Congressman Mike Rogers: 1st Recipient of the Curmie II Award

[Curmie’s Law, Article 173: it’s OK to talk about last year’s events until the college football season is over.]

If the Curmie Awards didn’t exist, this page’s end-of-the-year/beginning-of-the-year tradition might be a contest for the stupidest utterance by a politician. The contest would not be about politics per se, as intelligent people can disagree about whether Obamacare is a net plus or a net minus, whether drone strikes serve the national interest, or whether private ownership of assault weapons is protected by the 2nd amendment. (Curmie’s answers: the former [barely], no, and no. Your mileage may vary.)

Nor would it be about actual lies—death panels, “you can keep it,” Muslim outreach programs, etc. Even reckless allegations with no supporting evidence—the stuff folks like Louie Gohmert and Steve King are famous for—would be beyond the scope of this award.

Congressman Mike Rogers,
Winner of the Inaugural Curmie II Award

No, this award (call it Curmie II) would be for statements so absurd on their face that we wonder how the speaker is capable of dressing himself, let alone holding public office. This year’s (i.e., for calendar year 2013) recipient would have to be (please, God, let there be no serious competition!) Representative Mike Rogers for his immortal line, “You can’t have your privacy violated if you don't know your privacy is violated.”

Yes, really, he said that, and unironically, too. Check it out here: it’s at about the 2:30 mark in the embedded video if you want to actually hear him. Or read the transcript, below.

Rogers chairs the House Intelligence Committee, an ironic appellation if ever there was one, given the transcendent idiocy of its leader. The committee was holding a propaganda exercise hearing to justify examine the NSA’s wildly unconstitutional domestic spying surveillance metadata gathering program. Everything was going swimmingly but then somehow someone who actually disagreed with the program was allowed to testify. Shocking, I know.

That someone was Stephen Vladeck of the American University Washington College of Law. Vladeck is a summa cum laude alumnus of Amherst, and he has a J.D. from Yale. Still in his early thirties, he’s already a professor and associate dean. No dummie, this. Indeed, not since Georgia Tech vs. Cumberland has there been a competition as lopsided as a battle of wits between Vladeck and Rogers.

Vladeck makes the seemingly incontrovertible point that in the case of NSA’s data collection:

It’s impossible to separate the substantive validity of the program from the process concerns that have been raised by plenty of members of Congress and members of the public. And so I think that until we have some better sense and some better grasp of those process concerns, I think it’s a bit unfair to have to answer the substantive question in the abstract.

And then, a moment later, we get this:

Rogers: I would argue the fact that we haven't had any complaints come forward with any specificity arguing that their privacy has been violated, clearly indicates, in ten years, clearly indicates that something must be doing right. Somebody must be doing something exactly right. 

Vladeck: But who would be complaining? 

Rogers: Somebody whose privacy was violated. You can’t have your privacy violated if you don't know your privacy is violated. 

Vladeck: I disagree with that. If a tree falls in the forest, it makes a noise whether you’re there to see it or not. 

Rogers (astounded): Well that’s a new interesting standard in the law.

The logical extensions of this line of reasoning are as terrifying as they are remarkable. The peeping Tom at your window isn’t committing a crime unless you catch him. If you steal a priceless painting from a millionaire’s vault, it’s not illegal unless he notices. If you cheat on your taxes, you’ve done nothing wrong unless the IRS audits you. The list is endless.

One of Curmie’s favorite bloggers, Ken at Popehat, normally known for snark but not for satire, opts for the latter by positing a scenario by which Rogers installed hidden surveillance cameras in the women’s bathroom at his office in the Capitol: “I would argue the fact that we haven't had any women come forward with any specificity arguing that their privacy has been violated….”

Ken also applies the same riff to a Rogers-ism of a couple days earlier. Then, Chairman Rogers, responding to a claim that the NSA had recorded some 70 million phone calls in France, proclaimed:

If the French citizens knew exactly what that was about, they would be applauding and popping champagne corks. It’s a good thing. It keeps the French safe. It keeps the US safe. It keeps our European allies safe. This whole notion that we’re going to go after each other on what is really legitimate protection of nation-state interest, I think is disingenuous.

Yes, being spied on by a foreign country can only be good for you. I mean, what could possibly go wrong?

But this kind of statement is just mundane political nonsense. Yes, it suggests that the “nanny state” allegation generally—and with plenty of justification—applied to liberals works just as well for conservative Republicans: politicians (those in power, especially), like school administrators and other mental deficients, really do believe that they and their minions can do whatever they want, as long it’s for… you know… a good cause. And there is no ideological litmus test at work here—the difference between “big government liberals” and the average conservative pol has nothing to do with the size of government, but rather with the ends to which that governmental power is applied.

Still, there’s a rationale at work in the assertion that the French citizenry would celebrate the invasion of their privacy if only they could comprehend the benevolence underlying those profoundly illegal acts, even if it’s one that Curmie finds as alarming as it is silly. The idea that victims of a secret program aren’t really victims if they don’t know a). about the existence of said secret program and b). that they are in fact specific targets of that (illegal and secret) surveillance… to argue that requires a Special Kind of Stupid.

Congratulations, Congressman Rogers. You’ve won the Curmie II. (Well, maybe you won’t have until someone tells you…)

[NOTE: By the way, if you haven't already done so, please vote for the “real” Curmie Award by 7:00 pm CST on Wednesday, January 8. Nominees are here; the “ballot” is in the upper right-hand corner of this page.]

Remember When the 4th Amendment Mattered?

Mark this date and time, because Curmie is about to say something unlikely ever to be repeated: Louie Gohmert is on the right side of a controversial issue. Yes, really. And so are Doug Lamborn, Dana Rohrabacher, Mark Sanford, and Jim Sensenbrenner. Meanwhile, Tammy Duckworth, Steve Israel, Marcy Kaptur, Jan Shakowsky, and Louise Slaughter are wrong on this one. OK, could we just have one big chorus of “WTF?”

The issue at question was an amendment sponsored by two very different Michigan Congressmen: Justin Amash (above right), a sophomore Tea Party favorite, and John Conyers (above left), an old-school Democrat who was on Richard Nixon’s enemies list a decade before Amash was born. Strange bedfellows, and all that. What Amash and Conyers agree on—if on little else—is that the Bill of Rights, specifically the 4th amendment, is a good thing. Or, given the wholesale sellout of civil liberties by power elites of both parties, perhaps “was a good thing” would be the more apt descriptor.

You remember the 4th amendment, don’t you, Gentle Reader?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This simple and direct affirmation of individual rights, like so many other Constitutional guarantees, has been eroded if not annihilated by post-9/11 hysteria, the insidious PATRIOT Act, and fear-mongering pols of both parties.

In the wake of Edward Snowden’s revelations about the extent of NSA spying into the lives of millions of people who had done precisely nothing to arouse suspicion, Amash and Conyers introduced an amendment to a defense bill. Unlike the thousands of pages of turgid legalese that often characterize legislation, this amendment, barely over 100 words, is pretty clear:

None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence: ‘‘This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).

In other words, you need a reason to gather private information on a law-abiding citizen. Stated otherwise, we have a right to be secure in our persons, papers, houses, and effects against unreasonable searches… That phrasing seems strangely familiar, somehow…

The amendment failed, of course, because the movers and shakers of both parties like power. All the “limited government” rhetoric on one side and the “civil liberties” aphorisms on the other are simply a load of crap for the majority of the politicians in Washington. The fact is, politicos in general like to exercise power, and they’ll defend their dubious claims to the legitimacy of these displays even in the face of obvious problems like, say, the fact that they’re freaking unconstitutional. There is consolation of sorts to be found in the narrowness of the margin, 217-205, and by the fact that party lines meant little: 57% of Democrats and 41% of Republicans voted in favor of Amash/Conyers. Indeed, the amendment would have passed if just half of the Democrats who voted against the re-authorization of the PATRIOT Act and also against this amendment had stuck to their alleged civil libertarian principles. Among those who didn’t: Nancy Pelosi, who is credited—if that’s the word—by Foreign Policy’s John Hudson with “[saving] the NSA surveillance program.” She was joined in voting for the NSA and against the people by such prominent Democrats as Steny Hoyer, Joe Kennedy, Sheila Jackson Lee, and Debbie Wasserman Schultz.

