Further Musings on "Context"

Claudine Gay at the Congressional hearing

The recent resignations of Liz Magill and Claudine Gay as presidents at the University of Pennsylvania and Harvard University are, of course, of interest to Curmie, both as a career academic and as an observer of American society.  They tell us more about the business of higher education than, perhaps, we would like to know.

It is widely believed that their testimony before a Congressional committee last month was evasive, even mendacious and/or anti-Semitic.  Curmie, you may recall, disagreed with those conclusions, and noted that both Eugene Volokh and FIRE’s legal director, Will Creeley, agree with his assessment.  Context does matter. 

The specific circumstances surrounding a demonstration by supporters of the Palestinian cause chanting “from the river to the sea” are central to determining the appropriate response.  That phrase has been interpreted by some to mean the extermination of Israel, or even of Jews in general.  Others claim the slogan suggests merely an aspiration to be liberated from what Palestinians perceive, not altogether inaccurately, as Israeli oppression, with no inherent suggestion of violence.  

Analogously: a swastika—the word is derived from the Sanskrit for “may all be well with you”—is a positive emblem in several Eastern religions (especially, but not exclusively, Hindu), but that’s not the first association 21st-century Americans, especially Jews, will make.  Should Hindus be prevented from using a time-honored symbol of their faith because the Nazis appropriated the image?  No, but circumspection would certainly be in order.  Context!

Back in the Dark Ages of the late 20th century, Curmie taught courses in public speaking and persuasion.  Those courses required examining the relationship between the sender and the receiver of a message.  More specifically, communication theory suggests that there are innumerable ways in which the process can go wrong.  All of us have experienced more than one episode in which what one person intended to say was not what the other person heard.  These situations, though clearly unintentional, often lead to tension… or worse.

Volokh, Creeley, and Curmie agree that context matters, that whether or not demonstrators were engaging in protected (even if objectionable) speech is a matter of context.  If the chants constitute an actual threat against specific individuals or group, if there is an incitement to criminality, then First Amendment protections (and their equivalents at private universities purporting to uphold free speech values) do not apply.  Barring that threat, however, even offensive speech must be permitted, provided it does not directly violate the rights (as opposed to the sensibilities) of others.

Curmie has long believed in the “reasonable person” approach.  That is, in this particular matter, the question is not whether Jewish students at those universities felt personally threatened, but whether a reasonable person would have interpreted the actions of the protestors in that way.  And now we’re back at context.  Curmie wasn’t there.  Neither, probably, were you, Gentle Reader.  Ultimately, we’re going to have to trust the people on the ground to make the call.  That doesn’t mean they’re necessarily right, only that we have no other reasonable alternative.

The concept of context takes on another meaning, too, of course.  Here, the issue is not free speech, but consistency.  And here is where those critical of the responses by various university administrations across the country have their most persuasive point: what if it were a different group of students who were offended or felt threatened by the actions of others?

Curmie has been dismissive here and elsewhere of, for example, the black student at the University of Michigan who felt “unsafe” when a professor showed the Laurence Olivier film version of Othello in class, or the Muslim student at Hamline University who purported to feel “unwanted” and “disrespected” when she passed up clearly stated opportunities to avoid seeing an image of the prophet Muhammad in a global art history class and would have us believe she was scarred for life.

Curmie mentions these incidents not because they’re silly, although they are, but because university administrations sided with the students and their fragile sensibilities: in the former case, a Distinguished University Professor (note the capital letters: this is an official title) was humiliated and removed from teaching his course; in the latter case, an adjunct professor (with a PhD) was de facto fired.  

It is not too big a stretch to suggest that had some group other than Jewish students considered themselves threatened on the Penn or Harvard campuses, the administrations’ actions might almost certainly would have been different.  In other words, whereas allowing the pro-Palestinian protests was arguably the correct call when considered in isolation, in context (there’s that word again!) it could reasonably be considered a hypocritical violation of the university’s precedents in order to favor one side of a contentious issue.  Are these examples of anti-Semitism?  Curmie isn’t saying “yes,” but he isn’t saying “no,” either.

This critique is especially true at Harvard, where Claudine Gray’s resignation letter includes this tidbit: “it has been distressing to have doubt cast on my commitments to confronting hate and to upholding scholarly rigor – two bedrock values that are fundamental to who I am – and frightening to be subjected to personal attacks and threats fueled by racial animus.”

