Counter-speech is no cure-all

Kent Greenfield adds his voice to the growing chorus challenging the currently prevailing conventional wisdom in the United States on unfettered hate speech and how to deal with it, in a new piece for The Atlantic:

The way we interpret the First Amendment need not be simplistic and empty of nuance, and was not always so. The Supreme Court unanimously held over eighty years ago that “those words which by their very utterance inflict injury … are no essential part of any exposition of ideas.” And in 1952 the Court upheld an Illinois statute punishing “false or malicious defamation of racial and religious groups.” These rulings, while never officially reversed, have shrunk to historical trinkets. But they mark a range of the possible, where one can be a staunch defender of full-throated discourse but still recognize the difference between dialogue and vomitus.
Counterspeech is exhausting and distracting, but if you are the target of hatred you have little choice. “Speak up! Remind us why you should not be lynched.” “Speak up! Remind us why you should not be raped.” You can stay silent, but that internalizes the taunt. The First Amendment tells us the government cannot force us either to remain silent or to speak, but its reliance on counterspeech effectively forces that very choice onto victims of hate speech.
The First Amendment tells us that threats are punishable, but only if they are targeted at specific individuals. Burning a cross on the front lawn of a family’s home can be a threat; burning one in a field outside of town is not. The latter is protected; the former is not. The secret of converting threats into protected speech, says the First Amendment, is to aim them at more people.


Supreme Court says cell searches require warrants

Finally a decent ruling on search & seizure from the Roberts Court: Police cannot search your phones during an arrest without a warrant anymore.

The justices ruled unanimously that police almost always need a warrant to go through the cellphone of someone they arrest. Because phones today hold such vast and personal stores of information, the court held, searching them without a warrant is different from going through, say, the glove compartment of an arrestee.


Civil libertarians hailed the Supreme Court decision on police searches of cellphones as a landmark for privacy in the digital age — but the cops themselves say it could tie their hands during investigations.

oh boohoo. no1curr

Unfortunately this is the tip of the iceberg from the crowd that believes everything is justified for “security,” no matter how proportional. That disturbing attitude was captured in a quote from Jim Pasco, executive director of the Fraternal Order of Police, the country’s largest police union:

“There’s more at stake here than due process.”

I mean, I’m not sure why we’re even bothering with law enforcement, national defense, and democracy if we’ve reached a point where due process is a minor, irrelevant point or nothing more than an inconvenience. It’s kind of part of the point of the U.S. system.

So, put a screen lock on your phone with a strong PIN or password, because those enforcers with a less than consistent relationship to the rule of law might take liberties even after this ruling. Other than that, best of luck.

At least the Supreme Court is on your side on this one. Until you need to find a lawyer to back up your position on that, at which point you had better be wealthy enough to afford a good one, because the Supremes made the public defender system optional if states don’t feel like funding it enough to function.

Ending solitary confinement

The previous Colorado chief of Corrections was shot and killed in his own home by a former inmate who had spent years confined in solitary confinement (a punishment which is pretty well known at this point to make most people very mentally unstable), after the latter man was released from prison straight out of solitary when his sentence ended.

The victim, ironically, had expressed concern about the state’s excessive use of such treatment (and in particular the habit of releasing people directly without transition like that) and had cut the number of solitary inmates in half before his death.

To me it has long seemed that solitary confinement is probably one of the most heinous practices in the American prison system, and one that should probably be banned at least for general use under the 8th Amendment’s prohibition on “cruel and unusual punishment.” It must be particularly traumatic and damaging for inmates who are serving less than a life sentence and are eventually supposed to be released back into ordinary society.

The new executive director of Corrections, Rick Raemisch, is so opposed to the practice that he is using the job to campaign against it. As he said, “Everything you know about treating human beings, that’s not the way to do it.”

Raemisch even spent 20 hours in solitary himself in January to protest the practice. It’s part of his broader agenda to shake up the state’s correctional system so it might actually rehabilitate people rather than worsening the problem.

All of it calls to mind a biting satirical article from The Onion not long ago, headlined: “15 Years In Environment Of Constant Fear Somehow Fails To Rehabilitate Prisoner.”

Supreme Court still chipping away at Right to Counsel

The U.S. Supreme Court issued two more bad rulings today. One of them involved procedures for obtaining legal counsel. Chief Justice Roberts seemed really bummed out (see this detailed analysis from The Atlantic’s Andrew Cohen) that the Court’s ruling — on freezing assets of defendants before trial — might make it harder for super-wealthy suspected criminals to hire the best representation. But as Cohen observes, Roberts doesn’t seem too bothered by the fact that the ruling has little bearing on people who can’t afford the best anyway — a problem he has helped exacerbate recently, as I discussed in depth in December.

