By Stephen Bergstein
Z Magazine
September 2012

As the crime rates in New York City continue to drop, courts are taking a hard look at the police department’s stop-and-frisk practices in light of evidence that racial minorities are being disproportionately searched by police officers on the street without justification. Significantly, a federal judge in May 2012 authorized a class-action lawsuit alleging the police department routinely frisks minority residents on the basis of their race.

Sooner or later, every significant dispute over governmental practices winds up in federal court with the Constitution as the legal backdrop. Yet, the Constitution provides no easy answers. The Fourth Amendment does limit police activity, but its language is sufficiently vague and malleable as to allow the government as well as the courts to interpret it nearly any way they choose. That amendment simply reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the Fourth Amendment provides concrete guidance on search warrants, the prohibition against “unreasonable searches and seizures” is open-ended.

Terry v. Ohio

In 1968, the Supreme Court interpreted the Fourth Amendment in the context of stop-and-frisks. A stop-and-frisk is almost self-explanatory. Law enforcement officers approach some people on the sidewalk and, without a warrant, stop them and ask questions before patting them down for contraband such as drugs or guns. In Terry v. Ohio, the liberal Warren Court noted that, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

Chief Justice Earl Warren (who as California’s attorney general during World War II oversaw the internment of Japanese-Americans) displayed remarkable sensitivity to the harms associated with arbitrary police stops: “It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime—‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. It is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a search. Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”

In formulating a legal standard governing stop-and-frisks, the Supreme Court rejected the probable cause test in favor of the more lenient “reasonable suspicion” test, owing to the “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” Under this standard, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” This judge-made legal standard represented a compromise to ensure that citizens are not arbitrarily stopped by the police who still have a difficult job in patrolling the streets. The Court said, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security and it must surely be an annoying, frightening, and perhaps humiliating experience.”

On the other hand, “we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”

The Supreme Court in Terry did not specifically address racially-motivated stop-and-frisks. But it foreshadowed that issue in a footnote, observing that a presidential commission found in 1967 that “in many communities, field interrogations are a major source of friction between the police and minority groups.”

Floyd v. City of New York

In Floyd v. City of New York, a case pending in federal court in Manhattan, Judge Shira Scheindlin addressed the issues surrounding racially-motivated stop-and-frisks. In May 2012, she held that the plaintiffs may bring a class-action lawsuit against New York City on the basis that the city has engaged in a policy and practice of unjustified street searches on the basis of race. The lawsuit highlights a series of disturbing statistics, particularly in light of the city’s agreement in 2004 to reform its stop-and-frisk practices to reduce the racial impact on these searches. As Judge Scheindlin noted, in a city populated by approximately eight million people, officers now make almost 600,000 pedestrian stops per year. “On over 2.8 million occasions between 2004 and 2009, New York City police officers stopped residents and visitors, restraining their freedom, even if only briefly. Over 50 percent of those stops were of Black people and 30 percent were of Latinos, while only ten percent were of Whites.”

This racial disparity is no accident. One police officer testified that he believed the NYPD “absolutely” has a problem with racial profiling: “I work in a minority community and what we do to people in the South Bronx you would never do to people in midtown Manhattan.... Illegally searching, illegally stopping, illegally handcuffing, put phony charges on them, put it through the system.” This officer saw officers stop and question civilians without having reasonable suspicion “every day.”

Tape recordings reveal police supervisors demanding that patrol officers stop-and-frisk anyone walking around certain neighborhoods. One sergeant said, “If they’re on a corner, make ’em move. They don’t wanna move, lock ’em up. You can always articulate [a charge] later.” This sergeant said on other occasions, “You’re gonna be at 120 Chauncey [St.]. You’re gonna be in, uh, vehicle out there. Shake everybody up. Anybody moving, anybody coming out of that building—[UF] 250”; “You’re gonna be Howard and Chauncey...[s]ame thing.... Everybody walking around. Stop em. 250-em”; “Anybody walking around, shake ‘em up, stop ‘em, 250-em, doesn’t matter what it takes.” A UF-250 form memorializes stop-and-frisks.

The police officers also have to satisfy quotas for summonses and arrests. Judge Scheindlin noted in a November 2011 decision that various NYPD officers “testified that they have been instructed to complete a certain number of stops or arrests, or to issue a certain number of summonses, per tour or per month; and certain supervisors have testified that they have so instructed their subordinates.” For example, the Court said, “a union delegate told officers that the union and the NYPD management agreed on a quota of one arrest and 20 summons per month; and a supervisor told officers that the Bronx Borough Commander was yelled at by the Chief of Patrol and others at NYPD headquarters for low summons activity and that officers in the 41st Precinct were expected to increase their summons numbers.”

The Court concluded, “the overwhelming evidence—including the precipitous rise in the number of stops, the policy statements from Commissioner Kelly’s office, the many comments of Deputy Commissioner Browne and Chief of Department Esposito, the recordings of roll calls from precincts in the Bronx and Brooklyn, and the testimony of numerous police officers—shows that the dramatic increase in stops since 2004 is a direct consequence of a centralized and city-wide program.”

The statistical expert hired by the class-action plaintiffs concluded that NYPD officers conducted at least 170,000 unlawful stops between 2004 and 2009. Based on the forms that officers have to complete after these stops, 400,000 additional stops appear to be “facially insufficient.” Judge Scheindlin further observed, “in over 62,000 of those cases, police officers gave no reason other than ‘furtive movement’ to justify the stop. These facially unlawful stops occurred in every precinct in the City.” And, “[i]n over 4,000 stops, police officers gave no reason other than ‘high crime area’ to justify the stop. These facially unlawful stops also occurred in every precinct in the city.”

In perhaps the most startling statistical anomaly of all, the court noted that only “5.37 percent of all stops result in an arrest; 6.26 percent of stops result in a summons. In the remaining 88 percent of cases, although they were required by law to have objective reasonable suspicion that crime was afoot when they made the stop, police officers ultimately concluded that there was no probable cause to believe that crime was afoot. That is to say, according to their own records and judgment, officers’ ‘suspicion’ was wrong nearly nine times out of ten.”

The stops often yield nothing illegal. The Court noted that, “[t]he percentage of documented stops for which police officers failed to list an interpretable ‘suspected crime’ has grown dramatically, from 1.1 percent in 2004 to 35.9 percent in 2009. Overall, in more than half a million documented stops—18.4 percent of the total—officers listed no coherent suspected crime.” Relatedly, few stops yield unlawful handguns. “Guns were seized in 0.15 percent of all stops. This is despite the fact that ‘suspicious bulge’ was cited as a reason for 10.4 percent of all stops. Thus, for every 69 stops that police officers justified specifically on the basis of a suspicious bulge, they found one gun.”

The statistics also show a stark racial component to the stop-and-frisks. The plaintiffs’ expert stated that, “NYPD stop-and-frisks are significantly more frequent for Black and Hispanic residents than they are for White residents, even after adjusting for local crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.” Moreover, “Black and Hispanic individuals are treated more harshly during stop-and-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.” And, when stopping racial minorities, police officers are more likely to list no suspected crime category (or an incoherent one) than when stopping whites on the street. Even the city’s expert acknowledged that, “the raw statistics suggest enormous racial disparities in the NYPD’s stop-and-frisk practices.”

Statistics do not tell the whole story. Judge Scheindlin cited an affidavit submitted by New York State Senator Eric Adams, a retired NYPD police captain. In July 2010, Adams met with the Police Commissioner to discuss stop- and-frisk practices. During the meeting, “Commissioner Kelly stated that the NYPD targets its stop-and-frisk activity at young black and Latino men because it wants to instill the belief in members of these two populations that they could be stopped and frisked every time they leave their homes so that they are less likely to carry weapons.”

In sum, according to the New York Civil Liberties Union, “innocent New Yorkers have been subjected to police stops and street interrogations more than 4 million times since 2002 and...black and Latino communities continue to be the overwhelming target of these tactics. Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent.”

Of course, lawyers for the city opposed the plaintiffs’ efforts to certify a class action. A proceeding like this is not only time-consuming, but places city police under a judicial microscope for which no political posturing will save them. If the plaintiffs win, the damages for the thousands of plaintiffs may run in the millions of dollars. In its zeal to avoid class certification, the city’s lawyers offended Judge Scheindlin, who noted that the lawyers made the following “disturbing statement”: “[E]ven if [plaintiffs] prove a widespread practice of suspicionless stops and [City-wide liability], it is not at all clear that an injunction would be a useful remedy. Certainly, no injunction could guarantee that suspicionless stops would never occur or would only occur in a certain percentage of encounter.... Here, plaintiffs essentially seek an injunction guaranteeing that the Fourth Amendment will not be violated when NYPD investigates crime. If a court could fashion an injunction that would have this effect, then it is likely that lawmakers would have already passed laws to the same effect.... An injunction here is exactly the kind of judicial intrusion into a social institution that is disfavored....”

Judges do not want their sensibilities insulted, especially by sophisticated municipal lawyers. In response, Judge Scheindlin wrote, “First, suspicionless stops should never occur. Defendants’ cavalier attitude towards the prospect of a ‘widespread practice of suspicionless stops’ displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.” Second, “It is rather audacious of the NYPD to argue that if it were possible to protect ‘the right of the people to be secure in their persons’ from unlawful searches and seizures by the NYPD, then the legislature would already have done so and judicial intervention would be futile. Indeed, it is precisely when the political branches violate the individual rights of minorities that ‘more searching judicial enquiry’ is appropriate.” And third, “if the NYPD is engaging in a widespread practice of unlawful stops, then an injunction seeking to curb that practice is not a ‘judicial intrusion into a social institution’ but a vindication of the Constitution and an exercise of the courts’ most important function: protecting individual rights in the face of the government’s malfeasance.”

The State Court Response

State courts in New York are also standing up to lawless street searches. In June 2012, a state appellate court ruled that, “in broad daylight,” the police illegally searched a 14-year-old boy on the street “without any evidence that [he] was engaged in criminality or that he represented any threat to the safety to the officer.” The Court noted that a contrary ruling would “broadly expand the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures.”

In July 2012, the same appellate court struck down a similar search against another 14-year-old, even though the officer saw him remove an object from his waistband that did not bear the obvious hallmarks of a weapon. In that case, there were no other objective reasons for the officer to search the boy.

The federal court’s class action certification is good news for civil libertarians who have watched the deference that judges have paid to law enforcement in recent years. In April 2012, the Supreme Court held that jail officials may strip-search incoming prisoners no matter what their offense, even without any reason to believe they are carrying contraband. Under this ruling, prisoners arrested for minor offenses may be strip-searched. The decision in Florence v. Board of Freeholders was notable in giving jail administrators the benefit of the doubt. Writing for a 5-4 majority, Justice Kennedy wrote, “[t]he difficulties of operating a detention center must not be underestimated by the courts.... Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” The plaintiff in Florence was strip- searched after the police arrested him on an outstanding bench warrant that remained in the statewide computer database even after he had paid his fine. Although the plaintiff had done nothing wrong and was the victim of negligent recordkeeping, the Court held that he had no right to sue jail administrators for a strip-search that required him to lift his genitals for corrections officers.

The federal courts are making it impossible for police officers to sue their employers over First Amendment whistleblowing. Under a 2006 Supreme Court ruling, Garcetti v. Ceballos, public employees may not bring retaliation lawsuits if management disciplines or fires them for speaking out on important matters pursuant to their official duties. In the interests of workplace efficiency and managerial prerogative, the lower federal courts have interpreted Garcetti to mean that officers who speak out about lawlessness and corruption in their own departments may be disciplined because this kind of whistleblowing grows out of the plaintiffs’ official duties and is not the kind of “citizen speech” protected by the First Amendment. The irony is that inmates (whose First Amendment speech claims are governed by a different legal analysis) often have greater speech rights than the officers who arrested them.

In a more unusual case, in June 2010, the Second Circuit Court of Appeals in Manhattan held that a police officer could not be sued for falsely arresting the plaintiff for loitering under a law that had been struck down in 1983 as an unconstitutional restriction against First Amendment activity. Although the loitering law had been repudiated years earlier, it literally remained “on the books” in that it was still included in training materials given to officers at the police academy. The Court of Appeals ruled that the arresting officer reasonably did not know that the loitering law was unconstitutional.

Perhaps the stop-and-frisk rulings represent renewed judicial scrutiny. The media have focused on the many unjustified street stops by NYPD officers, as well as allegations that the police department has pressured officers to falsify arrest records to play down violent crime and therefore place the department’s crime-fighting strategies in a more positive light. In 2009, a federal judge in Brooklyn observed in a false arrest case that a plaintiff had a plausible claim against the police. Judge Weinstein wrote, “Informal inquiry by the court and among the judges of this court, as well as knowledge of cases in other federal and state courts, has revealed anecdotal evidence of repeated, widespread falsification by arresting police officers of the New York City Police Department. Despite numerous inquiries by commissions and strong reported efforts by the present Administration—through selection of candidates for the police force stressing academic and other qualifications, serious training to avoid constitutional violations, and strong disciplinary action within the department—there is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct of the kind now charged.”

In another case, a federal judge resolved claims that the NYPD was subjecting officers to discipline for providing sworn testimony in asserting their rights under the wage and hour laws. The judge rejected the City’s argument that it was merely investigating in good faith whether officers had given false testimony. The judge stated, “I decline to fully credit defendants’ hearsay affidavit asserting that the NYPD vigorously investigates each and every allegation of false testimony or perjury. Such a claim is simply not credible to a judge with close to 20 years of experience. My experience and that of my colleagues have been discussed in the media.” The judge cited a newspaper article that described the pervasive problem of “testilying” and the lack of NYPD monitoring or investigations.

Z

Stephen Bergstein is a civil rights lawyer in upstate New York.

Z Magazine
June 2012

By Stephen Bergstein

The U.S. Supreme Court is taking up the issue of affirmative action in public education. The Court has not ventured into this territory in nearly 10 years. The Court might use this case to wipe out race-based admissions in higher education for good.