Yeah, right.  Curmie may agree that responses to campus demonstrations should be based on context, but she failed to make that case in her appearance before that committee, when either she knew what questions were coming or was remarkably unprepared.  If that performance was “confronting hate,” Curmie is Miss America.  Still, Curmie is reasonably convinced that Gay would have survived the brouhaha arising from the congressional testimony had she not been outed as a plagiarist. 

As for “scholarly rigor,” well, even her supporters at the Harvard Crimson admit that “Gay’s behavior constitutes plagiarism” and that “sloppiness of this kind is unbefitting of a Harvard president.”  Yes, it is true that plagiarism cases are on a continuum, and some examples are worse than others.  But whereas the lack of intention to deceive is at least a partial excuse for an undergraduate (Curmie has seen scores of such cases), such a lack of… wait for it… rigor is unacceptable in a graduate student, let alone the president of Harvard. 

If, as many folks who know the specifics of Harvard’s honor code better than I have asserted, Gay’s plagiarism was quantitatively and qualitatively significant enough that a Harvard undergrad would have been suspended for similar offenses, Gay should be fired, not simply from the presidency but also as a faculty member.  Nor should anyone else hire her.

Predictably, Gay accepts literally no responsibility for her actions, resorting instead to claims of racial victimhood.  They are bullshit.  It may not be true that Gay got the job to begin with not because she was the best available candidate, but because she was considered the best available black female candidate (Curmie doubts that even that description is likely to be true), but it’s difficult to believe otherwise.  And her self-righteous bluster about “racial animus” only weakens what little case she had.

Dr. Gay, you were de facto removed from the presidency of the nation’s oldest and most famous university because you were proven to be a fraud, even to the satisfaction of many of your supporters.  You get to remain in a cushy faculty position, and according to one report will still bring in a salary about a dozen times as high as Curmie’s was when he retired as a full professor.  You caught a break, and it’s far more likely that your demographic profile lightened your punishment than that it precipitated it.  The wise thing to do would be to STFU.  But, of course, if you were actually wise, you wouldn’t be in this position to begin with.

Context, and the Effort to Pretend It Doesn't Matter

Liz Magill testifying

For better or worse, the testimony of the presidents (well, one of them is now an ex-president) of Harvard, MIT, and the University of Pennsylvania before a congressional committee a little over a week ago remains a subject of considerable commentary, particularly from those who sought to denigrate the alleged evasiveness of the presidents’ responses.

Specifically, the trio wouldn’t answer “yes” or “no” to questions posed by Rep. Elise Stefanik about whether calling for the genocide of Jews violates their universities’ policies on bullying and harassment.  They gave boilerplate responses, suggesting that context would be a determining factor.  Yes, they looked sort of bad, but Curmie struggled to discern how their answers were inappropriate.  Context does matter, always; terms like “pervasive,” “severe,” and “directed” may seem legalistic, but Curmie isn’t sure how one can answer legalistic questions without responding in kind.

Moreover, Curmie can find no one who advocated for the “genocide of Jews” in those terms.  There were, apparently, chants of “intifada,” and of “from the river to the sea.”  The former refers to resistance against oppression; it suggests the possibility of violence, and that’s what Hamas means by it, but the word is apparently used not infrequently by others without that implication. 

Similarly, “from the river to the sea, Palestine shall be free” is a rallying cry for Palestinians.  But, as Laurie Kellman points out in an AP article, “what the phrase means depends on who is telling the story — and which audience is hearing it.  Many Palestinian activists say it’s a call for peace and equality after 75 years of Israeli statehood and decades-long, open-ended Israeli military rule over millions of Palestinians. Jews hear a clear demand for Israel’s destruction.”

In other words (wait for it), context matters.  When used to justify Hamas’s slaughter and kidnapping of innocent people whose only offense was to be in the wrong place at the wrong time, or as a means of intimidating specific Jewish people, it means something different than simply an declaration of general solidarity with the Palestinian cause.  Yes, it may be naïve to believe that one is expressing the latter sentiment without recognizing the distinct possibility that others, particularly but not exclusively Jews, will hear something different than what was intended.  But naïveté should not be a punishable offense, or, rather, it carries its own punishment.

