Scalia and Me

I have had three (kind of) run-ins with Justice Antonin Scalia, none of which he knows about or would remember.

The third of these was decades ago, when I was on the Beltway traveling to see friends.  A large BMW passed me and I noticed that the license plate read “SCALIA.”  That’s gotta be Tony, I thought and I sped up to catch it.  Whoever was driving the thing must’ve seen me coming, because suddenly the Beemer sped up to about 90.  And now it was a race, which only made me even more determined to catch him.  I gunned my car and gave chase.  We kept playing follow-me/catch-up until eventually the Beemer got caught in traffic and I could pull alongside it to peer within.

The driver shot me a look and in my recollection he seemed a bit scared.  Which is how I know it wasn’t Antonin Scalia – even federal district court judges carry emergency “panic buttons” (I would learn that later; I didn’t know that when I was still young enough to start chasing Beemers that might be carrying Supreme Court justices) with which to summon federal marshals, but this guy was panicked by a kid in an old Chevy convertible chasing after him.

Still . . . the driver actually looked at lot like Tony, just a younger version.  He turned and stared at me and I thought it must be his son, but I don’t even know if Scalia has a son.  Maybe the streets of DC are just filled with a lot of short, heavy-set Italians named Scalia.

How About We Don’t Have a “Fair Fight”?

I may already have mentioned this, but Dean Baker has an excellent book titled The End of Loser Liberalism:  Making Markets Progressive that you can read for free here (although donations are welcomed).  It is filled chock-a-block with all kinds of economic data, analysis, and all the other number-crunching goodness one expects to find when reading Baker.

But it is the premise of the book that I think is particularly worthwhile.  Baker argues that Liberals need to start reframing, on a very basic level, the terms of the economic debate.  Right now, the conventional frame is that “Conservatives like the free market” and “Liberals like government control,” but as Baker points out this frame is a fairy story. 

By and large Conservatives don’t like the free market, what they like is monopolies and monopsonies (with themselves filling those roles), unfair information advantages over their competitors, government subsidies, and the “freedom” to defraud their customers.  (As to that last point, just think of Wall Street and the Republicans’ recent filibuster of Richard Cordray’s nomination to the CFPB; the GOP admits that Cordray is qualified for the position, they are just refusing to do anything that will empower an agency whose sole purpose is to protect the American people from being abused and defrauded by the big banks.)

Baker argues that Liberals need to do a better job of hammering this home:  that when Conservatives whine about “government intervention in the free market” what they really are whining about is anything that might prevent them from taking unfair advantage of their customers and competitors in an arena that – after all – was created and shaped by the government and all the rest of us to begin with.  What they are whining about is anything that might interfere with their efforts to cheat.

I was reminded of Baker’s book this morning whilst walking my dogs and thinking about how I’d like to see First Amendment jurisprudence change to better accommodate 21^st-century society, technology and media.  Contrary to what a lot of lay people believe, the law is not a static thing.  It is organic, constantly growing and evolving as its fundamental principles are necessarily re-interpreted to better fit the constantly growing and evolving human experience.  That is why legal scholars refer to the Constitution as “a living document.”  And it is the most fundamental reason why the law – at any given time – is never perfect:  because it is always playing catch up.

The latest big step in First Amendment jurisprudence, of course, was the Citizens United decision, which proclaimed that the First Amendment prohibits the government from restricting political broadcasts sponsored by unions or corporations.  I remember that only a day or two after the decision was handed down I was listening to a discussion about it on NPR that included either current Republican frontrunner Newt Gingrich, or Karl Rove, or Grover Norquist (all three are easily confused in my long-term memory; I think it’s the Hitchcockian profile they share).  Whichever GOP flack it was, he defended the decision, arguing that it “leveled the playing field” by making more political speech available to everyone, and harped on the fact that unions had just as much unfettered right to run political ads as do corporations (e.g., management).

And this morning I suddenly realized something that is so obvious I should have picked up on it immediately the decision came down:  the Roberts Court would never have handed down Citizens United before now.  Why not?  Because it has taken this long to destroy unionized labor.

Union membership – public and private – in the United States is now at a 70-year low.  Back in the mid-50s, fully 35% of the American workforce was unionized.  Thirty years ago, 20% of all American workers still belonged to a union.  Today it’s only 11.9%, but that’s only because of public unions (which is why they have been targeted for destruction by the likes of Govs. Walker and Kasich).  Today, only 6.9% of America’s private workforce is unionized.