Non-state surveillance

In an op-ed in the NY Times Sunday Review, Jeffrey Rosen discusses James Madison’s views on privacy and surveillance. In particular, Rosen argues that Madison made a slightly odd distinction between government invasions of privacy (which he wanted restricted) and the same from businesses or other people (which he didn’t really care about much). Then Rosen asks whether that distinction is valid or even still up to date.

In practice, the neo-Madisonian distinction between surveillance by the government and surveillance by Google makes little sense. It is true that, as Judge Pauley concluded, “People voluntarily surrender personal and seemingly private information to trans-national corporations which exploit that data for profit. Few think twice about it.”

But why? Why is it O.K. for AT&T to know about our political, religious and sexual associations, but not the government?


That distinction is unconvincing. Once data is collected by private parties, the government will inevitably demand access.

More fundamentally, continuously tracking my location, whether by the government or AT&T, is an affront to my dignity. When every step I take on- and off-line is recorded, so an algorithm can predict if I am a potential terrorist or a potential customer, I am being objectified and stereotyped, rather than treated as an individual, worthy of equal concern and respect.

Justice Louis Brandeis, the greatest defender of privacy in the 20th century, recognized this when he equated “the right to be let alone” with offenses against honor and dignity.

But he also lamented that American law, unlike European law, was not historically concerned with offenses against what the Romans called honor and what in more modern terms we call dignity. European laws constrain private companies from sharing and collecting personal data far more than American laws do, largely because of the legacy of Madisonian ideas of individual freedom, which focus on liberty rather than dignity.

What Americans may now need is a constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.


Europe is way more aggressive about trying to curb private amassing of data. Meanwhile, both the U.S. government and private mega corporations — aided by the gushing of the American media — are pitching the concept of “big data” as a godsend and cure-all, thus necessitating mass collection and indefinite storage of data. Can’t throw all the data points in the data stew if you haven’t held on to all of them, the logic goes.

And it’s a fair question raised in this article. The phone company or the internet businesses knowing all our private information (and movements and habits) is allowed freely. Yet the government is supposed to be following various restrictions, due to the Bill of Rights — but why? Why don’t the protections extend to the private corporations? We’ve seen time and again that they willingly turn over all their data for “national security” and “public safety” reasons, sometimes without even being asked through a court order.

Our government need not construct a surveillance state unconstitutionally when corporate America will do it for them.

Addendum: On a partially related note, I highly recommend this article by Virginia Eubanks in The American Prospect: “Want to Predict the Future of Surveillance? Ask Poor Communities.”

Marginalized groups are often governments’ test subjects. Here are a few lessons we can learn from their experiences.

Supreme Court: 6th Amendment optional again

First an overview — here’s the full text of the 6th Amendment to the U.S. Constitution (emphasis added to relevant sections for this post):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The U.S. Senate website handily provides a plain-English summary of the modern rights derived from this amendment. One of them is that:

Defendants in criminal cases are entitled to public trials that follow relatively soon after initiation of the charges.

This is intended to make sure that people aren’t jailed indefinitely without charges or a trial, as well as to minimize the risk of keeping innocent people in jail for years before a jury can get them freed.

The other key right to note is the right to have legal counsel help a defendant with his or her defense, a right which was extended to apply to state cases through the 14th Amendment (which imposes the U.S. Bill of Rights onto every state).

The Supreme Court first applied this latter part to state cases in a (possibly inadvertently) narrow ruling in Powell v. Alabama (1932), in which they found that in capital cases — ones where the death penalty was on the table — defendants must have access to their lawyers to plan a defense.

But defendants in non-capital cases were not really covered in that opinion, and low-income defendants in general were left to fend for themselves in obtaining counsel until a much later decision in Gideon v. Wainwright (1963), the subject of the film “Gideon’s Trumpet.” In that case, the court ruled that states had to provide (i.e. pay for) legal counsel for those who did not have their own lawyers, in order to fulfill the spirit of the 6th Amendment requirement, even if they weren’t actively denying access to counsel.

With everything that was going on earlier this year, I completely missed a horrid new Supreme Court ruling which functionally wipes out the public defender right found in Gideon v. Wainwright — as well as the right to a speedy trial. Granted, the public defender system wasn’t close to being a smoothly operating system to begin with, but the Supreme Court effectively announced there won’t be consequences for blatant violations, so it’s just up to the good will of the local governments to follow through.

In this case, a man in Louisiana was not given a trial for seven years, which is by no means a “speedy trial.” When he sued, the state admitted in the lower courts that the reason for the delay was on them and their failure to adequately fund and provide him legal representation. Later, during appeals, they tried to retract this admission and lay the fault on the defendant, saying he had repeatedly delayed the trial. Seven years is an awfully long time, and it’s hard to imagine a defendant trying to delay his own trial for that long — unless perhaps he understood that it was the only way to ensure he actually received some kind of representation.

