Please Tell Curmie This Is the Worst Case of Police and Prosecutorial Overreach This Year. Please.

 

Seriously, posting this is what generated a felony charge.

You will recall, Gentle Reader, that in the immediate aftermath of the assassination of Charlie Kirk, there was a flood of backlash against anyone who dared to suggest on social media that the late Mr. Kirk might not have been the Second Coming.  Curmie wrote specifically about Darren V. Michael, who was fired by Austin Peay State University for having the temerity to point out the irony that someone who proclaimed that “It’s worth to have a cost of, unfortunately, some gun deaths every single year so that we can have the Second Amendment” should himself be the victim of gun violence.  There were plenty of other cases, as well, of course, but punishing a tenured theatre prof who sometimes says things that administrators don’t like sorta resonated at Chez Curmie.

Curmie, a retired tenured theatre prof did, after all, write that he “is not ‘celebrating’ the death of Kirk, although he does believe the world to be a better place without his racism, misogyny, trans- and homophobia, Christian nationalism, mendacity, and general assholitude.”  That comment might have gotten him in big trouble had he still been employed at a state university in a red state at the time. 

Anyway, revenons à nos moutons… APSU officials backed down, a little, when it became clear that their action was not within hailing distance of due process.  Michael’s termination was changed to a suspension; Curmie has been unable to find any more details.  [UPDATE: Michael sued and settled out of court for a hefty chunk of change.]  He did learn that a substantial majority of Faculty Senators voted “no confidence” in the university president, Mike Licari.  The motion “failed” because the vote was 23-12; a two-thirds majority is required for such resolutions.  Curmie is well aware that such votes have only symbolic significance, anyway: the Faculty Senate, Chairs Council, Deans Council, and Staff Council at Curmie’s former employer all voted “no confidence” in a president unanimously, and the Regents kept him around… until they let him go a few months later with a fat buyout and a promise to totally lie say good things about him to prospective employers. 

As it happens, however, Mike Licari isn’t the biggest freaking idiot in Tennessee, and Darren Michael’s suspension isn’t even close to the harshest and most illegitimate punishment for obviously protected speech.  Curmie only found out a couple days ago about the case of Larry Bushart, a retired police officer (!) who was incarcerated for 37 days with a $2,000,000 bond for posting a meme.  Yes, really.

The specifics: Bushart, who posts a lot of memes, some of them in rather poor taste, posted one to a message thread about a vigil for Charlie Kirk of then-candidate Trump saying, a day after a school shooting in Iowa, that “We have to get over it.”  Bushart, who was as unimpressed as Curmie was of the orgiastic keening over Charlie Kirk, appended a note: “This seems relevant today…” (That’s the post at the top of this page.) Bushart’s son notes the obvious: that his father was pointing out “the hypocrisy in honoring Charlie Kirk while ignoring other tragic incidents of mass violence.”  That can get you arrested in Tennessee, of course.  Sixth-graders are expendable, after all.  Sleazy millionaire podcasters are important!  The official charge was Felony Insufficient Sycophancy “Threatening Mass Violence at a School.” 

That’s a result of an overbroad law that only grandstanding Republicans could support.  Children’s advocates opposed the legislation.  The ACLU argued that “This legislation is worded so broadly that it could potentially criminalize a wide range of adults and children who do not have any intent of actually causing harm or making a threat -- people who are actually just exercising their constitutionally-protected right to free speech.”  But this is Tennessee; of course, this inanity became law.

So… this case…  You see, Gentle Reader, in what passes for a brain in Sheriff Nick Weems (what a delightfully Dickensian name for this buffoon!) and Sheriff’s Investigator Jason Morrow, “This was a means of communication, via picture, posted to a Perry County, TN Facebook page in which a reasonable person would conclude could lead to serious bodily injury, or death of multiple people.”  Uh, no.  No reasonable person would conclude that.  