The case, Fisher v. University of Texas at Austin, will be decided in the Court’s 2012-13 term. In January 2011, the Fifth Circuit Court of Appeals, sitting in New Orleans, upheld the constitutionality of the University of Texas’ admissions policy, which takes race into account in assessing a student’s application. The question is whether that policy violates the Equal Protection Clause of the U.S. Constitution.

Like many public universities, the University of Texas uses a complex formula in reviewing applications. Students who place within the top 10 percent of their high school classes are guaranteed admission to UT. The complexity lies in the remaining applicants. UT reviews those applications through Academic and Personal Achievement Indices. The Academic Index tries to predict freshman GPA by examining the student’s high school class rank and standardized test scores. An applicant may receive admission on the basis of a strong Academic Index alone. The personal achievement score is more complex, triggering the constitutional challenge that the Supreme Court will resolve. In addition to considering the applicant’s two written essays, under the personal achievement score, admissions officers size up the applicant based on leadership, awards, honors, work experience, extracurricular and community activities. UT also considers the applicant’s high school grades relative to the grades of her peers. Finally, for the personal achievement score, the admissions office considers the applicant’s race.

As summed up by the Fifth Circuit Court of Appeals—which upheld the UT admissions process as constitutional—“[n]one of the elements of the personal achievement score—including race—are considered individually or given separate numerical values to be added together. Rather, the file is examined as a whole in order to provide the fullest possible understanding of the student as a person and to place his or her achievements in context.” For this reason, said the Fifth Circuit, “given the mechanics of UT’s admissions process, race has the potential to influence only a small part of the applicant’s overall admissions score.”

How We Got Here

Added to the Fourteenth Amendment in the wake of the Civil War, the Equal Protection Clause reads, “no state shall deny to any person within its jurisdiction the equal protection of the laws.” This simple phrase has generated endless court rulings interpreting its meaning. As few provisions of the Constitution are interpreted literally, the Equal Protection Clause does not guarantee pure equality. Generally, the government can treat people differently so long as it has a rational basis for doing so. If the government is treating different races differently, however, it needs a compelling reason. The “compelling interest” test is difficult for the government to overcome. If a court finds that the government took race into account in making decisions, the government must prove not only that it had a compelling reason for doing so, but that it adopted the narrowest means possible to achieve that objective.

While it is hard for the government to defend a race-based policy, courts have traditionally given public educational institutions more latitude when they take race into account in making admissions decisions. In 1977, the Supreme Court decided Regents of the University of California v. Bakke, holding that the university’s medical school could not use racial admissions quotas. However, by a 5-4 vote, the Court said that the school had a compelling interest in a diverse student body and could consider race as a “plus” factor in its admissions program. The deciding vote was cast by Lewis Powell, a moderate Republican appointed by President Nixon.

The Bakke case guided admissions decisions in higher education for over two decades. In the meantime, the culture wars raged in America, as conservatives criticized affirmative action as “reverse discrimination.” Meanwhile, as the Supreme Court grew more conservative through the 1980s and 1990s, it tightened the screws on affirmative action in other contexts, including governmental contracting and employment. A good example of how new personnel on the Court can make all the difference is reflected in cases involving federal affirmative action programs. In 1990, the Court ruled in Metro Broadcasting v. FCC that, in the interest of editorial diversity, the federal government had additional leeway in taking race into account in awarding broadcasting licenses to minority-controlled firms. Writing for the Court, William Brennan held that affirmative action programs by the federal government are not held to the “compelling interest” test that applies to state governments. Metro Broadcasting was a 5-4 decision. But only five years later, the Supreme Court overruled Metro Broadcasting, ruling in Adarand Construction v. Pena, that the federal government cannot institute an affirmative action program without a compelling reason. While Adarand involved construction contracts, its reasoning made it much harder for the federal government to defend affirmative action programs in court. For the Supreme Court, the main difference between 1990 and 1995 was the retirement of long-time civil rights champion Thurgood Marshall in 1991, and his replacement by staunch conservative Clarence Thomas. A single personnel change in the Court can make all the difference.

While Adarand and other Supreme Court rulings have applied the compelling interest test in a variety of circumstances, public colleges have more leeway even under this strict test in implementing racial diversity programs. For this reason, in 2003, the Court held—again by a narrow 5-4 vote—that the University of Michigan Law School could take race into account in its admissions decisions. Like the Bakke case, the majority in Grutter v. Bollinger held that racial diversity in higher education is a sufficiently compelling reason for the university to consider making race one among many factors in granting applications. The University of Michigan was able to use affirmative action because race was not a determinative factor in the process.

Sandra Day O’Connor wrote the Adarand and Grutter decisions. This was no anomaly. O’Connor was a conservative pragmatist who decided cases without any strict ideology, often on narrow grounds. While her reasoning in Adarand reflected her opposition to affirmative action in general, in Grutter O’Connor made an exception for higher education, stating that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Consistent with her case-by-case approach, O’Connor added, “context matters when reviewing race-based governmental action under the Equal Protection Clause.” The majority in Grutter stated, “given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” That “special niche” is grounded in “educational autonomy.” O’Connor wrote, “‘[t]he freedom of a university to make its own judgments as to education includes the selection of its student body.’ From this premise, [in Bakke,] Justice Powell reasoned that by claiming ‘the right to select those students who will contribute the most to the ‘robust exchange of ideas,’ a university ‘seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.’”

The Court in Grutter noted that the University of Michigan wanted a “critical mass” of minority students in light of “the educational benefits that diversity is designed to produce.” Describing these benefits at length, the Court noted:“the Law School’s admissions policy promotes ‘cross-racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’ These benefits are ‘important and laudable,’ because ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’ ...[N]umerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’ ...These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps...is essential to the military’s ability to fulfill its principle mission to provide national security.’”

The Court further noted that law schools “represent the training ground for a large number of our nation’s leaders” and that “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”

After endorsing the law school’s compelling justification for taking race into account in choosing students, the Grutter majority upheld the law school’s admissions policies because race was not a determining factor in admitting students and there was no quota in light of statistics showing that “between 1993 and 1998, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent.”

The University of Texas Case

The Grutter case may have been the high water mark of Justice O’Connor’s pragmatism. She began as a staunch conservative when President Reagan appointed her to the Court in 1981. Over the years, however, O’Connor moderated her views on some issues, going so far as to re-affirm Roe v. Wade in 1992 by insisting in Planned Parenthood v. Casey that stare decisis (a legal principle that commands the Court to abide by its prior decisions) required the Court to uphold the constitutional right to abortion. Only seven years earlier, in a prior abortion case, O’Connor accused her colleagues of too-broadly protecting abortion rights. Even in the affirmative action context, O’Connor voted with a 6-3 majority in a companion case to Grutter that an undergraduate affirmative action plan in Michigan violated the Equal Protection Clause because, unlike in Grutter, the undergraduate plan placed too much weight on the applicant’s race. These nuanced distinctions made O’Connor a swing vote on an evenly-divided Court such that Supreme Court advocates often tailored their arguments in an effort to win her over.

A New Supreme Court

When Justice O’Connor retired in 2005, President George W. Bush replaced her with Samuel Alito, a conservative who has consistently sided with the Court’s conservative bloc. Legal commentators have noted over the last seven years that the Court is more prone than ever before to overrule prior cases either implicitly or explicitly. In a comprehensive article published in the New York Review of Books in 2008, law professor Ronald Dworkin took a dim view of recent Supreme Court decisions that had quickly shifted constitutional doctrine to the right:

“The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

“These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman’s right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court’s term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament, ‘It is not often in the law that so few have so quickly changed so much.’”

Some of these 5-4 conservative victories are well- known. In Citizens United v. Fair Elections Commission, the Court in 2010 gave corporations free rein to make independent expenditures to political campaigns. The Court in Citzens United overruled precedents from 1990 and 2003. Another 5-4 conservative victory in 2007 involved the use of racial classifications in the public schools. This case provides a guidepost in predicting what the Court will do in the University of Texas case. It does not look good for proponents of racial diversity in public education.

In the 2007 case, Parents Involved Community Schools v. Seattle School District, the Louisville and Seattle school districts tried to ensure racial diversity in their public schools. In Seattle, the district used race as one of the tie-breakers in allowing students to attend the high school of their choice. Writing for the 5-4 majority, Chief Justice Roberts held that the Seattle plan was different from the plan upheld in Grutter because Grutter involved higher education, triggering “the expansive freedoms of speech and thought associated with the university environment.” The racial balancing sought in Seattle was not a sufficiently compelling interest under the Equal Protection Clause, the majority ruled, because that “would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” In addition, “[a]llowing racial balancing as a compelling end in itself would effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Moreover, an interest “linked to nothing other than proportional representation of various races...would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.”

In the Louisville case, the district reconfigured the district boundaries to promote racial balancing. The district advanced the same policy objectives as the Seattle district. Chief Justice Roberts struck down this plan, as well. While the Louisville and Seattle school districts argued that their plans were consistent with Brown v. Board of Education’s rejection of racial segregation in public schools, Roberts crafted what is now a well-known quote that is sure to surface when the Court takes up the University of Texas case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

What Will the Supreme Court Do?

While the Supreme Court in Parents Involved adhered to the Grutter case in striking down the Louisville and Seattle plans, that does not mean the Court will re-affirm Grutter in deciding the University of Texas case. The Supreme Court picks its battles. The Court did not have to repudiate Grutter’s reasoning in deciding Parents Involved. Grutter will be on the table in the University of Texas case, and it provides the Court an opportunity to promote a “color blind” Constitution that cannot abide the governmental interest in college diversity. In light of the Court’s track record of charting new ground in cases despite contrary precedent, this is a reasonable prediction.

Indeed, in asking the Supreme Court to hear the case, the plaintiff in the University of Texas case suggested that the Court might reconsider its pro-diversity holding in Grutter.

The University of Texas modeled its admissions process on that approved by the Supreme Court in Grutter. This is why the Fifth Circuit Court of Appeals upheld the constitutionality of the Texas policy. As in Grutter, the University of Texas has a compelling justification for considering an applicant’s race in the admissions process, and race itself does not make or break an applicant’s chances for admission. For the Fifth Circuit, this may have been an easy call. But that does not mean the Supreme Court will follow suit.

As the Supreme Court is divided between four Democratic-appointed Justices and four Republican counterparts, with Justice Anthony Kennedy in the middle, the conventional wisdom in all high profile cases is that the Court will rule 5-4 either way, with Kennedy as the swing vote. That sizes up the University of Texas case. Two of the conservatives, Justices Scalia and Thomas, have already gone on record as stating that affirmative action in all its forms is unconstitutional. Scalia condemned the Grutter majority for holding that racial diversity in higher education is a compelling governmental interest. So did Justice Thomas, who wrote that “[t]he Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

While Roberts and Alito—both George W. Bush appointees—have not ruled in an affirmative action case, they tipped their hand three years ago in Ricci v. DeStefano, rejecting efforts by the City of New Haven to diversify the fire department by discarding a civil service test that had a disparate impact on minority applicants. Ricci was another closely-divided case, featuring a majority decision by Justice Kennedy, who ruled for the first time that municipalities may only dispense with these examinations if they have a “strong basis in evidence” that they violate the employment discrimination laws that prohibit a disparate impact on minority test-takers. Ricci was a loss for proponents of racial diversity in the public workplace.

Kennedy is more pragmatic than the other conservatives on the Court. In 1990, dissenting in the Metro Broadcasting case, he compared the affirmative action plan in favor of minority-controlled radio stations to apartheid-era South African policies. However, while Kennedy dissented in Grutter, he did note that “Justice Powell’s approval [in the Bakke case] of the use of race in university admissions reflected a tradition, grounded in the First Amendment, of acknowledging a university’s conception of its educational mission. Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.” The basis for Kennedy’s dissent in Grutter stemmed from the University’s application of its diversity policy, concluding that “the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” The future of state-sponsored diversity in higher education likely falls in the hands of the man who wrote those words.

Z

Stephen Bergstein is a civil rights attorney in upstate New York.

What kind of society to we want to live in? What kind of Constitution do we want? Last week, the Supreme Court of the United States ruled that jail officials -- including the guys running the local lockup -- are allowed to strip search nearly everyone who enters the facility, including people who are mistakenly arrested on bad warrants or cannot make bail or went to the county jail on a DWI or some other minor offense.

Does anyone agree with this decision? It doesn't matter if you don't. This decision is the law of the land. Congress cannot overturn it.

I wrote about this case after it was argued in the Supreme Court. Below is my initial write-up, published in Z Magazine before the Florence decision was handed down:

Strip Searches in Local Jails Z Magazine April 2012

By Stephen Bergstein

The U.S. Supreme Court will soon decide whether correctional facilities may strip search any detainee who enters the facility, including people who are arrested for minor offenses that do not inherently involve drugs or weapons. The case now before the Justices requires them to closely review a relevant precedent from 1979 when the Court was comprised of entirely different members. The strip search case, Florence v. Board of Commissioners, was argued before the Court on October 12, 2011. The Supreme Court took the case because the various federal courts around the country were deciding this issue differently. Some federal appellate courts said that jail officials cannot strip search detainees brought in on minor offenses without reasonable suspicion that they are hiding contraband or weapons. More recently, three appellate courts held broadly that all incoming arrestees may be strip searched, even without the reasonable suspicion that they are hiding contraband.

An Elastic Constitutional Standard

This case pits the Fourth Amendment against the federal courts’ tendency to defer to the authority of certain public institutions, including public schools, jails, and the military. The Fourth Amendment is a remarkably brief constitutional provision, stating that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Nearly all Fourth Amendment cases depend on how the courts define what warrantless searches are “reasonable.” Under this elastic standard, the courts have to balance the needs of a free society with the institutional demands of law enforcement and public safety. This is why the Supreme Court is as much a collection of learned judges as they are political scientists who have to resolve difficult legal issues on the basis of American history, the intent of the constitutional framers, existing Court precedent, and the current realities of American life. All these factors play into the strip search case that the Court is expected to resolve by June 2012.