Nevertheless, the Supreme Court said the State of Louisiana didn’t need to provide any compensation for the defendant for failure to provide a speedy trial and didn’t really punish it for failure to shore up its clearly inadequate public defender system.

And so it was that five justices decided this year that there don’t really need to be consequences for states who don’t execute the requirements laid forth in Gideon v. Wainwright. And that’s a problem — because the whole point of that decision was that failure to provide legal counsel to a defendant who doesn’t have his own, due to circumstance, translates in practical terms to failure to uphold his 6th Amendment right “to have the Assistance of Counsel for his defence.”

So now, after this ruling, what incentive do states have to maintain their public defender systems? Not much. Because there are also no consequences now for failing to provide a speedy trial, states can maintain the illusion of not denying access to counsel by just indefinitely postponing a trial.

The only likely consequence of that is the cost of imprisoning the defendants. But most states probably figure these people would go to prison anyway after their almost inevitable plea bargains, arranged by their hurried public defenders, and so that’s a wash. Plus, given the number of states heavily reliant on for-profit prisons and detention centers — who provide a lot of campaign cash to judges and legislators — there’s even less incentive to speed up the process.

I miss the old Supreme Court rulings when they still understood the difference between a literal interpretation of text and an interpretation that factors in functionality and real-world practice. Without a public defender, if you’re poor and can’t afford a lawyer, you don’t get “Assistance of Counsel.” That’s the real-world reason we have public defenders now in state cases.

Think of the moment on all those crime procedural shows when the low-income suspect (whether guilty or innocent) clams up during interrogation and asks for a lawyer. Earlier in the episode, of course, we probably saw the person get a warning (during their arrest) that they have the right to an attorney — and that if they cannot afford one, one will be appointed for them. So, on paper, we know and the character knows that they can ask for an attorney to be present during questioning. At that point, the detective character will usually say something about how the defendant should just answer the questions now to save the time and trouble of waiting for hours before the public defender shows up.

Because, off paper, this is how it really works. Nobody wants to sit around silently in an interrogation room for hours, so they start talking without their constitutionally-guaranteed counsel assisting them. Even if they’re actually innocent, they will probably say something that can (and will) be used against them in a court of law.

Now imagine that instead of it taking a few hours to see a lawyer, the public defender doesn’t show up to provide assistance until seven YEARS later. That’s not a 44 minute TV episode. This is the problem the country faces today. If you can’t afford your own lawyer, that’s just too bad for you, because it’s totally luck of the draw on whether and how fast you’ll ever see one.

The system needs to work better than this, and there ought to be consequences for states for being so lax about upholding their end of the deal that it doesn’t do the job it was created to do. But the Supreme Court doesn’t see it that way. As long as you eventually get a lawyer, even years later, a majority of the Supreme Court feels that your right to counsel has been met. And don’t even ask about a speedy trial. If you had wanted that, you should have waived your right to counsel and pled guilty.

You tried it though.

Over the years, many a high school principal or administrator has tried — with varying degrees of success — to suppress something their high school’s student newspaper would like to print. Generally, the content in these cases is inflammatory or inappropriate in some way and occasionally even potentially dangerous. Sometimes, the school officials are actually trying to cover something up.

In many cases, the courts have smacked down these administrators for unconstitutional infringements of students’ rights to free expression and free press (such as it is). Whereas other forms of expression can sometimes be limited for being overly disruptive to the learning environment, the courts seem to feel that broadly speaking, student newspaper content is pretty harmless, however important it might seem in the heat of the moment to students and staff inside a little bubble.

Most administrations would probably be better off ignoring anything that’s not outright criminal or endangering someone’s safety, because the suppression — much like the proverbial coverup — is nearly always worse than the “crime” and blows something tiny into a national story.

And that brings us to this week’s openly mockable student newspaper suppression attempt by a misguided high school principal. The reasonably successful high school football team of Neshaminy High School in Langhorne, PA is called the “Redskins,” like the Washington NFL team and the teams of many other backward schools nationwide. In an effort to protest the highly offensive nature of the team’s name, the staff of the student newspaper vowed not to print the school’s team name — following the lead of a number of major real newspapers for the real football team.

Principal Rob McGee responded initially, in November during state playoffs, by informing the student paper that they “[didn’t] have the right to not use the word Redskins.”

A truly laughable attempt. In what way did the principal think he was going to keep a school paper from not printing the name of the school’s football team? There’s no way that order passes constitutional muster. There’s clearly no public harm or student harm in not printing something in a school paper.

I’m fairly certain that any case where the courts have ever ruled against a student newspaper has been to tell them they did not have a right to print some controversial thing. I doubt there’s ever been a ruling saying they had to print something — short of perhaps some discrimination/equal opportunity case.

Unsurprisingly, the students running the paper now have legal representation and plan to reinstate their policy of refusing to use the term. Good luck stopping them, Principal McGee. You tried it though.