Let’s face it: Curmie voted for Obama twice, and—given the opposition—doesn’t regret those votes. But in the realm of civil liberties, the Obama administration has been absolutely as horrific as its immediate predecessor. And they did everything in their power, apparently, to prevent the amendment from even being brought to the floor. In one of the most notably ironic statements ever to emerge from a press secretary’s lips, Jay Carney actually urged defeat of the amendment because it is a “blunt approach [and] is not the product of an informed, open, or deliberative process.” As opposed to the laser-like focus and utterly transparent processes one has come to associate with NSA operations, one presumes.

Of course, the GOP leadership is just as culpable: they, too, tried to prevent a vote. And consider the list of leading Republicans who decided that neither small government nor the Constitution, hitherto their two most strident rallying cries, were quite as important as fear-driven oppression: Michele Bachmann, John Boehner, Eric Cantor, Virginia Foxx, Jeb Hensarling, Darrell Issa, Peter King, Steve King, Mike Rogers, and Paul Ryan, among others.

In short, as the New York Times reports, “Conservative Republicans leery of what they see as Obama administration abuses of power teamed up with liberal Democrats long opposed to intrusive intelligence programs. The Obama administration made common cause with the House Republican leadership to try to block it.”

Importantly, the Amash/Conyers amendment was remarkably modest in its goals: it didn’t seek to shut down NSA surveillance. It didn’t even demand that such intrusions into privacy should require a warrant (which would have been a better idea, but perhaps a bridge too far, given the curious blend of megalomania and paranoia which currently infects both parties). No: all the NSA would have needed to do was to be able to connect the dots, however tenuously, between a specific problem and a specific person before dredging up every detail of that person’s private communications. Not “probable cause”; some cause. Doesn’t seem an unreasonable hurdle. I mean, if Jim Sensenbrenner, the principal author of the PATRIOT Act, thinks we’ve traveled a little too far down the road of intrusion, perhaps—just perhaps—we ought to listen.

There’s a “Myth vs. Fact” sheet apparently coming out of Representative Amash’s office. Among its arguments:

The amendment does not defund NSA. It does not defund all NSA surveillance under the Patriot Act’s Sec. 215. It does not require a warrant for NSA to get Americans’ car reservations, hotel receipts, or telephone records. NSA does not even have to suspect that a crime has occurred. The amendment simply requires that there be a reasonable connection between the documents sought and the person under investigation. Far from blunt, the Amash-Conyers amendment is narrow and modest and is only a first step towards protecting Americans’ records from NSA surveillance….

If proponents of NSA blanket surveillance are right, if Americans lose constitutional protections when they make a call or send an e-mail, then any data stored in “the cloud” is fair game for the government without a warrant. Do we think it’s good policy to have every iPhone picture stored in iCloud subject to warrantless government confiscation? Is that reasonable?

Well, no. No, it isn’t. But the leadership of both parties seems perfectly fine with it… as long as it’s the other guy who’s being investigated.

The week’s events could represent a harbinger of things to come: a moment in time when libertarians of the left and libertarians of the right join to cast off the fusty devastation of Business as Usual in favor of a society capable of balancing legitimate national security issues with civil liberties. Or, more likely, they will simply ratchet up the iron-handed modi operandi employed by the Obamas, Pelosis, Boehners, and similar authoritarian jackasses. Keep those free-thinkers in Congress under control! Mustn’t let their interest in liberty interfere with our pet projects, after all.

4th Amendment? It was here a minute ago...

A disconcerting number of stories over the past few months concern abuses by police: whether it’s showing up en masse in riot gear and spraying military grade pepper spray against peaceful demonstrators in New York, Chicago, UC-Davis, and elsewhere, or escalating New York City’s stop and frisk policies that generally result in nothing more than completely innocent (89%... and the majority of the arrests that were made were of the rather squishy disturbing the peace variety) non-white (91%) people getting hassled by a collection of euphemistically-termed “peace officers” strutting around showing each other how tough they are, with little if any concern for actually preventing or punishing honest-to-God criminal behavior.

In 2003, about 1 in 266 of these stops resulted in actually finding a gun. That rate of return would lead any sane person to discontinue the policy, even apart from other concerns. New York City Resident Idiot Blowhard Mayor Michael Bloomberg, of course, doubled down, actually encouraging more of the tactic, complete with its attendant constitutional issues and racial overtones. By last year, with over three times as many stops, the “success rate” (if we can call it that) plummeted to 1 in 879.

Bloomberg defends this clearly problematic practice by claiming, disingenuously at best, that some 560,000 murders have been prevented by these goon tactics. To say that this figure is absurdly inflated is, of course, obvious, although one suspects that there has been some positive benefit to creating a situation in which to be young (ages 14-24), male, and black or Hispanic is to be an automatic suspect: people who meet all three of those criteria represent less than 5% of the population, but they account for nearly 42% of stop-and-frisk episodes.

Yes, such people are disproportionately likely to commit crimes, too, but the essence of the American legal system and (wait for it) one of the signature tenets of western conservative philosophy is that individuals ought to be considered as such rather than as representatives of groups: not all urban 18-year-olds named Enrique are criminals, and they shouldn’t be treated as if they are.

More to the point: I. Don’t. Care.

If you search literally everybody without any provocation, chances are pretty good you’ll catch someone with a gun or drugs or an outstanding warrant. But the price is too high except in the McCarthyite universe inhabited by arrogant buffoons like Mike Bloomberg. Really, if the price of “law and order” is a state in which the authorities can do whatever the hell they want, I’ll take a little risk.

We are not yet at a point at which I, as a law-abiding citizen, have more to fear from the police, the TSA, US Immigration and similar agencies than I do from random felons. As long as I’m a good little boy and don’t do something outrageous like exercise my 1st amendment rights, I’m probably OK. But my chances of facing unprovoked hassling from someone in uniform are actually considerably higher now than when I was a long-haired post-adolescent with a draft card I hadn't yet decided what to do about. (Luckily, that decision was made for me.)

In short, the attacks on 4th Amendment injunctions against unreasonable search and seizure are even more profound than those on 1st Amendment guarantees of freedom of assembly. This was never more apparent than a recent case in Aurora, Colorado. Aurora, you may recall, is where they charged a six-year-old with sexual harassment for quoting from the lyrics to a popular song. They do grow ‘em stupid there, apparently.

This time, the police held over 40 people for over two hours because they had information—a “virtual certainty” in the words of Moron in Charge Police Chief Dan Oates—that an armed bank robber was in one of twenty or so vehicles stopped at a red light. So, naturally, the cops stopped everyone. But, as they say in the late-night infomercials, that’s not all. Let Officer Frank Fania tell it: “Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car. They all granted permission, and once nothing was found in their cars, they were un-handcuffed.”

Permission. Yeah, you’ve been handcuffed for no good reason, prior to being told what the hell is going on, by a police force that has just demonstrated that they don’t think they have to follow any rules. You know that you’ve been held up already for two hours while the cops strut their ability to hold ordinary law-abiding citizens without cause. Despite police bungling, you may yet be able to salvage your job, catch your flight, make it to your kid’s concert if you don’t do your shopping first, as you’d planned to do. You’re not really likely to make a reasoned decision about whether to stand on the part of your 4th-amendment rights that haven’t already been violated. You just want this stupidity to end. Notice also that “un-handcuffed” is different from “apologized to and told they were free to go.” A sloppier operation would be difficult to imagine.

