limits of free speech

As I’ve said before, I’m pretty close to being a free speech absolutist. I’ve defended racist speech, hateful speech, misogynistic speech, ugly speech of every sort. I may not like it, but I defend a person’s right to say it. Most of my friends know this, so I routinely get email from folks with links to free speech issues.

Today I received a few emails referring to the Gary Stein case, one of which linked to a Gawker post that included this cartoon:

The case involves 26 year old Marine Corps Sergeant Gary Stein, a nine-year veteran. Stein made several disparaging remarks about President Obama on his Facebook page. He called the president “a coward,” he referred to him as an “economic and religious enemy,” he vowed he would never salute him and stated he wouldn’t follow his orders (which he later amended to say he wouldn’t follow “illegal orders”).

I completely support Stein’s right to have those opinions and to voice them as a private citizen. But here’s the problem. He’s not a private citizen. He’s a member of the United States Marines and however much he hates it, Barack Obama is his Commander in Chief. As a Marine, Sgt. Stein’s behavior is ruled by the Uniformed Code of Military Justice, not by the laws that pertain to ordinary citizens. Article 134 of the UCMJ says this:

[A]ll disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Insulting the Commander in Chief has always been considered conduct that brings ‘discredit upon the armed forces’ and detrimental to the ‘good order and discipline of the armed forces.’ Sgt. Stein could have been subject to a court-martial and, if found guilty, given a dishonorable discharge. Instead, he was given an administrative hearing and a three judge panel recommended he be given an administrative discharge.

I think that’s appropriate. Stein had served long enough to be familiar with the rules of conduct. He should have known better. It’s not uncommon for military personnel to talk trash about their superiors (hell, it’s almost mandatory), but it’s one thing to talk trash with your buddies in private and it’s altogether another thing to post comments on public social media.

The Gawker piece concludes: “However outraged you would have been had an Iraq war veteran Marine been dismissed for saying something bad about George W. Bush on Facebook, that’s how outraged you should be now.” I agree with that completely. When Air Force Lt. Col. Steve Butler called President Bush “contemptible and sleazy” and suggested the invasion of Iraq took place because the “economy was sliding into the usual Republican pits and he needed something on which to hang his presidency” (sentiments I happen to agree with), I believe the Air Force did the right thing in booting his ass out. Active duty military personnel DO NOT insult the Commander in Chief, no matter how passionately they may dislike him.

One of the reasons I always say I’m close to being a free speech absolutist is because there are situations like this. Being a member of the military carries some extra burdens, one of which is you can’t always speak your mind.

No–that’s not true. You can still speak your mind. You just have to accept the consequences. For Gary Stein, that meant being discharged from the Marine Corps.

But don’t feel too badly for him. His disrespect for the Commander in Chief may have ended his military career, but it’s kickstarted his career as a radio talk show host. Is anybody surprised to learn Citizen Gary Stein has been given a radio show?

happy birthday edward r.

Today is Edward R. Murrow’s birthday. Murrow is lionized by journalists and students of journalism–and rightly so. He had the sort of career people make movies about (and, in fact, they did: Good Night, and Good Luck, 2005).

His first real brush with fame took place in 1940 during the Blitz, when the German Luftwaffe indiscriminately bombed England. Murrow, a reporter for CBS Radio, was stationed in London when the bombing began and he remained at his post, broadcasting live during the height of the Blitz. He ended each broadcast by saying “Good night, and good luck.” It wasn’t just a catchphrase; more than a million homes and buildings in London were destroyed during the Blitz, and some 20,000 Londoners were killed. Luck played a big role in who would still be alive come morning.

But it was Murrow’s stand against McCarthyism that sealed his fame. In the early 1950s, Senator Joseph McCarthy was using his position on the Senate Permanent Subcommittee on Investigations to browbeat anybody he even remotely suspected of treason, disloyalty, or subversion (which appeared to include anybody who disagreed or questioned Sen. McCarthy). Very few people were willing to stand up against McCarthy. Murrow was one of the few, broadcasting two special reports on McCarthy and his tactics. He ended the second report with this:

     We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men—not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.

This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.

What made this remarkable, aside from the courage it took to confront McCarthy, was the fact that Murrow was known as a reporter–a newsman. Not an analyst, not a commentator, not a pundit–a reporter whose job was to report facts.