Do you really think the Roberts Court would have issued Citizens United back in the ‘50s, when labor unions actually had the muscle to stand up to corporate management?  Do you think the Roberts Court would have done so even thirty years ago, when labor unions might at least still have put up a decent fight?  Of course not.  But today?  Now that thirty plus years of successively gutting the labor movement has shrunk the unions until they can be kicked around with impunity?  Oh, sure, now it’s no problem for the increasingly conservative Supreme Court to issue a ruling that “levels the playing field” by letting unions and management “compete in the arena of ideas.”

Now that management is Hulk Hogan and labor is Woody Allen, now it’s okay to get government out of the way, level the playing field, and “have a fair fight.”  And may the best man win.  (Wink wink, nudge nudge.)

Because that’s always the tell, you know.  Whenever you hear someone argue against government intervention because they want “a level playing field,” “a chance to succeed on the merits,” “a fair fight,” etc. . . . pay attention to who’s making that argument.  I’ll bet you that 9 times out of 10 it’s gonna be the guy who’s the biggest, richest and meanest prick on the block, which means that he knows he can take everything for himself and screw over everybody else if only he can convince the rest of us to throw out the rules.

He doesn’t want a fair fight.  He doesn’t want to compete on the merits.  He just wants the opportunity to pillage at will.

Parsing the Order Evicting Occupy Boston – Part II

I cross-posted my earlier thoughts regarding Judge McIntyre’s Order clearing the way for the eviction of Occupy Boston over at The DailyKos.  That generated a lot of comment and a great deal of pushback from a handful of people who argued hard with me that Judge McIntyre got it exactly right.

So I spent a good deal of time riding herd on the comments and fleshing out my argument re:  Judge McIntyre’s lack of intellectual honesty in Sections I(A) and (B) in her Order.  It turned out to be a great experience, because it helped clarify (and simplify) for me what it really is that I find so offensive about it.  I thought I’d leave a short post here revisiting the issue.

First Amendment Freedoms Are NOT Subject to Budget Constraints

There is a truly pernicious, evil idea that nearly everybody in the United States reflexively parrots and that at first glance looks like it might make sense but really, really doesn’t:  that the United States of America should be run like a business.

“We need to put a businessman in the White House!”  (Wait . . . George W. Bush was “the MBA President,” remember?  How about we don’t do that again.)

More Thoughts Re: UC-Davis Part 2

Doesn’t it seem a bit weird to anybody else that the UC-Davis campus police appear to be so well-armed?  Seriously, in addition to the military grade pepper spray that was used on the students, these campus police are decked out like storm troopers.

The questions this observation immediately brings to mind include:  How exactly was the decision made to spend the campus police’s budget on paramilitary equipment?  What kind of threat did the campus police think they would be called upon to deal with when they purchased this stuff?  Did they expect having to use it to put down student protests (the only thing I can think they might have anticipated facing)?  Do they routinely walk around campus decked out like this, or is this kept only for special occasions?  Did they think, when they were called upon by Chancellor Katehi to break up the Occupy protest, “finally, we get to use this stuff”?

It’s the last question that gives me pause.  I have absolutely no difficulty imagining a scenario in which the UC-Davis Campus Police successfully lobbied to spend its money purchasing anti-protest paramilitary equipment, and then locked it away for years because it was never needed.  But if you have a toy then eventually you are going to want to use it – even if its use really isn’t justified.  Just like Barney Fife from the old Andy Griffith Show, you are going to look for a reason to take that bullet out of your pocket and load it in your gun.

And that, of course, can lead directly to the kind of brutal overreaction we saw at UC-Davis last week.  Video of that incident makes clear that the campus cops’ paramilitary toys weren’t needed then, either . . . but you just know they were looking for an excuse to break this stuff out.

Perhaps we would all have been better off if the people responsible for overseeing things like campus security at UC-Davis had just tamped down on their guard dogs’ Rambo fantasies by pointing out that their job is to protect the security of college students, and thus their job realistically will never really require military-grade anything.

More Thoughts Re: UC-Davis Part 1

By now, this video of the UC-Davis cop pepper-spraying non-violent student protesters has become ubiquitous:

 In discussions with others about this incident, at least two people have made the same remark to me about the cop’s flourishing of the pepper-spray, right before he starts using it, for what he clearly feels is his audience:

PERSON A:   I think he was trying to get on record that he had warned the kids what was coming if they didn’t leave.