The good news is that there are, apparently, precisely zero people in the community who interpreted the meme the way these bozos did.  Indeed, as Liliana Segura writes for The Intercept article linked above, “there were no public signs of this hysteria. Nor was there much evidence of an investigation — or any efforts to warn county schools.”  FIRE requested the school district for any communications pertaining to the case, including the terms “shooting,” “threat,” and “meme.”  The response: no records.  Nada.  Zip.  Zilch. 

The most succinct encapsulation was this, from a local resident commenting on the story on radio station WOPC’s page: “A man is in jail because the sheriff didn’t use google.”  Weems was still trying to spin it that Bushart created “mass hysteria to parents and teachers,” and that he did so intentionally.  That makes the sheriff both an incompetent idiot and a liar.  Curmie awaits Donald Trump’s appointment of Weems to a high-level position in the FBI, ICE, or ATF.  He has all the credentials that seem relevant to Dear Leader, after all.

OK, two things in the category of “the best Curmie can do to excuse this idiocy”: 1). Mr. Bushart is, at least at times, a self-described “asshole.”  2). The meme references “Perry High School”; one of the local schools is Perry County High School.  You will note, however, Gentle Reader, that as even the arresting officer declares, assholitude “is not illegal,” absent legitimate threats of violence or similar intentions of criminality.  And the high school referred to in the meme is, as noted above, not in Tennessee, but in Iowa.  Bushart’s comment makes it clear that he was referencing that event from over a year earlier.

OK, Curmie’s distaste for Charlie Kirk is evident.  That doesn’t mean that his murder was anything but abhorrent, or that those who idolized him and mourned his loss publicly shouldn’t be allowed to do so.  But posting a meme shouldn’t get you fired, and it sure as hell shouldn’t get you arrested.  What’s worse, of course, is the active collusion of multiple figures in the (in)justice system.  True, Nick Weems would come in third in a battle of wits with a broken stapler and a corn dog.  Hell, he’d even lose to Mike Licari.  

But there’s also an unnamed prosecutor who not only didn’t laugh in Weems’s face but actually requested a delayed hearing in response to Bushart’s lawyer’s reasonable claim that bail of $2 million for a nothingburger case like this might be un peu de trop.  And there’s General Sessions Judge Katerina Moore, who granted that request.  Someone should have stopped this absurdity before it embarrassed everyone involved.  They didn’t, at least until the coverage went viral.

This case is so ridiculous, it’s almost inevitable that FIRE got involved.  Charges against Bushart have now been dropped, but that’s clearly not enough.  He lost his post-retirement job, was confined for over five weeks on an absurd charge because bail was set at a level no normal person could afford,  and missed the birth of his granddaughter.  He’s going to sue, with FIRE’s assistance, and he’s going to collect.  Bigly.  

Chris Eargle, who created the “Justice for Larry Bushart” Facebook page, posted on the “Re-Elect Weems for Sheriff” page, “Unwise persecution of people for their political views will cost the taxpayers millions of dollars.  He should never be allowed near public office again.”  He’s right, of course, on both counts.  If only the problem were limited to one boneheaded sheriff in a jerkwater county in Tennessee…

Three First Amendment Stories

There are just too many things to write about right now.  Curmie doesn’t promise FOC Steve that a piece on the bombing of those Venezuelan boats will happen, but he does intend to get to work on it soon, and that Politico article about the Young Republicans group chat—laden with about every variety of hatred, from misogyny to racism to antisemitism to homophobia and more—seems worthy of comment.

But Curmie can, as is his wont, bundle three different stories that emerged roughly simultaneously under the general heading of Censorial Asshatitude.  One of them is a little more complicated than the other two, which is to say there initially seemed to have been a little mitigation involved... key words: “initially,” “seemed,” and “a little.”  Let’s start there.

Curmie once thought about pursuing his doctorate at Indiana University, and even visited the campus.  He has a lot of friends who got their doctorates there, including one of his best friends from college, two from his first teaching gig, and two from a professional organization.  Oh, and another dear friend taught there for a decade.  Curmie is not by nature a hugger, but all six of these folks get a hug instead of a handshake if he ever sees them in person again.  So whereas he has no direct link to the university, he cares more about what happens there than he might for a similar university elsewhere.