Let’s be real for a second.  Congressional committee hearings are seldom intended to illuminate an issue, but rather to provide Congresscritters an opportunity to grandstand for their respective political bases.  Witnesses at such hearings are generally to be treated as piñatas to be pummeled by the smug and censorious pols who are blinded by their moment in the spotlight.  Stefanik did admirably at getting her name in the papers (be honest, Gentle Reader, had you ever heard of her before last week?), largely by asking questions that could not be reasonably answered with the “yes” or “no” responses she so petulantly demanded.  And she got a particularly high score on the smugometer.  The link included above is from her YouTube page.  She’s pretty damned proud of herself.  Curmie doesn’t think she should be.

As expected, and no doubt intended, the press was all over the hearing.  We heard lots about the presidents’ “inability” to give straight answers.  Their performance was derided by pro-Israeli pundits and parodied by Saturday Night Live (to be fair, the show pretty well skewered Stefanik, too).  Omitted from this commentary was a recognition that there’s a difference between speech which is repulsive and that which ought to be suppressed.  Nor was there any indication that the chattering class understands that criticism of the Israeli government is not intrinsically anti-Semitic, any more that criticizing the Obama administration was intrinsically racist.  Sometimes, yes.  Always?  No.

These reports also gloat about Ross Stevens, the UPenn alum who withdrew a $100 million donation because he decided the university was doing too little to suppress what he regarded as hate speech.  This, probably more than the reaction to now ex-president Liz Magill’s testimony at the committee hearing, is likely to have been the deciding factor in her no doubt forced decision to resign.  Curmie, who would prefer educational policy to be determined by other than plutocrats, is less enthusiastic about this maneuver. 

No one, certainly not Curmie, is countenancing the actual intimidation and harassment of Jewish students, which has in fact been occurring on college campuses across the country.  How widespread it is may be difficult to determine—Curmie has seen none of it first-hand—but it unquestionably exists, and needs to be aggressively addressed.  The cries from Muslim advocates that this situation is no different than what their predecessors endured post-9/11 are probably accurate but ultimately irrelevant.  Two wrongs…

But revenons à nos moutons; back to that testimony.  As you can no doubt discern from the commentary above, Gentle Reader, Curmie was not and is not particularly appalled by those university presidents’ answers.  Guarantees of free speech mean nothing if they apply only to non-objectionable speech.  Whereas it is true that as private universities the three schools in question are not bound by the 1^st Amendment, as elite secular institutions of higher learning they have a responsibility to be at least as open to speech, even that which they may find abhorrent, as do their public counterparts.  Plus, of course, their respective mission statements promise that level of protected speech.

But the apparent unanimity of response, even from trusted sources, gave Curmie pause.  It’s clear that the line between protected speech and harassment, intimidation, or incitement is very thin and virtually indiscernible.  Might Curmie have found himself on the wrong side of that line?  Was his contempt for Rep. Stefanik’s self-righteous (and, indeed, harassing) posturing affecting his judgment on the larger issue?

Then, yesterday morning, he read an editorial in the Los Angeles Times penned by Eugene Volokh and Will Creeley.  The former is one of the most-respected constitutional scholars in the country; the latter is legal director at the Foundation for Individual Rights and Expression (FIRE).  When it comes to defining what is and what is not protected speech, we could do a lot worse than listening to what either of these gentlemen have to say. 

Curmie encourages you, Gentle Reader, to read the article in its entirety, but here’s their most important paragraph: “Antisemitism on campus is a real problem, and in this fraught moment, many Jewish students are understandably scared. But if freedom of expression is to survive on American campuses — and for our nation’s vitality, it must — Magill’s original answer was right. Context does matter.”

They subsequently argue that calls for intifada are protected or not according to context.  And whereas the segment quoted above is the best encapsulation of their total argument, the part that most caught Curmie’s attention comes later, in a consideration of the ethics and morality of killing civilians in order to advance a politico-military agenda or, especially, to deter other killing.  They note that the same argument could be made by both Hamas in their self-image as freedom-fighters and by the Israeli government in terms of their willingness to allow predictable and significant collateral damage in the form of civilian casualties in their attacks on Hamas.

Significantly, write Volokh and Creeley, “a broad rule against ‘calling for mass killing’ would render this discussion subject to punishment. Indeed, it would mean students could be punished for using the same argument to defend the American bombing of Hiroshima and Nagasaki.” 

