June 24, 2008
By Wendy Kaminer,
“(M)ost Americans have a non-dogmatic approach to faith,” the Pew Forum happily announced this week. Pew’s widely reported, 2008 “Religious Landscape Survey” found that Americans combine religiosity (92% profess belief in God or a “universal spirit”) with tolerance: “Most Americans agree with the statement that many religions – not just their own – can lead to eternal life.” This portrait of America as an open-minded, religiously diverse nation comports with the national self-image, perhaps not surprisingly, considering that Pew’s findings are based on a survey of 35,000 Americans, many of whom may profess beliefs that they haven’t quite internalized.
In South Carolina, at least, religious sectarianism prevails. There, state government has decreed production of special Christian license plates, picturing a cross against a stained glass window and emblazoned with the words, “I Believe.” The state does not sponsor license plates signifying belief in any other religion, or no religion; in fact, as Americans United has stressed, state regulations of vanity plates insure that “other religions will not be able to get similar license plates expressing different viewpoints, nor can a comparable ‘I Don’t Believe’ license plate be issued.”
Americans United is challenging this clearly unconstitutional practice in federal court, and, so far, proponents of the “I Believe” plate have reacted to the lawsuit with predictable, crowd pleasing stupidity: “I think this has less to do with the First Amendment and more to do with their disdain for religion generally,” the Republican House speaker opined. Never mind that plaintiffs in the AU case are four clergymen and the American Hindu Foundation. The Lieutenant Governor, who has offered to loan the state $4000 to facilitate production of the “I Believe” plate, defended state sponsorship of the plate as a “freedom of speech issue.” Never mind that it’s the people who have freedom of speech against the state, which has no freedom of speech against the people. The state has power; the people have rights, designed to check abuses of power, like state sponsorship of sectarian religious practices and beliefs, as Lieutenant Governor Bauer might learn from an elementary civics class. “Most Americans have a non-dogmatic approach to faith?” South Carolina didn’t get Pew’s memo, I guess.
June 24, 2008
By Harvey Silverglate
This is
partially a free speech blog, so we’d be remiss in failing to note the passing
of George Carlin. He failed to convince the Supreme Court of the absurdity of
the Federal Communications Commission’s “broadcast indecency” rules that
scrubbed the airwaves during the day and evening (when, presumably, the kiddies
are awake) of those naughty words that we all hear and (if the truth be told)
many of us use quite regularly. The real outrage of the high court’s idiocy in that case was that Carlin
had clearly used the “seven dirty words” in the context of a parody of
broadcast censorship. The FCC has no self-recognition, apparently, and the
Supreme Court justices have no sense of humor.
But, of
course, Carlin had the last laugh.
In addition to bringing his biting wit and jokes into his audiences’ lives, he
also was a hero to those who take
the First Amendment seriously, as well as to those who try hard to understand
some of the less proud legacies of Puritan America. As H. L. Mencken has noted,
a Puritan is someone who has the nagging feeling that somewhere, somehow,
someone is enjoying himself. Well, Carlin has proven Mencken correct, and
that’s no small service for him to have performed before dying, all too soon,
of heart failure.
Even in his
death, the ironies of his anti-censorship message continue to resonate. Today’s
Boston Globe’s Opinion Page, in the VoxOp feature, excerpts blogger Jill at Brilliant at Breakfast, lamenting Carlin’s passing: “I suppose one can’t have as finely honed a [garbage] detector as
he had, and use it so expertly for so many years, and have much of it left
after the last eight years of the Bush administration. But no one cut through …
modern life the way Carlin did…” Phoenix
readers may recall my gripes with the Boston
Globe’s censorship policy (which I wrote about here and here), so I was curious as to whether “[garbage]” was in Jill’s original text,
or whether it was the word Carlin would have used – bullshit. Turns out that
the Globe censored not one, but two
bits from the post: garbage replacing “shit,” and the “cut through … modern
life” replacing “cut through the bullshit of modern life.” Carlin was a lone
pop culture voice for free speech, but sadly he died before his work was
finished.
George
Carlin – Rest in Peace. What are we going to do without you??
June 12, 2008
This morning’s Boston
Globe reports on the criminal prosecution and college disciplinary
proceeding simultaneously pending against two Wentworth Institute of Technology
male students who had the bad sense (and bad grace) to videotape two female
Massachusetts College of Art and Design students having an intimate moment in
bed in a dormitory within all-too-easy sight range. The video ended up on
Wentworth’s file sharing system and was widely disseminated around the city, although
it is believed that a friend of the videographers was responsible for that.