Anyway, IU is trying to move their student newspaper, the Indiana Daily Student, online.  There are legitimate reasons for this, not least of them being a recognition of reality.  Curmie hasn’t read a print newspaper in years, and suspects that you might not have done so either, Gentle Reader.  All the signs suggest that print journalism will be little more than a memory by the time today’s undergraduates are ready to move into leadership positions, if not before.  In a discipline that, unlike the traditional liberal arts, really is intended to be pre-professional, gearing the operation towards an emerging future rather than a sentimentalized past makes a fair amount of sense.

But to say the administration was ham-handed in their execution would be a rather egregious understatement.  The transition to online, occasioned in part by financial concerns, has already begun, as what was once a daily paper had been printed only sporadically of late.  But as the staff was constructing an edition to be published this week, they were told… get this… not to publish any news stories, but to concentrate solely on Homecoming-related material.  A newspaper being forbidden from publishing news is, shall we say, headline-worthy.

The school’s Director of Student Media, Jim Rodenbush, objected to the move, citing the IDS’s charter: “final editorial responsibility for all content rests with the chief student editors or leaders.”  He may or may not have muttered the word “censorship” in the process.  He was, of course, fired for his efforts, because honoring agreements is so passé.  And when the student staff asked why, their entire edition was shut down.

Still, it seemed like the university had at least a whiff of a case: they pay the bills, after all.  But then the other shoe dropped.  The Federation for Individual Rights and Expression released a statement (well, technically a blog piece, but if it shows up on the website, someone in authority approved it) explaining that the real problem was that the student editors thought it worthy of publication that the university ranked 255th out of the 257 colleges and universities included in the latest of FIRE’s free speech rankings.

Apparently incapable of appreciating the irony of violating the 1st Amendment rights of a newspaper that had <checks notes> documented cases of violating 1st Amendment rights, the university administration, in the person of Dean David E. Tolchinsky, made things much, much, worse, both for the IDS and especially for the reputation of the university.  It is unclear whether Tolchinsky is a repressive jackass or simply an amoral toady who decided it was better to fire Rodenbush rather than risk losing his own, no doubt lucrative, gig.  It doesn’t matter.  He has done irreparable harm to both Indiana’s media program and the university as a whole.  He should be shit-canned.  Full stop.

Let’s stick with FIRE and a university, or in this case, a collection of universities.  This week, a federal judge David Alan Ezra issued a preliminary injunction against implementing Texas Senate Bill 2972, which just might be the stupidest piece of legislation ever passed in this state, and that is a very high hurdle, indeed.  It is nothing more or less than an attack on freedom of speech on all public university campuses in the state. 

You probably know, Gentle Reader, that Curmie is now retired from a public university in Texas, so he’s got a stake in this one even if only indirectly.  The bill expressly defines “expressive activity” as “any speech or expressive conduct protected by the First Amendment…” and includes “assemblies, protests, speeches, the distribution of written material, the carrying of signs, and the circulation of petitions.”  It then proceeds to “prohibit” “expressive activities on campus between the hours of 10:00 p.m. and 8:00 a.m.”  Inviting speakers to campus or using any form of sound amplification or percussive instruments during the last two weeks of a semester is also verboten.  (There goes that orchestra concert…)

Most of the rest of the bill suggests, legitimately, that reasonable time, place, and manner restrictions are appropriate, and that “disrupting the functioning of the institution” cannot be countenanced.  Not so, however, for the items mentioned in Curmie’s previous paragraph.  Those activities are outlawed whether or not they cause even the slightest ripple of disruption.