Curmie notes an even more significant example: the British decision to allow Coventry to be bombed in order that the Nazis not know that the Enigma Code had been cracked.  That decision—sacrificing not merely civilians, but one’s own civilians—was a key to the Allied victory.  It literally could have changed not merely the longevity of the World War II, but its very outcome.  It had to have been a horrible decision to have to make, but it isn’t difficult to understand the reasoning.  The idea that a discussion of the propriety of that strategy would somehow be off limits undercuts the entire rationale for the existence of universities.

Here is where Curmie goes all Confucian (again) and insists upon looking at these incidents on a case by case basis.  Some of the words and actions clearly ought to be forbidden; others, however upsetting they may be, ought just as clearly be allowed.  And then there are the ones in the middle, where honorable, objective, and well-intentioned people can disagree.  It would be nice to have an actual Confucius around to make those close calls, but (alas!) he’s unlikely to appear on the scene. 

The goal is, and must be, to protect one group of students and faculty from actual harassment and true threats while protecting the freedom of expression of a different group of students and faculty.  Curmie, who lived his entire professional life subject to the often stupid decisions of university administrators, is less than entirely sanguine about turning such cases over to them, but there is no better alternative.  Distinguishing between that which is threatening and that which is merely offensive isn’t easy, but the job must be done, and done well, or we all lose.

Two Updates (more to follow)

Curmie is, as noted on the Facebook page, way behind in his writing. Here’s a first salvo, with updates on a couple of stories I’ve discussed earlier. There are more updates to come, but let’s keep the posts of manageable size. We’ll take the cases in chronological order of the original posts.

We start, then, with a case I’ve actually written about three times: first in May of 2010, then in November of 2011, and most recently in May of 2012.

The offending garments.

The short version of the events: five students at Live Oak High School in Morgan Hill High School in California wore clothing with American flag designs to school on May 5 (Cinco de Mayo), 2010. Although there were no substantive problems by lunch-time, the Assistant Principal, Miguel Rodriguez nonetheless told the boys to turn their shirts inside out, go home, or face suspension. They refused. After the fact, Rodriguez invoked the “potential for disruption” argument that is the only loophole available in what is otherwise an open and shut 1st Amendment case.

He also claimed that he hadn’t seen any students wearing Mexican flag apparel, although news reports at the time make it clear that numerous students were in fact doing so. Indeed, whereas Rodriguez’s actions were arbitrary, petulant, and almost certainly unconstitutional, he—like generations of cops and other violators of civil liberties before him—dutifully consulted his lawyer, found out what wildly distorted version of his actual mindset might get him off the hook, and proclaimed that as his motivation all along.

The boys’ parents sued a month or so later—not for damages, but just to prove a point—only to have their case rejected by federal judge (and serial prevaricator) James Ware. They tried again, but (and here’s where we get to stuff I haven’t discussed before) this February their appeal was denied by the 9th Circuit Court of Appeals.

Needless to say, although I still think the boys were and are “right little assholes” (my term in 2011), they also have the stronger case, at least in common-sense terms. As I wrote in 2011,

… the whole “potential for disruption” argument is now, and frankly always has been, little more than an excuse for intellectual cowardice. It’s what gets controversial speakers uninvited from college campuses. It’s what justifies the worst excesses of “political correctness.” It’s what craven administrators, mayors, and police chiefs hide behind when they really, really, really want to censor speech (cf. the #Occupy folks) but know they have to circumvent that pesky First Amendment somehow.

Or, as someone with considerably better legal credentials than mine—Eugene Volokh—puts it:

This is a classic “heckler’s veto”—thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech.

Volokh then describes the exception to this principle as expressed in the 1969 Supreme Court ruling in Tinker v. Des Moines Independent Community School District, and says the 9th Circuit “might be” right in purely legal terms to use this as the guiding authority.

More importantly, however, he adds the following note:

… even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it—and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.

And this is especially so because behavior that gets rewarded gets repeated [emphasis his]. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?

This is indeed the lesson that will be learned, that the heckler’s veto works. This is why exceptions must be rare, and why, irrespective of the legalities of the case, justice took a shot to the solar plexus in this case.