When the case first made news, that bizarre quote from Chief Oates caught my attention. How could there be a “virtual certainty” if there was no description of the suspect? In other words, if the suspect is a 45-year-old white male, then I can understand a brief detention of white men who might be 45-ish. But all adults, for two hours? Not a chance.

Later, it came to light that the tip was actually in the form of a tracking device. This, of course, makes the situation even worse. It means that the police could simply have followed the suspect to his destination, which would have almost certainly been less crowded and, by extension, less dangerous for the public.

The smug declaration by police Officer Fania that “The result of the whole ordeal is that it paid off. We have arrested and charged a suspect” misses the point altogether. I don’t know whether Fania is that stupid or that disingenuous, but the fact that no one was hurt and the suspect was apprehended in this case was simply luck, not the product of effective police work.

The constitutional catastrophe, it turns out, was promptly pointed out. Jim Miller, described in the TV piece as a “legal expert” (whatever that means) points out that the “officers… who were involved involved couldn’t point to any of these people they stopped and say, ‘here’s my articulable suspicion for believing that you did something wrong.’”

Justin Marceau, who teaches law at Denver University, amplifies the point, noting that any detention of a person beyond a minute or two means the person has been seized:

What if the tip had been that the robber lived on my block– no other information? Could they detain and handcuff everyone who lives on my block in the hope of catching one bank robber? No, they couldn’t. The Fourth Amendment is pretty clear. I don’t have a problem saying the police violated these people’s Fourth Amendment rights.

Marceau also points out that none of the initial statements from the police expressed any particular interest in public safety. By this observation, neither he nor I, I’m sure, mean to suggest the police weren’t concerned about safety issues, but rather that the detention of dozens of people they knew to be innocent (they just didn’t know which one might not have been) was not prompted by safety concerns. This becomes relevant because it therefore does not allow an exception to normal constitutional protection the way random roadblocks to catch drunk drivers would. (I think that should be illegal, too, but I do see the argument.)

They said they did it to catch a bank robber. If their purpose was to catch a criminal then they need probable cause or reasonable suspicion for each person they detain. If 19 people were detained to catch one, then a one in nineteen chance that a person might be a criminal is not reasonable suspicion. Under settled law, this went way beyond what police are allowed to do.

Of course, the city attorney and “numerous other attorneys” think everything is just peachy. Apparently one becomes city attorney in Aurora when one is too stupid to be an elementary school principal.

Eugene Volokh, the constitutional specialist whose Volokh Conspiracy blog is on my blogroll, also weighed in on this case, noting that “Handcuffing someone generally requires probable cause to believe that they are guilty of a crime, or—in the context of a brief investigative stop—‘particularized suspicion’ to believe that the person is dangerous to the investigators.” He cites legal precedent—Manzanares v. Higdon and Ybarra v. Illinois, for those of you keeping score at home—and concludes

…even if the 5% chance that any particular driver was an armed and dangerous bank robber (1/19, even assuming that the tip was seen as having a 100% chance of being accurate) sufficed to provide enough “individualized suspicion” for a brief investigatory stop—perhaps, depending on the circumstances, including a patdown for weapons—I don’t think it would justify keeping all the innocent people handcuffed for an hour and a half.

It therefore sounds to me like the police might be facing 19 lawsuits (one in which the jury might not be that sympathetic to the plaintiff, and 18 in which they will likely be much more sympathetic), as well as one likely pretty solid suppression-of-evidence motion. I should hope that the police department and its elected superiors will also face some political blowback. Protecting the public from armed bank robbers is certainly very important; but handcuffing dozens of innocent people—in a situation where it was certain that the great bulk of the people were indeed innocent—for over an hour as part of this sort of blanket seizure strikes me as much too high a price to pay for this sort of law enforcement.

Yeah. What he said.

So, anyway, I thought this was going to be the “can you freaking believe this?” episode for the week. Then, between starting and finishing this piece, I read about the guy who had a diabetic seizure on his way home from Bible study, crashed his car, and was pepper-sprayed, clubbed and Tasered by police. To death. If these allegations are proven to be even within hailing distance of the truth, I take back what I said earlier about not yet being at the point where we have more to fear from the police (in the broad sense of that term) than we do from random criminality. We’re there. Enjoy the view.

The “Creepiness Curmie”: Two Nominees

May seems to be a very good month for stories about idiot educators, as two stories from today alone attest. Today’s topic: downright creepy middle school/junior high principals and their unseemly interest in girls in their early teens.

First, there’s the middle school principal in Geneva, Illinois, who thinks it’s OK to force students to allow him to rummage around in their Facebook accounts. This sort of Big Brotherism is problematic enough when it’s done to a job-seeker, but at least there the victim is an adult, and has the right to tell the meddlesome HR person to perform an act best suited to especially limber hermaphrodites. Adolescent kids whose fondest desire is just to make it through the 7th grade don’t have the luxury of just walking out.

Here’s the story: Pam Broviak’s daughter attends Geneva Middle School South. According to Broviak’s blog piece on the incident [obvious typos corrected]:

It started because a teacher heard another student spreading rumors about my daughter-–all of it unrelated to school and nothing against the law. So the school called in my daughter to demand to know if the rumors were true. This went on for some days, without my knowledge, and culminated in them asking her to open her Facebook account to them which she did. Then the vice principal called me to demand I come to the school immediately to read through her private messages. At the time I was out of town for work and could not make it back until later that night. She had obviously kept the account open long after my daughter had left and told me she would keep it open until I got there. She was almost hysterical about the whole situation also demanding I punish my daughter for what she had allegedly done. …

Of course I found out when I got home that this had taken a huge toll on my daughter who ended up crying through most of the rest of the day and therefore missed most of her classes. She was embarrassed and very upset. Particularly so because their line of questioning had also been sexual in nature with them demanding she share with them everything she had done sexually. In this day and age, I just cannot imagine how a school adminstrator could confront a 13-year old girl and demand to know the extent of her sexual experience. …

So the next day, I spoke with the principal.... He explained that the reason they had to interrogate my daughter was because the punishment for spreading rumors is different depending on if the rumor is true or not. So he insisted on his need to conduct an investigation into the truth each time they hear a rumor about a child....

I told him not to pry into the private lives of my children. And he said he cannot do that-–it is his obligation to look out for the morals and ethics of the children at his school. And if he feels they are not leading a moral life (obviously according to his standards), he is going to launch an investigation. And only if he finds they are in fact exhibiting poor behavior will he contact parents. And even then he said he doesn't like contacting parents because most kids don't want their parents to know anything and would rather just talk to him.

Gentle Reader, Curmie knows better than to form an opinion with only one side of the argument expressed. But he also knows creepy when he sees it.

Assuming Ms. Broviak’s account to be accurate, here’s what we’ve got. A 13-year-old girl is the subject of rumors, apparently about sex. The principal, rather than squelching the rumors (or admitting that he’s unlikely to be able to do so), uses them as an excuse to pry into this girl’s private life. Sorry, sir, that’s not due diligence; that’s prurience. It is not the principal’s job to snoop into the morals or ethics of his students, certainly not unless there is a provable and direct link to the efficient functioning of the school, and certainly not without parental knowledge. And if a misbehaving student doesn’t want his/her parents to know, that’s all the more reason to call them in.

Moreover, the way to encourage high ethical standards amongst one’s students is most assuredly not to adopt an unethical and (literally and figuratively) unwarranted subterfuge to access personal information not only about them, but about their friends, families, and acquaintances, as well. That, sir, is NONE OF YOUR FUCKING BUSINESS.