Curmie has reminded his readers repeatedly that he is not a lawyer… but the folks at FIRE are, and they point out that the bill would allow, even demand, that universities “punish everything from wearing a T-shirt with a message, to writing an op-ed, to playing music — even worship.”  FIRE Senior Attorney Adam Steinbaugh argues that “Texas’ law is so overbroad that any public university student chatting in the dorms past 10 p.m. would have been in violation.”  FIRE’s clients in bringing the suit to challenge the law range from the Fellowship of Christian University Students (FOCUS) at UT-Dallas to the Texas Society of Unconventional Drummers at UT-Austin.

Actually interfering with the functioning of the university, even to the extent of making too much noise in the dorm when others are trying to study or sleep, is one thing, but this stuff is ridiculous.  More significantly, this law begs for selective enforcement.  One can easily imagine that campus police would agree that wearing a MAGA cap on the daily 7:00 a.m. jog should be allowed, but that a “Black Lives Matter” shirt shouldn’t be (or vice versa).  Curmie directed more than one show that didn’t end before 10:00.  Should the last 20 minutes of Carlo Goldoni’s 1746 comedy The Servant of Two Masters be suppressed?  It’s certainly expressive speech, and you could call the audience an “assembly.”

Fact is, we could go on forever listing even a portion of the perfectly reasonable and unobtrusive expression that the bill would prohibit.  Let’s face it, whoever wrote this nonsense, or even voted for it, would come in third in a battle of wits with a tire iron and a dead armadillo.

Certainly it’s a good thing that Judge Ezra blocked the law from going into effect, noting that “The First Amendment does not have a bedtime of 10:00 p.m.”  (Curmie loves that line.)  But whereas an injunction is welcome, that doesn’t mean that the law has actually been overturned.  That is, of course, the consummation devoutly to be wished.  In a perfect world, of course, the court costs involved would be borne not by the state treasury, but shared by every idiot legislator who voted for this manifestly unconstitutional tripe.

But if SB2972 is notable primarily for its stupidity, Pete Hegseth’s latest attempt at controlling press coverage of the Pentagon is considerably more troubling.  The policy would require prior approval from the Pentagon before publishing anything related to their activity, even unclassified information.  As is a running theme through this essay, Curmie turns to FIRE for their take. 

They note an attempt by Trumpian acolytes to frame this censorship as protecting national security.  Hegseth writes: “There is a critical distinction between lawfully requesting information from the government and actively soliciting or encouraging government employees to break the law. The First Amendment does not permit journalists to solicit government employees to violate the law by providing confidential government information.”

The only problem with that statement is: that’s bullshit.  Actually, the First Amendment does permit journalists to do that, as FIRE’s Adam Goldstein writes, “The First Amendment has limited enumerated exceptions, such as speech that is defamatory, speech that would inspire imminent lawless action, and obscenity. ‘Asking a question where the answer might be classified’ isn’t on the list, and reporting on national security matters is protected speech.”

It’s a truism among lawyers (at least the TV versions of lawyers) that you should never ask a question of a witness in a trial unless you already know the answer.  Reporters work differently: they’re trying to ascertain the facts, not to advance a client’s interests.  Here’s Goldstein again: “While a journalist might reasonably infer that the United States is engaging in some activity that falls into the sensitive or classified categories, they don’t have any power to determine what answer they actually receive.”

In other words, perhaps Hegseth should concentrate on finding Pentagon staffers who will STFU if it’s appropriate to do so.  Faced with a question that might lead to divulging classified information, an employee might reasonably respond “no comment” or “I’m not in a position to answer that question.”  Lying shouldn’t be an option; neither should revealing classified, or perhaps even sensitive, information.  That doesn’t seem too difficult to Curmie.  Does it to you, Gentle Reader?

As Goldstein writes, the new policy shifts the blame to the press if some staffer says something they shouldn’t.  It also turns the Pentagon into a propaganda machine, cheerfully censoring anything that might be embarrassing.  Not “classified.”  Not “sensitive.”  Embarrassing.

