Even the bad people have rights

If you’re going to encourage people to punch Nazis, at least give us a definition of “Nazis.”  We can all agree the guy walking around with a swastika flag is the genuine article, but many people on twitter hold to a definition much more…expansive than that.

Example: people are seriously making the argument that the American Civil Liberties Union is a pro-Nazi organization because of its free-speech activism:

CaptureCapture3Capture2.PNG

I don’t agree with Glenn Greenwald very often, but he is absolutely right to note that the same people who believe the United States government is racist and fascist should also have the power to decide what speech shall be allowed:

Let’s begin with one critical fact: the ACLU has always defended, and still does defend, the free speech rights of the most marginalized left-wing activists, from Communists and atheists, to hard-core war opponents and pacifists, and has taken up numerous free speech causes supported by many on the left and loathed by the right, including defending the rights of Muslim extremists and even NAMBLA. That’s true of any consistent civil liberties advocate: we defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalizedand vulnerable in society.

The ACLU is primarily a legal organization. That means they defend people’s rights in court, under principles of law. One of the governing tools of courts is precedent: the application of prior rulings to current cases. If the ACLU allows the state to suppress the free speech rights of white nationalists or neo-Nazi groups – by refusing to defend such groups when the state tries to censor them or by allowing them to have inadequate representation – then the ACLU’s ability to defend the free speech rights of groups and people that you like will be severely compromised.

[…]

Beyond that, the contradiction embedded in this anti-free-speech advocacy is so glaring. For many of those attacking the ACLU here, it is a staple of their worldview that the U.S. is a racist and fascist country and that those who control the government are right-wing authoritarians. There is substantial validity to that view.

Why, then, would people who believe that simultaneously want to vest in these same fascism-supporting authorities the power to ban and outlaw ideas they dislike? Why would you possibly think that the List of Prohibited Ideas will end up including the views you hate rather than the views you support? Most levers of state power are now controlled by the Republican Party, while many Democrats have also advocated the criminalization of left-wing views. Why would you trust those officials to suppress free speech in ways that you find just and noble, rather than oppressive?

As I wrote in my comprehensive 2013 defense of free speech at the Guardian, this overflowing naïveté is what I’ve always found most confounding about the left-wing case against universal free speech: this belief that state authorities will exercise this power of censorship magnanimously and responsibly: “At any given point, any speech that subverts state authority can be deemed – legitimately so – to be hateful and even tending to incite violence.”

At best, this position is naive.  At worst, on the way-out-there fringes of the far left, it’s about someday seizing power and using it against the rest of us.

Like many American ideals, unfortunately, the right to freedom of expression is not equally protected in practice.  The Atlantic‘s Adam Serwer, in a thoughtful twitter essay, notes that predominantly African-American demonstrators in Ferguson were allowed far less leeway than the white supremacists of Charlottesville.

That’s why the principled liberal position – that of the ACLU – is that freedom of expression is for everyone.  Those damning the ACLU as Nazi collaborators, whatever they may be, are not remotely liberal.

 

Advertisements

Book review: “Rise of the Warrior Cop” by Radley Balko

[originally posted at Canadian Lawyer]

The next thing [Cheye] Calvo remembers is the sound of his mother-in- law screaming. He ran to the window and saw heavily armed men clad in black rushing his front door. Next came the explosion. He’d later learn that this was when the police blew open his front door. Then there was gunfire. Then boots stomping the floor. Then more gunfire. Calvo, still in his boxers, screamed, “I’m upstairs, please don’t shoot!” He was instructed to walk downstairs with his hands in the air, the muzzles of two guns pointed directly at him. He still didn’t know it was the police. He described what happened next at a Cato Institute forum six weeks later. “At the bottom of the stairs, they bound my hands, pulled me across the living room, and forced me to kneel on the floor in front of my broken door. I thought it was a home invasion. I was fearful that I was about to be executed.” I later asked Calvo what might have happened if he’d had a gun in his home for self-defense. His answer: “I’d be dead.” In another interview, he would add, “The worst thing I could have done was defend my home.”

Calvo’s mother-in-law was face-down on the kitchen floor, the tomato-artichoke sauce she was preparing still sitting on the stove. Her first scream came when one of the SWAT officers pointed his gun at her from the other side of the window. The police department would later argue that her scream gave them the authority to enter the home without knocking, announcing themselves, and waiting for someone to let them in.