PERSON B:    You just know that his excuse is going to be that he told the protesters what he was going to do if they didn’t get up and leave, so it’s their fault that he had to pepper-spray them.

Now, I agree with these persons’ assessments of what we see in the video and what it is the cop thought he was doing.  But what I find extremely disturbing about all this is the underlying assumption that goes into the cop’s little performance.  He clearly anticipates – and is probably correct in doing so – that the average American citizen will agree that if the protesters didn’t comply with his order to clear the premises after he threatened them with violence then they deserve to get hit with pepper-spray (or maybe tazed, or perhaps beaten with nightsticks).

But this mindset is insane.  I don’t recall ever voting to give cops the right to abuse people for failure to comply with an order.  Arrest them, sure, slip the little zip-cuffs on them and haul them away to be bound before a magistrate – that is the very essence of peaceful protest, of civil disobedience.  But when did we decide that – before doing that – the police are perfectly justified in physically abusing peaceful protesters?

This seems to me an example of the idea of “liberty” – i.e., you have only the privileges society affords you, which can be taken away from you at any time by the people responsible for enforcing society’s dictates – trumping the idea of “freedom” – i.e., you have an absolute right to exercise certain prerogatives that precedes society’s dictates, and society may not abridge these rights.  (See here for more on the liberty/freedom distinction).

And that is very dangerous, because it can only work to enshrine the status quo.  While enshrining and perpetuating the status quo is the goal of any system, it cannot be the final goal of our society.  If it were, we’d still have segregation.  Hell, if it were, we might still have slavery.

Sometimes events conspire to prove that the status quo is unjust and inequitable and needs to be changed.  And that is when the freedom to challenge the status quo has to trump society’s interest in maintaining “business as usual.”

America's Tacit Approval of Police Brutality

Updated Below

Via Angry Black Lady at Balloon Juice comes this story about Occupy Davis (UC-Davis), where “a police officer approached a group of students sitting in a line peacefully on the ground, walked up and down the line and pepper-sprayed them directly in the face – as one would spray pesticide on weeds.”  If you click over to ABL’s post you can watch the 8 minute YouTube of the incident, and here is a photo:

(h/t Atrios)

My first thought, when I spotted that photo at Eschaton, was the same as ABL’s:  anger at the cops’ decision to deal with these student protesters in such a casually cruel way.  “They’re treating people like things,” I thought to myself, “nothing more than an impersonal nuisance to be dispersed.”

But, upon reflection, I don’t think my initial impression was correct.  The truth is, the cops were not dealing with these students as mere things, but definitely as people.  And while the decision to pepper spray them directly in the face seems from the photo and the video to have been casually made, I’ll bet it wasn’t. 

OWS: Liberty vs. Freedom

Real Life stuff and trying to keep up with what is going on with the Occupy movement has delayed me getting into American Nations: A History of the Eleven Rival Regional Cultures of North America, but I picked it up again yesterday. 

The author, Colin Woodard, begins by describing in chronological order the origin of the oldest of these cultures: El Norte (the northern portion of Spain’s American empire, essentially a 100 mile strip running along the modern U.S./Mexico border and – at the time – up into California), New France (the settlement of eastern Canada and, as an outpost and afterthought, Louisiana), Tidewater (English planters in Maryland, Virginia, southern Delaware, and northern North Carolina), and Yankeedom (the New England states, especially after the Puritans’ Massachusetts Bay Colony established dominion over them following Cromwell’s victory in the English Civil War).

In his description of the Tidewater culture, Woodard begins foreshadowing the United States’ own Civil War by offering a cultural/historical explanation for the starkly different traditions that would develop between the states.  He describes 17^th century Tidewater as essentially nothing more than a place of huge manorial estates without a single actual town to be found there.  He explains that each such estate was in essence a perfect fiefdom, in which the planter whose estate it was had complete and absolutely authority – including that of life and death – over all persons.

He then attempts to explain how a culture of such authoritarianism could produce champions of republicanism like Thomas Jefferson, George Washington and James Madison. 

Hope Springs Eternal

As I mentioned last night, Matt Yglesias already has gone on record expressing the belief that Bloomberg’s decision to shut down the occupation of Zuccotti Park “has ensured continued relevance for the issue.”  And this does seem to be shaping up as the favored consensus among those working in the Left Blogosphere.

