote earlier that the ADL finds itself in a hole largely of its own digging (see “Genocide and its Partisans: What the ADL Did Wrong”). And if you think that the ADL’s flip-flop on the G-word is going to make this flap disappear, think again. The ADL’s poorly conceived and essentially dishonest explanation of its reversal has opened the door for yet more attacks.

Of course, the ADL won’t admit that it caved to the Armenian lobby. So in a textbook PR move, the organization tries to claim that reversing its stance was its own idea all along (“We have always described the painful events of 1915-1918 perpetrated by the Ottoman Empire against the Armenians as massacres and atrocities”).

Rather than succumb to any notion that their Armenian counterparts were right, Foxman and company write that “on reflection, we have come to share the view of Henry Morgenthau, Sr. that the events [constitute] genocide.” It’s no accident that ADL cited Morgenthau, a Jew, instead of any of the large number of contemporary historians who have criticized the ADL’s stance. This is clearly a cynical attempt by the ADL to remind us all that the man credited with blowing the whistle on the so-called genocide was Jewish. If I were Armenian, I would be a bit peeved by these lame attempts at spin. (As a Jew, I’m a bit embarrassed by it all, even though I keep telling myself that it’s not my doing.) And, don’t expect the Turks to be happy with this Morgenthau reference either. As one of my colleagues pointed out, this will only pour salt in the wounds of the already defensive Turks, seeing as Morgenthau, in those same very same dispatches, frequently used colorful racist language to describe “those unspeakable Turks.” Chalk this up as one more example of how dishonesty brings nothing but trouble.

I’m also curious to see how the ADL plans to maintain its tenuous new position that there was a genocide, but that the issue should not be voted on by the Congress nor litigated in the courts. The ADL’s legal staff must realize that it doesn’t work that way. A nation can’t acknowledge the genocide but then try to avoid all the baggage that comes with it. And judging from press accounts so far, it’s clear that the Armenians won’t relent and meet halfway on this issue. The mudslinging has just begun, I fear.

And no one, it seems, is fighting for the proposition that historians, rather than politicians and interest groups, should pronounce on historical truths. Decisions on when the term “genocide” applies should be made on the basis of documentation, reliable evidence, and clear legal standards and definitions. This does not imply that what happened to the Armenians at the hands of the Ottoman Turks was, or was not, a genuine genocide in terms of modern-day definitions. It’s simply a plea for keeping government and pressure groups out of the business of pronouncing truth and labeling opposing points of view as the equivalent of blasphemy.

While you’re reading up on this brouhaha, check out Jeff Jacoby’s column from yesterday’s Boston Globe, in which he writes that “the Armenian genocide is an incontestable fact of history. Shame on anyone who refuses to say so.” This is exactly the sort of rhetoric that sends chills down my spine. If Jacoby wants to push his view that there was a genocide, more power to him. What irks me is the attack on those who disagree with him, who are now becoming known as “genocide deniers,” a category of “haters.” Not only is this viewpoint poisonous to the notion of open and unfettered discourse, but it is also plainly inaccurate, since it ignores the work of credible scholars who have formed more nuanced responses to the Armenian question. How can a civilized discussion of such an important historical event, resulting in so many deaths, be conducted if one side is always demonized in this fashion?

8/23/2007 10:30:59 AM by Harvey Silverglate | Comments [3] |  

          I don't see how the Anti-Defamation League, either the national organization or its New England regional branch, can dig itself out of the Armenian Genocide hole, into which it falls further each day, unless it devises a more principled position on a question that is central to this entire controversy: “Who writes history?”

The beleaguered national organization’s leader, Abe Foxman, never recovered from one crucial early misstep: adopting the position that he “doesn't know” if the events that transpired during the fall of the Ottoman Empire constitute a genocide. That was a completely untenable position for Foxman to hold, given that the ADL continues to label the ongoing conflict in the Sudan a genocide, when in truth it has no way of knowing if that conflict can be labeled as such either.