I’m mentioning this mainly because that approach to the news seems to have largely disappeared. Modern journalists tend to report what news-makers say; they rarely bother to report whether what is said is truthful or accurate. This allows folks like Mitt Romney to make outrageous claims (like, say, Romney’s claim that the Obama administration is engaging on a systematic assault on people of faith) without any fear of contradiction (or any fear of being revealed as a lying sack of shit).

Modern journalists seem to have abdicated their role as reporters of fact and have become instead mere recorders of statements. They do this in the mistaken belief that they’re being objective–that objectivity means reporting ‘both sides of a story.’ And to be sure, nonpartisanship is something to which journalists should aspire. But it’s not partisan to point out the facts when one side of the story is utter bullshit. For example, when gun rights advocate John Lott claims that “laws allowing for the concealed carrying of handguns causes levels of violent crime to drop,” it’s not partisan to point out that the report on which he bases that claim has been debunked because of fabricated data. Allowing a subject to make a statement that’s patently untrue and that relies on ‘data’ that somebody just made up isn’t being nonpartisan; it’s being stupid. Worse, it’s contributing to the stupidization of the general public.

I wouldn’t presume to put words in Edward R. Murrow’s mouth–no, wait. I will, in fact, be that presumptuous. If Murrow were alive to celebrate his 104th birthday, I suspect he’d be likely to say something like this: “Journalists,your job is to report, not just repeat.” And then he’d say “Good night, and good luck–and stop being such useless dicks.” I’m pretty sure that’s what he’d say.

the real assault on free speech

Let me begin by saying two things: First, I’m pretty close to being a free speech absolutist. Second, I like the Catholic Church. I’m not a Christian and I think an awful lot of Church doctrine is laughable nonsense, but I very much like the concept of the Church. I like the continuity and the tradition and the ritual of the Church, even while I actively despise some of the practices caught up in the continuity, tradition and ritual.

That said, it’s hard to defend Bishop Daniel Jenky of Peoria, Illinois. He recently delivered a very public and widely-disseminated homily deploring how the Obama administration has conspired to deprive Catholic Bishops of their right to free speech. How? By considering (and later rejecting) legislation that would have required Catholic institutions to provide the same level of health care coverage to women employees that every other employer is require to provide. Here’s an excerpt from the homily:

Now, I totally support the right of Bishop Jenky to compare President Obama and his policies to those of Stalin, Hitler and Bismarck. It’s untrue, it’s offensive, and it’s wildly delusional–but I support his right say it. I also fully support the right of the Church to make decisions regarding religious doctrine to be followed by Catholics (I don’t think it even needs to be said that I support the right of Catholics to ignore that doctrine).

What I cannot support–what I find profoundly hypocritical and arrogant–is Bishop Jenky melodramatically whining about these illusionary assaults on his free speech at the same time the Congregation for the Doctrine of the Faith is condemning U.S. nuns for voicing their own opinions on the very same subjects Jenky is discussing.

The Vatican has ordered that the Leadership Conference of Women Religious–a group representing nearly 60,000 nuns–be ‘reformed’ for making “occasional public statements” that disagreed with the Conference of Bishops, “who are the church’s authentic teachers of faith and morals.” An Archbishop (a man, of course, since women can’t be ordained in the Church) has been given the task of overseeing this ‘reform.’ It’s pretty clear that when they say ‘reformed’ they mean ‘muzzled.’

I suspect Bishop Jenky–one of those ‘authentic teachers of faith and morals’–is  incapable of seeing the irony in this. How could he, when his head is that far up his own ass?

from the world of the batshit crazy

A couple times a week I visit a few extreme right wing conservative websites. I tell myself it’s because it’s important to try to understand people with whom you disagree–even if you disagree strongly. And I believe that’s true. But it’s also true that I visit those sites because they make me laugh. Sometimes they’re so wildly illogical that you have to wonder if they’re actually parody. Maybe some sort of performance art.

Sometimes, of course, those sites are just sad and pathetic. And sometimes there is so much hate and rage behind the posts that it’s a tad frightening. And then there are the times when they become so batshit crazy–so divorced from anything remotely resembling reality–that they generate a sort of out-of-body, hallucinatory experience.

Today was one of those days. It all begins with a White House photograph showing President Barack Obama wearing a pair of glasses while napping on a sofa. But wait, you say, the president doesn’t wear glasses. So why is he wearing them? And why would he wear them when napping?

Because those aren’t just any old pair of glasses. No sir, no ma’am–according to a few right wing bloggers, those are the very glasses worn by Malcolm X on the day he was assassinated!

How did the president obtain those glasses?