Next up: schools that force students to divulge Facebook passwords or open their accounts the prying gaze of school officials. I didn’t write about the specific case in question here, but I talked about the phenomenon in May, 2012 in a case in Geneva, Illinois in which busybody administrators, responding to rumors which had nothing to do with school and nothing to do with violations of the law, demanded that a 7th-grade girl open her Facebook page for their delectation.

Riley Stratton

This update is about variation on the same phenomenon at roughly the same time—except for a different girl, a different Midwestern state, a different sorry excuse for school administrators. This time it was then-6th grader Riley Stratton in Minnewaska, Minnesota who was subjected to the humiliation of having her private social media posts pawed over by both school and police officials. (N.B., her friends’ posts were, of course, also subject to scrutiny, although their authors weren’t even suspected of wrong-doing.) 

First, she was given an in-school suspension for posting, from home, that she hated a “mean” hall monitor. She was 13, remember. That kind of response happens. Then, having been punished for something that is none of the school’s damned business, she took to Facebook again to wonder which alleged friend had narked on her. Another punishment from the school. And finally, the mother of a male friend got her skivvies in a twist that her son and Riley had engaged in an on-line conversation about sex. Naturally, it couldn’t have been innocent, or the same conversation they could have in person, or instigated by the boy, so school officials, who have more prurient interest than their charges, the brains of a banana slug, and the moral courage of overcooked linguine, demanded—in the presence of a sheriff but not of Riley’s mother—all her passwords so they could get their rocks off peeping at an adolescent girl’s secrets.

Yeah, yeah, sure. It was all for the best of intentions. “The school’s intent wasn’t to be mean or bully this student, but to really remedy someone getting off track a little,” quoth Superintendent Greg Schmidt. If you want to see someone who’s off track (and more than a little, at that), Mr. Schmidt, look in the fucking mirror, you voyeuristic asshole. What students—any students—say on social media is NONE OF YOUR BUSINESS unless it significantly affects the operation of the school per se: a threat of violence, for example. This obviously doesn’t qualify. Butt out.

What’s new is that young Ms. Stratton (or her parents) enlisted the help of the American Civil Liberties Union, sued (or at least threatened to do so), and got an out-of-court settlement. Here are the details, according to the ACLU’s press release:

As part of the settlement the School District agreed to change its policies to better protect students’ privacy and train its staff on the new policy to ensure it is correctly followed. The School District also agreed to a $70,000 settlement which will be divided between the Strattons, for damages, and the ACLU-MN to cover case costs and support future ACLU-MN efforts to protect the civil liberties of Minnesotans.

“We are pleased with the settlement and hope this sends a clear message to other schools that it is bad policy to police students behavior on social media,” stated Charles Samuelson, Executive Director of the ACLU-MN. “There may be times when it is appropriate for schools to intervene, but only in extreme circumstances where there are true threats or safety risks.”

The consummation devoutly to be wished here is that maybe, just maybe, some other school district somewhere will collectively think twice before callously and self-righteously invading the privacy of its students. Curmie isn’t holding his breath, but stranger things have happened.

More updates forthcoming…

The Case of the Disinvited Producer

Dammit.

I was just about to curl up on the couch for a little nap before spending the evening doing some reading for class tomorrow. And then I came across this story, which unquestionably thrusts now-former Ronan, Montana High School principal Tom Stack into the running for a Curmie award. I thought about letting it slide, given that idiot school administrators are pretty thick on the ground across the rest of the country, so the fact that one popped up in Montana isn’t exactly news.

Stories about graduation speeches generally bore me nearly as much as the speeches themselves do. Why I’m writing is simple. Although this story is news to me, it’s been lighting up the right-wing blogosphere, and virtually only the right-wing blogosphere, for several days. And whereas I can’t stop those folks from claiming that no one on the left cares about censorship when it happens to someone on the right, I can at least provide evidence that such a claim isn’t true. So I do need to write this and get it up on the blogsite.

Here’s what happened: Oscar-winning Hollywood producer Gerald Molen was invited to address the seniors at Ronan High. When he arrived at the venue, he was disinvited by Principal Stack. As the graduation ceremony apparently wasn’t until June 4 and Molen was already describing the incident in the past tense on May 26, we can assume that this wasn’t a graduation speech per se, but perhaps a Senior Day activity of some sort. This particular detail doesn’t matter.