It’s fine that the ADL wants to speak out on issues that aren’t directly related to the Jewish people. But, when it made that decision to branch out, it should have known better than to bandy about the G-word when describing Darfur while simultaneously taking an agnostic position on the unavoidable Armenian question. What the ADL should have said that is that, ultimately, historical questions must be interpreted and decided by scholars and by official bodies tasked with making legal determinations (courts and U.N. agencies that deal with war crimes). This has been my long-held view, and it is the basis for Griswold v. Driscoll, a 1^st amendment test case I filed in Massachusetts state court in 2004 (read more here and here).

 Unfortunately, the ADL would have a hard time adopting such a commonsense position at this point. Much damage has been to done to its credibility, and the decision to fire Andrew Tarsy, the regional director who broke with the company line and voiced his personal opinion that there was an Armenian Genocide, hasn’t helped much either. Nor, in fact, is the regional ADL’s position – that there was in fact an Armenian Genocide committed by the Ottoman Turks, and that anyone on the other side is a genocide denier – any more tenable, since it is obvious that the regional office contradicted the national office not on the basis of a close study of the historical evidence, but on the basis of a sense that it would be amoral to deny the Armenians their genocide.

Even Harvard Law professor Alan Dershowitz, paladin of free speech and intellectual inquiry, opined in a co-authored (with Rachel Kaprielian) op-ed in The Boston Globe that “the matter is not subject to interpretation” – this, despite the fact that well-reputed scholars such as Princeton’s Bernard Lewis and Louisville's Justin McCarthy disagree, and prominent University of Massachusetts-Amherst historian Guenter Lewy has argued forcefully that the available historical documentation is currently too spotty to justify too rigidly-held a conclusion. If truly the Armenian Genocide is not a fit subject for discussion, argument, scholarship, and disagreement, what is? Must all historical decisions and interpretations be made on the basis of what is the politically correct and seemingly moral position of the day, or are free minds at liberty to inquire and discuss, rather than merely to parrot acceptable positions?

It also doesn’t help that, in recent years, the ADL has indulged in the huge mistake of insisting on certain litmus tests and dubbing certain views “hate speech,” where anyone announcing a politically incorrect view on certain hot-button social and political issues becomes a “hater.” Where the words one uses, or chooses not to use, become litmus tests for determining one’s essential decency and fitness to join the family of man, then we know that substance has given way to style, free inquiry to tyranny. Further, the ADL has insisted that it’s not enough to concede what the historical evidence clearly shows – that the Nazis went out systematically exterminating Jews, gypsies, homosexuals, and other discreet populations – but one must go further and concede that the Holocaust is unique in history etc., or else be dubbed a “Holocaust denier.”  I have long thought that ADL would eventually drive itself into a corner and suffer the slings and arrows of its own manufacture. This seems to be playing out in front of our eyes on the "Armenian Genocide" issue.

8/21/2007 4:29:43 PM by Harvey Silverglate | Comments [2] |  

        Maybe I should watch what I say in discussing Kia Vaughn’s defamation lawsuit against Don Imus.  Vaughn, a member of the Rutger’s women basketball team, is suing Imus for referring to her team as “nappy headed ho’s.” No reasonable person would have interpreted Imus’s remark as anything but a crude, stupid, or racist joke; and indeed Rutgers basketball coach C. Vivian Stringer criticized Imus for making her team the butt of his “joke.”  But if Imus was joking, if he was engaged in satire, however stupid or cruel, then he is arguably not liable for defamation; so Vaughn’s lawyer, Richard B. Ancowitz, insists that Imus made his remark, “during a news report, it wasn't done during a comedy bit.”        

        This blog is not a “comedy bit” either; so I better not describe Ancowitz as an ambulance chasing buffoon or make any wisecracks about shyster lawyers.  I should also refrain from mocking Vaughn for filing this suit and exploiting her exalted status as a victim of Imus’s joke.  (If I wanted to describe her as air-headed, I’d check with my lawyer first.)

        I would, of course, have very strong First Amendment defenses against any lawsuit brought by Vaughn for denigrating her claim or questioning her motives as well as her understanding of free speech.  But I don’t want to spend any time or money defending myself against a frivolous claim.  Who would?  I prefer to engage in a little self-censorship.  I bet that Imus and both CBS and MSNBC (also sued by Vaughn) would prefer to settle her claim (and watch what they say) rather than suffer the expense and publicity of litigating it.  So if Vaughn’s intent is to chill politically incorrect speech, she may already have succeeded.