Not all arrestees are taken to the local jail for violent felonies or other offenses against humanity. Some are brought in on non-violent offenses that have nothing to do with contraband. In the Florence case that is now pending in the Supreme Court, the detainee was arrested for civil contempt. Not quite the most dangerous offense, yet he wound up in the local jail. This is legal. Anyone can be arrested at any time, even wrongfully, and taken to the county lockup. If the arrestee cannot post bail, he might stay in the local jail overnight. Or, he might be legitimately pulled over after having a few drinks. In ruling on the strip search case, the Supreme Court will essentially be determining whether the motorist may be strip searched before entering the local jail. Examined in that light, anyone could be strip searched if the Supreme Court broadly sides with law enforcement in the Florence case. As the Court is stacked with conservative Justices who routinely favor the police and jail officials, this is a sobering thought.

There is nothing dignified about a strip search in jail. In Florence, the Third Circuit Court of Appeals said that, “Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him and directed Florence to shower once the search was complete.” When Florence was transferred to a different facility, “he was subjected to another strip and visual body-cavity search upon his arrival at [the jail]. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough.” Adding insult to injury, Florence was soon released from jail and the charges against him were dismissed. Were these intrusive and embarrassing procedures necessary? Does the Fourth Amendment prohibit it?

No Supreme Court case is resolved in a vacuum. After more than 100 years of jurisprudence, the Court has a backlog of precedents from which it may draw in deciding cases. In light of these precedents, no Supreme Court ruling is entirely unpredictable. The problem for the Court is that no two cases are alike. Precedents may provide guidance in solving current cases, but old cases may have turned on different facts. Also, Justices come and go. New Justices can see old Supreme Court cases differently and every Supreme Court ruling in its own way charts new ground.

The Bell v. Wolfish Precedent

In 1979, the Supreme Court issued a ruling that the Court will have to scrutinize once again. In Bell v. Wolfish, the Court said that the Fourth Amendment allowed jail officials at the Metropolitan Correctional Center in New York City to strip search inmates after they had contact visits with outsiders, including family and friends. The facility mostly housed detainees awaiting trial on federal charges, but it also housed witnesses in protective custody and inmates serving short sentences. Yet, MCC policy was to conduct visual cavity searches after any of them met with outsiders, regardless of the reason for their detention. The reasoning was that any of the contact visitors might smuggle in contraband for the inmates.

Bell is a useful starting point for the Supreme Court in the Florence case, but it does not solve the problem now confronting the Justices. In Bell, all detainees were subject to the cavity searches. In theory, even if they were there for relatively innocuous reasons, they were incarcerated prior to the contact visit. They could arrange for an outside visitor to smuggle in drugs or a weapon. Florence is different from Bell. While both cases involve the need to prevent outsiders from smuggling drugs and weapons into jail, in Florence, the arrestee was taken to the facility for the first time and strip searched no matter what he was doing at the time of his arrest—and whether or not jail officials had reason to believe he was carrying contraband. As most people are arrested without any prior warning, it is far less likely that—pre-arrest—they are going to plan ahead to bring contraband into the jail. As the Third Circuit Court of Appeals noted in Florence, courts that have ruled in favor of strong Fourth Amendment rights for arrestees have done so on “the belief that individuals arrested for minor offenses presented a relatively slight security risk because they usually are arrested unexpectedly whereas the contact visits in Bell may have been arranged specifically for the purpose of smuggling weapons or drugs.”

For decades after the Bell ruling came down in 1979, most federal courts distinguished Bell from cases involving post-arrest strip searches. The Third Circuit in Florence summed up the prevailing view: “In the years following Bell, ten circuit courts of appeals applied the Supreme Court’s balancing test to strip searches of individuals arrested for minor offenses and found the searches unconstitutional where not supported by reasonable suspicion that the arrestee was hiding a weapon or contraband. In general, these courts concluded that the extreme invasion of privacy caused by a strip and/or visual body-cavity search outweighed the prison’s minimal interest in searching an individual with a minor crime shortly after arrest.”

Constitutional law is a fluid concept. The Constitution is written in vague terms and the Fourth Amendment invites re-interpretation by virtue of its prohibition against unreasonable searches and seizures. What is reasonable? What is unreasonable? These concepts are in the eye of the beholder. A federal judge who values civil liberties over security will find that degrading strip searches are a last resort, when prison officials have reason to believe the detainee is carrying something dangerous. A conservative judge will side with security and defer to the expertise of prison officials, who—as federal judges like to remind us—have a difficult and thankless job supervising society’s most dangerous and unpredictable people.

Once the Supreme Court resolves an issue and its decision becomes the law of the land, we often forget that now-settled areas of law were often disputed, even among the Supreme Court Justices. Bell v. Wolfish was a 5-4 decision on the issue of whether jail officials could conduct cavity searches on all inmates after their contact visits. Even a moderate Republican, Justice Lewis Powell, dissented in Bell, stating that, “[i]n view of the serious intrusion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case.” Yet, those five votes become constitutional law.

A Shift To The Right On Prison Strip Searches

The Supreme Court took up the strip search case in Florence because the federal courts had taken divergent views on whether the Fourth Amendment prohibits strip searches for arrestees. As the Third Circuit noted in Florence, post-Bell, ten Courts of Appeal had sided with the arrestee on this issue. That was then. What happened over the last few years, however, is proof that the Constitution takes on a different meaning over time as the composition of the federal courts change.

In 2008, the Eleventh Circuit Court of Appeals, based in Atlanta, decided in Powell v. Barrett that most federal courts had misinterpreted Bell all these years in siding with minor offenders in the strip search cases. While federal courts over the years had held that the Supreme Court intended in Bell to grant different rights to detainees based on the nature of their offense, the Eleventh Circuit said this interpretation is incorrect. The court decided that other courts were not appropriately deferential to jail officials in requiring individualized suspicion before conducting these strip searches. After reviewing decisions from around the country that sided with the Fourth Amendment rights of minor offenders, the Eleventh Circuit concluded: “Those decisions are wrong. The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches. It finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities.

The Supreme Court made no distinction in Bell between detainees based on whether they had been charged with misdemeanors or felonies or even with no crime at all. Instead, the policy that the Court treated categorically, and upheld categorically, was one under which all “[i]nmates at all Bureau of Prison facilities, including the [Metropolitan Correctional Center], are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.” It was a blanket policy applicable to all.

This was a bipartisan effort on the Eleventh Circuit to scale back the Fourth Amendment in the jail context. Republican presidents appointed seven of the judges who voted this way. Democrats appointed five of the judges who agreed with them. In addition to the Eleventh Circuit, another federal appellate court recently reversed the prior cases of its own jurisdiction and sided with jail officials on this issue. In 2010, the Ninth Circuit Court of Appeals, which sits in San Francisco, ruled that the Ninth Circuit had improperly decided in 1984 that the Fourth Amendment protected minor offenders. (All the Republican-appointed judges on the Ninth Circuit panel sided with law enforcement; only two of the six Democratic-appointees did). Following this trend, in 2010, the Third Circuit in Florence adopted a narrow view of the Fourth Amendment on this issue. That is the decision now before the Supreme Court.

The composition of the federal judiciary has moved to the right over the years. Presidents Ronald Reagan and George W. Bush each served for eight years and associated with conservative groups who wanted a more conservative judiciary. President Bill Clinton did not appoint their liberal equivalents during his presidency. While some Republican-appointed Justices in Bell disagreed with the majority decision that held that all inmates may be subjected to a cavity search following outside contact visits, there are fewer Republican moderates today in the federal system. Language in the Ninth Circuit case summarizes the conservative view on whether to search minor offenders may well sway the Justices on today’s Court: “The Supreme Court has instructed us that jailers and corrections officials ‘should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ It has also explained that “judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.” Decisions that carve out misdemeanor arrestees at county facilities for special treatment do not afford those who run detention facilities the “wide-ranging deference the Supreme Court has mandated.”

Similarly, in the Florence case, the Third Circuit speculated that one reason not to distinguish between minor offenders coming in off the street and existing prisoners who meet with outsiders is that gang members might exploit that distinction: “We also disagree with Plaintiffs’ contention that the risk that non-indictable offenders will smuggle contraband is low because arrest for this category of offenses is often unanticipated. Even assuming that most such arrests are unanticipated, this is not always the case. It is plausible that incarcerated persons will induce or recruit others to subject themselves to arrest on non-indictable offenses to smuggle weapons or other contraband into the facility. This would be especially true if we were to hold that those incarcerated on non-indictable offenses are, as a class, not subject to search. For that reason, we agree with the concern expressed by the Eleventh Circuit in Powell v. Barrett that gang members would be likely to exploit an exception from security procedures for minor offenders.”

Pay close attention to what the Third Circuit said. It does not say there is actual evidence that gang members will take advantage of a civil libertarian ruling. The Court of Appeals only says that this scenario is “plausible.” Yet, in other areas of constitutional law, federal courts will not allow the government to infringe upon civil liberties based on the speculative fear of negative consequences. This inconsistency may seem unfair, but remember the deference that courts pay to prison officials and their need to maintain order in the jails. Indeed, in 1987, eight years after Bell v. Wolfish, the Supreme Court in Turner v. Safley made it more difficult for prisoners to challenge the conditions of their confinement, ruling that prison policies are constitutional if they are “reasonably related to legitimate penological interests.”

This is the most deferential standard of review that the Supreme Court will apply in constitutional cases. Any justification for restrictive prison policies is legal if they are plausible on their face. Yet, as pointed out by attorneys for Florence in their Supreme Court brief, there is no evidence that the rule prohibiting suspicionless strip searches of persons arrested for minor offenses has facilitated smuggling into jails. Moreover, according to the brief, a report commissioned by the U.S. Department of Justice concluded that jail officials tended “to exaggerate a possible security threat” without expansive search rules, and other branches of the Department of Justice—including the Bureau of Prisons, the Department of Homeland Security and the U.S. Marshals Service—also require reasonable suspicion before minor offenders are strip searched.

Obama Administration Sides With The Jails

This evidence suggesting that minor offenders are not smuggling contraband into jails was not good enough for the Obama administration, which is asking the Supreme Court to endorse the restrictive strip search policy in Florence. At oral argument, a lawyer for the Obama Justice Department told the Supreme Court that “[p]rotest- ers...who decide deliberately to get arrested... might be stopped by the police, they see the squad car behind them. They might have a gun or contraband in their car and think hey, I’m going to put that on my person, I just need to get it somewhere that is not going to be found during a patdown search, and then potentially they have the contraband with them.” This position would probably be identical to that advanced by a Republican presidential administration.

Turner v. Safley and the recent trend in favor of strip searches for minor offenders looms over the Florence case. On the other hand, most federal courts sided with the arrestees prior to 2008. At oral argument in the Supreme Court, the Justices had a difficult time drawing a line between what is permissible under the Fourth Amendment when it comes to strip searching new inmates. According to journalist Lyle Denniston, who covered the argument for the SCOTUS blog, “The Justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an ‘anything goes’ policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation. The members of the Court searched—at times in vain—for some guidance on just what potential threats to individual ‘dignity’ were too much to be constitutionally forbidden.”

Indeed, at oral argument, Justice Anthony Kennedy—who often serves as the swing vote on the Court—told the Obama administration lawyer, “I was somewhat surprised at the evidence, the amount of contraband that was discovered, and the amount of weapons that was discovered that is in the literature and citations was somewhat skimpy. I thought there would be a stronger showing than I found in the briefs.” For civil libertarians who worry that the Court will instinctively side with law enforcement on this issue, it was good news that even the conservative Justices gave pause to a rule that would allow for strip searches across-the-board for all incoming inmates, including non-violent ones.

If you've read this far, you obviously care about constitutional law. After reading the oral argument transcripts, I was cautiously optimistic that the Supreme Court would place limits on when local jails can strip-search detainees. I was wrong. The Court ruled 5-4 in favor of strip-searches no matter how minor the offense.

What does this decision tell us about the Supreme Court? It tells us that the current court has four rock-solid conservatives who give the government the benefit of the doubt on security-related matters. We call this judicial deference. There is one swing vote on the Court, Anthony Kennedy. He wrote the majority decision in the Florence case. I read a lot of court decisions. Few of them show such deference to authority as the Florence decision. It's a dangerous world out there, and jail officials know best. That's how the 5-4 majority sees it. As there are better ways to ensure that the jails are safe, such as pat-searching everyone and strip-searching only those with a reasonable suspicion of dangerous behavior (such as people with a history of violence or people arrested for violent or dangerous crimes) the Florence decision could have come out the other way.

The justices in dissent, as usual, offered a persuasive point of view from the other side. They noted that many law enforcement agencies do not endorse strip-searches for all detainees, only the dangerous ones. They also note that the risk level for undetected detainee contraband is low. That you have to look at these issues with an eye toward nuance. But the five justices who sided with broad-based strip searches abandoned nuance. Deference to authority is the new game in town. That brings us a step closer to a police state. And the next victim might be you.

It is the nature of capitalism that success breeds imitation. Imagine writing that one song that becomes a Christmas classic forever. The Christmas Song, by Mel Torme. Or Have Yourself A Merry Little Christmas, made popular by Judy Garland. Or Sleigh Ride by Johnny Mathis. We know these songs by heart. And the people who wrote them were set for life. This success breeds imitation. Every songwriter has his own Christmas song. And much of it is drivel. But the best of the best makes the season worthwhile, even if you might be trampled to death at Wal-Mart.

The world of rock and roll is no stranger to Christmas songs. But it's hard to capture the spirit of Christmas with electric guitars. Somehow, the people below were able to accomplish this. Most of these songs are rock and roll. Some are jazz. All are great.