Rather than obeying the SWAT team demands to “get down” as they rushed in, Georgia Porter simply froze with fear. They pried the spoon from her hand, put a gun to her head, and shoved her to the floor. They asked, “Where are they? Where are they?” She had no idea what they were talking about. She told them to look in the basement. She would later tell the Washington Post, “If somebody puts a gun to your head and asks you a question, you better come up with an answer. Then I shut my eyes. Oh, God, I thought they were going to shoot me next.”

Calvo’s dogs Payton and Chase were dead by the time Calvo was escorted to the kitchen. Payton had been shot in the face almost as soon as the police entered the home. One bullet went all the way through him and lodged in a radiator, missing Porter by only a couple of feet. Chase ran. The cops shot him once, from the back, then chased him into the living room and shot him again.

Even after they realized they had just mistakenly raided the mayor’s house, the officers didn’t apologize to Calvo or Porter. Instead, they told Calvo that they were both “parties of interest” and that they should consider themselves lucky they weren’t arrested. Calvo in particular, they said, was still under suspicion because when armed men blew open his door, killed his dogs, and pointed their guns at him and his-mother-in-law, he hadn’t responded “in a typical manner.”

Such stories are far too common, unfortunately, and no one does a better job keeping track of them than libertarian journalist Radley Balko.  Writing for the Huffington Post after several years at Reason, Balko has chronicled dozens of nightmarish stories about prosecutorial abuse and dangerous – and often deadly – overreaction by police forces.  And now he has written what might be the most important book of the year.

The American Bill of Rights contains a provision against the quartering of military personnel in civilian households – a reaction to the stationing of British soldiers in American cities, a grievance which led to the American revolution.  But you’d hardly know it today, when you see the equipment, gear and tactics used by SWAT teams even in medium-sized American communities.

Indeed, SWAT teams have become so ubiquitous it’s hard to believe they’re a relatively recent invention.  Following the Watts riots in 1965, soon-to-be Los Angeles police chief Darryl Gates created the country’s first Special Weapons and Tactics force, quickly using it high-profile confrontations against radical groups like the Black Panthers and Symbionese Liberation Army – with the media in tow.

Gates figures heavily in Balko’s narrative – he was ahead of his time in acquiring surplus armored personnel carriers (disingenuously marked “Rescue Vehicle”) for the LAPD.  But even he refrained from many of the tactics commonly used today.

Meanwhile, the Supreme Court of the United States (under Chief Justice Earl Warren) was issuing consistently liberal decisions – most notably Miranda – which extended the rights of the accused.  With crime becoming a more important issue for voters during that turbulent era, the Nixon Administration seized an opportunity to crack down against perhaps the most easily demonized class then and now – illicit drug users.  The age of paramilitary-style assaults in the service of civilian law enforcement had begun.

The “War on Drugs” escalated in the eighties, and police tactics became increasingly aggressive – not just against gangs and drug traffickers, but against people keeping small skins of marijuana for their own use.  On paper,  “no-knock” raids, in which police burst into a home without having to knock and announce their presence, were only allowed after strict scrutiny by a judge.  In practice, police requests for no-knock warrants were rubber-stamped by the courts.  SWAT teams, meanwhile, began showing up in smaller cities, then the suburbs, and even rural areas.

Crime in America has dramatically declined since the early 1990s, but police tactics have only gotten more aggressive, aided by a series of court decisons that have neutered the Fourth Amendment (which is supposed to guard against unreasonable search and seizure).  Some would argue a clear cause and effect, but Balko convincingly argues that the fall in violent crime has occurred despite the militarization of police, not because of it.

Indeed, aggressive police raids – where doors are kicked in, machine guns are held to civilians’ heads and houses are completely ransacked – create a backlash against the police and against the legal system in general – especially when these tactics are used against “crimes” as mundane as raiding poker games, checking high school students’ lockers for drugs, and even cracking down on unlicensed hairdressers.

Balko notes that a backlash against police militarization has been building in recent years, a promising development undermined by the fact that American politicians tend to be outraged by this kind of thing when the other party controls the White House.  His main proposal for reform is ending the costly, unworkable and devastating “War on Drugs”, but he acknowledges that this is extremely unlikely – though with a few states voting to legalize the weed entirely, who knows?