As is well known by now, reporters from every news agency except OANN (and anyone who gets their news there is by definition beyond hope) turned in their badges and, as seen in the photo above, walked out en masse rather than be subject to absurd and unconstitutional restrictions.  There is, of course, a desperate attempt by the Trumpian minions to frame this as a partisan issue.  Nope.  True, the usual suspects—the AP, CNN, the New York Times, etc.—all refused to submit to the new rules. 

But so did Fox News, Newsmax, the Wall Street Journal, Military Times, The Daily Caller, the Washington Examiner, and the Washington Times.  That’s a pretty healthy list of right-leaning outlets that want their reporters to be journalists rather than propagandists.  Curmie respects these agencies for their integrity on this issue, even if on few others.  It’s harder to do the right thing when “your side” expects you to do otherwise.  So, kudos to them.

None of these three stories has run its course.  IU may or may not find its way back to obeying the Constitution.  A preliminary injunction is not the same as declaring a law unconstitutional.  The elaborate game of chicken at the Pentagon is likely to go on for a while.  These cases, like so many in other areas, show signs of authoritarianism but also signs of resistance, integrity, and hope.  We’ll lose some skirmishes along the way, no doubt.  But these are battles worth fighting, and Curmie (not known for his naïveté) cannot but believe we’ll ultimately emerge battered but triumphant.  We’re the ones who really want to make America great again.  Let’s do that.

Boy, Is This Not Greatness

Mitchell Hall, where (presumably) Boy My Greatness
was to have been performed

A grad school friend of Curmie’s now lives a few miles from the University of Central Oklahoma, which recently suppressed the production of a play that had been scheduled to be produced this month.  He posted about this story on his Facebook page, and Curmie became interested, in part because there is so little press coverage (more on that below).

Curmie doesn’t know the work in question, Zoe Senese-Grossberg’s 2024 play Boy My Greatness, but he did immediately recognize one of the most famous lines from Antony and Cleopatra, in which the Egyptian queen, now captured by Caesar’s minions, predicts that “Antony / Shall be brought drunken forth, and I shall see / Some squeaking Cleopatra boy my greatness / I’ th’ posture of a whore.” (That’s V.ii.265-8, if you’re playing along at home, Gentle Reader.)

The line is not only metatheatrical (there are other examples in Shakespeare, but this is probably the best known), but also, of course, self-referentially ironic: the actor saying that line at the Globe (or perhaps the Second Blackfriars?) Theatre in c. 1607 would almost certainly have been a boy.  Indeed, this speech is one of the major pieces of evidence that boys, rather than adult female impersonators, played the women’s roles. It’s possible, of course, but unlikely, that there were adults roughly equivalent to the onnagata in Kabuki in some of those parts.  But this would almost certainly create an even “squeakier” Cleopatra, as higher pitches do not come naturally to post-puberty males.  The point is taken, either way.

It comes as no surprise, then, that a play titled Boy My Greatness deals with boys playing women in Shakespeare’s plays.  It’s set in 1606, and one of the plays currently in rehearsal is indeed Antony and Cleopatra.  (Yes, it’s probable that the play hadn’t been written yet in 1606, but it’s not like the Bard himself didn’t play fast and loose with historical accuracy.)

It is simply a fact that all women’s roles in public performances (court masques were a different category) in the Elizabethan and Jacobean periods in England were played by male actors.  Even the most ignorant of university officials must surely know that.  Ah, but two of the boys in this play are, or at least have been, in a romantic relationship.  One presumes that is what rattled the chain of the homophobic idiots censorial asshats university counsel’s office.  

OK, let’s take this one step at a time.  There’s a stupid law at the state level and a directive (not a law) from the feds that forbid the use of public funds to support “DEI” initiatives.  Curmie disagrees with these restrictions, but acknowledges that in a perfect world they would be sensible.  (He also gestures broadly, wearing an expression readily translatable as “does this look like a perfect world to you?”)