Neither the blog piece nor the MSNBC article by Bob Sullivan where I first heard about this case refers to the principal by name. I’m guessing that it’s Terry Bleau, who is indicated as such on the school web page. That would certainly make sense. Click on his name on that page and you get his autobiographical blurb, which includes the following: “I am a devoted family man.” Those of you, Gentle Readers, who know me personally have probably heard me say, “If you have to tell me, it ain’t so.” If you have to tell me you worked hard on that project, you didn’t. If you have to tell your cast that you’re in charge of a rehearsal, you aren’t. If you have to tell me you’re a devoted family man… well, you get the idea.

But if the principal isn’t identified, the superintendent is: one Kent Mutchler. He seems indignant about the suggestion that school officials demand students’ passwords. “Nay!,” quoth he, “we simply demand that students sign into their accounts and then we don’t close out of their private affairs until we get our voyeuristic little rocks off.” OK, so maybe that’s not a direct quote.

Mutchler also disputes Broviak’s claim that this kind of amoral intrusion is common. “It happens a half-dozen to a dozen times per year.” Let’s see, that’s roughly once a month, figuring nine as the average between the two extremes mentioned, and a school year lasting about that many months. That doesn’t strike me as remarkably rare, even if we believe him. But let’s look at it another way. The population of Geneva is 24,391, as of July 2009. The population of the country at that time was 306,771,500, or roughly 12,577 times as big. So, if there’s one such incident per month in Geneva, and if Geneva is average, that means there are over 12,500 invasions of students’ privacy happening somewhere in the country each month of the school year. The average school day is about seven hours, with maybe 22 or so days of school in an average month. Let’s say 150 hours a month of school being in session.

Uh oh. This is looking unpleasant. That makes 83 such events per hour. In other words, either Geneva schools aren’t normative, after all, or there is some creep in a school administration somewhere in the country demanding access to personal information from students in this particular manner about every 43 seconds that classes are underway. Sure doesn’t sound “very rare” to me. Wanna know something else that’s all too common? Idiots in charge of schools.

For further proof of this assertion, we turn to Tooele, Utah. There, the blogger known as “adult onset atheist” has a 14-year-old daughter who attends one of the local junior highs. On Wednesday, he was called to the school, where his daughter has apparently committed some grievous offense against humanity. I’ll let him tell it:

The office has large windows so that the student is on display to their peers throughout the interminable wait time. The bell rings and hundreds of students rush past the offender-on-display; some linger long enough to make obscene gestures. There are some sociopaths that would revel in the attention, but in most adolescent minds this is cruel and unusual punishment.

What had AYD done to deserve this punishment? Was it some valiant gesture of defiance against a fascist dehumanizing system, or was their [sic.] cruelty and torture involved? I found it hard to picture AYD engaged (or at least being caught) in either of these types of actions, but I was hoping for the first. …

After spinning up the possibilities in my mind I was not prepared for the actual nature of her offense. AYD was dressed inappropriately. I am not the best judge of “appropriate” dress for a 14-year-old girl. I try, but it is a skill I have no intention of using for very long. I tried to circumvent my need for it at all by suggesting that both AOD and AYD wear hospital scrubs till they graduate the 12th grade, but that was apparently “not happening”. I know that if I dressed myself from AYD's wardrobe it would be wildly inappropriate regardless of what I chose. Now my lack of attention had forced AYD into a life of crime. It is always the parents’ fault.

Luckily I was working at home, so I took a camera and rushed over to the junior high school with some dungarees and a sack-like shirt for AYD to change into. This is a picture of her in the school's front office, and this is the apparently inappropriate outfit she was wearing.

Yes, really. I don’t know about you, Gentle Reader, but I, for one, would be immensely comforted to believe that 20% of the adolescent girls in the country dressed as appropriately. The outfit is attractive, conservative, and appears comfortable without being scuzzy. If I had a 14-year-old daughter, I’d want her to dress like that to go to school.

But… erm… her skirt was apparently ½” too short. Actually, no. No, it wasn’t. If there’s a rule that says it was, then perhaps the dress code should have been revised at least once since 1962. Moreover, AOA says the yearbook (coincidentally distributed that very day) “had many photos of students with much higher hems on their skirts or pants. The yearbook photos raise the issue of selective enforcement.” More to the point, for that outfit to be regarded as provocative, we’d have to be looking at an intentionally deceptive view of a get-up in which there’s really no back to the skirt and the girl’s butt is hanging out. Why do I not think that’s the case?

The more trenchant issue, though, is this: given the fact that the skirt is obviously not provocative at all (unlike a good share of what teen-age girls wear these days), what kind of perv does it take to look at it long enough and hard enough to start calculating hem lengths to the half-inch? Here’s AOA, again [a couple of obvious typos corrected]:

I began to think: “luckily the school administration can look at AYD and see her as a provocative female,” but then I thought… no… that is extremely creepy. I tried to think: “luckily the school administration can look at AYD through the eyes of hormone addled teenage boys to see her as provocative,” but then I thought… no… that is weird-creepy.

So I began to imagine some teacher thinking inappropriate things about AYD, and she being punished for it. Imagine sitting in a class where you knew the teacher was literally looking through your clothing to see you as a provocateur? I began wondering if transferring her to a new class in the last two weeks of school would do more harm than good.

It turns out that the principal himself had personally identified her as inappropriately dressed. He had walked up to her during lunchtime and identified her crime where nobody else could. I can’t help but think that the principal’s action creates an unhealthy atmosphere in his school. What does it say to the teachers who had her in class earlier in the day, and not noticed her inappropriate dress? Will there be punitive actions taken against the teachers who could not look at my daughter with perversion in their eyes?

Is AYD safe?

Beneath AOA’s snark is the legitimate concern of a good father. Who is this principal, and WHAT IS HIS PROBLEM?

As I’ve said, I don’t want to leap to conclusions about either of these cases. In one or both, we may be hearing about events only as interpreted by a parent who is, quite reasonably, not the most objective of observers. But based on what is available to us right now, both of these principals seem to be struggling to keep their minds on their real jobs. Both seem to have just a liiiiiiittle too much interest in the sexuality of their adolescent female charges. In one case, it’s a perverse desire to intrude into their private lives; in the other, it’s a rather unsettling if not fetishistic determination that an outfit the rest of us would consider positively demure is somehow arousing.

I posted the latter story on the CC Facebook page, and got the suggestion of a special Creepiness Curmie award. I must say, it’s kind of disturbing to get two nominees on the same day.

The Junk and the Junk

A recent decision by the 4th Circuit Court of Appeals simultaneously engenders legitimate debate about the 4th amendment and releases my inner 12-year-old. “The Case of the Rock on the Rod”… “The Stash on the Staff”… “What’s That Sack by Your Sac?”… There, I’m done. For now.

In January 2009, Joseph Edwards was arrested by Baltimore police on a complaint by his ex-girlfriend, who claims he had threatened her with a gun. Quite reasonably, the police patted him down to make sure he wasn’t carrying a weapon at the time of his arrest. He wasn’t.

But, after Edwards had been handcuffed and before he was transported to the police station, officers decided to check one more time. This time, the officers surrounded him and pulled the top of his sweatpants and underwear away from his body, shining a flashlight at his privates. When what to their wondering eyes should appear… not a gun, of course, but a baggie containing 43 smaller plastic bags, which in turn contained just short of three grams of crack cocaine.

But, as you have no doubt already determined from the puerile display in my introductory paragraph, the baggie was tied around Edwards’s penis. Detective Dennis Bailey “put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.” Edwards was not hurt in the incident. That’s pretty much the entirety of the relevant information: there is much strutting about with respect to whether this constituted a strip search and similar triviata. But the essential facts are noted above.

“So, what’s the problem?,” you might well ask. Well, after a conditional guilty plea to possession with intent to distribute cocaine base, Edwards appealed, arguing that the search was unreasonable. And the 4th Circuit not only agreed, but vacated the conviction.