Over at No More Mister Nice Blog Steve M. refers to this phenomenon as “The Dubious New Pundit Meme:  Bloomberg Did Occupy Wall Street a Favor.”  He cites Ezra Klein arguing that Bloomberg’s clearing of the park was done “in a way that will temporarily reinvigorate the protesters and give Occupy Wall Street the best possible chance to become whatever it will become next.”  He also cites Derek Thompson of The Atlantic arguing that “[w]ether or not the protesters return to their tents, New York police have given them a chance to lift up, take stock, and pitch their energies in an issue worth occupying . . . .”

Same as It Ever Was: The Feds' Crackdown on Dissent

Something that had been worrying about in the back of my mind for the past coupla weeks was whether the crackdowns we’ve recently been seeing on Occupy protests in cities around the country might have all been part of a single coordinated effort.  My interest was definitely piqued when Oakland Mayor Jean Quan let it slip in a BBC interview that she

was recently on a conference call of 18 cities who had the same situation, where what had started as a political movement and a political encampment ended up being an encampment that was no longer in control of the people who started them.

And now we get this story that suggests not only that the nationwide crackdown on the Occupy movement was coordinated by the various cities involved, but that the federal government was assisting in that crackdown as well:

Over the past ten days, more than a dozen cities have moved to evict “Occupy” protesters from city parks and other public spaces.  As was the case in last night’s move in New York City, each of the police actions shares a number of characteristics.  And according to one Justice official, each of those actions was coordinated with help from Homeland Security, the FBI and other federal police agencies.

[snip]

According to this official, in several recent conference calls and briefings, local police agencies were advised to seek a legal reason to evict residents of tent cities, focusing on zoning laws and existing curfew rules.  Agencies were also advised to demonstrate a massive show of police force, including large numbers in riot gear.  In particular, the FBI reportedly advised on press relations, with one presentation suggesting that any moves to evict protesters be coordinated for a time when the press was least likely to be present.

Well.  That sure sounds like what happened in New York two nights ago.

* * *

Sadly, if it turns out the federal government did assist a coordinated effort across the nation to disenfranchise American citizens of their First Amendment right to peaceably assemble and protest their very disenfranchisement . . . well, I won’t be surprised. 

One of the very first things I wrote on this blog was “A Brief History of American Class Warfare.”  There I provided three examples – largely glossed over by our history books and forgotten by most people today – in which The Powers That Be wielded federal power, including the U.S. military, against disenfranchised Americans who were protesting the system that had disenfranchised them.  One such forgotten example was the use of the U.S. military – including tanks – to drive out the Bonus Army that had created a permanent encampment (much like OWS did) on the banks of the Anacostia River in 1932 to agitate for payment of their promised WWI bonuses.

The sad fact is that the United States has a long history of using all its institutional might to preserve whatever existing system has control of it -- the Constitution be damned -- and the idea that the Department of Homeland Security might be involved in crushing peaceful American protesters instead of dangerous foreign terrorists just doesn’t surprise me.  I suspect that most DHS officials don’t even think of this as “mission creep,” but as simply doing the job they were hired to do.

I will be curious, however, to learn precisely what the federal interest was in crushing the Occupy movement.  I’ll be curious as well to see whether my fellow citizens don’t get just a teensy bit alarmed now that their government is actively working to suppress voices that peacefully dissent from continuing “business as usual” here in America.

And I will be very curious to learn whether any right-wing militia whack jobs, the overweight ones running around in the woods of Idaho in camo gear training to fight the inevitable totalitarian police state that they envision the federal government imposing sometime in the near future, will rally in support of the Occupy protesters when they learn the federal government has indeed taken action to shut down dissent, and that part of that action involved a “massive show of police force” -- including even the black helicopters that haunt the militamen's fever dreams, and the imposition of no-fly zones for civilian aircraft.

My guess is that they won’t.  My guess is that the hard-core, survivalist nutjobs of the extreme right-wing in this country are going to look at what their much loathed feds did and say:  “Good on the feds.  Dirty hippies.”

Truly, we are doomed.

Parsing the Order Ending the Occupation of Wall Street

So, we now have the Order of the Supreme Court of New York effectively ending the occupation of Zuccotti Park.  You can read it here.

(Note that the New York judiciary is organized, ah, differently than is the federal judiciary and that of all the other states.  In New York, the Supreme Court is not that highest court in the land.  That would be the NY Ct. of Appeals.  No, the NY Supreme Court is actually the trial court, and hierarchically is therefore the lowest court in the land.  No, I don’t know why they gave it that name either.)

As was easily predicted, the basis for the judge’s determination that OWS does not have a constitutional right to occupy Zuccotti Park is the ability of others to impose “time, place, and manner” restrictions on speech. 