Here’s what does: Molen, whose Hollywood credits include the likes of Schindler’s List, the first two Jurassic Park movies, and Twister, had, in his own words, invested “three weeks of preparation, research and re-write after re-write.” He planned a presentation which

…dealt with my hopes for their futures. It was a cheerleading presentation that allowed me to remind them of their individual greatness and opportunities for the future. My intent was to inspire and motivate those looking for an encouraging word and message of hope beyond the walls of the institution they were leaving to the next chapter in their young lives. It spoke to the contributions and greatness of their teachers, administrators, parents and peers but with an emphasis on their ability to conceive, to believe and to achieve. But I guess I was wrong about teachers and/or school administrators.

Since my career had centered around the motion picture industry, I had set out to challenge them with the thought that they might each write their own movie script. A script that would have them as the writer, director, producer and star. A script filled with step-by-step goals of proper preparation and scenes depicting them as lawyers, doctors, captains of industry and/or having careers as they saw themselves in 20 or 30 or 40 years in the future.

Sounds pretty ominous, right? Well, you see, Mr. Molen is a “a right-wing conservative” (this description courtesy of the Department of Redundancy Department), and “some callers” had expressed concerns.

This is in Montana, remember, hardly to be confused with San Francisco. And Mr. Stack is, as Eugene Volokh notes, safe on 1st amendment grounds. But he is certainly as stupid as he is rude. Seriously, if you can’t muster the intestinal fortitude to say no to a couple of “callers” based on the principles of intellectual curiosity you’re supposed to be upholding, if you can’t at least tell Mr. Molen of your decision before he arrives at the end of his 90-minute drive out of common courtesy, if you can’t even look at the text of his speech before making your final decision out of due process, then at least behave professionally because the guy you’re about to insult has the Hollywood Reporter on speed-dial, and your sorry-ass provincialism is going to be national news.

Had Mr. Molen simply not be asked to begin with, of course, there would be no problem. And it is, of course, Mr. Stack’s prerogative to invite or disinvite whomever he chooses. That makes his decisions legal and constitutional. That’s a long way from smart. Finding an excuse for his behavior is impossible; finding an explanation is hard enough. Perhaps in asking Mr. Molen to speak to the students, Stack didn’t know in advance that his guest was (gasp!) a conservative. In other words, he didn’t do his homework. Perhaps he thinks that in Montana, of all places, no one wants to hear a conservative (because he, Stack, doesn’t?). Perhaps one of those complaining callers has compromising photographs of Stack with barnyard animals. Or perhaps, as Jack Marshall has suggested, he “made a cost-benefit analysis: mistreating one Hollywood producer whom he probably would never have anything to do with again, versus angering a group of bigoted, narrow-minded parents who could make his life miserable.”

I see no evidence that Molen said or did anything outrageous between the time he was invited and when he was disinvited, as, for example, when Tom Paulin’s fawning commentary on Slobodan Milošević got him disinvited from a speech at Harvard a few years ago. No, this was just a case of a high school principal who lacked the integrity, the intelligence, the moral courage, and the quotidian politeness to do the right thing.

Gentle Reader, if you’ve followed this blog at all closely for any period of time, you’ve seen me wish fondly that someone on “my side” politically or philosophically wasn’t such an ass. Assuming Mr. Molen’s account to be even generally accurate, I really don’t want the likes of Tom Stack representing me.

Mr. Molen, I doubt that you’ll read these words, but if you do, allow me to apologize on behalf of progressives and educators alike. We aren’t all like that. I promise.

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.

On the Perils of Literalism

Sometimes a bunch of things fall together, and you see connections that somehow had hitherto escaped notice. And so we bring together: a). a blog post about a famous moment in “Showboat,” b). an article about a six-year-old suspended from school for sexual harassment, c). the judicial opinion that a Facebook “like” is unprotected by the 1st Amendment. What they all demonstrate, each in its own way, is the peril of literalism.