        According to Attorney Ancowitz however, Vaughn seeks simply to “restore (her) good name and reputation.”  Imus has “come out smelling like a rose,” Ancowitz complains absurdly.  “But what about these young women?” As anyone with a short-term memory will recall, Imus was widely condemned, ridiculed, and fired for his remarks, (for which he abjectly apologized.)  In fact, it was the Rutger’s women’s basketball team that “came out smelling like a rose.” Pictured on the front page of the New York Times (and on Hillary Clinton’s website,) they were widely celebrated for their academic and athletic achievements, as well as for their dignity and grace in accepting Imus’s apology. (Apparently when coach Stringer declared that she and the team had accepted his apology and were in the “process of forgiving,” she was not speaking for Kia Vaughn.)

        What will Vaughn do with any proceeds from her suit?  Ancowitz unctuously claims that she will establish a scholarship program to study the social effects of bigoted speech.  Personally, I have long worried much more about the effects of speech policing and the cultural tendency to seek self-esteem in victimhood.  As strong, accomplished, self-respecting young women – not the sort to be traumatized by one thoughtless, stupid insult - Vaughn and her teammates seemed to represent a different, healthier feminist ideal. Her lawsuit is apt to turn a testament to feminist success into a symbol of feminist failure.

UPDATE, September 12, 2007
        Never mind: Kia Vaughn dropped her lawsuit against Imus and CBS, explaining, through a spokeswoman, that she wanted to focus on basketball and her education at Rutgers University where she is -- get this -- a journalism major.  If Rutgers offers a course on freedom of the press, Vaughn should probably take it.

8/20/2007 3:22:15 PM by Wendy Kaminer | Comments [0] |  

            FreeForAll readers will want to check out my online piece for The Boston Phoenix, in which I express some skepticism over Attorney General Martha Coakley’s recent indictment of Powers Fasteners, Inc., the Big Dig’s epoxy manufacturer, for involuntary manslaughter. I theorize, based on what we know so far, that Coakley may have some ulterior motives in bringing this indictment. Prosecution of Powers Fasteners serves to deflect blame from the Commonwealth for its role in the tunnel collapse that killed a Jamaica Plain resident last summer. And by deflecting attention from its own role in the tragedy, the Commonwealth will have a better shot at ironing out a large civil settlement with contractors, thereby erasing some of the project’s massive cost overruns.

            A article in today’s Boston Globe (“Officials withhold critique of Big Dig tunnel leak  report”) lends credence to my theory. The Globe reports that Bernard Cohen, the state transportation secretary and chairman of the Turnpike Authority board, has refused to release two reports on the project, one commissioned by the state, and one prepared for the state by an outside engineering firm. Cohen justified his refusal by explaining that he did not want to impede the state’s legal effort to sue the contractors. It’s a pretty transparent excuse, but, to his credit, at least he’s honest. It seems that our government has no problem with resorting to secrecy in order to save its own skin.

            Just another example of the old maxim that liberty requires eternal vigilance, and skepticism. Neither citizens nor the news media should be too quick to credit governmental news releases and press conferences. Ronald Reagan famously said about the Soviets “trust, but verify.” When it comes to our government, which has proven so inept in this project over the years, I propose a variation on this maxim:  “Don’t trust. Then verify.”

 

8/16/2007 4:10:24 PM by Harvey Silverglate | Comments [0] |  

Boston Globe columnist Yvonne Abraham had an interesting column yesterday contrasting the bold architecture on MIT’s campus with Harvard’s many recent architectural blunders.  I think you’ll find an explanation for the difference between Harvard and MIT architecture by examining the cultures of the two schools.

Harvard has become completely corporatized. Education means little, especially the education of undergraduates. What’s important is Harvard, Inc. – its wealth, its power, its influence, its world-wide reach, its bottom line. Its recent leadership is risk-averse, instead focusing on appealing donors and maintaining its image.

MIT, on the other hand, takes seriously its mission of turning out students who are tops in science and technology, and doesn’t let fundraising and image-control take priority. MIT is the real thing, although how long it can resist the increasing corporatization of higher education remains to be seen.