Ah, you think, that’s because there was no legitimate reason to search inside Mr. Edwards’s underwear: the pat-down, coupled with the fact that Mr. Edwards’s hands were handcuffed behind his back, were surely enough to ensure the officers’ safety. There was no indication that Edwards was in possession of crack, therefore no probable cause for the search. Nope, not it.

Oh, so it was the public nature of what is called a “sexually invasive search.” There was no reason to subject Edwards to search of what’s inside his underwear in public: take him back to the station and do it there. Nope, not it.

What, then? The conviction was vacated because Bailey used a knife to secure the evidence. The finding is based primarily if not solely on the argument that “the drugs were removed from Edwards’ person in an unnecessarily dangerous, and thus unreasonable, manner.” There’s more:

Moreover, assuming, without deciding, that the government’s rationale supports the reasonableness of the decision to search inside Edwards’ underwear, this rationale does not justify the dangerous manner in which the contraband was retrieved from his genital area once the contraband was discovered. In fact, the government provides no reason whatsoever why the concealed contraband, once the police had determined that it clearly was not a handgun, could not have been removed under circumstances less dangerous to Edwards.

Buh?

OK, Gentle Reader, here’s where I remind you that I’m neither a lawyer nor a Constitutional scholar, merely a more-interested-than-the-average-person layman. I can’t tell you if, or how, U.S. v. Robinson or Bell v. Wolfish pertain, legally. I’m confused by why the government can’t claim inevitable discovery on the appeal because they didn’t make that point earlier, but Edwards can actually win the case with an argument he doesn’t seem to have made at all. (His argument was that the search was illegal, not that it was inappropriately conducted.)

I am, in other words, just a grumpy old guy arguing on the basis of what makes sense. And what makes sense might conceivably result in what actually happened in this case, but not for the reasons articulated by Judge Barbara Milano Keenan, who wrote the majority opinion.

The Court never made a ruling on the justification for the search per se, which seems to me to be the strongest case Edwards had. The only reasonable criterion to justify a search, even of a known drug dealer (in the absence of specific evidence that he carrying right now) is officer safety. That’s a pretty shaky argument, frankly. The suspect was handcuffed and had been patted down, we presume thoroughly (and, if not, whose fault was that?). This is Joseph Edwards we’re talking about, not Harry Houdini. But apparently there’s legal precedent, so maybe…

There is no doubt that the police could have handled this situation better. Having found something… erm… interesting that clearly wasn’t a weapon, they could easily have transported Edwards to the station and removed the baggie there: this would provide for greater privacy, better light (apparently Bailey didn’t even use a flashlight for better vision during the baggie-echtomy), and probably a safer environment all around. There’s a significant difference, however, between saying that a different course of action would have been preferable and saying the one actually enacted was unconstitutional. And I confess myself unmoved by the suggestion that the use of the knife (as opposed to being arrested in a public venue) “could only cause fear and humiliation.”

After all, who was responsible for the situation? The cops? No, it was Mr. Edwards who decided to attach his stuff to his stuff. I can think of only two motivations. One would be that he knew he might be stopped by the police and suspected (with reason) that cops aren’t exactly thrilled about conducting the kind of search that ultimately uncovered his drugs. The other is a sort of burlesque routine we can see the likes of Benny Hill enacting: “Hmm… I’ve got to carry this baggie full of illicit drugs around and I don’t have any pockets. [loosens drawstring of sweatpants, looks within] Ooooh… what’s that thing? [smirking take to audience] Let’s tie it to that!”

Either way, there’s inevitably a tradeoff between safety and propriety, as dissenting Judge Alberto Diaz notes. He writes that the options proposed by the majority,

… untying, removing, or tearing the baggie—would require that officers physically touch Edwards’ penis. In my view, however, a rule that directs officers to place their hands on a defendant’s genitals as a first option for seizing contraband in a baggie that the defendant has chosen to strap to his penis seems no more attractive than the careful use of a knife.

Let’s face it, I’m guessing the founding fathers didn’t envision a constitutional crisis about the correct means by which to remove baggies of drugs from penii. Is it relevant, by the way, that the two female judges suggested means which, though arguably safer, would involve more physical contact with Mr. Edwards’s genitalia, and the male judge didn’t like those suggestions?

It’s also worth mentioning, as Diaz does, that “The district court, moreover, made no mention of the knife in its ruling. This omission was not an oversight, but rather reflected the fact that the knife was not the focus of the parties’ evidentiary presentations.”

More to the point, if we grant the legitimacy of the search itself, irrespective of the means by which it was conducted, the drugs had already been discovered, legally, by the time the allegedly inappropriate removal. It therefore makes no sense to suppress the evidence. Mr. Edwards might have grounds for a complaint or even a civil suit, but that’s another matter altogether.

Quoting Judge Diaz’s dissent, again:

had the officers not used what the majority perceives to be an unreasonable method to remove the drug baggie, they nevertheless would have discovered the contraband and (at some point) seized it in some other manner. Put simply, the plainly visible contraband was already discovered before the officers determined to use a knife to remove it. Thus, I question whether the record supports the causal connection that Hudson [v. Michigan] requires before resorting “to the massive remedy of suppressing evidence of guilt.”

The bottom line is that I’m willing to grant suppression of the evidence because the search itself was illegal. But if we’re going to grant the legitimacy of the search, then we need to keep the evidence. The majority decision may be legally sound. If so, it’s a bad law.

But we did get an opportunity to snicker at stupid dick jokes because of this case. At least that’s something.

[Two side notes, completely off topic.]

1). Despite not writing here until February, and taking over a month off in October and November, I’ve managed to crank out 100 blog pieces in 2011. That’s small potatoes for many people, of course, but for me it’s something of an accomplishment. I thank you, Gentle Reader, for your support, your commentary and for your “likes” on the Facebook page. I don’t know if I’ll write anything else before Sunday. If not (or even if so, obviously), Happy New Year, one and all.

2). A reminder to vote, if you haven’t already done so, for the 1st Annual (Maybe) Curmie Award, presented to whoever most embarrasses the profession of education. You must vote on the electronic ballot in the upper-right corner of this page; comments with indications of preferences will not be counted. Descriptions of the nominees are found here.]

It Was a Bad Week for the 4th Amendment

On Saturday, I wrote about an astounding case in the Indiana Supreme Court, in which the majority found that, 796 years of legal precedent notwithstanding, citizens do not have right to resist even an unlawful entry into their homes by police.

Not to be outdone in authoritarianism, the US Supreme Court on Monday issued its own mind-boggling decision to move us one step closer to a police state. While their ruling was not as transcendently stupid as the one in Indiana, it did have the advantage of having an 8-1 supermajority. No wimpy-assed little 3-2 margin here, no siree Bob.

Can we take as a starting place that if you’re seriously asserting that the Supreme Court of Kentucky sided too much with the civil libertarians, you’ve got a pretty damned reactionary SCOTUS? But that’s exactly what happened in Kentucky v. King, in which the nation’s highest court ruled overwhelmingly that a warrantless search can be justified by smelling marijuana and hearing unspecified noises which might be interpreted to suggest the destruction of evidence, even in the obvious absence of any attempt to do that.

Lexington police pursued a suspected drug dealer into a hallway in an apartment building. Faced with two possible doors through which the suspect might have exited, they smelled what they thought was marijuana smoke coming through one door, banged on the door, announced their presence, heard whatever they heard, kicked the door in, and found three people, one of whom was in fact smoking marijuana, plus “marijuana and powder cocaine in plain view.” By the way, the suspect wasn’t there.

The details are significant: for the initial search to be legal without a warrant: 1). the police must had a legitimate reason to believe the people in the apartment were doing something illegal, 2). they must have had cause to believe that evidence was about to be destroyed (not merely hidden--see below), 3). they must not have created that exigency themselves, 4). and it must have been impractical to secure the premises and get a warrant. For the subsequent search to have been legal in the absence of a warrant, there must have been other evidence already in plain sight.