Our Unequal First Amendment Rights

UPDATED BELOW


Good Lord.  I woke up this morning to find David (There is No Spoon) Atkins reporting over at Digby’s joint on the NYPD’s clearing of Zucotti Park.  Atkins listed a number of incidents reported via twitter and I am sure that the story will become clearer as it progresses, but these reports struck me as paticularly creepy:

--  All media and press were not allowed within a block of Zucotti Park;

--Airspace over Zucotti was blocked by police helicopters and legally blocked to prevent any media coverage;

--Journalists gathered together to attempt to gain access were denied.  According to one report, one cop tore a press credential off a journalist, while another responded to a journalist’s claim to be press by saying “not tonight”;

--the Brooklyn Bridge was shut down until 6 am;

--Most subways and trains into downtown were blocked, including with cops at entrances.

Is there any doubt that L’il Mikey Bloomberg and his button men, the NYPD, intended to create a full media blackout here?  I thought this was something that we don’t allow happen in the United States of America, land of the First Amendment and home of the Bill of Rights.

On the Nature of Protest

Something I’ve said for a while is that the 24/7 news cycle we now live under has forever changed the nature of political protest.  Back when we all got our news from only 3 different TeeVee channels and a coupla national newspapers, back when the news got shut off except for a few hours every day, a massive protest/rally could command the nation’s attention.  If half a million anti-war protesters assembled on the Washington Mall for a weekend then we’d end up talking about it for days – weeks, even.

But that is no longer the case.  The largest protests in the history of the human species were the protests to prevent the U.S. from going to war in Iraq and they got barely a mention by the media.  Once the protest/rally/marches were over they were flushed down the memory hole and conveniently forgotten by a press eager for the chance to showcase a War Spectacular.

The Occupy Wall Street/Occupy Movement/Occupy Together people (I don’t even know what to call them any longer) have at least internalized this lesson and figured out that the only way to keep shining a spotlight on a problem is not to leave.  And to keep yelling.

Which is one of the reasons I found this article by The Atlantic’s Wendy Kaminer so disturbing:

Do Occupy Wall Streeters have a First Amendment right to occupy public parks indefinitely, 24/7, to the exclusion of other uses?  No, they do not, obviously.

Really?  That’s obvious?  It doesn’t seem so to me, and I would like to hear why Ms. Kaminer thinks it is so obvious that the OWS crowd doesn’t have this right.  But she never explains herself, she just states it as a fact, calls it “obvious,” and then moves on.

Later, Ms. Kaminer supposes that

Cities may impose reasonable time, place, and manner restrictions on mass protests; a one or two month (or even a two week) time limit on a tent city in a small public park in a busy urban area would probably be deemed reasonable even by a court sympathetic to the protests (as I am.)  So would a ban on overnight camping.

I confess, I just don’t get this at all.  And – reading Ms. Kaminer’s article – I wonder how much of what she is espousing is just based on a desire to get back to “business as usual.”

For example, there is her reference to a time limit on a tent city protest “in a busy urban area.”  Is that supposed to make a difference?  Should we be more willing to let people do a tent city protest in the woods than we are to permit them to protest in “a busy urban area”?  And if that is the case, then isn’t what Ms. Kaminer really is suggesting is that protests are fine so long as they don’t inconvenience anybody?  But the very point of a protest is to inconvenience people in order to draw attention to one’s cause.

When bus drivers go on strike, they are telling the city for which they work that their contribution to everyday life is worthwhile, and that they need to be compensated accordingly.  We don’t tell those striking bus drivers “Yes, I support you, but I also can’t afford to be inconvenienced so you don’t have the moral right to withdraw your labor.  Now take me to my office.”

Same/same when it comes to the Occupy Movement.  How dare someone suggest that they – or any other movement – have only 2 weeks in which to make their point and then, having made their point, are to fold up tents, go home, and let “the serious people” ponder what it was they had to say?  This strikes me as the absolute height of arrogance.

I would argue that – given the nature of the world we live in now – the 18^th century ideal of “petitioning the government for redress” must be read so as to include the right to a 24/7 occupation of a public space.  I would argue that this is, in fact, what the First Amendment means in the 21^st century.  I would argue that to suggest otherwise is to betray the very first founding principle upon which our society ultimately depends.

I could be wrong, of course, and I’d love to hear why that is.  But to just dismiss this idea, as Ms. Kaminer does, is to assert a position and then side-step the debate.