The Jurisdictions Here are Backwards... Aren't They?

Both of these stories have been around a while, but I didn’t get a chance to post on them when they first appeared, and it seems to me that they fit together in a way that hasn’t yet been discussed by anyone whose commentary I’ve read.

First up is a story out of Houston. Diane Tran is an honors student at Willis High School. She works a full-time job and a part-time job, and goes to school full-time, taking advanced placement and dual-credit courses as a high school junior. She uses the money she earns to support two siblings; her parents divorced and both left town. Not surprisingly, even the most focused and responsible adolescent will sometimes buckle under that kind of pressure. Ms. Tran sometimes overslept, and missed school because of it.

Her case ended up in the Justice of the Peace court of Lanny Moriarty, who (of course) sentenced her to 24 hours in jail and a $100 fine for truancy. Yes, really. Moriarty, of course, is a moron, as only a Texas Republican can be. He sputtered “If you let one [truant student] run loose, what are you gonna do with the rest of ‘em? Let them go too?” Well, no, sir, you’re supposed to exercise a little judicial discretion: that’s why you have your cushy job, because you are alleged to have more critical thinking skills than a banana peel. Sorry to have over-estimated you. Because if you want to use someone like Ms. Tran as the vehicle by which to “send a lesson,” the only lesson in question is that you are a heartless douchebag who shouldn’t ever be allowed into a courtroom except as a defendant (again).

It didn’t take long for an on-line petition on Ms. Tran’s behalf to get started, initially with a goal of 5,000 signatures. That number was shattered within an hour or so. The petition closed with over 277,000 virtual signatures, when Moriarty, his profound unfitness for office now trumpeted around the world (the Internet is sometimes a wonderful thing), decided to cut his losses, reverse himself, and vacate the charges. Oh, did I mention the $100,000+ in donations to Ms. Tran?

Somehow I suspect that Mr. Moriarty might not run unopposed next time, as he did last. He’s not important enough to be this embarrassing.

The other case is from Indiana, where three 8th-grade girls were suspended for the remainder of the school year for joking (obviously) on Facebook about which of their classmates they’d like to kill. As Gavin Rose, an ACLU lawyer, points out:

The fact of the matter is that no reasonable person looking at this conversation would think that these girls were going to go out and inflict harm on anyone. If you make a legitimate threat against someone ... you don't follow it up with an emoticon.

Moreover, the “threats” were not directed at the presumed “victims,” as they were visible only to the Facebook friends of the girls. Of course, some officious mother called attention to the posts, and the Facebook conversation, conducted outside school hours, on personal rather than school computers, was seen by idiot administrators (apologies, as ever, for redundancy) as somehow disruptive to schoolwork—it would have to be, as even the megalomaniacs as Griffith Middle School don’t claim jurisdiction otherwise.

I am reminded of one of the first essays I wrote in this iteration of my blogging life, about Gloria Gadsden, who was suspended by her employer, East Stroudsburg State University, for posting the following two Facebook status updates: “Had a good day today, didn't want to kill even one student.:-) Now Friday was a different story ...” and “Does anyone know where I can find a very discrete [sic] hitman, it's been that kind of day.” No rational person would think there was any real threat to anyone involved here, but educational administrators at any level don’t necessarily meet that “rational person” threshold.

And so we have the ACLU filing a lawsuit to protect what they describe, quite accurately, as “teenage banter.” The salient part of the ACLU suit follows:

At no point in this conversation were the girls expressing any actual intentions to inflict harm on any person, nor were they threatening or attempting to intimidate any person. Rather, they were simply engaging in a casual conversation and joking with one another. A reasonable person would interpret the entirety of the conversation as made in jest, and would not interpret any portion of the conversation—or the conversation as a whole—as threatening or as a true threat.

The conversation did not cause an actual disruption at school, nor was it likely to or foreseeable that it would substantially disrupt the school or the educational environment. All three (3) girls attended school for the entire day after this conversation took place, and nothing out of the ordinary occurred. To their knowledge, the conversation was not even mentioned at school by any person, and it certainly was not mentioned by them.