Of those four criteria necessary to legitimize the arrest of the people in the apartment, then, (remember, all of which must be met in order for the search to be legal), I’ll give them maybe one and a half. That this is nonetheless enough for an authoritarian idiot like Samuel Alito does not shock me. That it’s enough for Elena Kagan is a little more troubling.

About the best the majority can offer is that there was the smell of marijuana, after all. True, I doubt that any of the cops in question could differentiate between the odor of marijuana and that of, say, the herbal cigarettes sometimes used in theatre productions to approximate dope-smoking, but I’ll give them that one. Is that enough to kick down a door without a warrant? For the Stasi, sure. For the Lexington Police, not so much.

Because, after all, we’re supposedly a nation of laws: so when policemen “[bang]” on your door “as loud as [they] could,” they are not “demanding” entry, because that, you see, would be illegal without a warrant, and our fine men in blue wouldn’t do that. No, pounding on a door screaming “This is the police” or “Police, Police, Police!” is little more than a polite request for conversation, tantamount to wanting to borrow a cup of sugar or wondering if the apartment's residents thought the Bengals were going to suck again this year. Notice that the cops can’t remember exactly what they said, but they remember that it was loud (because it has to be to fulfill one set of guidelines), and they definitely didn’t, for example, use the words “Open up,” because that would be unconstitutional. Uh huh.

The response to this conversation-opener was apparently “people inside moving.” OMG, NO! They might, of course, been moving toward the door to open it. They might have been walking away, since Justice Alito makes a big deal out of their right to do so:

… even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

They will let just about anybody be on the Supreme Court, won’t they? The one thing we can pretty much conclude didn’t happen was an attempt to destroy evidence. How do we know? Because all the evidence remained in plain sight. The people in the apartment would have had to have been even more incompetent than the police to have that theory fit the evidence.

Here’s the necessary time-line: the suspected dealer (remember him?) runs down the hallway and presumably enters the apartment across the hall, quite possibly slamming the door behind him. The police follow, probably not silently. Deciding to follow the wisdom of the great criminologist Toucan Sam and follow their nose, the police pounded on the apartment door, announced their identity, heard noises, decided what those noises were, “explained” (love that word choice) their intention to enter the apartment, and kicked the door in. During this time, all three people in the apartment remained in the front room, the marijuana and cocaine stayed in plain sight, and the “guest” didn’t even bother to put out his doobie. Interestingly enough, while I find this the most compelling argument to believe that the cops did some ex post facto consultation about what might conceivably get them a conviction, the Kentucky Supreme Court didn’t wish to pursue the matter, allowing the exigency argument to be assumed for the sake of argument, thereby allowing the US court to do so, as well.

The Kentucky court centered its argument that the search was illegal on the idea that the police created their own exigency: that by pounding on the door and announcing their presence, they precipitated the (phantom) attempt to destroy evidence. In other words, had they simply applied for a warrant, they would have received one, as the smell of smoke would provide probable cause. Justice Ruth Bader Ginsburg, echoing the Kentucky decision, wonders in her minority opinion

May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.

Justice Ginsburg argues further:

There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[persons] in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

The target of the investigation’s entry into the building, and the smell of marijuana seeping under the apartment door into the hallway, the Kentucky Supreme Court rightly determined, gave the police “probable cause . . . sufficient . . . to obtain a warrant to search the . . . apartment.” As that court observed, nothing made it impracticable for the police to post officers on the premises while proceeding to obtain a warrant authorizing their entry.

Remember, for the search to be legal, it’s got to be not just plausible, but likely, that things transpired the way I described above. Moreover, the exigency argument applies only to the destruction of evidence. If the people in the apartment were merely hiding that evidence, there is no legitimacy to breaking the door down. Ironically, if they had in fact successfully hidden the drugs just to the point that they were not in plain sight, there would be no question than a warrantless search would have been illegal.

Even the SCOTUS majority agrees that for “a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves.” More importantly, they also grant that it is “a basic principle of Fourth Amendment law… that searches and seizures inside a home without a warrant are presumptively unreasonable.” In other words, it is not the apartment-dwellers’ responsibility to prove that the search violated 4th Amendment protections, but the state’s responsibility to prove that it did not.

Despite this, in large part because they simply assumed that the weakest part of the state’s case was true “for the sake of argument” (apparently because, and perhaps only because the Kentucky Supreme Court did so because they didn’t need that argument to decide against the police), a huge majority of the SCOTUS ruled the search was legal. Interestingly, had the police been competent enough to have chosen the right door on which to pound, it is much more certain they’d have needed a search warrant to enter the apartment of (apparently) a couple of small-time druggies. Police who know what the hell they’re doing need to follow the rules. It’s only the caricatures of the dumb and arrogant cop who, by virtue of their very unfitness to serve, are granted the privilege of ignoring the US Constitution.

This is serious. No, just as I don’t anticipate serial abuses of Indianans’ civil liberties as a result of that state’s absurd ruling last week, neither do I expect wholesale home invasions to stem from this SCOTUS decision. It is troubling, however, to consider the possibility that this case might be used to justify the unwarranted search of even a single citizen: a petty doper and coke-head now; perhaps just someone the police have a grudge against in the future. Some blogger who tends to disbelieve police stories without corroboration, for example.

What's 800 (OK, 796) Years Among Friends?

You know when, as a judge, you might want to think twice about a decision you’re about to make? How about when that ruling can lead to a news story that can legitimately open with the words, “Overturning a common law dating back to the English Magna Carta of 1215…”? But that’s precisely how Dan Carden of the Northwest Indiana Times (and nwi.com) began his story about the most recent action of the Indiana Supreme Court, which ruled that citizens do not have the right to resist unlawful police entry into their homes.

The case in question involved a domestic dispute which took place outside a couple’s apartment. As Carden tells it, “When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.”

I’m not going to pretend to know more about the law than a bunch of judges, but I do have a reasonable layman’s understanding of the Bill of Rights, and I’ve spent a fair amount of time looking at the 4th Amendment in particular. I also remember basic history courses, and that one of the most significant provisions of the Magna Carta was the right to resist the unwarranted (literally!) intrusion of the state and its minions into a private residence. And now, in Indiana, at least, that most basic right of citizenship is being abandoned in the name of utilitarian cleanliness: someone might get hurt, we can’t “beat the hell out of the officer” (who, exactly, was claiming that right?), the citizen can still sue, it’s against “public policy” (whatever that means), and is “incompatible with modern Fourth Amendment jurisprudence” (Bullshit.).

OK. There will be readers of this piece who know the law better than I do, and I’m asking them to correct me if I’m wrong in any of this. But it seems to me that if we acknowledge that the police entry was unlawful, then the officer(s) in question lacked a warrant, consent, or exigent circumstances. That means that the policeman has, legally, ceased to be functioning as a policeman, and his actions become those of a private citizen. In pushing his way past someone blocking the door, he has committed assault and trespassing—maybe they’re called something different, but that’s the idea.

These are criminal acts, not (only) the stuff of civil suits, regardless of what Justice Steven David says. I don’t want to sue the cop tomorrow; I want him the hell out of my house today, and if his entry is unlawful, then it is he, not (or at least more than) I, who is escalating the potential of violence. If the government wants to reduce that threat, it can provide better training, tougher sanctions, or indeed whatever else it might take to keep that policeman out of a private residence, without cause, to begin with. Casually dismissing the basic rights of the individual as inconvenient doesn’t seem to be the way to go.