The Ronettes - Frosty the Snowman. This is from the Phil Spector Christmas Album, released in 1963 and featuring Spector's famous Wall of Sound. He used the best musicians in music, including Hal Blaine on drums, who played on many of the hits from Los Angeles in the 1960's. Some of the best drumming of that decade is featured on this song.

The Ronettes - Sleigh Ride. Another song from the Phil Spector album. Phil married the lead singer, Ronnie Bennett. She became Ronnie Spector. Which only proves that Jews sometimes give us the best sounds of the season. Phil Spector is now in jail, convicted of murder. Which proves that sometimes murderers give us the best Christmas music.

Vince Gauraldi Trio - Skating. This is from the Charlie Brown Christmas Special. Kids watching to TV show don't know that this is some of the best jazz of the 1960's. This is just a beautiful piece of music. The video shows people ice skating in Pittsburgh, for some reason.

Bruce Springsteen - Santa Claus is Coming to Town. Bruce is rock and roll's greatest live performer. This song is one of the few radio-friendly classic rock Christmas songs I can listen to without changing the station.

The Waitresses - Christmas Wrapping. This is a bona-fide original, not an interpretation of the same old Christmas classics. The lyrics tell a nice story.

John Lennon - Merry Christmas/The War is Over. As wonderful as the Beatles were, they did not produce any great Christmas songs. The solo Beatles tried to write good Christmas songs, but they couldn't cut it. Except for John Lennon. Most Christmas songs are not political. This one was. It is hard for us to imagine what it was like to live through the late 1960s and early 1970s. At least those of us who did not live through that period cannot imagine what it was like. Imagine being drafted to fight a war that you do not believe in. And being asked to kill and maim and possibly suffer the lost of a limb or post traumatic stress disorder. A very good argument can be made that for draft-age Americans during the Vietnam War, this country was a military dictatorship. Resist the draft, go to jail. Lennon was a little crazy, in my view. And he did contradict his humanitarian impulses on a regular basis. But this song truly captures his spirit. He may have been full of shit from time time, but he meant it on this song. Here we go, Johnny:

Barbra Streisand- Jingle Bells. Remember what I said about the Jews giving us the best Christmas songs? This is from her 1967 Christmas album. We blast this each and every year. Christmas on steroids, from Brooklyn, New York.

Beach Boys - Little Saint Nick. If you want to know what family dysfunction is like, read a book about the Beach Boys. The father was crazy, the drummer was crazy, Brian Wilson was crazy. They were all crazy, in a bad way. Not in a "cool" way. But this song is very pleasant, even if it was recorded in Southern California, where it is always warm and there is no snow at all.

Band Aid - Do They Know It's Christmas. In the 1980's rock stars decided to devote their talents for charity. In the U.S., the big hit was We Are The World by USA for Africa. We Are The World is one of the 10 worst songs in the history of rock music. Over in England, the charitable contribution for Africa was Do They Know It's Christmas. That's Bono on vocals, and Phil Collins on drums. The guy who looks like a woman (Boy George) is really a guy. I have no idea if any of the money went to Africa. The haircuts in the video are outrageous. Everyone looks super-serious, as if they knew they were being filmed. But I always liked this song, especially the fade-out. Some of you may say, "but Steve, you are better than this. This song is sappy, a true band-aid in every sense of the word, which does nothing to stop the stranglehold that international lending institutions like the IMF and World Bank have on the Third-World." You are right. But I will say this, and I will say this in the true spirit of Christmas: go screw yourself. I love this song.

You may not know this, but the Beach Boys were not all about surfing, girls and cars. By 1966, the Beach Boys were a different band, as Brian Wilson stopped touring and worked full time in the recording studio with the best studio musicians in Los Angeles. This led to the much-loved Pet Sounds album, a record with none of the fun fun fun of the earlier albums and consisting instead of contemplative mood music that the Beatles easily could have created.

Brian was ambitious. After Pet Sounds, he began work on a follow up that would take him to the top of the mountain. He came close. The album was called Smile, and it was scheduled for release in 1967. This album could have changed the public's view of the Beach Boys for good. The Beatles were able to shed their moptop image, and the Beach Boys could have taken their image to the next level, too. But thanks to drugs, mental illness and resistance from the other Beach Boys over Brian's new direction, Brian had a breakdown and Smile was unfinished and remained unreleased. Somehow, most of it was bootlegged and those unauthorized releases became the Holy Grail of rock and roll bootlegs. The Beach Boys, meanwhile, released a few interesting albums to round out the late 1960s, but those albums were mostly ignored. As the 1970s got under way, the Beach Boys turned into an oldies act, and Brian further deteriorated mentally.

Out of the blue in 2004, Brian released a solo album of all the Smile songs with a new band and he even finished writing some of the songs were abandoned in 1967. The song were re-recorded from scratch. The Beach Boys had nothing to do with this. Brian Wilson Presents Smile is one of the best-reviewed albums of all time. This was great. Brian's voice was not quite how it sounded in the 1960s, but it was good enough, and for the first time, we could hear the album as it was intended. But we all waited for Capitol Records to finally release the original Smile. That day has arrived. The Smile Sessions came out on November 1, 2011. It's as good as we all thought it would be, even for those of us who have listened to the bootlegs for years.

Over the years, stories leaked out about what happened to the Smile tapes. Brian told the press that he destroyed the tapes, threw them in the fire. During one television documentary, he said the music was "inappropriate," whatever that meant. No one wanted to hear this. We wanted to hear the music. Smile became the most famous unreleased album of all time.

Now we get to hear it. For many Beach Boys fans, Smile is old hat. We've all heard the bootlegs, and over the years, the bootlegs got better; the sound quality improved and better versions of the sounds were leaked out. But nothing could ever sound like an official record company release. We have it now.

Smile sounds like the Beatles without John Lennon. It's all about the melody. Brian was a master songsmith, and the album incorporates 1960s psychedelia with American West imagery and far-out lyrics that make I Am the Walrus sound like Love Me Do. The vocal harmonies are sophisticated and gorgeous. Imagine psychedelic music with angelic harmonies. Brian handled the vocal arrangements. The tragedy is that not all the lyrics were written, so some of the cuts on Smile are instrumentals. But even the instrumentals are interesting, as Brian's creativity was growing by leaps and bounds, and he had the best studio musicians around to work with.

The release of Smile is a major event in the history of rock music. What makes the story all the more significant is that the music is great, and it shows that the Beatles were not the only creative geniuses in the 1960s. Throw away the surfboards. Smile is here!

Here's a few of the songs:

Heroes and Villains

Child is the Father of the Man

Do You Like Worms?

Good Vibrations, with added sections

Surf's Up

Cabinessence

By Stephen Bergstein
Z MagazineOctober 2011

A federal appeals court in Chicago ruled that two U.S. citizens who claimed they were tortured by U.S. military personnel in Iraq may sue former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. The case is notable not only for the harrowing allegations of torture and mental abuse, but for the Court of Appeals’ rejection of the usual arguments against second-guessing military decisions during wartime. Unless the U.S. Supreme Court decides to hear the case, the plaintiffs will be able to subpoena documents from the government and take sworn testimony from government officials about U.S. torture policies.

In the August 8 decision, the Seventh Circuit Court of Appeals lays out the factual allegations in explicit detail. The plaintiffs, Donald Vance and Nathan Ertel, in 2005-06 worked for a privately-owned Iraqi security services company, Shield Group Security. Vance became suspicious that the company was involved in corruption and other illegal activity. After he met with an FBI agent, he and Ertel became informants by sharing documents with U.S. officials and reporting their observations that U.S. and Iraqi government officials were engaged in illegal arms trading, bribery, and the stockpiling of weapons. They also reported that their supervisor was trading liquor to American soldiers in exchange for U.S. weapons and ammunition that the Shield Group Security firm was using or selling for profit. This is classic whistleblowing. Everyone loves a whistleblower, right?

Evidently, whistleblowing was frowned on in Iraq. After the security firm began to question Vance and Ertel’s loyalty and confiscated their credentials giving them access to the Green Zone, Vance and Ertel appealed to the U.S. government for help. The government told them to barricade themselves inside the compound and that U.S. forces would rescue them. Instead, U.S. forces took Vance and Ertel to the Embassy for questioning. Then things got ugly. The Court of Appeals writes: “After two or three hours of sleep, Vance and Ertel, who were under the impression that they had been rescued by their government, were in for a shock. They were awakened and arrested, handcuffed, blindfolded, and driven to Camp Prosperity, a U.S. military compound in Baghdad. There, plaintiffs allege, they were placed in a cage, strip-searched, fingerprinted, and issued jumpsuits. They were threatened that if they did speak, they would have ‘excessive force’ inflicted on them. Vance and Ertel were then taken to separate cells and held in solitary confinement for what they believe was two days.”

Camp Cropper
Then things got even worse. Vance and Ertel were taken to Camp Cropper, another U.S. military facility, where “they experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment—Vance for three months and Ertel for six weeks.” The Court adds, “If the plaintiffs’ allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end.”

The torture included techniques forbidden by the U.S. Army Field Manual and the Detainee Treatment Act. Their lights were kept on at all times, day after day. Their cells were freezing and there was feces on the walls. They were given a concrete slab for beds, but guards woke them if they fell asleep. They were often denied food and water and necessary medical care. Intolerably loud music was pumped into their cells. They were slammed into walls while blindfolded with towels over their heads. During interrogations, Vance and Ertel were told that if they did not “do the right thing,” they would never leave Camp Cropper.

Vance and Ertel survived the physical and psychological torture. They then sued Donald Rumseld, claiming he was legally responsible for the torture. Of course, if this kind of abuse had taken place inside an American prison, the courts would not have to decide whether this abuse was actionable under the Constitution. The Eighth Amendment prohibits cruel and unusual punishment. What complicates this case is the fact that the abuse took place in Iraq during wartime.

While the Constitution is the law of the land, certain public institutions are given the benefit of the doubt in litigation. Courts often defer to the judgment of prison and public school officials in disciplining inmates and students. Courts are also reluctant to second-guess military judgments. In the 1970s, the Supreme Court refused to rule on the constitutionality of the Vietnam War. Under the Feres doctrine, U.S. servicepeople cannot sue the government over war-related injuries and U.S. military bases are immune from most First Amendment regulations.

More broadly, courts often refrain from ruling on the constitutionality of federal decisionmaking through the so-called Bivens doctrine, named after a Supreme Court decision from 1971 that held that federal officials may be sued for constitutional violations only in limited circumstances. This restriction stands in sharp contrast to constitutional claims against state and local officials. While the lawsuits against state and local officials are governed by a civil rights statute, Section 1983, which provides for broad protection against constitutional abuses, there is no corresponding statute authorizing constitutional lawsuits against federal officials. In the Bivens case, the Supreme Court said that limited constitutional claims may proceed against federal officials if the victims have no other way to attain relief. A constitutional lawsuit against a federal official will fail under Bivens so long as the plaintiff can achieve a fraction of the relief through other means, even if that relief is unacceptable to the plaintiff. Many injustices have gone unremedied because of the Bivens rule.

Arar v. Ashcroft
A recent example of the federal courts’ refusal to intervene in military and national security judgements is Arar v. Ashcroft. In that 2009 case, the federal appeals court in Manhattan ruled that a foreign torture victim could not sue the federal government over its “extraordinary rendition” program, in which detainees are sent to other countries to be tortured. Arar, a dual citizen of Syria and Canada (where he lived), was detained at Kennedy Airport in New York City, but sent to Syria where he was beaten with a two-inch thick electric cable and with bare hands and interrogated about Osama bin Laden, Iraq, and Palestine. The Second Circuit Court of Appeals held that Arar was not entitled to his day in court because the case would require the courts to review national security policy. The following reasoning is typical when courts decline to review cases that implicate war-making and national security concerns: “A suit seeking a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns. It is clear from the face of the complaint that Arar explicitly targets the ‘policy’ of extraordinary rendition; he cites the policy twice in his complaint, and submits documents and media reports concerning the practice. His claim cannot proceed without inquiry into the perceived need for the policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.”

Fortunately for Vance and Ertel, the Seventh Circuit Court of Appeals found a way around the Second Circuit’s Arar ruling. Unlike Vance and Ertel, Arar was not a U.S. citizen. The Seventh Circuit also took seriously its obligation to review Executive Branch policies and practices. This was a close case, however. The Court of Appeals ruled against Ashcroft by a 2-1 vote.

Seventh Circuit Ruling
After working around the presumption against second-guessing military judgments, Vance and Ertel had to navigate the qualified immunity doctrine, which grants government officials immunity from liability if the law was not clearly established at the time of the constitutional violation. The theory is that, in close cases, government defendants cannot be expected to know that a court in the future will find a certain practice illegal. Qualified immunity also holds that government officials need flexibility in making good-faith decisions without fear that their conduct in an uncertain legal context will be deemed illegal through the benefit of 20-20 judicial hindsight. But the Seventh Circuit said that what happened to Vance and Ertel was inherently illegal and that, if the torture allegations are true, Ashcroft knowingly violated constitutional law in permitting the use of torture in the interrogation of detainees.

This was a remarkable ruling by the Seventh Circuit. Many strong cases are dismissed on qualified immunity grounds. This is because some of those cases are so innovative that they raise novel legal issues that inherently fail under the qualified immunity analysis. Yet, in this case alleging that the Secretary of Defense was responsible for the torture of two American citizens in Iraq, the Court of Appeals denied Rumsfeld immunity even though cases like this are rarely brought and Rumseld’s attorneys argued that the legal landscape in this area was inherently unclear.

How did the Court of Appeals get around qualified immunity in this novel case? For the Seventh Circuit, it was an easy call. The Court writes, “plaintiffs have articulated facts which, if true, would show the violation of a clearly established constitutional right.... The plaintiffs have pled that they were subjected to treatment that constituted torture by U.S. officials while in U.S. custody. On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?” The Court added, “the wrongdoing here violates the most basic terms of the constitutional compact between our government and the citizens of this country.”