The first item for discussion, the “Showboat” scene, is particularly curious because it is simultaneously the most and least ethical of the trio. Jack Marshall, whose Ethics Alarm blog I often cite here, was watching the 1936 black-and-white film version of that classic musical a couple of weeks ago, and began to ponder some of the ethical considerations brought to light in one of the movie’s seminal moments. Here’s Jack’s description (you can watch the scene here):

A key sub-plot in “Showboat” involves Julie LaVerne, the show boat’s leading actress, who has been passing as white in the post-Civil War South despite having a black mother. She is married to the show boat’s leading man, Steve Baker, who is white, and thus in violation of the strict miscegenation laws then in force in the South. Alerted that the sheriff of the Mississippi town where the show boat has stopped to entertain is on the way to arrest the couple, Steve cuts his wife’s finger with a pocket knife, and swallows some of her blood in front of the boat’s captain and his family as well as others. When the sheriff arrives to arrest him, Steve provokes the sheriff to confirm that in Mississippi, the law regarded a man as legally black if he had “one drop of Negro blood” in him. Steve then announces that he has “more than a drop” “in” him, and will swear to the fact. He also declares that everyone in the room can also swear that they are certain that he has “a drop of black blood in him” and thus there can be no accusation of an illegal inter-racial union with his black wife.

One by one, all of the witnesses to Steve’s blood-sucking tactic swear that Steve Baker is telling the truth. One such witness, the ship’s navigator, employed the sheriff years ago, and reminds him that he “would never lie” and can be trusted implicitly when he says that he knows Steve has “Negro blood in him.” The sheriff, convinced, leaves without making an arrest.

It is a profoundly ethical scene, but also an ethically misleading one. The show boat family and staff properly and bravely rally to the defense of Steve and Julie against an inhuman and ignorant law…. Everyone is lying, but the lie is justified under utilitarian principles: the law is unjust, and lying is a lesser breach of ethics and morality than the enforcement of the anti-miscegenation law against a loving husband and wife for doing nothing more than living together.

Nonetheless, everyone is lying. The lie is textbook deceit, a statement that is literally true but carefully phrased to make the gullible listener believe something that is not true. They are all swearing that Steve “has a drop of black blood” in him because they just saw him suck on Julie’s finger wound. That is not what the sheriff, or the law he has come to enforce, means by “a drop of Negro blood,” and everyone knows that’s not what he means. They also know that the sheriff won’t realize what they really are swearing to when [they] confirm that Steve has “black blood in him.” They deceive him using words, and that is what lying is.

Notice that the characters are literally telling the truth, but they do so with a clear intent to deceive. Their motives are good, but if all they seek to do is to avoid trouble for themselves or their friends, the slope to ends-justify-means argumentation is very slippery, indeed. Rather, the law itself must be considered unjust: and that process requires (wait for it…) thought.

Jack also cites the famous “That is not my dog” scene in the “Pink Panther Strikes Again.” It doesn’t advance my argument much, but it’s one of the funniest half-minutes in film history, so I feel the need to include it. One might mention, too, the tag to “The Silence of the Lambs”: “I do wish we could chat longer,” says Hannibal Lector, whom we know to be a murderer and a cannibal, on the phone, “but I’m having an old friend for dinner.” In that scene, like the one from “Showboat,” the audience is in on the joke; in the Pink Panther movie, we may suspect the gag is coming, but only because it is, after all, Inspector Clouseau. The dynamics of the scenes work differently, but the outcome is the same: the statements made by the characters in question are literally true, but we follow their “truth” at our own peril.

Version #2 of the phenomenon: the case of D’Avonte Meadows, the 6-year-old boy suspended from school for sexual harassment. His transgression: reciting the lyrics to a popular song to a girl in the lunch-line. It’s not worth spending much time or space on this on, just the latest manifestation of “zero tolerance” stupidity. It’s not even the most heinous example of administrative malfeasance in this general topic area in this school year: witness, for example the 6-year-old initially charged with sexual battery(!?!) in California a few months ago for brushing up against a friend’s “leg or groin” while the two children were playing tag. (The good news is that the charges were finally dropped, the boy’s permanent record expunged; the bad news is that it took the threat of a lawsuit to do it.)

That said, it is a perfect illustration of my point about literalism. In Aurora, Colorado, and elsewhere, no doubt, there’s a lengthy description of what constitutes sexual harassment. The definition takes up two full single-spaced pages in the policy manual. It was pretty clearly designed with the best of intentions, and ultimately I don’t fault the document at all. The people who drafted it probably assumed that no one would be moronic enough to apply these standards to a six-year-old.