It may be that in the particular case under question that the ruling is the correct one. We don’t know the exact meaning of “shoved,” for example (there’s certainly a possibility that the apartment-dweller did something criminal, too), and the two justices voting in the minority both said they’d have supported the decision had it been narrower in scope: limiting the permission to domestic violence situations, for example. Of course, then there would be a legitimate claim of exigent circumstances, and the entry wouldn’t be unlawful to begin with.

I have to agree with both dissenting justices:

Robert Rucker: “…the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally -- that is, without the necessity of a warrant, consent or exigent circumstances.”

Brent Dickson: “The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.”

This is not, by the way, a partisan matter: there are both Republican and Democratic appointees on both sides of the issue (at least if you call Evan Bayh a Democrat, which of course technically he was, even if he didn’t govern like one). Of course, this is a case in which left/right taxonomies are less useful than distinctions between the authoritarian and the libertarian. It will be interesting to see where the Tea Party comes down on this one: their rhetoric suggests that this might be the sort of case that propagates strange bedfellows, much like the Kelo case at the national level a few years ago. We shall see, as I strongly suspect the SCOTUS will be weighing in on this one.

In the meantime, I don’t anticipate that jackbooted thugs will crash through my door without any reasonable cause in the foreseeable future. But it seems to me that eight centuries of precedent ought to mean a little more than it just did in Indianapolis.

It's Easier to Admit to Something If It's True

It may seem strange, with so many significant world events to be commented on, and after such a long absence from writing here, that I would return with what is, to be sure, a trivial concern. I have thoughts about what’s happening in Egypt right now, thoughts about the new Republican House whose members assured us their sole focus would be jobs and then as one of their first actions proceeded to try to re-define rape, thoughts about the horrific events in Tucson a few weeks ago. But one of two things has held me back. Either what I had to say wasn’t really blog-length (I could say it in a couple of sentences or it would take a longer essay than I had time to write or, likely, than you would choose to read), or someone else had already said pretty much what I wanted to say, and I could simply link to that piece from my Facebook page (those of you who “like” that page may have noticed an increase in such traffic over the last few weeks).

So here goes with a blog-sized issue, in the hopes that it will help me break my blogger’s block.

One blog/website I check not infrequently is called Ethics Alarms. I read (or at least skim) virtually all of these posts, agree with many if not most, and link to a few, both in my Curmudgeon Central persona and, less frequently, as myself. The blog is written by a guy named Jack Marshall, a Virginia-based ethicist and lawyer (and stage director!), who appears to mean it when he says his blog “attempt[s] to be bold without being reckless,” and that it is “dedicated to starting discussions, not ending them, despite the tone of certitude that often invades its commentary.” This attitude jibes well with the stated goals of my own blog: “You won't agree with me all the time... or at least I hope not. If all you can bring to the table is unsubstantiated opinion, please don't feel compelled to prove it, but I'd love to hear from you if you can offer an intelligent perspective that differs from my own.”

Anyway… Mr. Marshall recently posted an essay praising Marvin Kalb for “confronting the most prestigious and perhaps the most egregious of left-biased media, the New York Times, with the truth it routinely denies.” While I certainly agree with Marshall’s general point, that news is news and opinion is opinion, and the latter should not insinuate itself into the former (at least without an acknowledgment that it is doing so), there is much about the piece that is puzzling.

We begin with the opening salvo, an assertion that the “so-called mainstream media have an obvious leftward political bias,” for which “the evidence is overwhelming.” That is an arguable case, but I’d suggest that such bias, should it exist, is hardly “obvious.” It is true that a considerable majority of reporters self-identify (or are registered) as Democrats. This could, of course, be taken as evidence of a cabal: that only like-minded true believers can work in the MSM. Of course, it could just as easily be argued that journalists are well-educated and curious folks who are likely to be the best-informed demographic in the country about current events, and that smart and well-informed people tend to lean to the left. More to the point, while no one can completely eliminate his/her own perceptions or lived experience, it certainly is possible to minimize those subjective impulses (cue the Sonia Sotomayor references). As I’ve said repeatedly, I can direct a Brecht play without being a Communist or a Racine play without being a monarchist.

Moreover, with the increasing corporatization of the media, news coverage in general is trending to the right. I freely grant that my experience may be idiosyncratic, but in all the hoopla generated by the Tea Party’s protests against Obama-care in particular, I literally never heard anyone in the Corporate Media point out that the health-care bill will, according to the non-partisan Congressional Budget Office, reduce the deficit by a couple of hundred billion dollars… a fair amount of money in my neighborhood. But I heard a lot of Republican hand-wringers, suddenly, miraculously even, worried about the deficit. Everything the inane Sarah Palin utters is breathlessly recounted on the evening news, more often than not without rebuttal of even her most egregious factual errors. Need I continue?

The particular target of concern here, the New York Times, principally through the sloth (or mendacity) of Judith Miller, who unquestioningly parroted Bush administration talking points as if they were undisputed fact, became one of the primary cheerleaders for the Iraq war, and, like the Bush administration itself, never took responsibility for its role in a trillion-dollar debacle which failed to uncover any of those WMD it would be a “slam dunk” to find. The Times subsequently sat for months on a story about warrantless wiretaps (a clear violation of the 4th amendment) until after President Bush was safely re-elected. These are not the actions of a radical left-wing institution. This is not to say that the Times doesn’t make some decisions that could legitimately be described as left-leaning. But they’re an equal-opportunity incompetent. They’re lazy, they’re more interested in having access to power than in speaking truth to it, and they’re oftentimes more interested in the “sexy” story than in the truth. But they’re not “the most egregious of left-biased media.” And, despite their manifold flaws, they’re still better at journalism than virtually anyone else in the arena.

Marshall’s claim that MSM “supposedly objective reporters are openly adversarial to conservatives while covering news events” is supported by a link to a nearly two-year-old piece he wrote himself (I presume) describing a single incident in which a CNN reporter I’ve never heard of (Susan Roesgen, anyone?) said a couple of stupid things on the air. In the absence of a video or even a transcript of Roesgen’s alleged transgressions, I can’t assess the events except through Marshall’s descriptions. (N.B., I am not suggesting that Mr. Marshall is misrepresenting facts, or that he couldn’t have supplied other examples.)

Certainly decrying a rally as “anti-CNN” is dumb, but declaring the event unfit for “family viewing” might well have been a reaction against the language employed (as in, shall we say, citations from the Anglo-Saxon) rather than content. And while it might seem petulant to observe that the Tea Party movement was largely a product of the proselytizing of Fox News, the fact remains that that’s an objectively true statement. Moreover, were I in the position of interviewing such protesters, I suspect that I’d want to know why they were describing the President of the United States as a “fascist,” if they really thought they were benefiting their cause by doing so, and indeed if they had other than a visceral rationale for their allegations. I would “cut off” such a protester if he wasn’t making any sense—not because I didn’t want to have his ideas on air, but because I might hope to find someone better able to articulate a rational reason for the demonstration. And, of course, I might have been granted only a very small window of air time. If this is the best available example of MSM reporters’ contempt for conservatives, in other words, I’m pretty much unimpressed.

And then, Marshall’s essay gets really strange: “Fox News, which was launched to counter balance this tendency [towards a left-leaning media], has at least been relatively open about its conservative slant: ‘fair and balanced’ was always intended to convey Fox’s efforts to balance the scales, not to suggest the Fox News by itself was balanced.” In what universe? True, Fox News was, in its origins, intended to do exactly what is described here: to balance a perceived slant in media coverage. I actually used to watch some Fox programming in the network’s early days, and I continued to watch Fox News Watch throughout its first incarnation, when Eric Burns moderated (very well, I might add) and the likes of Neal Gabler were given the opportunity to engage in actual discussion with the Cal Thomases and Jim Pinkertons or the world. But even as the corporate media has drifted rightward in recent years, Fox has steadfastly moved even further to the right into, frankly, loonyville.