Courts rarely address whether the Constitution prohibits torture against U.S. citizens. The question is whether the alleged conduct “shocks the conscience,” a legal standard under the Due Process Clause that serves as a catch-all when citizens challenge government conduct under the Constitution. Courts are reluctant to find that objectionable government action “shocks the conscience.” In order to prevent the floodgates from opening up new claims for relief, courts do not want to second-guess all governmental decisions, even if those decisions are unfair. But in this case, the Seventh Circuit said that “the physical and mental torture of U.S. citizens...is a paradigm of conduct that ‘shocks the conscience.’” Borrowing its analysis from cases that struck down inhumane prison conditions, the Court concluded: “If a prisoner in a U.S. prison has his head covered and was repeatedly ‘walled,’ or slammed into walls on the way to interrogation sessions, we would have no trouble acknowledging that his...allegations, if true would describe a violation of his constitutional rights.... The plaintiffs in this case, detained without charges, have pled in detail allegations of such severe conditions and treatment, the likes of which courts have held unconstitutional when applied to convicted criminals in U.S. prisons.”

But the Court of Appeals still had to get around the strongest hurdle in this case: whether torturing U.S. citizens in a war zone violates the Constitution. And, as noted above, this is a Bivens lawsuit, which allows for constitutional claims against federal defendants in limited circumstances, usually when the lawsuit is the only way the plaintiffs can recover any relief. What distinguishes this case from those involving the unlawful treatment of American inmates is that Vance and Ertel were in a war zone. Aren’t courts reluctant to interfere with military decisions in times of war? Yes, but in this case, there is no way for Vance and Ertel to recover any damages for the torture other than the Bivens action. While the government said that these plaintiffs did have an alternative remedy in that they could have complained about the torture at the time of their detention, the Court of Appeals rejected that suggestion out-of-hand. Not only did torture emanate from the top, that is, from Secretary of Defense Rumsfeld, but “if, as the plaintiffs allege here, there was a problem stretching to the very top of the chain of command, it would make little sense to limit their recourse to making complaints within the same chain of command.” In other words, such complaints would be futile.

A Sweeping Defense?
Turning to the central issue in this case, whether torture claims against the military may proceed in court for conduct arising from a war zone, the Court of Appeals declines to defer to the war machine, reasoning: “The defendants’ principal Bivens argument is that, because this case arose in a foreign war zone, no Bivens claim should be recognized. This sweeping defense is proposed against a fairly narrow claim. The defendants are arguing for a truly unprecedented degree of immunity from liability for grave constitutional wrongs committed against U.S. citizens. The defense theory would immunize not only the Secretary of Defense, but all personnel who actually carried out orders to torture a civilian U.S. citizen. The theory would immunize every enlisted soldier in the war zone and every officer in between. The defense theory would immunize them from civil liability for deliberate torture and even coldblooded murder of civilian U.S. citizens. The United States courts, and the entire United States government, have never before thought that such immunity is needed for the military to carry out its missions.”

The Court added: “The unprecedented breadth of defendants’ argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants’ theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.”

This is great language for civil liberties advocates and those who opposed the war in Iraq and the use of torture in interrogating detainees. The government was suggesting that certain claims cannot proceed in court no matter how appallingly the plaintiffs were treated. That this language arises in a case against the former Secretary of Defense makes it even more noteworthy.

Relatedly, while the government argued that this case would require that the courts intrude upon national security decisions, here again, the Court of Appeals worked around this tried-and-true argument. It may be true that courts do not typically intrude upon matters of national security, but that is no reason to throw out the case. The better solution, the Court says, is to deal with the exposure of classified information as it arises. Trial courts are equipped to prevent the release of classified information. The court reasoned that “denying a Bivens remedy because state secrets might be revealed is a bit like denying a criminal trial for fear that a juror might be intimidated: it allows a risk, that the law is already at great pains to eliminate, to negate entirely substantial rights and procedures.”

This ruling does not find that Vance and Ertel were, in fact, tortured or that Rumseld is personally liable for that torture. All the Court does is allow Vance and Ertel to proceed with their lawsuit because their claims are enough to allege a constitutional violation. Still, this is an unprecedented ruling. Unless the Supreme Court intervenes, Vance and Ertel will be able to proceed like any other litigants in court, and they may presumably take sworn testimony from Rumsfeld himself. This decision confirms that, despite the conservative trend in the federal judiciary, judges with life-tenure who have no fear of political repercussions can still dispassionately rule against the highest-ranking governmental officials, even on matters arising from wartime in another country. The Court of Appeals’ ruling in Vance v. Rumsfeld shows that no one is above the law.

September 2011
Z Magazine

By Stephen Bergstein

When the New York State Senate voted to legalize same-sex marriage on June 24, 2011, it became the largest state in the country to recognize marriage equality. The vote confirmed that the tide is turning in favor of same-sex marriages, including in liberal New York, where two years ago it was overwhelmingly rejected by the State Legislature. While the recent turn of events is cause for celebration, the irony is that this vote did not have to take place at all. It happened because the New York courts failed gays and lesbians in their quest for marriage equality.

Civil rights should not be up for a majority vote. But that’s what happened in Albany, when the State Legislature cobbled together enough votes to override the religious and moral objections raised by Republicans who mostly voted against the bill. Prior to this vote, courts had been taking up gay rights issues for over 20 years, with mixed results. While the conservative Supreme Court is slowly coming around on these issues, the highly-regarded New York Court of Appeals went out of its way to avoid recognizing same-sex marriages, forcing the State Legislature to take up the issue.

Bowers v. Hardwick: Same-Sex Prosecution in Georgia

The Supreme Court did not take up a case involving gay rights until 1986. The issue in Bowers v. Hardwick was whether the state of Georgia could criminalize consensual homosexual sex. In a 6-3 ruling, the Court said that these sexual relationships were not protected by the constitutional right to privacy, which only protected heterosexual relationships.

Justice Byron White framed the issue in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.” In making reference to the long practice in many states to criminalize this sexual behavior, Justice White answered the question by asking it. But this was not an easy case. For one thing, the Eleventh Circuit Court of Appeals struck down the anti-sodomy law under the constitutional right to privacy. Moreover, although the Constitution says nothing about gay rights or even the right to privacy, prior Supreme Court rulings had extended privacy rights to the sort of private, heterosexual conduct that compared with the sexual and personal behavior at issue in Bowers, including contraception, child-rearing, marriage and family relationships in general.

The six justice majority in Bowers was dismissive of the plaintiff’s claims. In addition to repeatedly referring to the sexual behavior as “sodomy,” a word that carries more negative connotations than “same-sex relationships” or “private sexual behavior,” the Court stated: “Proscriptions against that conduct have ancient roots.” Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy and, today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

The Court also used the logical fallacy of the slippery slope, stating, “If [plaintiff’s] submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.” Taking things further, Chief Justice Warren Burger stated in his concurring opinion that “[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

The irony of Bowers is that one of the Justices who voted with the majority in rejecting the plaintiff’s claims was Justice Lewis Powell, who told one of his law clerks at the time that he did not know anyone who was gay. In fact, the law clerk himself was gay. In retirement, Powell publicly stated that he regretted his vote in Bowers.

Romer v. Evans: Striking Down Anti-Gay Bias In Colorado


Even if a Justice later regrets his or her vote, the precedent stands until the Supreme Court decides to overturn it. The Court rarely overturns its precedents and Bowers remained good law for years. In the meantime, as the composition of the Supreme Court changed, younger Justices slowly replaced their older brethren. If conventional wisdom holds that the younger generation is more open–minded about racial and sexual equality than its predecessors, the same may be true of Supreme Court Justices. In 1996, the Court struck down Amendment 2 to the Colorado Constitution, which made it illegal for the government to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Amendment 2 was enacted under a public referendum. Gays and lesbians in Colorado no longer had any civil rights.

Although the Supreme Court in 1996 had a conservative majority, the Court in Romer v. Evans ruled 6-3 that Colorado’s Amendment 2 violated the Equal Protection Clause of the U.S. Constitution for several reasons. First, “it identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” In addition, Justice Kennedy reasoned, “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare...desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” The Court majority was essentially ruling that the public cannot pass hateful laws intended to disadvantage a particular social group.

Justice Kennedy is a Reagan-appointed Republican who often sides with his fellow conservatives on the Court on other issues. But he could not abide the implications of Amendment 2 and its effect on gays and lesbians. In striking down Amendment 2, Justice Kennedy easily rejected conservative Justice Antonin Scalia’s histrionic dissent, which referenced Bowers v. Hardwick in arguing, “If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.” Known for his acerbic writing style, Justice Scalia further stated, “The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as un-American. Of course, it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.” The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homo- sexual conduct—that is, it prohibits favored status for homosexuality.

Lawrence v. Texas: Overruling Bowers

By 2003, public attitudes about gay and lesbian rights had further evolved. That year, writing for a 6-3 majority, Justice Kennedy put Bowers to rest, ruling in Lawrence v. Texas that the Constitution prohibited the State of Texas from making it a crime for people to engage in homosexual conduct. Only 17 years after the Supreme Court had issued the Bowers decision, this time around, the Court held that Bowers was wrongly decided and poorly-reasoned.

Justice Kennedy stated, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

This was music to the ears of civil libertarians, but not to Justice Scalia, who revived his emotionally-charged dissent from Romer v. Evans to further lambaste the Court majority for caving in to some kind of powerful homosexual lobby: “Today’s opinion is the product of a Court, which is the product of a law profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

“One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is ‘an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.’ It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Although the states cannot outlaw homosexual conduct, Lawrence v. Texas was not the final word on gay and lesbian rights. It remains legal under federal law to discriminate against employees because of their sexual orientation, as efforts to expand Title VII of the Civil Rights Act of 1964 beyond protections against racial, gender, and religious discrimination have failed. The other frontier was same-sex marriage, which was barely a blip on the horizon when I was in law school in the early 1990s. Yet, this movement gained steam over the last decade, as mayors from large and small municipalities began officiating same-sex marriages. That a Green Party mayor in his 20s took this initiative was no surprise. It was also no surprise that a much older District Attorney prosecuted the young mayor for violating the law in officiating these marriages. The next generation always takes things a step forward from its predecessors, who sometimes hold firm on yesterday’s values.

Hernandez v. Robles: Blue-State Justice In New York?

Yet, while New York is a blue state that consistently elects Democratic Party candidates, its Court of Appeals in 2006 rejected a state constitutional right to same-sex marriage, engaging in contorted legal reasoning that re-framed how courts traditionally analyze the right-to-marry cases. As the Court of Appeals is the highest court in New York, this decision closed the door on same-sex marriages for another five years.

When the Supreme Court rules on marriage cases under the Constitution, it frames the legal standard in a precise way. As the Constitution is written in broad terms, few legal problems can be resolved solely by reading the relevant constitutional provision. The Supreme Court has therefore devised multi-part balancing tests that allow it to apply the Constitution in light of competing social, political and legal interests.

Here’s the general framework for courts to apply in deciding whether to strike down marriage restrictions. Under the Constitution, there are certain “fundamental” rights, like the right to travel, the right to privacy, the right to raise your children as you see fit, and the right to marry. The language we usually see in these court rulings is that a fundamental right is something that is “deeply rooted in our tradition.” In Loving v. Virginia, the Supreme Court in 1967 held that it was illegal for the Commonwealth of Virginia to prohibit interrracial marriage. In addition to striking down the anti-miscegenation law on the basis that racial discrimination violates the Constitution, the Court further stated that the law arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. By the late 1970s, rounding up the Court’s marriage jurisprudence, the Supreme Court flatly stated,“The right to marry is of fundamental importance for all individuals.” For this reason, even inmates can get married.

If a right is “fundamental” under the Constitution, it cannot be abridged or restricted without a “compelling” reason. Few compelling reasons can overcome the existence of a fundamental right. Under this framework, if two consenting adults wish to marry, the state cannot prohibit them from doing so absent a compelling reason, i.e., to prevent minors or family members from marrying or to prohibit bigamy.

The New York courts took up same-sex marriage in the mid-2000s. In 2005, a New York City trial court in Hernandez v. Robles followed the traditional framework in noting that “the Supreme Court has ‘long recognized that freedom of personal choice in matters of marriage and family is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’” Under the “compelling interest test,” the trial court further ruled that the New York Constitution protected same-sex marriage because the state could not identify any compelling reason to prohibit it. It is not a compelling reason under the Constitution to argue that, “We’ve always done it this way.” Nor are deeply- rooted religious concerns a compelling interest. Once the court found that marriage between consenting adults was a fundamental right, its final conclusion in favor of same-sex marriage was a fait accompli; the government is rarely able to justify the abridgment of a fundamental right.

That ruling was overturned by the New York Court of Appeals, which held that the State Constitution does not recognize a right to same-sex marriage. The state’s highest court ruled that, while “the right to marry is unquestionably a fundamental right,” same-sex marriage was not a fundamental right because it is not “deeply rooted in this nation’s history and tradition.” Courts invoke language about this nation’s history and tradition in determining whether an activity or entitlement is a fundamental right that cannot be abridged without a compelling interest. Yet, since marriage itself is a fundamental right, the Court of Appeals engaged in a slight-of-hand in further breaking down the legal analysis to include a sub-question: whether same-sex marriage—as opposed to marriage between two consenting adults—is part of our national tradition. In dissent, Chief Judge Judith Kaye saw through the majority’s tactic, noting that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same- sex marriage, the Court misapprehends the nature of the liberty interest at issue.”

The irony is that, as the New York Court of Appeals framed the issue, the Supreme Court’s interracial marriage decision in 1967 would have come out the other way, as interracial unions were not deeply rooted in American tradition, either. Moreover, under the New York Court of Appeals’ narrow inquiry, the Supreme Court’s prior cases allowing prison inmates to marry also would have come out the other way, for the same reason, as there is no national tradition allowing inmates to marry. In rejecting the right to same-sex marriage, the New York Court of Appeals moved the goalposts to achieve the outcome it wanted, semi–apologizing for its result by stating that this issue is best left for the State Legislature.