They were wrong about that. And since there’s apparently something in School Administration for Dummies about the most important quality of a principal, superintendent, and school board being never to admit you’ve made a mistake, we get a statement of talking points drivel instead of a response: “Aurora Public Schools is committed to providing equitable learning for all students. We have policies and protocol in place to prevent any disruption to the learning environment,” quoth Paula Hans, the district’s media relations specialist. “Bullshit,” quoth I.

Look, telling a little girl “I’m sexy and I know it” probably does fall under the category of “unwanted sexual activity,” or at least as something the boy wouldn’t have said to another boy. It probably also could have “negative effects on the learning or work of others.” Fine. Anyone with an IQ higher than Michele Bachmann’s delegate count takes young D’Avonte aside and tells him that it’s probably not a good idea to go saying things if you don’t know what they mean (speaking of Bachmann!), and that quoting that particular song lyric isn’t really a good idea.

He apparently got in trouble for a variation on the same offense earlier, so it might, might even be appropriate to send him a message in the form of a short suspension for disruptive behavior or insubordination or whatever. But if you put it in terms of sexual harassment, whether you can squeeze some justification out of your policy manual or not, you make your entire enterprise look like it’s run by a gaggle of buffoons. At least that impression would seem to fall under the heading of truth in advertising.

Item #3 is especially interesting because it hints at the worst possible combination of circumstances: selective literalism. This phenomenon is most familiar to us in the Christian Right’s unending struggle to justify its homophobia by recourse to Leviticus, all the while ignoring literally dozens of other Bible verses (something about camels and eyes of needles, for example) that don’t feed its prejudices. The now-famous rebuttal to Dr. Laura Schlessinger, subsequently adapted into a famous scene in the television series “The West Wing,” demonstrates the flaws of this kind of thinking.

“Ah,” you say, “but all those other citations don’t really mean what you say they mean, or they’re taken out of context, or they’re simply a recognition of the reality of the times.” “Precisely,” I reply.

Sometimes, however, the dance between what is said and what is meant becomes even more complex. An example would be a recent court case in Virginia, in which six workers were fired by their boss, Sheriff B. J. Roberts of Hampton. At least one of the fired workers, Daniel Ray Carter, had “liked” the Facebook page of Jim Adams, Roberts’s opponent in the then-upcoming 2009 election, in which Roberts ultimately prevailed.

According to the AP story, “While public employees are allowed to speak as citizens on matters of public concern, Judge Raymond A. Jackson of Federal District Court ruled that clicking the “like” button did not amount to expressive speech. In other words, it was not the same as actually writing out a message and posting it on the site.”

If I’m reading this correctly, we’re quibbling over the definition of “speech.” In light of a series of SCOTUS rulings, none of us are quite sure any more. Corporations are people, money is speech… it’s a linguist’s nightmare. But if I read this correctly, what happened in Virginia is that Mr. Carter did too much and too little. By liking Mr. Adams’s Facebook page, he gave Sheriff Roberts reason to resent him, perhaps enough to fire him. But by not actually saying something, he failed to qualify for 1st Amendment protection:

Simply liking a Facebook page is insufficient. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page…. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

Forgive me if I think this is nonsense. The concept that speech must cross a threshold to be speech makes less sense to me than invoking the interstate commerce clause to assert federal authority trumps states’ medical marijuana laws. And that’s a rather low hurdle to surmount. To “like” something on Facebook is a volitional act. It might not be much, but it’s something, and it must certainly be protected. Moreover, if an act of speech is sufficient to precipitate a response (in this case, getting fired), then it’s an act of speech.

Luckily, I’m not the only one who thinks so. Here’s Eugene Volokh, one of the country’s foremost authorities on First Amendment law, whose Volokh Conspiracy blog has long been on the CC blogroll even if I don’t always understand it:

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression — though it takes just one mouse-click, it publishes to the world text that says that you like something. But even if it’s just treated as symbolic expression, it is still constitutionally protected, as cases such as Texas v. Johnson (1989) (the flag-burning case) show.

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous. “[T]he First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even ‘[m]arching, walking or parading’ in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection ….”

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point.

So there you have it. Three cases—one fictional deception, one potential Curmie nominee, one court case. What they have in common is language: the way we use it, what it literally means, and the extent to which we should—hermeneutically, ethically, and legally—be bound by that literalism. Sometimes those grad level literary theory classes are actually relevant…