In the alternative, Balko suggests more community policing, having SWAT team members wear video cameras, and curtailing the practice of civil asset forfeiture (in which property is seized from people accused of drug-related offences, and which in practice has become a serious revenue stream for federal, state and municipal governments.)

But this is just an American phenomenon, right?  To a much greater extent than in Canada, yes.  But ask the family of Sammy Yatim how quickly our own police officers reach for their weapons.

It’s dirty work (and lawyers get to do it)

Canadian Lawyer‘s Gail Cohen praises the late Doug Christie for representing people many lawyers wouldn’t touch:

Christie, often called The Battling Barrister or Counsel for the Damned, became notorious for his defence of some of the most reviled hatemongers in the country. His clients included holocaust denier Ernst Zundel, former Nazi guard Michael Seifert, fascist John Ross Taylor, and white supremacist Paul Fromm. Christie studied law at the University of British Columbia and rose to prominence in the mid-1980s defending James Keegstra, a schoolteacher fined $5,000 for willfully promoting hatred against Jews by teaching his students the Holocaust never happened and that a Jewish conspiracy controlled world affairs.

Christie was strongly criticized by anti-racists, had rocks thrown at him, and his office windows were smashed so many times he had to board them up. Once, someone drove a truck through his office. He was a polarizing figure, there’s no doubt. Christie, along with Ottawa lawyer Richard Warman, were the subjects of Canadian Lawyer’s March 2009 cover story “War of the Words,” which looked at the battle between the free speech advocate and the push for laws outlawing hate. Warman would not consent to have his photograph taken with Christie, going as far as insisting we note in the article that the two men had been photographed separately.

Many of his critics insisted Christie held the same repugnant beliefs of those he defended in the courts but other than his desire to separate the Western provinces from the rest of Canada, his personal beliefs were never really out there on display. Until the end, Christie insisted he was defending those who others wouldn’t. In one of the last interviews he gave before passing away, he told Canadian Lawyer writer Jean Sorensen, “I take cases on principal – I don’t care how long they take or if it costs me.”

[…]

Even the professional regulator saw that Christie was willing to do what most other lawyers weren’t. When the B.C. lawyer got into trouble with the Law Society of British Columbia over some questionable subpoenas, his contribution to society was recognized. Christie was found guilty of professional misconduct but in assessing costs, the hearing panel tried to keep them as low as possible so it didn’t affect Christie’s ability to practise. “The Panel recognizes the Respondent’s valuable contribution to our free society and wants to enable him to continue with his work, which he has often done pro bono or for greatly reduced fees.”

Whether you agreed with Christie or not, he played a pivotal role in the free speech debate in Canada. There have to be lawyers who are willing and able to fight for those no one wants to fight for. It’s the essence of a free and tolerant society. Who, now, will rise up to take his place and defend those people, even if it means possibly being on the wrong end of a thrown rock?

Actually, there’s not much doubt that Christie did indeed support the causes promoted by his extreme-right client base.  But he did what a lawyer is supposed to do: stand up against the power of the state when that state threatens to infringe upon someone’s liberty.

In most cases, this is precisely what lawyers are doing when they take on clients who have engaged in particularly repugnant behavior.  Another example: the Ohio attorneys trying to keep convicted killer Steven Smith from being executed for an undeniably appalling crime.

Condemned killer Steven Smith’s argument for mercy isn’t an easy one. Smith acknowledges he intended to rape his girlfriend’s 6-month-old daughter but says he never intended to kill the baby.

The girl, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith’s attorneys argued in court filings with the Ohio Parole Board, which heard the case Tuesday. And Ohio law is clear, they say: A death sentence requires an intent to kill the victim.

“The evidence suggests that Autumn’s death was a horrible accident,” Smith’s attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board.

They continued: “Despite the shocking nature of this crime, Steve’s death sentence should be commuted because genuine doubts exist whether he even committed a capital offense.”

Smith, 46, was never charged with rape, meaning the jury’s only choice was to convict or acquit him of aggravated murder, his attorneys say.

However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and calls Smith’s actions “the purposeful murder of a helpless baby girl.”

I’m opposed to the death penalty because of the possibility – make that certainty – that innocent people will be executed.  That doesn’t mean some people don’t deserve to be put to death, however, and it’s hard to imagine what other punishment would suffice for a scumbag like Steven Smith.