From his mother, obviously. There is speculation (and seriously, I’m really not making any of this up) among some of the more lunatic right wing Obama-watchers that Malcolm X was actually the president’s biological father. If a person is capable of believing that, then it’s only a short walk down Loopy Street to believing Obama’s mother was present in the audience on the day Malcolm X was murdered. And if she was there, then…

…the pandemonium that ensued when Malcolm was shot dead on that stage could have left Stanley Ann Dunham ignored while the slain leader’s distraught wife and family members hurried to the hospital…. Did the President’s mother grab these glasses for safe keeping to give them to her son? Was she ignored, forgotten? Were these glasses all she could take away from that horrible scene?

If it’s possible, then it must be true! There’s no other logical explanation for the president to be wearing a pair of glasses while taking a nap! His mother, teenage lover Stanley Ann…unable to follow Malcolm to the hospital because of Malcolm’s wife and child, is left behind, grief-stricken and horrified. And then, almost as if by magic, there, amidst the hideous chaos, are his eyeglasses. His precious, signature, tragically broken eyeglasses. So of course she took them to give to her three year old son, because he’d need them in the future when he’d be napping as president. Any mother would do the same.

What…you want even MORE proof? Here it is:

When Malcolm was shot at the Audubon Ballroom, 21 February 1965, as usual, he was wearing his eyeglasses.

Yet when he was wheeled out, his eyeglasses were off.

Then –

No eyeglasses on Malcolm’s body at the wake.

No eyeglasses at the funeral.

Whatever happened to Malcolm X’s eyeglasses?

Now that we have the White House photo, above, it may not be a mystery after all.

Satisfied now? Malcolm X was Barack Obama’s biological father. How do we know that? Because despite the fact that there’s an unfortunate lack of evidence that Ann Dunham and Malcolm X were ever in the same town at the same time, he and President Obama sorta kinda look alike (I swear, I am NOT making this up). Malcolm X was assassinated and his glasses mysteriously disappeared. How do we know that? Because they’re not in a photograph of the crime scene, and any disappearance is mysterious by definition.

But since there’s now indisputable photographic evidence that non-eyeglass-wearing Obama is clearly wearing glasses while napping, and since he’s indisputably the love child of Malcolm X and since Malcolm X’s indisputable glasses are indisputably nowhere to be found, surely there can’t be any dispute. Those MUST be the glasses of Malcolm X.

Welcome to the world of the batshit crazy.

not quite yet

In the 1930s the Banner Coal Company explored “an unusually good grade” of coal in central Iowa, just a few miles south of Des Moines. The vein was rather shallow, buried beneath only forty feet of soil and shale. The shallow depth and the fragile ‘roof’ made mining the coal problematic. Traditional mining techniques wouldn’t work. So the company resorted to the open pit process.

Open pit mining wasn’t new. The practice had been used in the U.S. for a century–since the 1830s. The Banner Coal Company knew how to wrench the most product from the earth with the least fuss (and the most profit). They brought in the largest electric dragline excavator in the country (spectators traveled for miles to watch the massive machine at work) and for the next two decades they hauled coal out of the pits. It was the largest strip mining project in Iowa history.

By the mid-1950s, the coal was gone–and when the coal was gone, the coal company went with it. They sold the land–some 220 acres–to the Iowa Department of Natural Resources, which intended to turn the area into a wildlife management area. The operative term there is intended.

Half a century passed without much being done. The pits slowly filled with groundwater. Natural flora grew wherever there was enough soil to support it. Growth on the waste-rock and tailings was spotty to say the least, and the only plants that grew were brought there by wind and wildlife. But the wildlife came, drawn by the water. It came, settled, made nests, created dens. It wasn’t just animals–kids were also drawn in by the deep pools of dark water (that attraction almost certainly heightened by parental warnings against the place).

In addition to the 80 acres of former-pit-turned-lake, the landscape is dotted with strange little pocket marshes and hidden sloughs where turtles and frogs squat with cranky blackbirds and condescending herons. In 2002 the Department of Natural Resources finally decided to turn the site into a state park. They built bicycle trails (for both casual cyclists and adrenalin-crazed mountain bikers), they set up picnic tables, added a boat ramp, and brought in other amenities.

Despite the work that’s been done, the area still has an odd, semi-feral, almost post-apocalyptic feel. There’s a sense that Nature is patiently and unceasingly trying to overcome the damage done by thoughtless humans. Trying, but it’s been a struggle.