And so MIT is capable of building innovative buildings, even at the risk of criticism, while Harvard and its PR people play it safe.  It’s a matter of culture.

                                                             

8/16/2007 12:56:32 PM by Harvey Silverglate | Comments [0] |  

A bridge collapses in Minnesota, with tragic and deadly consequences. A report shows hundreds of bridges across Massachusetts are in similar need of repair. Each year, education think tanks decry the chronic underfunding of many public schools. Meanwhile, In a desperate bid to refill depleted town coffers, the residents of a quiet little town vote 2-1 to allow casino gambling – a decision that will change the face of the town forever and bring in its wake a whole new world of social and other problems.

            What links all of these seemingly disparate headlines together? Well, it could very well be federalism, a concept that, given the economic disparities facing our country, may be due for a renaissance. Federalists, who believe in reallocating funds and authority from the federal level to the states, have spent decades lamenting the feds’ steady expansion into areas of American life previously left to the states, cities, and towns, such as education and local transportation. By and large, liberals have been skeptical. It may be time for that attitude to change.

This expansion has been enabled by a positive feedback loop, in which more federal government spending requires increased federal taxes, and increased tax revenue enables more federal government spending. Indeed, adjusted for inflation, federal tax revenue has grown by two hundred and thirty percent since 1965, according to conservative think-tank The Heritage Foundation. Remarkably, federal spending increased by two hundred and fifty percent over the same period. Besides the damage to taxpayers’ paychecks, this cycle has spawned an additional and quite pernicious side effect: whatever funds the feds cannot collect, they borrow – saddling our children and grandchildren with frightening budget deficits.

           Faced with all this, some liberals who extol the virtues of the social welfare state have to ask themselves whether the expansive federal government approach has backfired, and whether the Federalists have a point. (Of course, it is perfectly consistent for liberals to favor both a welfare state and a small federal government. This “blue federalism” would suggest that, when faced with an incompetent and illiberal federal government committed to obstructing progressive values, liberals should instead embrace state and local government as vanguards of those values. At the very least, citizens of a city or state have a better chance of influencing the actions of local and state government than they have of causing even a ripple in Washington.)

But if one takes the federalist logic seriously, it suggests the question: Are the American people getting a solid return on their investment? Consider the following:

            In a case of perfect accidental timing, the Pioneer Institute finished a review of our Commonwealth’s public bridges the same week as the collapse in Minneapolis and designated 558 of them “deficient." This shameful neglect can be witnessed first-hand by anyone who has visited virtually any state, county or municipal courthouse in the state, except for the recently refurbished Adams Courthouse in Boston that is home to the state’s highest court. The deplorable state of those buildings—for example, it is hard to find a working toilet in many of them—undermines public respect for one of our state’s great institutions.

            And while federal buildings are well-funded and generally well-maintained, for the most part our tax revenues sent to Uncle Sam appear to be poured down a massive sinkhole. Consider the recent report by the nonpartisan Congressional Budget Office that the Iraq War has already put the American taxpayer on the hook for a trillion dollars, with no end in sight and without, it is generally agreed, a strategy worthy of the name. The catastrophic failure of the Department of Homeland Security to deal with the devastating flood that destroyed New Orleans and environs when Hurricane Katrina hit is now well-documented. And the recurring reports of outrageous pork-barrel projects inserted into federal budgets by powerful congressmen, for little purpose other than assuring their re-election—does anyone remember the Alaskan “bridge-to-nowhere” supported by Alaska Senator Ted Stevens, who is now under corruption investigation?—make one skeptical that the federal government could run a typical household budget.

            The bottom line is that as the federal government becomes more profligate and seemingly less competent—past the level of merely dysfunctional, and possibly attaining the level of pathological—our states and cities and towns become more and more starved for the cash siphoned off and then recklessly wasted by Washington. It would be one thing if Washington took the money and returned a sane and sensible foreign policy, an efficient military establishment devoted to truly defensive missions essential for the national security, a functioning health-care system, a better educational system, and public safety in the face of natural and man-made disasters.