In ruling as it did, the New York Court of Appeals only required the State to justify its prohibition by advancing a “rational basis.” This makes it much easier for the government to defend its policy, since “rational basis” in constitutional law means any conceivable purpose that the legislature might have considered in passing the law. The government nearly always wins under the rational basis test. Here is how the New York Court of Appeals found it rational for New York to prohibit same-sex marriages: “The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite- sex couples who make a solemn, long-term commitment to each other.

“The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

“There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.”

In other words, reckless sex between heterosexual couples can produce children. The State wants to prevent children from growing up without a mother and father, so we induce the lovers to get married to save the children. The State can deny the same marriage right to gays and lesbians because, although they can adopt children, they cannot “naturally” reproduce. The State Legislature can thus distinguish between same-sex marriage and heterosexual marriage. And, the Court ruled, the Legislature can rationally decide that children are better off with a mother and father rather than a father and father.

The same-sex marriage decision by the New York Court of Appeals was not a proud moment. In any event, it did shift the debate over to elected representatives and an argument could be made that this important issue was now before New Yorkers in a more democratic posture. But that argument assumes that constitutional rights should be up for a popular vote. They are not, which is why constitutional values are counter-majoritarian and rightly so, in order to prevent the majority from crushing the minority out of discriminatory animus. There is nothing wrong with a court altering the social structure if that result is compelled by constitutional values. In 1954, the Supreme Court struck down racially-segregated schools in the south. No one suggests that the state legislatures in, say Arkansas or Alabama, were going to mandate equal rights for schoolchildren on their own. Yet, no one suggests that the Supreme Court in Brown v. Board of Education improperly usurped the will of the people.

The New York State Legislature eventually took up the issue of same-sex marriage, finally recognizing marriage equality in June 2011. While Hernandez v. Robles is not as hateful as Justice Scalia’s dissenting opinions in Romer v. Evans or Lawrence v. Texas, it reflected excessive caution on the part of some New York judges to fairly apply constitutional principles to knock down discriminatory barriers. While activists celebrated the legislature’s vote in June 2011, lost in the shuffle was the recognition that the Court of Appeals’ questionable ruling in Hernandez v. Robles is now a dead-letter.

Stephen Bergstein is a lawyer in upstate New York. He writes about civil rights issues at www.secondcircuitcivilrights.blogspot.com.

By Stephen Bergstein
Z Magazine
June 2011

The case before the Supreme Court asked whether a man who narrowly escaped the death penalty for a murder he did not commit could sue the Orleans Parrish District Attorney for not properly training his staff on how to provide criminal defendants a fair trial. In a 5-4 decision, the Justices in late March 2011 held that John Thompson could not sue Harry Connick, Sr., whose deputies withheld exculpatory blood evidence that confirmed that Thompson was innocent.

Connick v. Johnson teaches us a number of lessons about how the Supreme Court decides cases and how the majority and dissent opinions sometimes talk past each other by emphasizing different evidence and legal principles.

To understand the ruling, a few elementary legal principles need clarification. First, thanks to a Supreme Court ruling from 1978, you cannot sue a municipality like a city or county simply because one of its employees broke the law. You have to show that a policymaker is responsible for the civil rights violation. One way to do that is by showing that a policymaker, such as the district attorney or mayor, failed to adequately train subordinates, and that this dereliction caused a foreseeable civil rights violation.

While the victim can always sue the subordinate personally under civil rights laws, lawyers in the district attorney's offices are immune from suit, one of the few public officials exempt from personal liability. The only way that Thompson could recover damages in this case was by naming the district attorney.

Thompson was certainly aggrieved and his story resembles something from fiction. He was arrested for attempted armed robbery. Somehow, the robber's blood ended up on the victim's pants. The prosecution was supposed to provide that blood evidence to Thompson's lawyers under the well-settled principle under Brady v. Maryland (1963), which holds that prosecutors must turn over any exculpatory "Brady evidence" to the defense team. Two days before trial, Assistant District Attorney Whittaker received the crime lab report that showed the robber's blood type: it wasn't Thompson's. On the first day of trial, Assistant District Attorney Deegan brushed aside the blood evidence and it never came up at trial. The jury convicted Thompson of armed robbery. Thompson certainly could have used that blood evidence to prove his innocence.

Meanwhile, Thompson had a pending murder charge. The prosecutors opted to try Thompson first on the armed robbery charge, reasoning that if the jury found him guilty of robbery, in order to prevent the jury from learning about his robbery conviction, he would elect not to testify on his own behalf at the murder trial. Had he testified, the robbery conviction would have come up on cross-examination, destroying his chances of a murder acquittal. Following his one-sided murder trial in which he could not testify on his own behalf, Thompson was convicted and sentenced to death. All of these events happened in 1985.

Fast-forward to 1999. Thompson went to jail, but his legal team was still challenging the conviction. Thompson's investigators eventually discovered the crime lab report that showed that the robber's blood type was not Thompson's. The execution was stayed and the robbery conviction thrown out. The courts then overturned the murder conviction because the Brady violation compelled Thompson not to testify in his murder trial, which meant the murder trial wasn't fair.

When the district attorney tried Thompson again for murder, he testified in his own defense (the robbery conviction could no longer haunt him) and the jury easily acquitted him. Also that year, Assistant District Attorney Riehlmann revealed that his former colleague, Deegan, had made a deathbed confession in 1994 that he had "intentionally suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated John Thompson." Riehlmann kept this information to himself as Thompson sat on death row.

This is the evidence that the Supreme Court set forth in its majority opinion, written by Clarence Thomas and joined by conservatives Anthony Kennedy, Antonin Scalia, John Roberts, and Samuel Alito—all appointed by Republicans, the last two by George W. Bush. This case reached the Court after a jury decided that District Attorney Connick was deliberately indifferent in failing to train his attorneys in their Brady obligations, awarding Thompson $14 million for the pain and suffering of being unjustly convicted of murder and spending years on death row. It was that jury finding that the Supreme Court overturned in March 2011. Justice Thomas wrote that the above evidence of a single Brady violation was not enough to show that the district attorney had failed to train his staff on its Brady obligations such that an obvious consequence would be John Thompson's unjust murder conviction. The Court anchored its reasoning on the theory that Thompson had only proven a single incident Brady violation: the failure to produce exculpatory blood evidence. Since the district attorney's assistants all went to law school and have to abide by the profession's ethics rules, Justice Thomas reasoned, "the obvious need for specific legal training...is absent here."

Four Justices dissented, revealing once again the fault lines on the Court, where the five Republican appointees outnumber the Democrats. While the majority opinion summarized the case in tidy fashion and offered straightforward reasoning, the dissenters seemed to describe a different case entirely, emphasizing the deep-rooted failure on the part of the New Orleans district attorney's office to train its lawyers on Brady obligations. Drawing from a voluminous evidentiary record from Thompson's civil rights trial against Connick (which Justice Thomas ignored or explained away as irrelevant), Justice Ginsburg pointed out:

· An eyewitness to the murder said the killer was a six-foot black male with "close cut hair." Contrary to District Attorney's Brady obligations, this information was not turned over to Thompson's lawyers. Thompson is five-foot-eight and styled his hair in a large "Afro." This evidence alone would have probably resulted in an acquittal.

· Shortly after the murder, a "witness" named Perkins approached the victim's family, which had offered a $15,000 reward for information leading to the murderer's conviction. The police tape-recorded Perkins's conversation with the victim's family in which he made it clear that he wanted money for his cooperation. Perkins identified Johnson as the killer after the family assured him that "we want to try and help you." While Perkins testified at the murder trial that he volunteered information to the police with no knowledge of the reward money, Thompson's lawyers were unable to impeach this critical witness because, contrary to its Brady obligations, the district attorney's office never provided them with the tapes of the conversation with the victim's family. In closing argument, the prosecution actually emphasized that Thompson had presented no "direct evidence" that Perkins' testimony was motivated by reward money.

· The prosecution did not turn over a contemporaneous eyewitness account of the murder that suggested that the murderer wore his hair in a style that was quite different from Thompson's. This was additional Brady evidence that the district attorney's office did not produce to Thompson's lawyers. As Justice Ginsburg wrote, "the omission left defense counsel without knowledge that the prosecutors were restyling the killer's 'close cut hair' into an 'Afro.'" Prosecutors finessed this discrepancy at trial by having a police officer testify that the killer's hair was "black and short, afro style."

Ginsburg noted, however, that "as prosecutors well knew, nothing in the withheld police reports, which described the murderer's hair simply as 'close cut,' portrayed a perpetrator with an Afro or Afro-style hair." Justice Ginsburg also summarized "abundant evidence [that] supported the jury's finding [in Thompson's civil rights trial] that additional Brady training was obviously necessary to ensure that Brady violations would not occur." This evidence included the following:

· Connick testified at Johnson's civil rights trial "that his earlier understanding of Brady, conveyed in prior sworn testimony, had been too narrow." Shockingly, he also testified that there could be no Brady violation arising from "the inadvertent conduct of an assistant under pressure with a lot of case load." Courts rarely, if ever, excuse the violation of civil rights on the basis that the wrong-doer was too busy to honor constitutional obligations.

· One assistant district attorney admitted that he never reviewed police files, relying instead on the police to flag any potential Brady information. The attorneys thus deferred to the police about the criminal defendants' entitlement to relevant information. Of course the district attorney's office should engage in independent analysis in handling evidence.

· Another assistant incorrectly testified that Brady material did not include documents that could be used to impeach a prosecution witness "to show that he's lying." This misunderstanding of Brady would allow the prosecution to put on witnesses whose reliability cannot be impeached by the defendant's attorneys, thereby destroying the adversarial nature of criminal trials necessary to ensure that the jury is able to arrive at a truthful verdict.

· While police reports said that the murderer had "close-cut hair," a prosecutor testified that the office was not required to turn them over because newspaper articles suggested that witness descriptions were inconsistent with Thompson's appearance and that therefore Thompson already "had everything."

· Connick himself conceded that his office's Brady training was inadequate, as shown by his admission that his office gave new attorneys no Brady guidance and had installed no procedures to monitor Brady compliance. While Connick relied on supervisors to train their young attorneys, he did not ensure whether the supervisors understood the importance of teaching new lawyers about Brady. One attorney in the office testified that he could not "recall that [he] was ever trained or instructed by anybody about [his] Brady obligations."

· While some young attorneys in his office asked him about Brady from time to time, Connick conceded that he had "stopped reading law books...and looking at [court] opinions" when he became district attorney in 1974. For this reason, Thompson's expert witness testified that Connick's supervision as to Brady was "the blind leading the blind." This expert witness was eminently qualified, having authored the authoritative guide on prosecutorial misconduct used by the prestigious federal defender program. He further testified that the evidence showed "complete errors...as to what Brady required prosecutors to do."

· A survey of attorneys in Connick's office showed that more than half believed they had received inadequate training to do their jobs. The office policy manual at the time gave a cursory summary of the district attorney's Brady obligations, and "this slim instruction, the jury learned, was notably inaccurate, incomplete and dated." No surprise, then, that over the course of 10 years, courts had overturned four convictions because of Brady violations.

All this evidence was relevant to Thompson's civil rights case against the district attorney. In Thompson's civil case, the judge told the jury that it could consider all evidence presented at trial, not just the blood evidence, in determining whether the district attorney provided his assistants adequate training. In light of this evidence, the dissenters were astounded that the majority Justices found that Thompson had not shown that Connick was deliberately indifferent to properly training his attorneys about their Brady obligations.

Justice Ginsburg wrote, "had Brady's importance been brought home to prosecutors, surely at least one of the four officers who knew of the swatch and lab report would have revealed their existence to defense counsel and the court." Yet, while Ginsburg's dissent established that "no fewer than five prosecutors" were responsible for Thompson's wrongful conviction, the majority made it appear as if a single rogue prosecutor was responsible, and only because of the blood evidence.

In throwing out the civil rights verdict in Thompson's favor, the majority strained to explain away Connick's cavalier approach to Brady. While Justice Thomas noted that four criminal convictions were overturned because of Connick's Brady violations in the ten years prior to Thompson's conviction, he wrote that "these four reversals could not have put Connick on notice that the office's Brady training was inadequate with respect to the sort of Brady violation at issue here. None of these cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind." This reasoning places the focus on Connick's training as to the precise circumstances that led to Thompson's unjust conviction, and not Connick's broader obligation to comply with Brady in general. This is how judges explain away contrary evidence in pursuit of the results they wish to achieve.

Justice Thomas also suggested that the district attorney cannot be deliberately indifferent to Brady training because his assistant district attorneys all graduated from law school and are required to take continuing legal education classes (CLE) post-graduation. But, as Justice Ginsburg noted, lawyers in Louisiana were not required to take CLE classes at the time, and one lawyer in that office testified that his criminal procedure class in law school did not even cover Brady. Criminal procedure is not a required course in some law schools, and even if it were, court decisions are routinely handed down that further interpret and refine the Supreme Court's Brady precedent.

The majority in this case went out of its way to reject Johnson's claim, even after a jury ruled in his favor and the Court of Appeals twice upheld the verdict. Justice Thomas stated that this case lacked merit because, in 1989, the Supreme Court suggested in a footnote what a hypothetical "deliberate indifference" case would look like: "arming a city police force without training them about the use of deadly force." But there is no basis for the Supreme Court to limit a civil rights entitlement to a narrow set of facts, and the majority's emphasis in Johnson's case about the assistant district attorneys' independent Brady knowledge would seem to foreclose any further claims against a district attorney's office on a failure to train theory.

When a jury hears all the evidence and renders a verdict, appellate courts presume that the jury got it right unless the trial judge committed a serious error at trial. Verdicts are rarely overturned on this basis. When the Supreme Court does so (after the Court of Appeals upholds the verdict), it's because the Court wants to take the law in a different direction. In this instance, any fair reading of Justice Ginsburg's comprehensive dissenting opinion suggests that the majority ignored her scathing attack on Connick's Brady training because it wants to make it more difficult for civil rights victims to prevail against municipalities, particularly in failure-to-train cases.