I feel strangely at ease here. As much as I despise the damage done by the Banner Coal Company, I can’t get too pissed off at them. In the 1930s they had little knowledge about the long term effects of this type of mining operation. In their ignorance, they created a landscape that feels wounded–even mutilated. And yet it’s a very compelling landscape, partly because of the harm that was done and partly because of the organic regrowth that hasn’t quite been able to repair the damage. Yet.

I like that yet. It’s a good yet. A comforting yet. Some day this area will lose its post-apo air. It’ll just be an unusual lake. Some day. But not quite yet.

bullshit is not news

So a couple of days ago a political pundit name Hilary Rosen was talking about the whole constellation of policies that have been labeled as the ‘Republican War on Women.’ She mentioned that Republican presidential candidate Mitt Romney often cites his wife as his source of information about women’s issues, including how the economy affects women in particular. And then she said this:

His wife has actually never worked a day in her life. She’s never really dealt with the kinds of economic issues that a majority of the women in this country are facing in terms of how do we feed our kids, how do we send them to school and how do we — why we worry about their future.

It seems obvious from the context that what Rosen was saying was that Ann Romney has never been employed a day in her life–which is accurate. But of course the conservative media immediately pilloried Rosen for ‘insulting stay-at-home-moms’ and ‘attacking Ann Romney.’ The other news outlets responded like sharks in chum-filled waters.

Mrs. Romney went on FOX News (the safe conservative ‘news’ channel) to defend herself. She said this:

My career choice was to be a mother, and I think all of us need to know we need to respect choices that women make. Other women make choices to have a career and raise a family, which I think Hilary Rosen has actually done herself. I respect that, that’s wonderful. But there are other people that have a choice, and we have to respect women and all those choices that they make.

It doesn’t need to be pointed out that a parent (father or mother) electing to stay home and care for children is a legitimate choice. It apparently DOES need to be pointed out, though, that it’s not a choice every parent has. A lot of parents who would like to make that choice simply can’t–sometimes because there’s only one parent, sometimes because it takes two incomes to pay all the bills. When Ann Romney says “I think all of us need to know we need to respect choices that women make,” I can agree with her wholeheartedly. But I can also say that for a lot of women those choices include affordable contraception and, if necessary, easy access to safe abortion services.

Hilary Rosen’s choice of words may be unfortunate, but she was right. Ann Romney has never had to face the choices made by most working moms. She’s never had to wonder how to pay the bills at the end of the month, she’s never had to worry about finding affordable day care, she’s never had to worry about being late to work (and possibly risking her job) because of an unexpected kids car pool crisis, she’s never had to choose between having lunch or running a necessary errand over the lunch hour, she’s never had to feed her children breakfast and prepare their lunch and insure they’re properly dressed while preparing herself for the work day and getting everybody out the door on time. Ann Romney has never had to lose a day of pay in order to stay home with a sick child, or worry about affordable health care. When she was diagnosed with Multiple Sclerosis, she included riding dressage as part of her treatment plan (her horses are valued at over US$250,000). She’s never had to worry about being refused health insurance because she had Multiple Sclerosis as a pre-existing condition.

Ann Romney is a fortunate woman, and nobody should criticize her for her good fortune. But if her husband is going to cite her as a source of information about how the economy affects women, then it’s appropriate for people to point out that even if she’s a really nice woman, she doesn’t know jack-shit about being a working mom. She’s never had to struggle with the crises that face employed mothers on a daily basis. Hilary Rosen, on the other hand, actually IS a working mom. She HAS had to face those issues. When she points out that Mitt Romney advocates policies that make life more difficult for women in general and working women in specific, policies that restrict their choices and limit their options, and when he cites his wife as an adviser, then it’s okay for for people to evaluate whose opinions are more valid: Hilary Rosen or Ann Romney.

For this non-story to be turned on its head, for Ann Romney to be portrayed as a victim and Hilary Rosen as a villain, is an example of how the modern news media is less about delivering the news and more about creating controversy to drive up viewership and guarantee advertising revenues. This is not news. This is just bullshit being reported as news.

a lot to ask

I feel a little like Michael Corleone in that horrible third Godfather movie. “Just when I thought I was out…they pull me back in.” I keep thinking I’m done writing about Trayvon Martin and George Zimmerman, but then something happens…and they pull me back in. I really didn’t think the special prosecutor, Angela Corey, would charge Zimmerman with a crime. But she did, and here I am again.