Strict federalists would still object to some of these areas falling under federal government jurisdiction – health care and education among them – but at least the taxpayers would get their money’s worth and these functions would not require as much state financial support. But the federal government appears incapable of these tasks, perhaps because many of these functions are, or should be, inherently local undertakings. So maybe the federalists have it right, and this is where “blue federalism” slips in: Washington should get out of trying to micro-manage the states, cities and towns. While federal tax rates could be radically cut, instead states could tax their citizens sufficiently to perform the essential tasks that people have a right to expect from government: a functioning health care system, schools that educate children, bridges and roads with structural integrity, and public buildings that are a source of pride, not embarrassment.

             It is reasonable for readers to ask why it is that this subject occupies space under the rubric of “TheFreeForAll” blog. What does shifting the balance of power and authority back from Washington to Beacon Hill have to do with liberty? The answer is simple. Just as Massachusetts citizens have more ability to monitor and influence how state and local governments spend their money on providing essential services than they do when the feds are involved, so they are able to have a say when police misconduct arises, when local citizens’ free speech rights are infringed, or when government in any way crosses the line and infringes our liberties. It is much easier to deal with incompetence and misconduct in a local prosecutor’s office or a town police department, than to contain the excesses of the Department of Justice or the FBI. If the libertarians perhaps overstate the case when they say that “small government is beautiful,” it does seem true that local government is at least controllable. And given the out-of-control and incompetent band of fools and worse in the executive branch in Washington, the increasingly dysfunctional Congress, and a Supreme Court that seems more and more out of touch with the realities of modern life, maybe it’s time that we citizens re-assert some control over those who govern us. If, as Tip O’Neill was fond of saying, “all politics is local,” then it logically follows that effective control over politicians is likewise local. Reducing the size of federal government, and increasing the funding of state and local government, would appear to be a move toward not only sanity, but also increased liberty.

8/15/2007 8:31:18 PM by Harvey Silverglate | Comments [0] |  

  Don’t be fooled by all of the partisan bickering. Congress’ recent debate over enacting a new federal wiretapping statute boiled down to one very simple question: should Congress transfer the authority to approve wiretaps from judges, whom the constitution specifically entrusts with this power, to the intelligence agencies and the Department of Justice, who conduct the surveillance?

            For most of the last century, prior to the Bush gang’s exploitation of the post-9/11 hysteria, the courts approved individual wiretap applications. This reasoning was crystal clear: The whole intent of the Fourth Amendment is thwarted by having the very people doing the snooping be the ones to approve their own snooping! Permission (“warrants”) to search (or eavesdrop) has to be given by a judge in the form of a search (or wiretap) warrant. In this way, the judicial branch of government keeps some check on the executive branch’s law enforcement and intelligence operations.

The Protect America Act, passed on August 5, almost entirely cuts the judiciary out of this process. The intelligence agencies and DOJ lawyers thus have been given the power to conduct electronic surveillance, on their own, of telephone calls involving American citizens, located on American soil, when those calls involve one party located abroad. Thus, all foreign phone calls made or received by Americans are subject to warrantless wiretapping, without the approval of a judge. This is unprecedented. Perhaps the only good news about the Protect America Act is that it expires in 180 days, at which point it will be reevaluated.

Is there any reason to believe that FBI, CIA and NSA agents and Department of Justice lawyers are somehow more trustworthy than federal judges who are appointed for life (to assure their independence) by a President and confirmed by the Senate? I’ve practiced criminal and civil liberties law for some four decades. I’ve come across a lot of Department of Justice officials and prosecutors, as well as FBI and other federal law enforcement and intelligence agents. Likewise, I’ve appeared before a lot of federal judges. I haven’t liked all of the judges, but I can say without reservation that, as a group, federal judges are far more trustworthy than prosecutors and agents.

 After all, within the last year, just in Boston, a federal judge found a federal prosecutor to have lied under oath about his misconduct in a criminal prosecution, and, more recently, United States District Judge Nancy Gertner issued a long and detailed opinion that awarded $101 million to the victims of an FBI operation that encouraged a hoodlum-turned-cooperating-witness to give false testimony convicting four innocent men in a state murder and sentencing three to death row. And what about the federal agents in recent decades who have been convicted of selling classified secrets to the enemy or otherwise disclosing classified material entrusted to them? How many federal judges have recently been charged with, much less convicted of, espionage? None comes to mind.