But that, of course, didn’t stop the Amalgamated Hand-Wringers from punishing a trio of 8th-graders for the crime of acting like teenagers while on their own time.

As I wrote in April of 2010 about the Gadsden case,

I have an inkling that about midnight at some tech rehearsal somewhere along the line, I’ve probably told my stage manager not that I’d like to kill some actor or designer or props person, but that I was going to do so. I never followed through, though, curiously enough. I don’t recall ever posting on Facebook that I’d like to kill a student, a colleague, or a boss, but I might have… if I did I, like Prof. Gadsden, would have been careful to ensure that anyone with an IQ over room temperature would know I was joking. And I’m certain that I’ve volunteered to be the “discreet hitman” (I’d have spelled it correctly) for a friend. I was, however, never actually engaged to perform such duties. One of my favorite people, a former student, now a teacher, posted a Facebook status not long ago that suggested her desire to “beat someone to a pulp.” I even endorsed that sentiment because… wait for it… I’m not a moron, and I know—not just think, know—that she didn’t plan, literally, to commit assault.

We saw the same phenomenon play out in the case of Widener law professor Lawrence Connell, whose obviously hypothetical scenario about killing his dean got him in deep doo-doo. Inability to recognize humor, even humor we don’t think is terribly funny, is a crippling malady in an irony-rich society such as ours. It is sad that so many people in the education hierarchy seem to suffer from this affliction.

But there’s something else that ties these two cases together—apart, that is, from the rampant stupidity of the people with decision-making power. What I find fascinating is how the logical jurisdictions of the school system and the courts seem to have reversed. Once again, Gentle Reader, I remind you that I am not a lawyer, and that I’m arguing what should happen, not what current laws dictate. This is, in short, another When They Make Me Tsar© musing.

OK, so I wonder if I’m alone in this. When I first read about Diane Tran’s story, my first thought wasn’t that Lanny Moriarty is a cretinous yahoo, although that idea did occur pretty quickly. My first response, however, was to wonder what the hell Ms. Tran was doing in a courtroom at all. I suppose I had some dim recollection of students being charged with some sort of legal transgression for truancy and/or chronic tardiness, but it makes no sense. And, as an intriguing if perhaps over-wrought article by Sarah Seltzer on AlterNet suggests, the incarceration of teenagers for the most minor of transgressions ultimately independent of even minor-scale criminality poses a series of rather disturbing questions about American culture in general. In other words, even if we leave out the whole backstory to Ms. Tran’s case—say she’s just an ordinary kid with an ordinary family, getting ordinary grades—one is still tempted to wonder what the hell she’s doing in court.

Truancy is, in a reasonable universe, its own punishment. And if Ms. Tran can successfully complete her coursework without necessarily being in class every day, it’s really not a matter for the courts. True, some courses have legitimate attendance requirements, and the school should have the right to deny advancement to students who fail to comply with those rules. But I’m hard-pressed to understand a rationale for transferring the decision-making power out of the hands of the schools themselves.

Conversely, what happens outside school hours and outside school property is none of the school’s concern, yet there are myriad instances of absurd intrusions into students’ private lives: the Indiana case discussed here, the Illinois case of a principal’s prowling through a student’s Facebook account, the Kansas case of a school district going apoplectic because of a student’s Twitter feed… you get the picture.

If, for example, in the Indiana case, there really was a suspicion that this trio of (barely) adolescent girls was plotting some sort of violence, then the authorities—the criminal justice system, in other words—needed to be called in. But either that didn’t happen, or the cops took one look at the alleged “evidence,” laughed in the sniveling administrators’ faces, and told them to call back if and when there was anything a sane person would deem problematic. In my dream scenario, they also prescribed a couple of bowls of All-Bran.

When They Make Me Tsar©, in other words, school decisions will be made by schools, and non-school activities will be regulated only by legitimate law-enforcement authorities, and only to the extent that there is probable cause that a real crime has been committed or is about to be committed.

I know, I know. I’m a cockeyed optimist. But I’d rather be from South Pacific than Les Mis on this one.

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…