Massachusetts law does not criminalize the
surreptitious video recording of unsuspecting people; currently, only
secret audio recording is a crime.
However, Massachusetts
does have a more general “peeping Tom” statute that has formed the basis for
the pending prosecution. And Wentworth, being a private college, can penalize
such conduct under any number of rubrics. So, it’s pretty clear that these two
morons will not get away with their indiscretion.
This said,
one has to admit that defendant David Siemiesz, one of the Wentworth juniors
being prosecuted, had a bit of a point when he told the Globe’s Maria Cramer: “This all would have never happened if their
windows were closed” and if the shades were drawn and the lights turned out.
Sometimes a peeping Tom takes affirmative steps to evade another person’s
privacy measures, but in this case the viewing was easy.
One is
reminded of an attempt by the administration of the University of Pennsylvania
a few years ago to discipline a student who, from his dorm window, photographed
a student couple who were making love in a dorm room across a courtyard. The lovebirds
not only were taking no steps to protect their privacy, but were seemingly
reveling in the exhibitionism of the moment, as the female of the couple was
pushed up against the window while the male did his thing – all obviously meant
for the eyes of the passers-by in the busy courtyard below.Campus
disciplinary officials, facing an outcry in support of the student
photographer, dropped the investigation.
The
Wentworth case seems to be in the middle: The two women were not seemingly
trying to advertise their tryst, but they did not take adequate and simple
steps to try to protect their privacy either. The two “Toms” did not have to
take any extraordinary steps in order to peep. So it’s not quite as clear-cut a
criminal “peeping Tom” case as one might suppose, or wish. Still, the betting
here is that Wentworth will take severe action – if for no other reason than
that the two male students embarrassed the institution. But the prosecutors
likely will be a bit more moderate.
June 11, 2008
By Harvey Silverglate
The
Massachusetts judiciary – and as a result, the people of the Commonwealth
of Massachusetts – are about to lose one of liberty’s most effective
and reliable friends. But just because state Superior Court Judge Isaac
Borenstein will retire from his life-tenured position on the state’s
trial court on September 12th doesn’t mean that he will
disappear altogether from the battle for freedom, decency, and fairness.
Instead, he plans to conclude his 22 years of service on the bench by
returning, at age 58, to a law practice emphasizing civil rights and
civil liberties cases.
Judge
Borenstein’s departure from the bench follows an increasingly typical
narrative; he isn’t leaving his judicial post because he’s tired
of it. He explained to David Yas of the Massachusetts Lawyers Weekly
that he likely would have continued his judicial career for a while
but for the fact that his son Simon is a student at Carnegie-Mellon
University. Private colleges like Carnegie-Mellon, which costs $52,000
a year, put public servants like Borenstein in the unfortunate and unenviable
position of having to decide between providing for their children’s
education – and facing financial hardship – and keeping their jobs.
This trend is playing out around the country as our courts – both
state and federal – continue to suffer judicial flight due to the
inadequate salaries given to even our most seasoned judges. (Judge Borenstein
and many others on the bench could easily earn in private practice a
salary worth several times the $129,694 that he currently earns.)
While
I’ll be sad to see him leave the bench, the realities he faces mean
that I can’t fault him for making the decision he did. I hold Borenstein
in high regard for his wise and prudent decisions and actions on the
bench – which happen to be his claim-to-fame among the local bar members.
However, my respect for him is partly rooted in, and was very much enhanced
by, his brave and principled decision to grant the defendants’ motion
for a new trial in the tortured Amirault
case.
That
case, which readers might be familiar with as the “Fells Acres Daycare
Case,” was one of the earliest instances of the nationwide sex panic
in the early 1980s, where prosecutors, social workers, jurors and many
judges believed the testimony of 3 and 4-year-old children who alleged,
after being tutored in their stories by cops and social workers, that
workers in pre-school day-care centers performed the most astonishing,
vile, unbelievable, and often literally physically impossible sexual
assaults on them. (The Pulitzer Prize-winning Wall Street Journal
columnist Dorothy Rabinowitz ably documented that national panic in
her highly-regarded 2003 book, No Crueler Tyrannies: Accusation,
False Witness, and Other Terrors of our Times.) The Amiraults had
already brought their case up to the Supreme Judicial Court of Massachusetts
by that point, but the high court had issued a disgraceful decision
penned by then-Justice (now Harvard Law professor) Charles Fried denying
them relief on the ground that “finality” was a major judicial value
that sometimes had to trump truth and justice. Recognizing the enormity of the injustice
done to the three members of the Amirault family accused in that case,
and seeking perhaps to do an end-run around Justice Fried’s and the
SJC’s ill-considered “finality” ruling, Judge Borenstein later
granted the defendants’ third motion for a new trial, though his decision was subsequently
overturned -- the second such reversal in the case -- by an obdurate SJC.