 Whom would you trust to protect both national security and the Constitution? I’ll put my money on the judiciary any day, just as the drafters of the Fourth Amendment did, but as the Congress failed to do. This is not rocket science. We voters have been swindled by the idiots, scoundrels, and cowards in the Congress. Hopefully they’ll get some brains and some backbone when it comes time to review this pathetic statute.

8/13/2007 5:50:44 PM by Harvey Silverglate | Comments [0] |  

       Inspired perhaps by the ridicule that greeted its symbolic ban on the word “nigger,” the New York City Council is now considering a similar ban on the words “ho” and “bitch,” (which the proposed ban delicately references as the “b-word.”)  Councilwoman Darlene Mealy, chief sponsor of the admittedly unenforceable ban, characterizes the words “bitch” and “ho” as “a vile attack on our womanhood” that “creates a paradigm of shame and indignity” for women.
 
        So far, so familiar: the emotional conviction that equality is contingent on banning “offensive” or “hateful” speech has driven censorship campaigns for the past 20 years.  But unlike many language policers who equate offensive speech with discriminatory action, Councilwoman Mealy is not coy about her intentions, declining to join the “I don’t believe in censorship, but …” crowd.  She forthrightly uses the “c word,” speaking in favor of “some censorship” in an interview with NPR.
    
        Perhaps Mealy has the courage of her convictions, but her willingness to espouse censorship openly may also reflect its increased respectability.  In any case, her proposal has garnered the support of her colleagues: 19 out of 51 City Councilors have reportedly endorsed it.  But this proposed ban has already evoked more unapologetic derision than the Council’s previous moratorium on the “n-word,” (which even the New York Civil Liberties Union declined to oppose.)  NPR openly mocked the proposed “b-word” ban and even allowed the word “bitch” to be uttered on air.  I doubt that any NPR show would ever use the word “nigger” jokingly, if at all.  Similarly, the New York Times prints the word “bitch” but not the word “nigger.” It remains the “n-word,” as evidenced by this excerpt from the Times’s report on Councilwoman’s Mealy’s bill: ” The New York City Council, which drew national headlines when it passed a symbolic citywide ban earlier this year on the use of the so-called n-word, has turned its linguistic (and legislative) lance toward a different slur: bitch.”

        Perhaps the willingness of the mainstream press to say or spell out “bitch” but not “nigger” will strengthen Mealy's belief in the need for laws to expunge sexist words from the vernacular.  But the lesson she should take from this disparate treatment of the words “nigger” and “bitch” is that in a relatively free society, law has less power over language than culture.  The Times doesn’t refrain from printing the word “nigger” because it fears the wrath of the City Council; what it fears (I imagine) is the wrath of readers, advertisers, and investors.  In choosing their words, people and institutions consider social disapprobation: as Imus might attest, it’s a bitch.

8/10/2007 11:11:41 AM by Wendy Kaminer | Comments [0] |  

         To the consternation of civil libertarians, Congress has acceded to the demands of the Bush Administration and enacted changes to the Foreign Intelligence Surveillance Act (FISA) that (according to the Electronic Frontier Foundation) “could radically expand the government's ability to spy on Americans without a warrant.”  Actually what’s at issue is not the government’s ability to spy on Americans without warrants but its legal authority to do so; the Bush Administration was apparently anxious to legalize the arguably illegal warrant-less surveillance program that has generated lawsuits and allegations of perjury by the Attorney General, among other embarrassments, since its partial exposure some two years ago.

        The changes to FISA are temporary (they’ll expire in six months,) but the same political considerations that resulted in their initial passage will likely ensure their renewal.  Still, even if Democrats find the courage (and integrity) to check the Administration’s authority to spy on us, even if the next president is not quite as imperial as our current incompetent-in-chief, pervasive surveillance seems an inevitable element of our future, just as privacy seems an element of the past.  You have to wonder how deeply many people will care.
   