That said, his lawyers have a point.  Murder is a crime requiring specific intent – the killer must intend to kill, not just harm, his victim.  Impairment by alcohol is not a defence to most criminal charges, but if Smith was so intoxicated that he couldn’t have formed the intent to kill, then under Ohio law he shouldn’t be on death row.

The state shouldn’t have the power to kill.  But if it does, at the very least it’s the lawyer’s job to ensure that this power is only carried out in the limited circumstances allowed.  Steven Smith might be the most loathsome defendant imaginable, but next time it could be someone someone more sympathetic – or innocent.

The unlikely champion of same-sex marriage

Ted Olson, the lawyer arguing in favor of marriage equality before the Supreme Court of the United States – the sixtieth time he’s appeared before America’s highest court –  has the background you’d least expect:

Certain law partners no longer call Theodore B. Olson for lunch. Old friends no longer come to dinner at his sprawling house in the woods near the Potomac. One of his best friends died in December, somewhat estranged.

All since Olson — the conservative legal hero, crusader against Bill and Hillary Rodham Clinton, defender of George W. Bush — signed on to fight for same-sex marriage in California, a battle that he will take to the U.S. Supreme Court on Tuesday when he challenges Proposition 8, the state measure that banned gay marriage.

Olson will argue that gays and lesbians should have an equal right to marry, a view that, if shared by the justices in a ruling after Tuesday’s hearing, would strike down the California ban.

“They feel a little rebuffed, that their leader has turned on them,” said Olson’s wife, Lady Booth Olson.

Olson, 72, brushes aside the shunning. The marriage case, the 60th case that he will have argued before the nation’s highest court, has been a transformative experience, he says. He speaks with passion, and sometimes a tear, about the gay men and women, including Republicans, who reach out to thank him.

[…]

…it was the election to replace President Clinton in 2000 that made Ted Olson a conservative hero. He persuaded the Supreme Court in Bush vs. Gore to block a planned re-count of presidential votes in Florida. The legal coup handed the White House to the Republican. Bush rewarded Olson by naming him solicitor general, the government’s chief representative at the high court. The nomination sparked a three-month confirmation battle. Worse lay ahead.

On Sept. 11, 2001, shortly after 9 a.m., Olson was in his Justice Department office preparing for the Supreme Court term that would begin in a few weeks. Barbara called, sounding anguished. She was on an American Airlines flight to Los Angeles. It was his 61st birthday, and she had delayed her trip to be with him the night before.

The plane had been hijacked, Barbara said, and she asked what she should do. The call was cut off. She called back, staying on the line long enough for them to exchange quick words of love. Ten minutes later, the plane crashed into the Pentagon.

Was Olson changed by his wife’s tragic murder and subsequent remarriage?  Maybe, but David Frum – another Republican heretic on this issue (and many others) – insists that he supported the idea well over a decade ago:

I vividly remember a dinner with Ted and Barbara Olson in February 2001. In those days, my in-laws spent most of the month of February in Florida, and they always stopped to see their grandchildren and (afterthought) my wife and me on their drives south and north from Toronto. The Olsons kindly invited the four of us to dinner during the stopover, which is how I can be so sure of the month; I can be sure of the year because the dinner was the last time my in-laws saw Barbara. She was murdered in the hijacking of American Airlines Flight 77 on September 11, 2001.

I don’t remember how or why the issue of same-sex marriage arose during the dinner, but it did. The balance of opinion at the time was 4-1 against Ted, with Barbara mostly preserving a discreet (and unusual!) silence on the subject. Ted argued very passionately that gays were entitled to every right of straight Americans, and drove home his point by itemizing instances of antisemitic discrimination that he, a Gentile, had battled at the beginning of his legal career. This is no different, he insisted. Near the end of the discussion, he predicted that the country – and everybody at the table – would come round to his view sooner or later, probably sooner.

They certainly did.

“How About Defending Speech Because It’s Speech, Not Because You Agree With It?”

I want to print this post from Popehat, frame it and mount it on my wall.

…Say that someone sues, or threatens, or abuses someone whose ideas you despise, someone whose good faith you doubt, someone working for political or social ends you are struggling against. If that censor is successful in any measure, are you harmed? Yes. You are harmed because the next censor, the one gunning for you or someone you agree with — is emboldened. You are harmed because people, in general, are deterred from discussing controversial ideas. You are harmed because when censors are successful, censorship increasingly becomes the norm, and the populace’s already tenuous support of principles of free expression ebb a little more.