For Thompson, this new direction is heartbreaking: the 5-4 decision throwing out his verdict erases the $14 million award for his wrongful conviction and death row anxiety. A prosecutorial failure of monumental proportions goes unremedied.

Stephen Bergstein is a civil rights lawyer in New York. He blogs on civil rights cases at www.secondcircuitcivilrights.blogspot.com.

Z Magazine
May 2011

By Stephen Bergstein

The Supreme Court frequently lets progressives down on the First Amendment. The Citizens United case from 2010—which gave corporations an unlimited First Amendment right to contribute to political campaigns—is only the latest example. In 2006, the Court sharply restricted the rights of public employees who blow the whistle on government misconduct, holding in Garcetti v. Ceballos that the First Amendment does not protect them from retaliation if the speech relates to official job duties, a restriction that knocks out the most important whistleblowing.

A thread that runs through the Court's First Amendment cases lately is an absolutist approach to free speech, unless it affects government efficiency in the public workplace or other institutions, such as public schools. But even the conservatives on the Court have broadly extended speech rights in "pure speech" cases on the street and in the media. The recent case upholding the Westboro Baptist Church's right to protest military funerals shows that the Court is able to hold its nose on the most offensive speech imaginable in order to stand on the broader principle that anything goes in the public forum, so long as no one is hurt.

Four cases since 1970 drive this point home. Each case involved vulgarities or deliberately offensive conduct and speech. Had public opinion controlled the outcome, the speech would have been restricted in each case. Instead, the Court rejected calls for censorship in ways that laid the groundwork for controversial political speech in the future.

"Fuck the Draft"

No speech case highlighted the tensions of the Vietnam War more than Cohen v. California, decided in 1970. After Paul Cohen walked into a California courthouse with a jacket reading "Fuck the draft," he was convicted of disorderly conduct and given 30 days imprisonment. The Supreme Court noted that, "[t]he conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech.'" This language allowed the Court to step away from the O'Brien ruling (1968), which gave the government leeway to punish certain speech-related conduct, including draft-card burning.

Ruling in Cohen's favor, the Court stated, "[a]t least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistent with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected." Cohen prevailed in the Supreme Court for two reasons: case law interpreting the First Amendment did not give the Court any reason to restrict the speech and, more interestingly, the Court decided that speech like this—no matter how offensive to the older generation—had a place at the table. In particular, the offended parties were not a captive audience and Cohen's jacket was not unprotected "fighting words." Perhaps never before had the Court tolerated such language in the public sphere.

In famous language that opened the door to vigorous and even offensive political speech, Justice Harlan (a Republican appointed by President Eisenhower) wrote: "Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's [sic] vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."

Nazis in Skokie

By 1978, the public may have been forgiving of Vietnam protesters. Even President Carter pardoned draft resisters a year earlier. As the 1960s turned into the 1970s, vulgarities were more commonplace in American culture, but memories of the Holocaust were still fresh in the minds of Americans who fought in World War II and lost family members in Nazi Germany. The case that gave Nazis the right to assemble in Skokie, Illinois—home to many Holocaust survivors—became a flashpoint. Even free speech advocates turned their backs on the American Civil Liberties Union, which represented the Nazis in court. This had to be the most controversial speech case ever litigated in the American courts, though it never reached the Supreme Court, which declined to hear the case.

Just as the Westboro Baptist Church protests military funerals to promote its homophobia, the National Socialist Party was looking for a provocative way to promote its bigotry. It could not have found a better vehicle than a demonstration in Skokie, a move that triggered extensive media coverage and hand-wringing. Surely, many citizens said, there must be limits on even peaceful speech. The federal courts did not agree, though the judges in this case opened up their legal analysis with the following disclaimer: "The conflict underlying this litigation has commanded substantial public attention, and engendered considerable and understandable emotion. We would hopefully surprise no one by confessing personal views that NSPA's beliefs and goals are repugnant to the core values held generally by residents of this country, and, indeed, too much of what we cherish in civilization. As judges sworn to defend the Constitution, however, we cannot decide this or any case on that basis. Ideological tyranny, no matter how worthy its motivation, is forbidden as much to appointed judges as to elected legislators."

Although the Nazis wanted to demonstrate on public property (normally a safe haven for assemblies and speech), the court noted that the government may regulate the time, place, or manner of speech so long as the restrictions are not in reaction to the content or message of the demonstration. But in this case, the municipality acknowledged that it wanted to restrict the speech out of hostility toward the hateful message. The Seventh Circuit Court of Appeals would not go there, noting that speech may not be restricted on the basis of content unless it is obscene, libelous, encourages an imminent danger "of a grave...evil," or constitutes fighting words. Courts are loathe to add to that list.

None of these exceptions applied in Skokie. The only way to rule against the demonstrators was the repugnancy of their message. The trial court in this case stated, "if any philosophy should be regarded as completely unacceptable to civilized society, that of plaintiffs, who, while disavowing on the witness stand any advocacy of genocide, have nevertheless deliberately identified themselves with a regime whose record of brutality and barbarism is unmatched in modern history, would be a good place to start."

While sympathetic with that view, the Seventh Circuit stood firm: "there can be no legitimate start down such a road." For this reason, the most compelling reason to restrict this speech—avoiding the psychic trauma visited upon Holocaust survivors whose presence in the community inspired the demonstration in the first place—could not be squared with settled First Amendment principles as outlined by the Supreme Court. The Court of Appeals reasoned: "It would be grossly insensitive to deny, as we do not, that the proposed demonstration would seriously disturb, emotionally and mentally, at least some, and probably many of the village's residents. The problem with engrafting an exception on the First Amendment for such situations is that they are indistinguishable in principle from speech that 'invite[s] dispute...induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.' Yet these are among the 'high purposes' of the First Amendment. It is perfectly clear that a state may not "make criminal the peaceful expression of unpopular views."

Hustler v. Falwell

If Cohen v. California and the Skokie cases taught us anything, it was that the government cannot censor unpopular or even vulgar speech. But what about private lawsuits against offensive speakers? These cases do not neatly fit within the censorship definition, but they pose other risks: jurors might award money damages against the most hated speakers and groups in American society on the basis of a civil tort, such as "intentional infliction of emotional distress," a judge-made doctrine that allows victims to recover for the pain and suffering caused by extreme and outrageous conduct.

The Supreme Court dealt with this problem head-on in 1988, this time in a case that highlighted two other products of the post-1960s culture: pornography (Larry Flynt) and religious evangelists (Jerry Falwell). The public held both men in low regard, but Flynt, publisher of Hustler magazine, took it one step further when he insulted Falwell's mother. Running an advertisement parody in Hustler, Flynt portrayed Falwell as an incestuous drunk whose first sexual encounter took place in an outhouse with his mother. The parody drew from the liquor ads that employed double entendre in asking celebrities about their "first times," but at the bottom of the page Flynt wisely noted that this was parody, "not to be taken seriously."

A jury in Virginia awarded Falwell damages in the amount of $150,000 for emotional distress. In Hustler Magazine v. Falwell, the Supreme Court unanimously stated: "This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most."

Flynt's speech probably offended the Supreme Court even more than Cohen's jacket. Whatever the Court may have thought of Falwell, what did his mother do to deserve this public ridicule? The Court, though, could not retreat from age-old precedents that sharply restricted caustic speech against public figures.

Writing for a unanimous Court, even arch-conservative Chief Justice William Rehnquist could not deny the harms associated with punishing Flynt for this speech: "[t]he sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large'."

Ruling in Flynt's favor, the Justices ruled that civil tort claims cannot override Flynt's right to parody a public figure, and that since no reader would have taken it seriously, Falwell could not argue that the parody was libelous.

Tipping its cap to political satirists, the Court explained why it could not reach any other result: "Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damage awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as 'the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.' The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided."

Westboro Church

Perhaps no speech repulsed Americans more than the antics of the Westboro Baptist Church, which deliberately provoked hostility in picketing military funerals with signs that celebrate dead soldiers and 9/11 as God's retribution for America's tolerance of gays and lesbians. It is fair to say that no rational human being would support the church's decision to picket military funerals with such hateful speech. This is why Snyder, whose son died in Iraq, prevailed at trial on a civil tort against the church, winning millions of dollars in damages for emotional distress. The public euphoria over this victory was snatched away when the Court of Appeals threw out the verdict.

In an 8-1 decision in Snyder v. Phelps (March 2011), the Supreme Court also sided with the church, but not before issuing the usual disclaimer: "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech."

The Court's decision is in two parts. First, it noted that the protest addressed matters of public concern. After taking note of the church's speech (including signs reading "God hates the USA/Thank God for 9/11" and "Priests Rape Boys"), Chief Justice John Roberts stated, "[w]hile these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import," even if a few of the signs were directed at Snyder's son. Second, "the church members had the right to be where they were" in that they complied with local public assembly requirements, situated themselves some 1,000 feet from the funeral, and there was no shouting, profanity, or violence. "Given that Westboro's speech was at a public place on a matter of public concern, that speech is entitled to 'special protection' under the First Amendment."

The Supreme Court had never decided a case like this. While it has repeatedly upheld the right of protesters to assemble in public parks and on streets and sidewalks, and it has also protected the use of caustic and offensive speech, having sidestepped the Nazi/Skokie case, it had never decided whether the First Amendment protected intentionally provocative speech under these difficult circumstances. None of the precedents cited in the Westboro case resembled this one. The Court fused together from other cases the "public concern" and "public place" theories. And, drawing from legal principles outlined in the Hustler case, it expressed concern that a jury being asked to award damages on the basis of outrageous speech could easily allow its subjective hatred for the message to influence its verdict. "In a case like this, a jury is 'unlikely to be neutral with respect to the content of the speech,' posing a real danger of becoming an instrument for the suppression of...'vehement, caustic, and sometimes unpleasant' expression."

Apologizing for this result, the Court ended the opinion as follows: "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."

The Supreme Court went out of its way to rule in favor of the Westboro Church. The short-term harm posed by the case is that the church will continue to picket military funerals with its outrageous homophobic slander. But the church is a radical sect that will remain on the fringe; no one else is picketing military funerals. In deciding in favor of the church, the Court ensured that other provocative speech will not be censured as long as no one is physically injured. While the Court's speech absolutism may damage this country's electoral process in allowing corporations to buy elections, the Westboro case protects not only conservative Tea Partiers, but liberals and radicals who protest U.S. policies at home and abroad. The message is clear when it comes to this kind of political speech: anything goes.

Z

Stephen Bergstein, a lawyer in upstate New York, writes on civil rights issues at www.secondcircuitcivilrights.blogspot.com.

The little people don't pay taxes. Leona Helmsley said that in the 1980s when she was charged with tax evasion. She went to jail, but that's rare. The wealthiest among us get away with paying little or no taxes, though it's not illegal. It's legal because the tax code allows it. I don't know hat you think of Michael Moore, but his YouTube video a few weeks ago hit the nail on the head. American society is not broke. The money is there, but it's being allocated away from us.

Below is some good journalism from the New York Times. Someone should win an award for this article. It's long, but it tells us how the proverbial democratic sausage is made. When General Electric -- one of the largest corporations in the U.S. -- is able to pay no taxes at all on billions of dollars in profits, you know that Michael Moore is right. And so was Leona Helmsley.

G.E.’s Strategies Let It Avoid Taxes Altogether By DAVID KOCIENIEWSKI

General Electric, the nation’s largest corporation, had a very good year in 2010.

The company reported worldwide profits of $14.2 billion, and said $5.1 billion of the total came from its operations in the United States.

Its American tax bill? None. In fact, G.E. claimed a tax benefit of $3.2 billion.

That may be hard to fathom for the millions of American business owners and households now preparing their own returns, but low taxes are nothing new for G.E. The company has been cutting the percentage of its American profits paid to the Internal Revenue Service for years, resulting in a far lower rate than at most multinational companies.

Its extraordinary success is based on an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting that enables it to concentrate its profits offshore. G.E.’s giant tax department, led by a bow-tied former Treasury official named John Samuels, is often referred to as the world’s best tax law firm. Indeed, the company’s slogan “Imagination at Work�? fits this department well. The team includes former officials not just from the Treasury, but also from the I.R.S. and virtually all the tax-writing committees in Congress.

While General Electric is one of the most skilled at reducing its tax burden, many other companies have become better at this as well. Although the top corporate tax rate in the United States is 35 percent, one of the highest in the world, companies have been increasingly using a maze of shelters, tax credits and subsidies to pay far less.

In a regulatory filing just a week before the Japanese disaster put a spotlight on the company’s nuclear reactor business, G.E. reported that its tax burden was 7.4 percent of its American profits, about a third of the average reported by other American multinationals. Even those figures are overstated, because they include taxes that will be paid only if the company brings its overseas profits back to the United States. With those profits still offshore, G.E. is effectively getting money back.

Such strategies, as well as changes in tax laws that encouraged some businesses and professionals to file as individuals, have pushed down the corporate share of the nation’s tax receipts — from 30 percent of all federal revenue in the mid-1950s to 6.6 percent in 2009.

Yet many companies say the current level is so high it hobbles them in competing with foreign rivals. Even as the government faces a mounting budget deficit, the talk in Washington is about lower rates. President Obama has said he is considering an overhaul of the corporate tax system, with an eye to lowering the top rate, ending some tax subsidies and loopholes and generating the same amount of revenue. He has designated G.E.’s chief executive, Jeffrey R. Immelt, as his liaison to the business community and as the chairman of the President’s Council on Jobs and Competitiveness, and it is expected to discuss corporate taxes.

“He understands what it takes for America to compete in the global economy,�? Mr. Obama said of Mr. Immelt, on his appointment in January, after touring a G.E. factory in upstate New York that makes turbines and generators for sale around the world.

