9/26/2007 4:13:28 PM by Wendy Kaminer | Comments [2] |  

            When I was growing up in Brooklyn, where the only pets that landlords allowed us to have came encased in a glass bowl, I was fascinated by guppies, a species of fish that, oddly (at least I thought at the time), eats its live-born young. In order to save the offspring, you have to be pretty alert to scoop either the babies or the parents out of the tank shortly after the blessed event. This behavior of the lowly guppy came to mind in the past few days, as I’ve been reading about the likely decision of state prosecutors to charge M.I.T. sophomore Star Simpson with engaging in a criminal hoax.

Simpson (not to be confused with the mischievous cartoon characters of the same name – although my wife Elsa Dorfman predicts that the case will in fact appear shortly in an episode of “The Simpsons”) triggered a terrorism scare at Logan Airport last week when she appeared at an information booth wearing a sweatshirt with a lit circuit board on the front connected to a 9-volt battery, and carrying a glob of Play-Doh in one hand, according to Boston Herald reporter Maria Szaniszlo, who told me that she actually was shown the “hoax” device. Suffolk County  District Attorney Daniel F. Conley told the Herald that he would seriously consider charging the loopy but reportedly brilliant student with wearing a “hoax device…with the intent to cause anxiety, unrest, fear or discomfort to some person or group of persons.”

            As I told the Herald, while wearing my criminal defense/civil liberties lawyer’s hat, there is no way prosecutors can convince twelve sane jurors that a student, wearing such a sweatshirt with the flashing lights tacked onto the outside rather than hidden underneath her clothing, was actually trying to perpetrate a hoax that she was a suicide bomber. Ms. Szaniszlo, after examining the device, told me that she thought that if she were a passenger and spotted the device, she would have notified airport security. Well, that may be reasonable, I noted, but it is completely unreasonable for trained security personnel to think that this kind of display was a suicide bomber’s vest. I noted that not once in the annals of the history of suicide bombers is there a single instance, to my knowledge, where the bomber wore the device outside rather than underneath his or her clothing. “Yes,” the reporter finally agreed, “I suppose that defeats the whole purpose of trying to sneak the suicide bomb into the airport.” Precisely!

            Once can’t help but be reminded of last year’s terrorism hoax imbroglio, in which police and prosecutors called a virtual red alert over “Aqua Teen Hunger Force” lighted circuit boards placed on bridges and roadways in the Boston area by performance artists Sean Stevens and Peter Berdovsky.  I wrote at the time that it was much ado about nothing, and that no serious Homeland Security or police agent should have reacted as they did at the time. I pointed out that those two defendants, likewise charged under the hoax device statute, would likely be acquitted. Attorney General Martha Coakley, obviously aware that it was not a case she could win, struck a deal that dropped all criminal charges and instead required both men to perform eighty hours of community service.

            Both of these episodes came to mind this past Sunday as I read the lead story in The Boston Sunday Globe “Ideas” section, about the catastrophic social impact of the huge number of citizens, especially young black males, who have done or are doing time in the nation’s penal systems. “Fueled by the war on drugs, ‘three-strike’ laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.” writes Christopher Shea.

            Clearly there are criminals, of all ages, who pose a grave threat to society and should be locked up. But in less clear-cut cases involving young people, like Simpson, or the tens of thousands of young men arrested on drug possession charges every year, one must consider if putting them in jail, and spending precious resources to keep them there, is really for the betterment of our country. This newfound tendency to throw the book at our youth is a reckless one.

It wasn’t always this way. In the early days of my law practice, I represented some very smart MIT students who had figured out a way to make long distance telephone calls while bypassing the phone company’s billing system. It was a real crime, for which they could have actually been convicted (in contrast to the more recent performance artists), and yet, in the end, the phone company decided not to press charges. Instead, it hired the students to work in the company’s security department in order to use their superior skills in order to thwart other technological attacks on the system. The wise disposition did more to enhance the nation’s (and the phone system’s) security than any ill-considered prosecution would have.

If Star Simpson has a half-way decent lawyer, the prosecutors should back off completely. If she decides to take the most risk-averse approach, she might make a deal to be placed on probation, with the charges dismissed at the end of the period. And so the student’s life and career are not likely to be jeopardized by this bit of over-reaction by our rapidly growing national security sector. But we still have to ask two questions: One – why can’t these national security types distinguish a possible terrorist attack from an obvious joke or piece of performance art? And, two – why do we as a society insist on using the criminal justice system to eat our young?