But if the laws themselves are problematic, the idea that staging a play in which gay (or curious) characters exist is somehow endorsing DEI is ample evidence that, to borrow a felicitous phrase from Ken White of Popehat, universities should cease hiring legal counsel from the back of a bait shop. 

Showing something onstage is not endorsing it, as ought to be painfully obvious to anyone who can out-think a turnip.  Even portraying a character favorably falls well short of supporting everything about that individual.  Curmie once directed a production of Jean Racine’s Phaedra; that doesn’t make him (or his actors) either a Jansenite Catholic or a monarchist.  He’s directed Mishima Yukio’s Lady Aoi; he’s neither a Buddhist nor a believer in demonic possession.  He’s directed Athol Fugard’s “Master Harold… and the boys”; he does not endorse the racial animus perpetrated (briefly) by the title character.  But you, Gentle Reader, already knew all of this.  That’s because you’re considerably smarter than UCO’s legal staff (or president, or trustees, or whoever really made this decision). 

True, the university’s official statement reads “After a review of the requirements outlined in the contract from the national production company with legal counsel, the university’s theatre department decided not to support the local production of the show with university resources at this time.” 

Gentle Reader, if you believe the decision was de facto made by the theatre department, Curmie has some ocean-front property in Kansas he’s willing to sell to you for cheap.  This has every earmark of a top-down decision made by administrators.  Curmie’s friend, who may have information that hasn’t been made public, says there were threats of firings, which prompted faculty and students to “back down.”  Of course, any theatre faculty member who willingly capitulated to this nonsense without being somehow threatened should indeed be fired. 

But, as Curmie has suggested before, there is a lesson here: Don’t Fuck with Theatre Kids, who are an industrious and creative lot.  The good news, or at least the promising news, is that a Gofundme campaign raised considerably more money than the $2000 goal, and plans are afoot to find an off-campus venue for the production.  As of this writing, such a space has not yet been secured, but hopes are high.

As noted above, there is remarkably little press coverage of any of this.*  There’s a single story from a local TV station which does, at least, seem to have been picked up by yahoo.  The lack of press about the incident suggests that the censors will get away with their bigoted and authoritarian bullshit without the widespread humiliation they so richly deserve.  This post is, perhaps, the proverbial voice crying in the wilderness (Curmie did go to Dartmouth, after all, where Vox Clamantis in Deserto is the college motto), but at least it’s something.  Gentle Reader, you should, of course, feel free to make your voice heard, too (even if you disagree with Curmie).

Curmie closes by turning the floor over to his friend: “Show will be done. UCO will lose theatre majors/students. Faculty and admin will retain their jobs. And the state legislature will gain confidence in their fascist policies.”

What he said.

* This statement was true when this piece was posted.  There is now a piece by Howard Sherman and an article in Playbill.  This is good news.

Toddlers as Their Own Counsel: A Great Idea, Right?

Immigration policy—specifically the policy of separating children from their families—has made a lot of headlines of late. Who knows, perhaps the seemingly inhumane treatment of those who show up at the (especially southern) border of the country might, to steal a line from Robert Shenkkan’s recent play Building the Wall, legitimately prompt the question “who would want to come here now?”. But this essay isn’t about the arguments—ethical or pragmatic—in favor of or opposed to this strategy.

Rather, it’s about the meme you see on the left and its implications. An FOC recently posted this on her Facebook page. To be honest, despite Curmie’s antipathy for all things Trumpian, a statement this transcendently idiotic just didn’t seem possible. Surely Judge Weil couldn’t announce himself less fit for public office if he stripped naked, covered himself in caramel sauce and whipped cream, climbed into the bed of a pickup truck and belted out “I’m a Moron” to the essentially unsingable tune of “I’m a Jayhawk,” the fight song of Curmie’s beloved doctoral alma mater. It just couldn’t be true, right? Or perhaps he simply misspoke and shouldn’t be held accountable for a slip of the tongue (Cf. Barack Obama doesn’t really think there are 57 states).