Judge
Borenstein’s attempt to do justice for the Amirault family, even in
the face of hostility from the state’s highest court, was the right
thing to do. I suspect that in the long run – from the standpoint
of ethics – it will have longer and more influential impact than the
SJC’s misguided reversals of lower courts’ attempts to do justice.
Borenstein proved that sometimes there’s more wisdom on the trial
bench than at the appellate level of the judicial system. His wisdom
and courage will be missed, but I for one, recognizing that he could
not stay on the bench much longer, now look forward to his new career
as a trial lawyer promoting civil rights, civil liberties, and elementary
justice from the other side of the bench.
June 05, 2008
In a puritan streak, Harvard University has forced several student groups who were planning on hosting a "Barely Legal" party to change the name -- or they otherwise couldn't hold the party, according to the Harvard Crimson and the Foundation for Individual Rights in Education (FIRE). (Disclosure: Free For All writer Harvey Silverglate is Chairman of the Board of Directors of FIRE.) One student involved in the party's planning explained that the name was meant to imply the party "is going to be so crazy it should be illegal," but other students complained about the allusions to pornography. It's unfortunate that students are so sensitive on college campuses that they force their classmates to apologize even though their party ideas aren't "intended to imply statutory rape," but it's even more unfortunate that Harvard has shamelessly capitulated to student complaints and prevented students from expressing themselves. In the words of FIRE President Greg Lukianoff, "If Harvard is willing to censor something as small as a party with a mild theme, how can we believe that it will defend the expression of truly controversial views on its campus?"
Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site might see this post misattributed below to Wendy Kaminer because of software limitations with the old system. The post was penned by James Tierney, a research assistant for Harvey Silverglate.
June 05, 2008
In a puritan streak, Harvard University has forced several student groups who were planning on hosting a "Barely Legal" party to change the name -- or they otherwise couldn't hold the party, according to the Harvard Crimson and the Foundation for Individual Rights in Education (FIRE). (Disclosure: Free For All writer Harvey Silverglate is Chairman of the Board of Directors of FIRE.) One student involved in the party's planning explained that the name was meant to imply the party "is going to be so crazy it should be illegal," but other students complained about the allusions to pornography. It's unfortunate that students are so sensitive on college campuses that they force their classmates to apologize even though their party ideas aren't "intended to imply statutory rape," but it's even more unfortunate that Harvard has shamelessly capitulated to student complaints and prevented students from expressing themselves. In the words of FIRE President Greg Lukianoff, "If Harvard is willing to censor something as small as a party with a mild theme, how can we believe that it will defend the expression of truly controversial views on its campus?"
Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site might see this post misattributed below to Wendy Kaminer because of software limitations with the old system. The post was penned by James Tierney, a research assistant for Harvey Silverglate.
June 03, 2008
Last September, Harvey wrote in The Free For All about Star Simpson -- the MIT student who was arrested at Logan Airport for wearing a (prank) sweatshirt displaying a working circuit board connected to a battery -- and predicted that "there is no way prosecutors can convince
twelve sane jurors that a student, wearing such a sweatshirt with the flashing
lights tacked onto the outside rather
than hidden underneath her clothing, was actually trying to perpetrate a hoax
that she was a suicide bomber." Well, this morning's Boston Herald confirmed Harvey's prediction, reporting that the DA's office decided not to pursue the hoax charges because they could not have proven her "intent to cause anxiety, unrest, fear or personal discomfort" -- a necessary element of the crime -- to a jury. Instead, she gets pre-trial probation for the disorderly conduct charge, and prosecutors plan to drop that charge in a year if she completes community service and doesn't get into any more trouble.
Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site
might see this post misattributed below to Wendy Kaminer because of
software limitations with the old system. The post was penned by James
Tierney, a research assistant for Harvey Silverglate.