9/25/2007 9:44:10 AM by Harvey Silverglate | Comments [4] |  

By Wendy Kaminer      

        I can’t say I’m surprised by the enraged comments on my post on the Armenian genocide debate, below.  I criticized the decision to boycott an ADL anti-bias program because ADL president Abe Foxman belatedly called the slaughter of 1.5 million Armenians “tantamount to genocide,” and I questioned the wisdom of providing reparations to people whose distant descendents were the victims of genocide, or other state sanctioned crimes.  So naturally, some readers accuse me of being a genocide denier or simply of bias against Armenians.  I was unsurprised by any of this because I wrote about the ADL/ Armenian genocide fracas after hearing the ADL hysterically associated with hate mongering and tolerance for atrocities, simply because Foxman called the slaughter of Armenians “tantamount to genocide,” instead of emphatically denouncing it as a genocide. 

        But, as I also observed, there was some justice in Foxman’s vilification, since he has shown so little tolerance for the right to hear from anti-zionists as well as anti-Semites, not to mention Holocaust deniers.  Consider his reaction to Columbia University’s decision to invite Iranian President Mahmoud Ahmadinejad to speak at a university forum.  “It is inappropriate and a perversion of the concept of freedom of speech," Foxman declared, leaving us to wonder precisely what the “concept of freedom of speech” entails, if not the right to hear controversial and even hateful speech.  We don’t need a concept of free speech to ensure the right to engage uncontroversial and inoffensive speakers, or those approved by the ADL. 

        Of course, Foxman was not alone in protesting the decision to allow Columbia students and faculty to hear Ahmadinejad (who was vigorously questioned and harshly criticized by Columbia President Lee Bollinger.) Protesters gathered outside Columbia, exercising their own speech rights while, in some instances, criticizing the decision to honor the rights of people who gathered to hear the Iranian president.  "This isn't just a matter of free speech, it's a matter of hate speech," an associate dean at the Jewish Theological Seminary explained predictably.  Protesters also gathered outside the United Nations, where New York City Council speaker Christine Quinn declared, “We’re here to send a message that there is never a reason to give a hate monger an open stage.” 
       
        Some people instinctively understand the virtues of free speech.  One Columbia junior said she supported Columbia "for bringing him here.  It’s a forum. It’s not like Columbia is endorsing him.  He’s the president of a nation and should be allowed to speak.” Others who instinctively embrace a distinction between free speech and hate speech may not be persuaded by any logical arguments debunking it. As Glenn Greenwald observes in Salon, “there is not much new worth saying about the ‘debate’ over whether Columbia should have invited Ahmadinejad to speak. People either believe in the value of having academic institutions be a venue for airing all viewpoints or they do not.”              

         So I’ll simply point out the similarities between people who demand the censorship of "hate speech" on university campuses, (and elsewhere,) members of the Armenian community today who brook not the slightest equivocation about the moral imperative to label them victims of genocide, and Turkish officials who recently tried to ban a conference on the Armenian genocide question.  Obviously one person’s hate speech is another person’s truth. 

        I’m not suggesting that facts don't matter and all truth is relative.  Indeed, the more you believe that facts matter, the more you believe in the power of reason and evidence, the more you believe - or should believe - in free speech.  People who put their faith in facts should be prepared to debate them.  For those of us without a direct line to God, truth is a product of argument, not revelation.

9/24/2007 4:26:46 PM by Wendy Kaminer | Comments [6] |  

By Wendy Kaminer      

        ADL president Abe Foxman has long exhibited intolerance for speech and debate that he considers hateful (or bad for the Jews,) so there’s some justice in his vilification by members of the Armenian community for failing to label as genocide the slaughter of 1.5 million Armenians by the Turks in the early 1900s.  Foxman came close, calling the slaughter “tantamount to genocide” after protests from Armenians persuaded officials in Watertown and Belmont to drop out of an ADL anti-bias program, No Place for Hate. (Harvey has chronicled this controversy in earlier posts, “The ADL Caves” and “Genocide and its Partisans.”) But that concession has not satisfied protesters who demand that the ADL unequivocally condemn the slaughter as “genocide” and support a pending Congressional resolution to do the same.  Now the city of Newton has joined in boycotting the ADL anti-bias program. (Needham may follow suit.) Newton Mayor David Cohen called his decision to withdraw from the program “a matter of conscience.”