I’m here again because a lot of people I know seem to think Zimmerman’s conviction is almost guaranteed. After all, he clearly shot and killed a young, unarmed man who’d done absolutely nothing wrong. Even more egregious, he did that after being informed by a police dispatcher than he shouldn’t follow the soon-to-be victim. And still worse, he was apparently following Trayvon in large part because of what appear to be racist suspicions. How could Zimmerman NOT be convicted?

Here’s what most folks don’t understand: our court system isn’t about justice. It’s about procedure. It’s about rules of evidence and interpretations of law; it’s about a process that deliberately tries to remove as much passion as possible from the consideration of the evidence. And that’s a good thing. It’s a good thing because passion leads folks to make really stupid decisions, and in a courtroom passion almost always works against the accused. Of course, the accused is usually guilty–but on those occasions when the accused is factually innocent, passion is anathema. Down at the bone, what takes place in a criminal court is–and should be–about protecting the innocent. And as I’ve said elsewhere, when he walks into that courtroom George Zimmerman has to be considered an innocent man.

Normally, almost all the advantages in a criminal trial belong to the prosecution. They have more investigative manpower, they have crime labs and technicians, they have more lawyers, they have the entire power and authority of the State on their side. The defense, in most cases, consists only of an overworked lawyer and maybe, if they’re lucky, an investigator.

To counterbalance that inequity of power, the State has the burden of proof in a criminal case. They have to prove beyond a reasonable doubt that the defendant committed all the elements of the crime of which he’s accused. Zimmerman is charged with Murder in the Second Degree, which is the “unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.”

In this case, the prosecution will have to prove two things that will likely be difficult. First, that the killing was unlawful and second, that Zimmerman had a ‘depraved mind’ at the time of the shooting. Depravity of the mind generally means the crime was committed with ill will, hatred, spite, or an evil intent, even if the crime wasn’t premeditated. My guess is the prosecution will use Zimmerman’s use of the racial epithet ‘coon’ and his comment that ‘these assholes always get away’ combined with his continuing to follow Martin even after being told he shouldn’t as evidence of a depraved mind. It could work–though the defense will surely point out that if Zimmerman had possessed a depraved mind at the time of the crime, he wouldn’t have called the police to report what he thought was a suspicious person.

It’s that first element–that the shooting was unlawful–that will be most difficult for the prosecutor to prove. Unless there’s some evidence or a witness to counter Zimmerman’s claim that he was in fear for his life at the time of the shooting, the case could collapse before it goes to trial. It’s possible, though unlikely, the case could be dismissed during a pre-trial hearing on the ‘stand your ground’ law.

My guess is the prosecutor will argue that the justification defense doesn’t apply because Zimmerman provoked Martin. In Florida law, provocation trumps justification–with a couple of exceptions, one of which is if the “force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.”

In other words, if Zimmerman provoked Trayvon into assaulting him (by, say, following him around in the dark with a handgun) then Zimmerman can’t rely on the ‘stand your ground’ law…unless the level of violence that resulted from the provocation was enough to put Zimmerman in fear of his life. And if both Trayvon and Zimmerman believed they were in fear of their lives, then the law still protects Zimmerman. In the absence of eyewitnesses to the actual confrontation between the two, anything is going to be difficult to prove beyond a reasonable doubt.

I suspect the prosecution brought the Murder in the Second Degree charge against Zimmerman in the hope that the judge will allow the jury to consider what’s called a “lesser included offense.” That’s a lesser crime whose elements are also encompassed by the larger crime. In this case, the jury might not be willing to find Zimmerman guilty of Second Degree Murder, but might find him guilty of the lesser crime of Manslaughter, which doesn’t require the ‘depraved mind’ element.

If this case goes to trial and the trial goes to the jury, it will revolve around the willingness of the jurors to decide what George Zimmerman was thinking and feeling at the moment the shooting took place. That’s a lot to ask of a jury.

But the killing of a young man who’d done nothing wrong gives the prosecutor the right to ask it.

Update: The prosecutor has released the affidavit of probable cause in the Zimmerman case. In it she states Zimmerman “profiled” Trayvon Martin, which sounds pretty accurate. She also says the police dispatcher “instructed Zimmerman not to” follow Martin, which is a little less than accurate. Most importantly, she says “Zimmerman confronted Martin,” which is something we’ve suspected but never had any evidence to support it. However, she also says “Witnesses heard people arguing and what sounded like a struggle,” which suggests there are no eyewitnesses to the confrontation. That’s pretty critical. Nor did she refer to any racial epithet, which seems an odd omission.