Summary: House Judiciary Committee Hearing on Hate Crimes (2019)

At the House Judiciary Committee's hearing yesterday to examine and discuss white nationalism and hate crimes, Google admitted to manipulating search results based on subjective factors if content was controversial, i.e., "on the border." Only Rep. Tom McClintock of California pushed back hard, saying the power to decide what speech is acceptable and what is not can be dangerous. 

I've personally had an innocuous comment I tried posting on Instagram blocked before I was able to post it, showing the reach of AI. The reason given in the pop-up box was that I was "bullying" an Iowa wrestling coach and former Olympic contender, but no reasonable human being would classify my criticism as bullying. As Rep. McClintock pointed out, "bullying" can be pretext to censor legitimate criticism, and in doing so, prevent progress and transparency. On a more basic level, allowing corporations power over acceptable speech could also become a way to extract an "advertising tax" on individuals and businesses to resolve an image issue if they are caught in an algorithm's web. Such a dynamic feeds monopolies (and more difficult anti-trust enforcement) by favoring large over small businesses. 

People in positions of power ought to be scrutinized fairly and on all the facts. An unaccountable entity--whether corporate or government--picking and choosing which facts to include or exclude enables poor leadership. Worse, it prevents local leaders and voters from properly utilizing their powers, causing a loss of credibility on all sides and potential backlash (e.g., President Trump). By the way, that Iowa wrestling coach I tried posting a comment about? Almost no one knows he was accused of sexual assault, leading to an interesting (and public) court battle (Brands v. Sheldon Community School, 671 F. Supp. 627 (N.D. Iowa 1987)). 

My Twitter recap of the hearing is below: 

Two other issues arose: 1) many states lack appropriate hate crime laws, so the federal government should consider establishing a better minimum baseline; and 2) both state and federal laws do little to nothing to address widespread "doxxing" problems, i.e., revelation of private contact information specifically for purposes of harassment. 

Links for Interesting Reading

1. NYT, "Can States Fix Their Pension Problems?"

http://roomfordebate.blogs.nytimes.com/2010/05/20/can-states-fix-their-pension-problems/

"Gov. Arnold Schwarzenegger’s pension adviser, David Crane, recently told a state Senate hearing on pension reform, “One cannot both be a progressive and be opposed to pension reform. The math is irrefutable that the losers from excessive and unfunded pensions are precisely the programs progressive Democrats tend to applaud. Those programs are being driven out of existence by rising pension costs.”

2. 9th Circuit decision (Harper v. Poway, 445 F.3d 1166 (2005)) on academic free speech--no longer citable, but the dissent is worth reading:

http://ftp.resource.org/courts.gov/c/F3/445/445.F3d.1166.html

Judge Kosinski: "Tolerance is a civic virtue, but not one practiced by all members of our society toward all others. This may be unfortunate, but it is a reality we must accept in a pluralistic society."

Judge Kosinski: "We are taught to take pride in who we are; it is, in a sense, the American way. It seems particularly chilling to free expression to restrain speech that expresses pride in one's own religion, ethnicity, sexual orientation, etc."

"[The government] has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." -- See R.A.V. v. City of Saint Paul, 505 U.S. 377, 392 (1992)

Note: the picture above is of Judge Kosinski and I.  

U.S. Supreme Court to Decide Important Free Speech Case

Click HERE for a transcript from the Supreme Court's oral arguments in Holder v. Humanitarian Law Project. [Click on "Full Screen" after the jump to enlarge the text.] 

The Humanitarian case might determine the breadth and scope of power the American government may exercise when it wants to control speech. Amazingly, the case and its complex issues aren't front page news everywhere. Below are some off-the-cuff comments I made after I read the transcript: 

The pro-free-speech lawyer, Cole, didn't do a great job. There was some drama: Scalia verbally smacked Sotomayor when she raised a misguided example, but Breyer played the good knight and saved her. Justice "That's Not True" Alito looked out of his range intellectually. None of the lawyers were able to really answer Ginsburg's very relevant questions. Breyer, as usual, asked the most interesting and intelligent questions. Scalia clearly wants to kick the ball down the road and uphold the statute. Unfortunately, it appears Kennedy, the swing vote, might be leaning towards Scalia's angle due to the unusual fact pattern involved, i.e., the government did not actually convict anyone for exercise of free speech (the case involves an action for declaratory relief, not an actual prosecution or conviction). Surprisingly, Roberts looked like he hadn't yet made up his mind, though towards the end, he seemed to be leaning towards Constitutional avoidance. Unsurprisingly, Thomas never asked a question. 