        I’d call it political blackmail, designed to force the ADL into supporting the genocide resolution before Congress.  How else to make sense of the decision to drop a popular anti-bias program because the ADL president merely denounced the slaughter of Armenians as “tantamount to genocide?”  The ADL does not deny that the slaughter occurred or seek to justify its occurrence.  Yet it has suddenly become an untouchable organization, with which no moral community can, in good conscience, cooperate.  Why?

        What’s in a name?  There is much more at stake here than the halo of victimhood within reach of Armenians who can self-identify as the descendents of an official genocide (and the inherited guilt that is likely to be attributed to Turks born decades after it occurred.)  There’s the prospect of reparations:  The Armenian National Committee of America stresses that if the U.N 1948 Genocide Convention is applied to the slaughter, Armenians can look forward to  “the return to the Armenian people and the Armenian Church of monasteries, churches, and other assets of historic and cultural significance, as well as the granting of a measure of compensation to the descendents of the victims of genocide.  In this connection, the restitution and compensation schemes elaborated for the victims of the Holocaust provide a useful precedent.” 

        It would be facile to suggest that to understand this debate we should simply follow the money – as if grants of money and property in compensation for a grievous wrong have no emotional or moral resonance.  But we should also not ignore the effect of reparations policies on our battles over historical truth and the tendency of people to feel victimized by terror campaigns conducted a century ago.  The actual victims of genocides or illegal internments, among other evils, have compelling rights to reparations; their children may have rights as well.  But successive generations have increasingly tenuous claims to be compensated directly for wrongs they did not experience.  Obviously, as time passes, the consequences of the original crime, however horrific, become terribly attenuated for people who experience it only vicariously.

        Why should we encourage people to feel so horribly victimized by evils visited upon ancestors who died before they were born?  Why should we treat the descendents of the original victimizers as accessories after the facts, as if genocide were original sin?  I’m not disputing the importance of calling a genocide a genocide, regardless of when it occurred.  But I delegate to historians the determination of what constitutes genocide, and I leave to history both its perpetrators and victims.

9/20/2007 2:34:35 PM by Wendy Kaminer | Comments [21] |  

          A recent Princeton graduate, Christian C. Sahner, who just completed a fellowship at The Wall Street Journal, wrote a departing op-ed on September 5^th, titled “Sexed Up Sex-Ed”, in which he complained about a mandatory freshman orientation presentation at Princeton that dramatizes the nature and degrees of consensual and nonconsensual sex among undergraduates. Sahner, who is clearly both religious and socially conservative, at least by Ivy League standards, objected primarily to the content of the play, arguing that it depicts all students as sexually active and tacitly endorses the so-called “hook up culture” that, in his view, it ought to discourage.

            I come from a very different background and social perspective than Mr. Sahner, but with regard to his critique of Princeton’s program, I actually think that he has understated the outrageousness of these pseudo-educational exercises that are now ubiquitous on our college campuses. Having studied freshman orientation programs closely in the past,  I felt compelled to write a letter to the editor.

            Many of these mandatory orientation programs are heavily influenced by postmodernist notions of gender relations and therefore present a view of what constitutes true consent in sexual activity that has little or no resemblance to criminal law. There is far more ideology than law in these programs, which often scare students by perpetrating what John Leo calls the “1-in-4 myth" that twenty-five percent of women will be sexually assaulted in their lifetimes – a bogus stat that has been repeated so many times on campus that it is now widely considered an unassailable fact. I consider these programs, as I wrote to the WSJ, to be “tendentious intrusions into [students’] minds and very beings” that threaten to turn our campuses of higher education into “the modern-day equivalent of a North Korean POW camp.”

            Janet Smith Dickerson, Vice President for Campus Life at Princeton, my alma mater by the way (Class of 1964), wrote a letter that appeared right next to mine. Her letter – inadvertently, to be sure – made precisely my point. The purpose of the exercise, wrote Vice President Dickerson, is to emphasize “that approximately 94% of female college sexual assault survivors know the perpetrator to some extent.” Instead of Vice President Dickerson asking herself whether all of these cases really involve unwanted sexual assault or represent, rather, an after-the-fact change of attitude on the part of one of the sex partners, she makes the assumption that the cases all involve victims and, in the jargon of the day, “survivors.”