Nope. This drivel escaped Weil’s mouth in the course of a deposition before a federal court. According to the Washington Post story that broke this news,

Ahilan Arulanantham, deputy legal director at the ACLU of Southern California and the attorney who questioned Weil in the deposition, said he initially thought the judge had misspoken, “because what he said was so outrageous. As I asked further questions, he obviously meant what he said.”

Wow. Weil, part of whose job is to teach other judges how to handle such cases (!), subsequently declared, “I’ve taught immigration law literally to 3-year-olds and 4-year-olds.” Okay, no doubt about it, this guy is nuttier than squirrel turds. Curmie shook his head in disbelief that even the Trump DOJ would hire someone so obviously inept. A check on the DOJ website confirms that his official title is Assistant Chief Immigration Judge.

Oops! Problem! Weil made these outrageous claims while Obama was still President, and indeed was appointed during the Obama administration. And while it is true that Loretta Lynch (AG at the time of Weil’s most public stupidity) and Jeff Sessions are among the worst cabinet-level appointees in recent history, one would have thought that even they might have seen what a buffoon Weil is. Apparently not.

Let’s face, most adults wouldn’t stand a chance of getting a fair hearing without a lawyer, and these are little kids who quite probably don’t speak English and are being asked some pretty complicated questions by an intimidating stranger. Curmie does not assume that every asylum-seeker has a case, but the fact is that the world is often a nasty place, and even children are often in danger. Think of Herod’s massacre of the innocents, or the fates of the Trojan prince Astyanax, or the princes in the Tower under Richard III; brutality towards children to further a political cause is not a modern invention. But what are the odds that a child with a legitimate plea would receive justice in this arcane world?

Here’s a little more from that article in the Post:

At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children—most of whom cannot speak English and must use government-provided interpreters—are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.

But the questions can easily trip up children with no lawyers, the attorneys said. A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.

Yeah, a three-year old can see that trap coming, right, Judge Weil?

The DOJ didn’t deny that Weil’s assertion was utterly absurd, but they tried to distance themselves from the fallout:

Lauren Alder Reid, a spokeswoman for the department’s Executive Office for Immigration Review, said in a statement: “At no time has the Department indicated that 3 and 4 year olds are capable of representing themselves. Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily [emphasis Curmie’s] represent the views of EOIR or the Department of Justice.”

Sure. That’s why Weil appeared as an expert witness, called by the DOJ. Were Curmie of a cynical disposition (perish the thought!), he might suspect a lack of total candor. Judge Weil’s sorry ass should be fired for embarrassing the entire DOJ, “personal capacity” or not.

And that’s really the key. Just tell us the truth. Yesterday, Curmie requested an article published in a Swedish professional journal through his university library’s inter-library loan office. The request was cancelled almost immediately, with a note that the article is only available in Swedish. Curmie is willing to bet next month’s mortgage payment that the article (as opposed to the journal) is indeed in English: the title is in English, the subject matter is an English-language play, the author was an English-speaking Canadian who had enough stature in the field that she didn’t need to work in another language (if indeed she was even capable of doing so). Tell me the truth: finding this article is going to be too much work and you very well might not be able to meet my deadline (I’m presenting the paper in three weeks’ time). Don’t tell me something I’m 99% certain is a lie.

Similarly, Curmie gets it that, according to current law, the DOJ is under no legal obligation to provide lawyers for children charged with violating immigration laws, and that the cost to do so would be considerable: a lot less than the Obama administration’s predilection for drone strikes in western Asia, or the Trump administration’s tax cut for the stinking rich, but considerable, nonetheless. So say that: “There is no requirement that legal representation be provided for these children, and in our opinion the cost to the American taxpayer outweighs the advantages to providing legal counsel to foreign nationals.” There are those on the left who might bitch about that statement—Curmie would probably be one of them—but it’s at least a comprehensible argument. Don’t feed us nonsense about how a non-English-speaking 3-year-old can hold his or her own in an immigration hearing.