        We may not all be exhibitionists, (although the Internet and reality tv demonstrate how much exhibitionism is flourishing,) but it’s hard to avoid becoming a voyeur.  Unless you confine your reading and viewing to, say, old movies and 19th century novels, you’re likely to know something about the dating and dietary habits of minor and major celebrities, at least.  It’s not just tabloids and celebrity rags that keep you abreast of what’s none of your business.  Read the New York Times, and you’ll find yourself eavesdropping on the personal musings of Wellesley College student Hillary Rodham, contained in her letters to a high school friend.

        The recent front page story describing Clinton’s letters quickly appeared on the Times’s most emailed list, not surprisingly.  Publish excerpts from the private letters of a public person, and few of us will refrain from reading them. I read them, I confess, even while criticizing their publication by the Times (nothing in the letters was newsworthy) and condemning Clinton’s pen pal, John Peavoy, for releasing them.  (The Times described him unconvincingly as living in “contented obscurity.”  Take a look at Peavoy’s picture in the paper: he appears to reside instead in contented notoriety, achieved only by betraying the confidences of a childhood friend.) 
   
        It’s not that we don’t value privacy – on occasion.  Even an exhibitionist has something to hide.  What we want (what I suspect exhibitionists want too) is the ability to define our own zones of privacy, by controlling our own information, by choosing what to reveal or conceal.  Many people who welcomed the publication of Clinton’s letters would wail if their private letters were published in the Times.  But when you applaud or simply countenance the violation of someone else’s privacy, you facilitate the violation of your own.  Privacy, like most liberties, either vests in all us, or, eventually, will vest in none.
   
    The republic will not fall or even teeter because the New York Times published Hillary Rodham’s private letters.  But (in addition to Democratic fear of being labelled soft on terrorism,) the cultural devaluation of privacy is part of the context for legal debates about surveillance.  Congress and the president may erect the legal framework for a surveillance society, but many of us have helped lay its foundation.

8/4/2007 12:02:09 PM by Wendy Kaminer | Comments [0] |  

            Earlier this week I published an op-ed in The Boston Globe discussing the ways in which the Senate Judiciary Committee can enforce compliance with its subpoenas. That Committee has been investigating whether the Bush White House improperly fired a number of United States attorneys because those attorneys were reluctant to pursue politicized prosecutions, or were otherwise not exercising fidelity to the Republican Party agenda. (I personally believe that what’s become known as “the U.S. Attorneys scandal” is probably much ado about very little, given the extraordinary amount of discretion the President has in naming U.S. Attorneys, but this does not diminish the Senate’s right, and power, to inquire and investigate the matter.)

In recent years, the Senate has asked the Department of Justice—controlled by the executive branch—to enforce subpoenas and citations for contempt of Congress. I suggested that the Senate should simply bypass that procedure, instead using its inherent powers to hold the likes of White House advisors Harriet Miers and Joshua Bolten in contempt not only for refusing to answer questions, but moreover for the effrontery of failing to even show up! Under the ancient framework of legislative privilege and powers, the Senate could simply dispatch its Sergeant-at-Arms to arrest the recalcitrant witness and put him/her in the jail cell in the Capitol Building until testimony is forthcoming.

            I received a number of angry communications from fellow civil libertarians (and some administration partisans not so much interested in the civil liberties issue) excoriating me for suggesting that a witness should be convicted and locked up for contempt without a traditional federal court trial, but simply by a vote of the “kangaroo court” known as the United States Senate. These critics are misreading the issue at work here, because they don’t fully understand the procedure involved. Once a witness is arrested and locked up for contempt—with such incarceration aimed at coercing compliance with the legislative subpoena—that witness is not without recourse to judicial relief. The good old United States Constitution contains its much-honored guarantee of the ancient writ of habeas corpus, which allows a person unlawfully held to test his/her detention in the federal courts. The Constitution’s Art. I, Sec. 8, clause 2 reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” At that point, the courts would be able to rule on whether the equally ancient “inherent contempt” power of the legislative branch remains viable and, if so, what procedural protections must be granted to the recalcitrant witness.

            Under these circumstances, one would hope that All the President’s Men (and Women) might gain a renewed respect for habeas corpus, which they’ve spent so much time and energy seeking to destroy.

 

8/2/2007 5:50:35 PM by Harvey Silverglate | Comments [0] |