            The notion that college freshmen do not know the difference between assault and engaging in voluntary sex, and that such students need sensitivity trainers to turn them into civilized human beings, is a symptom of the sickness that pervades offices of campus life in colleges and universities all over the country today. It has spawned a huge “training” industry that has, indeed, turned so many of our campuses into tendentious re-education camps. That a vice-president of Princeton does not see that her programs are the problem and not the solution is a sad comment on the state of our institutions of higher learning.

            College administrators like Dickerson should at least be honest and admit that while Princeton’s standards and definitions of consent to sexual activity have no counterpart in the criminal law, they represent Princeton’s post-modernist requirements with regard to intimate relations, and that a student engages in sex at his or her own risk of running afoul of the campus definitions, or lack thereof, of the moment. This would accomplish, at least, truth in advertising, so to speak. Instead, these administrators disguise their social engineering as education, and that’s where civilized and rational people have to draw the line and respond with “surely you jest that this is education.”

9/18/2007 1:38:32 PM by Harvey Silverglate | Comments [0] |  

The Boston Globe had a well-reasoned editorial earlier this week pointing out one crucial difference between Germany’s recent detention of suspects in a terrorist bombing plot, and the “war on terror” being conducted by the Bush administration: Germany has followed a law-enforcement paradigm, not a war paradigm, and hence has been more protective of civil liberties.

There is, however, one more vital distinction. The German antiterrorist units appear to have uncovered actual explosive materials that belonged to the alleged terrorists. In the typical Homeland Security/FBI operation, undercover FBI informants supply the materials and weapons in an exploitation and manipulation of hapless (usually Islamic) individuals who would otherwise be all-talk and no-action, like the seven men arrested in Miami on conspiracy charges last year.  In other words, Germany is actually busting terrorist cells, while, too often, the FBI is creating the illusion of it, and in the process criminalizing bad thoughts and speech, rather than real crime.

How sad it is that the United States needs now to take lessons from its erstwhile enemy in World War II in how to conduct national security and criminal investigations in a fair and effective manner that protects civil liberties.

9/14/2007 9:51:31 AM by Harvey Silverglate | Comments [1] |  

            A trend I refer to as the “corporatization” of the modern American university popped up the other day in a different context than the usual degradation of the academic curriculum or the punishment of free speech and academic freedom. It showed up in the architecture of the recently opened student center at the University of Vermont in Burlington.

            As Jenna Russell reported in The Boston Globe, Vermont’s largest city finds itself cursed (some among the “gown” might say blessed, but the “town” more accurately says cursed) with a 4-acre, $61 million complex that university officials have pawned off on the public as “a symbol of growth and revitalization at the smallest public flagship campus in the country.” The186,000 square foot monstrosity houses offices for student clubs, a food court, a bank, a copy shop, a bookstore, a ballroom, and a game room “with pool tables, lounge chairs and a fireplace."

            The building has to be seen as more than a mere architectural error, inappropriate for the otherwise sylvan setting of this traditional, even if bustling, New England city.  There is a further and perhaps more fundamental question – not raised in the Globe report and rarely discussed in reports about the massive building campaigns in progress on campuses all around the country: Why is it that the modern university seeks, more and more, to keep its students glued to the campus rather than to encourage them to venture out into the city or town in which it’s located?

  One thing is sure: Burlington is going to be seeing far fewer students venturing off the campus to eat at local restaurants and cafes, visiting Ben & Jerry’s, transacting business at the local bank, using the services of the local copy shop, seeing what’s on the shelves at the local bookstore, or attending a social event outside of the campus ballroom. Stores and shops on the main drags and smaller by-ways in this college town will gradually dwindle, and once-vibrant unique local businesses will be the first to go, in much the same way Harvard Square has lost most of its quirky independent businesses and modestly-priced student-suitable eateries over the last couple of decades. When I arrived in Cambridge to attend law school in 1964, there were three all-night cafeterias in the Square. Now, there are none. I met more interesting people at the Patisserie Française than on the Harvard campus, but that café moved out years ago, as Harvard established more and more on-campus eateries and cafes. Even Harvard’s Lamont Library recently opened its own late-night café, lest a student be inconvenienced in having to leave the stacks in order to get some caffeine.