Weil’s silly pronouncement drew a fair bit of criticism early on, including from three former DOJ judges—Bruce J. Einhorn, Eliza Klein, and Lory D. Rosenberg—who wrote in a brief filed in the U.S. Court of Appeals for the 9th Circuit that “A typical three-year-old cannot tie her shoes, count to 100, peel a banana, or be trusted not to swallow marbles.” Somehow Curmie suspects that these former judges doubt that the little girl in question would be just fine serving as her own counsel in an immigration case conducted in a language she doesn’t understand.

As such furors do, however, this one died down, and there was little more said about it for two years, until John Oliver, of all people, resurrected the story this April Fool’s Day: ironic timing for a very serious discussion. Describing “a critical, potentially life and death, process,” Oliver argued that “sadly, the system is a complete mess.” He then played clips of several legitimate authorities, closing with Judge Dana Leigh Marks of the National Association of Immigration Judges, who opines that “in essence, we’re doing death-penalty cases in a traffic court setting.” Yeah, that kind of gets your attention, doesn’t it?

Noting that the civil nature of immigration courts means that the government is not required to supply a lawyer to those who cannot afford one (indeed, only 37% of immigrants have counsel), Oliver urges his listeners to “think of an immigration hearing like surgery. You can try and do it yourself, but if you ever want to seeing your fucking family again, maybe try and get a professional to help you.” As for the children, as young as two years old (there’s a recent case of a 1-year-old), representing themselves, Oliver says:

That’s just clearly ridiculous. Because you cannot let a two-year-old be unsupervised in court. You can’t even let a two-year-old be unsupervised in a bouncy castle. They’re going to come out covered in glitter, holding a broken beer bottle and a dead bird. How did they get them in there? Who knows? The point is they can’t be left alone for a second, and that bird has already been in their mouth. It just has. You have to deal with that reality.

For the record, Oliver has a two-year-old son; he knows whereof he speaks. To Judge Weil’s claim to have taught immigration law to three- and four-year-olds—“It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done,” Oliver responds “No, it can’t! You can’t teach immigration law to the three-year-old. You can’t even explain to a child that age that Elmo isn’t his best friend.” By the way, check out the “mock trials” starting at 6:54 and 7:53 of the video linked above. Those little girls are both freaking adorable, but you will forgive Curmie for suggesting that perhaps they are not quite ready to represent themselves in a court case that might literally have life-and-death consequences, even if they do have an advantage over the majority of immigrants in that English is their native language.

Oliver then launches into a pretty thorough evisceration of the politicization of the immigration process and of the innumerable miscarriages of justice coming out of decisions made in haste (one appeal consisted of two questions and lasted less than a minute and a half), but those are outside the scope of Curmie’s remit today. We’ll also leave aside the question of Oliver’s consequentialism—the fact that bad things happened to an immigrant who was deported doesn’t imply that the decision to deport was inappropriate. Let us concentrate on one issue only: that the ability to understand the charges is one of the bedrock principles of any judicial system worthy of the name. (Yes, Curmie knows that immigration hearings are run by the executive branch, not the judiciary… you know what I mean.) No child whose age is a single digit can possibly do that. The immigration courts are a disaster. They were under Obama (and probably under Bush and Clinton, and…), and they certainly are now. Real, comprehensive, long-term solutions will take time, and will require greater expertise and wisdom than Curmie can offer, and a hell of a lot more than we can expect from Judge Weil or those who continue(d) to employ him.

But baby steps are possible. Providing at least adult advocates if not lawyers for literally every child in an immigration hearing would be a step. But first we have to be honest. Three-year-olds don’t “get it.” The current system cannot be allowed to continue unchanged. And Jack H. Weil doesn’t have brains enough to be a speed bump.  Curmie chooses not to speculate as to why the meme is making the rounds right now, but the problem it addresses has been around for years, and still continues.  Even if the meme was designed only to embarrass the Trump administration, it has, even if accidentally, brought some focused attention to a real issue.  So let’s fix this one.  One step at a time.