Actually, come to think of it, neither lawyer did well. The government's lawyer, Kagan, started off very well, but self-destructed at the end, when she suggested the government could prosecute lawyers who submit briefs on behalf of Congressionally-labeled terrorist organizations, even if the briefs relate to tsunami relief or U.N. aid requests. She should have thought harder about her audience. She's talking to a bunch of former lawyers who used to write briefs and in-house advisory opinions for sometimes-not-so-wonderful organizations. Maybe that's why former corporate attorney Roberts seems conflicted. 

After I emailed the transcript to an acquaintance, I sent him more detailed comments: 

The fact that the Justices spent most of their time discussing hypotheticals indicates that no one really knows what kind of conduct is prohibited. If the Justices can't figure out what is covered, then how is an ordinary American supposed to comply with the law? As for Scalia trying to kick the ball down the road, isn't the whole point of a request for declaratory relief precisely to avoid kicking the ball down the road and having to deal with a prosecution? 

What really bothers me is that no one answered Justice Ginsburg's perfectly valid questions. For example, everyone agrees that membership isn't proscribed, but then what? Are we supposed to just show up to a meeting and sit there to ensure we comply with the statute? Kagan seems to say anything beyond being an inactive paper member of an organization could be proscribed conduct, and it's up to the prosecutors to determine the scope of the law. Sorry, but I'd rather have a clear line than a line drawn by the Supreme Court than thousands of politically ambitious D.A.s deciding what constitutes inactive, legal membership in their own discrete jurisdictions. 

Also, I am a member of numerous legal organizations. I've attended annual meetings, communicated with board members, dispensed legal advice to schools they operate, posted on their blogs, etc. For all I know, one of these organizations might have rogue members plotting against the government. If the Court doesn't narrow the law and require a specific intent provision, then I could potentially be prosecuted merely by being an active member of the overall group, despite lacking any malicious intent. Thus, Kagan's argument boils down to this: trust the government, because we won't prosecute someone who isn't really a terrorist. I'm sorry, but if you're a Muslim in 2010, a Japanese-American in 1942, an African-American with Black Panther friends in 1965, etc, it's a little harder to trust prosecutorial discretion. 

Practically speaking, if the conservative Justices have their way, any lawyer with Muslim clients or Islamic non-profit clients must consider dropping all of them as clients. After all, who knows? If one person within an organization is supporting terrorism, then the entire organization becomes suspect, and anyone who has helped the organization, even in good faith, can be held liable for material support. Just my two cents.

Quote of the Day: a Free Press

Joseph Pulitzer: "Our republic and its press will rise and fall together. An able, disinterested, public-spirited press, with trained intelligence to know the right and courage to do it, can preserve that public virtue without which popular government is a sham and a mockery."

Now go read NYT v. Sullivan (1964). More on that case here, about halfway down the page.

A Japanese-American Hero Dies

Judge Robert Takasugi recently died. Post-9-11, he was one of the few judges in the country that demanded our government follow the Constitution.

When weighed against a fundamental constitutional right which defines our very existence, the argument for national security should not serve as an excuse for obliterating the Constitution.

[from United States v. ROYARAHMANI (June 2, 2002, Central District of California)]

Perhaps Judge Takasugi's skepticism had something to do with being interned by the American government during WWII.

According to the NY Times obit (Bruce Weber, 8/8/09), Judge Takasugi "never forgot the experience of internment":

“I was a consequence of history...In 1942, as an 11-year-old child born in Tacoma, Washington, I became a prisoner of war imprisoned in an American-style concentration camp by the country of my birth. I vividly recall the military guard towers manned by armed soldiers surrounding the perimeter of the high-fenced walls which separated us from the free world. There were no formal charges, no right to face and confront the accusers, nor a right to a trial or hearing. Imprisonment was based on the accident of ancestry.

“From this unfortunate history, a lesson should have been learned that under our Constitution, a truly free government must dedicate its powers to and for the people, and that our representatives must adopt this commitment with integrity as a nondelegable duty and responsibility.”

Even though it took some time, Judge Takasugi is a living embodiment of America's promise: freedom to all, regardless of national origin and race. I am glad he lived long enough to see the American public catch up to him. I just wish he had the opportunity to write an opinion on Guantanamo Bay.