  The tendency of colleges – in Burlington, Cambridge, and just about everywhere else – to turn the campus into a company town of sorts, and keep the students penned in rather than out on the town, surely helps preserve the oddly isolated culture that has afflicted American campuses of higher education, where the values and practices of the “real world” grow more and more remote everyday. Only on a campus, after all, could limiting protests to one gazebo seem like a good idea. Only on a campus could the definition of the term “harassment” be watered down so much that it includes engaging in pure political speech, such as publishing unflattering facts about a world religion, or engaging in an anti-affirmative action bake sale that satirically illustrates its point by discounting prices to certain races. Only on a campus could a collection of Palestinian artwork be removed because it advocated only one side of a divisive issue.

   Even at Harvard Law School, the apex of the American legal establishment, there is a speech code – dubbed “Sexual Harassment Guidelines” – that grew out of a 1990’s student parody of feminist legal theory. Today students may safely engage in parody or other “offensive” speech in Harvard Square (protected by the venerable First Amendment, after all) that would be punishable if spoken in Harvard Yard or Harvard Law School. A student may not, at Harvard, engage in the kind of parody we normal citizens freely watch every night on Comedy Central’s “The Daily Show” and “The Colbert Report.” Our campuses of higher education, once the most free places in our society, are now the second least free (outranked, still, by our maximum security prisons).

             I’m not saying that providing a student on the campus with everything he or she needs is solely, or even largely responsible for the increasingly wide chasm between the campus and “the real world” that is characterized by the typical American urban street. (That’s a subject that my co-author and I tried to explore in our 1998 book The Shadow University: The Betrayal of Liberty on America’s Campuses). But I think that this isolation does facilitate the successful indoctrination of students with multicultural and gender-related sensitivity training, speech codes, and other aspects of the tendentious and nauseatingly politically correct modern academy that is at war with liberty, with truly liberal education, and with the greater society. To paraphrase Ronald Reagan’s famous speech aimed at then Soviet Prime Minister Mikhail Gorbachev, it’s time to tear down this wall, or perhaps this student center. The increasing isolation of gown from town can bode nothing but ill for both society and higher education.

9/12/2007 2:57:47 PM by Harvey Silverglate | Comments [0] |  

        Court tv called it the “stupid story of the week:" 51 year old San Francisco carpenter Percy Honniball was arrested and charged with indecent exposure for working in the nude. He’d been caught engaging in naked carpentry at a client’s home after a neighbor spotted him nakedly sawing wood in the backyard. 

        This is indeed an amusingly “stupid story,” but only because Honniball was acquitted last week.  California’s indecent exposure law requires exposing yourself in the presence of other people “to be offended or annoyed,” and Honnibal worked nude simply because “it’s more comfortable,” he said, not in order to offend or annoy anyone.  Had Honniball drawn a less discriminating judge and been convicted, however, he would have been subject to a maximum prison sentence of one year and a lifetime of surveillance and drastically limited liberties: as a convicted indecent exposer, Honniball would have been required to register as a sex offender, in which case this would still have been a stupid story, but hardly an amusing one.

        The gross idiocies and injustices of sex offender registration laws have long been evident and are regularly exposed, with no apparent effect on their popularity.  Their broad reach captures gay men engaged in consensual sex, teenagers barely past the age of consent who haplessly violate statutory rape laws by having sex with their slightly younger peers, and people guilty merely of viewing pornography or idly exposing themselves, while threatening no one.  In nearly half the states, convicted sex offenders are subject to onerous permanent residency requirements and travel restrictions that effectively exile them from civil society, with no apparent benefit it to anyone but the usual bunch of demagogic politicians.

        Myths about the high recidivism rates of sex offenders and the dangers posed to children by people who have nothing to do with pedophilia, along with general hysteria about sex and nudity, help spread these laws, which promise to become worse.  A recently enacted federal statute, the Adam Walsh Child Protection and Safety Act, includes financial penalties for states that decline to pass repressive sex offender registration requirements.

    That a carpenter who likes to work naked was nearly subject to such requirements is a lot more chilling than laboring bare-assed in the San Francisco fog.  Honniball’s acquittal should not be construed as a sign that the system worked: his prosecution for a sex offense signals that the system is insane.

9/12/2007 1:36:13 PM by Wendy Kaminer | Comments [0] |