Fox, in other words, lurches far more to the right than MSNBC, the New York Times, or NPR veer to the left. Those latter organizations may, from time to time, interpret the news through their own political lens, but they don’t simply fabricate stories about death panels or Sharia law. In England, two of the three most widely-respected newspapers are the Guardian and the Telegraph. Everyone knows the former leans left and the latter leans right. But both try as best they can to get the facts straight, and I’ve linked to both of them in blog pieces over the last few months. It is possible, in other words, to be a legitimate news organization and still have a political point of view. But Fox News doesn’t live on that planet.

That network’s complete disregard for anything approaching coverage that is either fair or balanced is quite obvious to any reasonably informed person who watches for five minutes or glances at their website. The recent headline that “Obama Botches Bible Verse at Prayer Breakfast” because the President quoted accurately from the New International Version instead of apparently the only Fox-approved translation, the King James Version, is merely one among dozens of examples of Fox’s desire to cast Mr. Obama in a bad light, facts be damned.

The only real question is whether Fox News is an arm of the Republican Party or the other way around. I know that, you know that, Mr. Marshall knows that. But I see no evidence that the Fox viewership knows that. Turn on the Rachel Maddow show on MSNBC, and chances are you won’t go an entire episode without hearing a phrase like “for those of us on the left.” But show me any evidence at all that Fox’s equivalent talking heads are ever that forthright about their political positioning. Bill O’Reilly’s catch-phrase isn’t “And now, from our side”; it’s about his “No-Spin Zone,” which, of course, is all about spin, just, well, his spin. I see literally no one at Fox, either on air or in management, who is “relatively open about its conservative slant.” A self-image as being unlike the allegedly leftie other guys, sure. But overtly conservative? Nope. Maybe those confirmations (admissions?) are there and I missed them… I’d really like to be proved wrong about this.

Next on Mr. Marshall’s menu is an indictment of the MSM because of its “repeated tardiness in covering legitimate ‘conservative news stories’ like the New Black Panthers controversy, and the ACORN ‘sting.’” Seriously? The “New Black Panthers” is a tiny, completely impotent, and not terribly smart gaggle of fringies (good article from Newsweek here), and investigation of them was deemed, well, not worth the bother by Attorney General Holder. No one other than the hacks at the Washington Times who manufactured the “controversy” could believe the NBPP poses any kind of threat to free and fair elections anywhere. No one, that is, except Fox News. Well, actually, they don’t believe it, either, but they’re willing to pretend that they do because of their need for ideological red meat.

The ACORN “sting” consisted of significantly edited footage, quite intentionally misrepresenting what actually happened. (My blog piece on the topic from last April is here.) This, of course, didn’t stop Fox News from beating the drum to destroy ACORN, just as they were to do subsequently when another tape deceptively edited by the despicable Andrew Breitbart purported to show Shirley Sherrod (remember her?) admitting to racial bias, whereas the unedited footage showed precisely the opposite. Fox, of course, both their commentators and their alleged reporters, screamed for President Obama to fire Sherrod. When the administration cravenly did so without bothering to find out the facts first, Fox went apoplectic again because Mr. Obama did precisely what they themselves had demanded that he do.

In other words, while there may be “legitimate ‘conservative news stories’” the MSM hasn’t covered, the two examples cited by Mr. Marshall don’t qualify, and the current-events reference to “the similar Planned Parenthood videotapes,” another Breitbart-edited hatchet job, doesn’t look like it’s going to be much of a story, either, largely because (who’da thunk it?) the unedited tape tells a very different story than the edited version. I know, I know, next I’ll tell you that ice is slippery. This non-coverage isn’t because the media is leftist; it’s because they’re sometimes competent, and they’re becoming increasingly less interested in being pawns in a sleazy propagandist’s latest ploy. (Sidebar: honestly, who would trust Andrew Breitbart if he said that ice cream tastes good?)

Finally, we come to the conclusion of Mr. Marshall’s essay, in which he cites Mr. Kalb’s observation that “there’s more analysis dipping into commentary and the editorial side of reporting than a straight hard news story.” To be honest, I’m not sure what that means. Reporting isn’t a Joe Friday “just the facts, ma’am” phenomenon. Ever. Every reporter, every editor (and I’ve been both, though not professionally) makes myriad choices about what facts are relevant and what aren’t. When two “facts” seem to be in disagreement, which gets rhetorically privileged? “X, but Y” or “Y, but X”?

Moreover, as I tell my students all the time, the nature of analysis is simultaneously objective and subjective: that is, there is as much difference between analysis and opinion as there is between analysis and purely objective reporting (as if the latter were indeed possible). This is a distinction I expect the dimmest of my Theatre Appreciation students to understand: I have no interest in your opinion, in whether or even why you liked or didn’t like something. Tell me what you saw, and, if you want an A, tell me what it might have meant. My classroom employs all three approaches: there are objective facts, there is analysis (“this seems to have happened because of that”), there is (occasionally, always clearly identified) opinion. It strikes me that reporting is remarkably similar in this regard: reporters and professors alike should be careful to distinguish between personal opinion (even professional opinion) and objectivity, but it’s frankly unreasonable to suggest that every statement be parsed and modified into meaninglessness. This positioning of analysis between the objective and the subjective doesn’t seem too difficult a concept to expect a professional journalist (Mr. Kalb, or a NYT reporter) to be able to comprehend.

I don’t want a reporter to tell me what to think about an issue, but I do expect a reporter to know more about an issue than I do, and to provide me with the relevant information. What qualifies as “relevant” in this formulation is ultimately at his or her discretion: I’m not an economist or a Middle East expert or a lawyer, or (usually) possessed of whatever particular professional insight might be most useful to understanding a specific issue. I am not, or at least I try not to be, a disjunctive thinker: there are shades of meaning in every useful commentary. I will agree with this politician most of the time but not always, and so on. But if I’m not going to simply agree with what my political party (religious leader, favorite commentator…) tells me, I need answers to certain very real questions: What does this mean? What is its context? How does it change the status quo?

As Times editor Bill Keller says in a part of the interview not quoted in Marshall’s blog entry:

I don’t mind analysis in the news pages; in fact, I encourage it every day. The discipline of objectivity or impartiality is something that is drilled into American reporters from their first day on the job….

It’s an aspiration, and reporters and editors bring their own beliefs to their jobs, and… just as judges are expected to set their personal prejudices aside in judging a case, reporters and editors are expected to lay their personal prejudices aside in assessing the facts of a news story….

They [readers] don’t get my opinion. If we’re going to write a piece on a particular political figure, then supplying some context to his remarks or his activities is a service to readers, I think.

Forgive me if I don’t go running after my torches and pitchforks at the audacity of those comments.

If the Times is actually editorializing under the guise of news reporting, that’s a bad thing. I really can’t comment on that assertion because, while I read the occasional Times article on line, it’s been quite a few years since it was my principal source of news, and while I haven’t seen any real evidence to support the claim, it night be true. If the charge is true, the Times wouldn’t be the only news source to do so, and I feel confident that they’re not as bad as some (Cough. Cough. Fox. Cough.). But while Mr. Kalb (and hence Mr. Marshall) may have a point, I find it interesting that the bleeding of opinion into news is never overtly linked to liberal bias: the closest Kalb comes is suggesting that “many conservatives” regard the Times as “left-wing.” And Keller’s responses are about as untroubling as it is possible to be.

Mr. Kalb’s questioning, then, seems rather more tepid than intrepid. He may have “visibly upset” Mr. Keller, as Mr. Marshall claims, but nothing like that is apparent in the audio tape. I’m afraid I’m not ready to lionize Kalb or to demonize Keller. Rather, I’m reminded of the television ad for The Nation, which claims that journal exhibits “that well-known liberal bias you won’t find anywhere else.” Think about what’s implicit in that claim…