Bonus: Justice William Douglas from Laird v. Tatum (1972), emphasis added:

[S]ubmissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the [Soviet] Russian image."

Henry Louis Gates, Questions

The following questions aren't the usual "Let's get to know you better" kind. They are leading questions, and they force you to question your own principles.

1. What is the point of the 4th Amendment if the government can tell you how to behave in your own home even after it has verified that it is your home; you have not committed a crime; and you have a legal right to be there?

2. Prof. Gates was arrested on his own front porch. The officer who arrested him had already verified his ID and appears to have been walking outside. If Prof. Gates began yelling at the police officer and belligerently demanded the officer's badge number, whose job was it to walk away and de-escalate the situation? The Harvard professor in his own home, or the police officer whose salary is being paid by the Harvard professor?

3. As soon as the police officer verified Prof. Gates' ID and realized he was the proper homeowner, did Prof. Gates have the legal right to tell the police officer to leave his property? If yes, then as a legal principle, what does it matter the choice of words that Prof. Gates used to ask the officer to leave his home?

4. Is it a crime to be verbally belligerent to a police officer in your own home when the police officer has already verified that no crime is taking place in the home? Is there ever such a thing as "contempt of cop"?

Here is the best article I've read so far on the Gates-Crowley affair (Robin Wells, July 27, 2009):

http://www.huffingtonpost.com/robin-wells/hard-truths-and-the-teach_b_245856.html

I believe that the treatment of Professor Gates was unjust and unprofessional. Yes, he was belligerent to a police officer. But that is no crime, and nowhere has Officer Crowley shown that there was any chance of a crime being committed, confirmed by the Cambridge Police Department's quick decision to drop the charges against Professor Gates. Police officers are trained to be professionals, and a professional would have recognized that an obstreperous sexagenarian who walks with a cane standing in his own house and faced with a phalanx of armed police officers is no threat...

[But] The hard truth that Professor Gates needs to hear is that he is the one who handed over his power to Officer Crowley. Letting his agitation get the better of him, Gates lost the ability to shape the outcome of the encounter and set up his own victimization by a poorly trained police officer.

Amen, sister. Basically, the police officer was unprofessional and did not handle the situation properly, but Prof. Gates could have saved himself a lot of trouble by being the bigger man. Professor Gates might not have realized he had to show the officer his state-issued ID, not just his Harvard-issued ID.

By law, you must produce state-issued ID when requested to do so by a police officer who has lawfully detained you. Most states have statutes similar to the following: “Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer." I know these types of "ID" laws sound perilously close to "Show me your papers," but the law seems clear--see U.S. Supreme Court decision Hiibel v. Sixth Judicial District Court of Nevada (2004), decided by a 5 to 4 vote. (I wonder if Justice Kennedy is now reconsidering his deciding vote.) Perhaps if Prof. Gates had known the law requires him to produce state-issued ID to an officer, the situation might not have escalated.

In any case, when a police officer needs to call backup to handle a senior citizen Harvard professor, something's amiss. As President Obama stated, "I think...that you probably don't need to handcuff a guy, a middle-aged man who uses a cane, who is in his own home."

Although Prof. Gates could have de-escalated the situation, the burden was on the officer to do so, not Prof. Gates. The Cambridge Police Department owes Mr. Gates an apology for escalating what should have been a routine check.

Bonus: Here are 9th Circuit Judge Alex Kosinski's comments on free speech, which apply to Gates' case:

See Duran v. City of Douglas (1990): [T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." [Houston v. Hill, 482 U.S. 451 at 461] The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462-63, 107 S.Ct. at 2510. Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Re: criticism of judges, see Standing Committee of Discipline v. Yagman quoting Bridges v. California, 314 U.S. 252, 263 (1941):

"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect."

Judge Kosinski is often named as one of the potential candidates for the U.S. Supreme Court.

Bonus II:

1. The question isn't whether Gates could have acted better under the circumstances--the question is what a government worker should do in someone else's house once he verifies there is no threat, no crime, and the owner wants him out.

2. Gates may have been outsmarted by the police officer. The officer probably couldn't arrest Gates inside his own home for "disorderly conduct," so he may have beckoned Gates outside, where he could plausibly argue that the public was affected or endangered by Gates' conduct.

Patrick S. says:

Based upon the holdings in the MA cases below, Dr. Gates' conduct did not even fall under the disorderly conduct statute. Whether this is an issue of the cop arresting him anyway or whether the cops were not properly trained on what is "disorderly conduct" in MA is another question:

In Commonwealth v. Mallahan, 72 Mass.App.Ct. 1103, 889 N.E.2d 77 (2008), a decision rendered last year, an appeals court held that a person who launched into an angry, profanity-laced tirade against a police officer in front of spectators could not be convicted of disorderly conduct.

In Commonwealth v. Lopiano, (2004) 805 N.E.2d 522, 60 Mass.App.Ct. 723 (2004), an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer that his civil rights were being violated. [In this case, according to the officer, Defendant was "yelling at me, you're violating my civil rights, then he began yelling at Ms. Carins, why are you doing this to me, you'll never go through with this."]

The Massachusetts statute defining "disorderly conduct" used to have a provision that made it illegal to make "unreasonable noise or offensively coarse utterance, gesture or display," or to address "abusive language to any person present." Yet the courts have interpreted that provision to violate the Massachusetts Constitution's guarantee of freedom of speech. So police cannot lawfully arrest a person for hurling abusive language at an officer.

[See more law-related discussion here and Commonwealth v Feigenbaum, 404 Mass. 471 (1989)]

New York Times v. Sullivan: Should the NYT Go Private?

The New York Times reports earnings on July 23, 2008. Its stock price has declined as younger readers eschew newspapers for the internet. The NYT's reporting itself is still stellar--its recent reports on the economy have been fantastic, and its charts and easy-to-read graphs showing various economic statistics are unparalleled. Many outlets use the NYT's links or re-publish their articles and statistics, so demand isn't the NYT's problem. The real issue is monetization: "How does the NYT maintain its dual roles as a pillar of news reporting, which requires wide distribution, and as a public corporation, which requires more cash flow to please shareholders?" Both aims are not necessarily synonymous, because free content is more widely distributed, while paid content reaches a smaller audience. These conflicting aims render the NYT heavily dependent on advertising dollars, which are being shifted more to Google and other internet outlets. If Google's recent earnings results are any indication, the NYT may have a difficult future. Still, cash flow is not everything, and the NYT's reputation is still gold in terms of goodwill.

It is vitally important to remember that the NYT is directly responsible for one of the defining legal principles of our country--free speech. Every American should read Justice Brennan's opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964):

The First Amendment, said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." United States v. Associated Press, 52 F. Supp. 362, 372 (D.C. S. D. N. Y. 1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375 -376, gave the principle its classic formulation:

"Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

To summarize the decision, American libel law after the NYT case made it very difficult for a public figure to sue someone for criticism. Europeans and Singaporeans, in contrast, sacrifice free speech for more civility. This remarkable difference would not exist had the New York Times not chosen to fight a libel judgment all the way to the Supreme Court. Today, one wonders if the NYT would have authorized such legal fees for the sake of principle. Would shareholders today agree to receive fewer dividends if it meant spending money to establish a long-term legal principle? The more I think about it, the more I believe the New York Times and newspapers should go back to being privately held so they can focus on long-term trends rather than short-term shareholder whims. Perhaps the earnings release on July 23, 2008 will force that result if it is bad enough. If earnings are good, we win because NYT's stock goes up; and if earnings are poor, we win, because we might get a newspaper more focused on reporting, not pleasing shareholders.

Indeed, America's Founders--as much as they hated their newspapers (just ask Alexander Hamilton, whose affair was exposed by the media, making him the original Bill Clinton)--intended media outlets to be the "fourth pillar" of government, keeping it in check. But as media have consolidated operations and focused on profit, it is hard to see any real criticism of government policies. Having hundreds of channels and outlets competing for our attention has fractured the public and its ability to engage in deliberative democracy. Keith Olbermann and Jon Stewart aside, where are our modern-day Edward R. Murrows? It is a sad and telling commentary on today's media that the most critical pundits of government policies are a former sports newscaster (Olbermann) and a comedian (Stewart). As good as they are, we deserve better.

Here are some excerpts from the Supreme Court's decision:

Justice Black:

[S]tate libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials...We would, I think, more faithfully interpret the First Amendment by holding that at the very least it leaves the people and the press free to criticize officials and discuss public affairs with impunity...I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials...An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.

Justice Goldberg is even better:

In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses...The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized...Our national experience teaches that repressions breed hate and "that hate menaces stable government."

Justice Brandeis from WHITNEY v. PEOPLE OF STATE OF CALIFORNIA, 274 U.S. 357 (1927) (a Bay Area/Alameda County trial case):

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.