A review of company filings and Congressional records shows that one of the most striking advantages of General Electric is its ability to lobby for, win and take advantage of tax breaks.

Over the last decade, G.E. has spent tens of millions of dollars to push for changes in tax law, from more generous depreciation schedules on jet engines to “green energy�? credits for its wind turbines. But the most lucrative of these measures allows G.E. to operate a vast leasing and lending business abroad with profits that face little foreign taxes and no American taxes as long as the money remains overseas.

Company officials say that these measures are necessary for G.E. to compete against global rivals and that they are acting as responsible citizens. “G.E. is committed to acting with integrity in relation to our tax obligations,�? said Anne Eisele, a spokeswoman. “We are committed to complying with tax rules and paying all legally obliged taxes. At the same time, we have a responsibility to our shareholders to legally minimize our costs.�?

The assortment of tax breaks G.E. has won in Washington has provided a significant short-term gain for the company’s executives and shareholders. While the financial crisis led G.E. to post a loss in the United States in 2009, regulatory filings show that in the last five years, G.E. has accumulated $26 billion in American profits, and received a net tax benefit from the I.R.S. of $4.1 billion.

But critics say the use of so many shelters amounts to corporate welfare, allowing G.E. not just to avoid taxes on profitable overseas lending but also to amass tax credits and write-offs that can be used to reduce taxes on billions of dollars of profit from domestic manufacturing. They say that the assertive tax avoidance of multinationals like G.E. not only shortchanges the Treasury, but also harms the economy by discouraging investment and hiring in the United States.

“In a rational system, a corporation’s tax department would be there to make sure a company complied with the law,�? said Len Burman, a former Treasury official who now is a scholar at the nonpartisan Tax Policy Center. “But in our system, there are corporations that view their tax departments as a profit center, and the effects on public policy can be negative.�?

The shelters are so crucial to G.E.’s bottom line that when Congress threatened to let the most lucrative one expire in 2008, the company came out in full force. G.E. officials worked with dozens of financial companies to send letters to Congress and hired a bevy of outside lobbyists.

The head of its tax team, Mr. Samuels, met with Representative Charles B. Rangel, then chairman of the Ways and Means Committee, which would decide the fate of the tax break. As he sat with the committee’s staff members outside Mr. Rangel’s office, Mr. Samuels dropped to his knee and pretended to beg for the provision to be extended — a flourish made in jest, he said through a spokeswoman.

That day, Mr. Rangel reversed his opposition to the tax break, according to other Democrats on the committee.

The following month, Mr. Rangel and Mr. Immelt stood together at St. Nicholas Park in Harlem as G.E. announced that its foundation had awarded $30 million to New York City schools, including $11 million to benefit various schools in Mr. Rangel’s district. Joel I. Klein, then the schools chancellor, and Mayor Michael R. Bloomberg, who presided, said it was the largest gift ever to the city’s schools.

G.E. officials say the donation was granted solely on the merit of the project. “The foundation goes to great lengths to ensure grant decisions are not influenced by company government relations or lobbying priorities,�? Ms. Eisele said.

Mr. Rangel, who was censured by Congress last year for soliciting donations from corporations and executives with business before his committee, said this month that the donation was unrelated to his official actions.

Defying Reagan’s Legacy

General Electric has been a household name for generations, with light bulbs, electric fans, refrigerators and other appliances in millions of American homes. But today the consumer appliance division accounts for less than 6 percent of revenue, while lending accounts for more than 30 percent. Industrial, commercial and medical equipment like power plant turbines and jet engines account for about 50 percent. Its industrial work includes everything from wind farms to nuclear energy projects like the troubled plant in Japan, built in the 1970s.

Because its lending division, GE Capital, has provided more than half of the company’s profit in some recent years, many Wall Street analysts view G.E. not as a manufacturer but as an unregulated lender that also makes dishwashers and M.R.I. machines.

As it has evolved, the company has used, and in some cases pioneered, aggressive strategies to lower its tax bill. In the mid-1980s, President Ronald Reagan overhauled the tax system after learning that G.E. — a company for which he had once worked as a commercial pitchman — was among dozens of corporations that had used accounting gamesmanship to avoid paying any taxes.

“I didn’t realize things had gotten that far out of line,�? Mr. Reagan told the Treasury secretary, Donald T. Regan, according to Mr. Regan’s 1988 memoir. The president supported a change that closed loopholes and required G.E. to pay a far higher effective rate, up to 32.5 percent.

That pendulum began to swing back in the late 1990s. G.E. and other financial services firms won a change in tax law that would allow multinationals to avoid taxes on some kinds of banking and insurance income. The change meant that if G.E. financed the sale of a jet engine or generator in Ireland, for example, the company would no longer have to pay American tax on the interest income as long as the profits remained offshore.

Known as active financing, the tax break proved to be beneficial for investment banks, brokerage firms, auto and farm equipment companies, and lenders like GE Capital. This tax break allowed G.E. to avoid taxes on lending income from abroad, and permitted the company to amass tax credits, write-offs and depreciation. Those benefits are then used to offset taxes on its American manufacturing profits.

G.E. subsequently ramped up its lending business.

As the company expanded abroad, the portion of its profits booked in low-tax countries such as Ireland and Singapore grew far faster. From 1996 through 1998, its profits and revenue in the United States were in sync — 73 percent of the company’s total. Over the last three years, though, 46 percent of the company’s revenue was in the United States, but just 18 percent of its profits.

Martin A. Sullivan, a tax economist for the trade publication Tax Analysts, said that booking such a large percentage of its profits in low-tax countries has “allowed G.E. to bring its U.S. effective tax rate to rock-bottom levels.�?

G.E. officials say the disparity between American revenue and American profit is the result of ordinary business factors, such as investment in overseas markets and heavy lending losses in the United States recently. The company also says the nation’s workers benefit when G.E. profits overseas.

“We believe that winning in markets outside the United States increases U.S. exports and jobs,�? Mr. Samuels said through a spokeswoman. “If U.S. companies aren’t competitive outside of their home market, it will mean fewer, not more, jobs in the United States, as the business will go to a non-U.S. competitor.�?

The company does not specify how much of its global tax savings derive from active financing, but called it “significant�? in its annual report. Stock analysts estimate the tax benefit to G.E. to be hundreds of millions of dollars a year.

“Cracking down on offshore profit-shifting by financial companies like G.E. was one of the important achievements of President Reagan’s 1986 Tax Reform Act,�? said Robert S. McIntyre, director of the liberal group Citizens for Tax Justice, who played a key role in those changes. “The fact that Congress was snookered into undermining that reform at the behest of companies like G.E. is an insult not just to Reagan, but to all the ordinary American taxpayers who have to foot the bill for G.E.’s rampant tax sheltering.�?

A Full-Court Press

Minimizing taxes is so important at G.E. that Mr. Samuels has placed tax strategists in decision-making positions in many major manufacturing facilities and businesses around the globe. Mr. Samuels, a graduate of Vanderbilt University and the University of Chicago Law School, declined to be interviewed for this article. Company officials acknowledged that the tax department had expanded since he joined the company in 1988, and said it now had 975 employees.

At a tax symposium in 2007, a G.E. tax official said the department’s “mission statement�? consisted of 19 rules and urged employees to divide their time evenly between ensuring compliance with the law and “looking to exploit opportunities to reduce tax.�?

Transforming the most creative strategies of the tax team into law is another extensive operation. G.E. spends heavily on lobbying: more than $200 million over the last decade, according to the Center for Responsive Politics. Records filed with election officials show a significant portion of that money was devoted to tax legislation. G.E. has even turned setbacks into successes with Congressional help. After the World Trade Organization forced the United States to halt $5 billion a year in export subsidies to G.E. and other manufacturers, the company’s lawyers and lobbyists became deeply involved in rewriting a portion of the corporate tax code, according to news reports after the 2002 decision and a Congressional staff member.

By the time the measure — the American Jobs Creation Act — was signed into law by President George W. Bush in 2004, it contained more than $13 billion a year in tax breaks for corporations, many very beneficial to G.E. One provision allowed companies to defer taxes on overseas profits from leasing planes to airlines. It was so generous — and so tailored to G.E. and a handful of other companies — that staff members on the House Ways and Means Committee publicly complained that G.E. would reap “an overwhelming percentage�? of the estimated $100 million in annual tax savings.

According to its 2007 regulatory filing, the company saved more than $1 billion in American taxes because of that law in the three years after it was enacted.

By 2008, however, concern over the growing cost of overseas tax loopholes put G.E. and other corporations on the defensive. With Democrats in control of both houses of Congress, momentum was building to let the active financing exception expire. Mr. Rangel of the Ways and Means Committee indicated that he favored letting it end and directing the new revenue — an estimated $4 billion a year — to other priorities.

G.E. pushed back. In addition to the $18 million allocated to its in-house lobbying department, the company spent more than $3 million in 2008 on lobbying firms assigned to the task.

Mr. Rangel dropped his opposition to the tax break. Representative Joseph Crowley, Democrat of New York, said he had helped sway Mr. Rangel by arguing that the tax break would help Citigroup, a major employer in Mr. Crowley’s district.

G.E. officials say that neither Mr. Samuels nor any lobbyists working on behalf of the company discussed the possibility of a charitable donation with Mr. Rangel. The only contact was made in late 2007, a company spokesman said, when Mr. Immelt called to inform Mr. Rangel that the foundation was giving money to schools in his district.

But in 2008, when Mr. Rangel was criticized for using Congressional stationery to solicit donations for a City College of New York school being built in his honor, Mr. Rangel said he had appealed to G.E. executives to make the $30 million donation to New York City schools.

G.E. had nothing to do with the City College project, he said at a July 2008 news conference in Washington. “And I didn’t send them any letter,�? Mr. Rangel said, adding that he “leaned on them to help us out in the city of New York as they have throughout the country. But my point there was that I do know that the C.E.O. there is connected with the foundation.�?

In an interview this month, Mr. Rangel offered a different version of events — saying he didn’t remember ever discussing it with Mr. Immelt and was unaware of the foundation’s donation until the mayor’s office called him in June, before the announcement and after Mr. Rangel had dropped his opposition to the tax break.

Asked to explain the discrepancies between his accounts, Mr. Rangel replied, “I have no idea.�?

Value to Americans?

While G.E.’s declining tax rates have bolstered profits and helped the company continue paying dividends to shareholders during the economic downturn, some tax experts question what taxpayers are getting in return. Since 2002, the company has eliminated a fifth of its work force in the United States while increasing overseas employment. In that time, G.E.’s accumulated offshore profits have risen to $92 billion from $15 billion.

“That G.E. can almost set its own tax rate shows how very much we need reform,�? said Representative Lloyd Doggett, Democrat of Texas, who has proposed closing many corporate tax shelters. “Our tax system should encourage job creation and investment in America and end these tax incentives for exporting jobs and dodging responsibility for the cost of securing our country.�?

As the Obama administration and leaders in Congress consider proposals to revamp the corporate tax code, G.E. is well prepared to defend its interests. The company spent $4.1 million on outside lobbyists last year, including four boutique firms that specialize in tax policy.

“We are a diverse company, so there are a lot of issues that the government considers, that Congress considers, that affect our shareholders,�? said Gary Sheffer, a G.E. spokesman. “So we want to be sure our voice is heard.�?

By Stephen Bergstein
Z Magazine
January 2011

When Congress passed Title VII of the Civil Rights Act of 1964—which prohibits employment discrimination based on race, color, gender, national origin, and religion—it provided the courts almost no guidance on how to interpret the relatively brief statute, which simply makes it unlawful "to discriminate against any individual with respect to his [sic] compensation, terms, conditions, or privileges of employment." The courts have spent the last 40 years deciding what it means to "discriminate" against employees.

The Supreme Court is about to undertake that task again, this time resolving a scenario that is common to all modern corporate and governmental decision making: when multiple decision makers terminate an employee, when is the employer guilty of discrimination if only one person in the chain of command (but not the ultimate decision maker) harbors discriminatory views?

Although Title VII is one of the few civil rights laws that affect nearly every adult American, as well as their employers, the Supreme Court's rulings in this area rarely generate widespread attention. That is, unless the Court wades into the thicket of affirmative action or racial disparities in hiring, as shown by the controversy in 2009 over the New Haven firefighters who successfully argued that the city could not throw out a promotions examination that produced disparate test results along racial lines.

The Pendulum Is Swinging

For a few years in the 1990s and 2000s, the Court issued surprisingly progressive rulings that expanded the scope of Title VII. This happened after the Court, in 1989, issued a series of pro-employer decisions, prompting Congress and the first President Bush to amend Title VII in order to undo them. Those rulings, among other things, made it more difficult for employees to challenge management policies that disparately impact racial minorities. Seemingly chastened by the Civil Rights Act of 1991, the Supreme Court over the next decade or so expanded the rights of retaliation victims by ruling that general laws against employment discrimination necessarily implied that management could not retaliate against workers for objecting to biased treatment. The Court also rejected the contrary rulings of many lower courts by deciding that the employee can win at trial simply by showing that the employer's "reason" for her termination was false and offered in bad faith and that no additional evidence of discrimination was required.

The pendulum is now swinging back toward management. President Bush's appointment of two conservatives to the Supreme Court since 2005 (the justices are split between five conservatives and four liberals) produced two controversial rulings that once again reflected managerial prerogatives. In 2006, the Supreme Court ruled that a woman who for years was paid less than male employees waited too long to challenge the discriminatory pay practices. This prompted Congress to pass the Lilly Ledbetter Fair Pay Act of 2009, under which the statute of limitations starts anew with each discriminatory paycheck.

On November 2, 2010, the Court heard oral argument in a case that has the potential to close the courthouse door to any number of discrimination plaintiffs. In Staub v. Proctor Hospital, the plaintiff claimed he was terminated because of his military obligations in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). One of the supervisors who gave Staub a bad write-up harbored obvious hostility toward Staub's military commitments, describing them as "bullshit" and also hanging up on Staub's Reserve Unit Administrator after calling him an "asshole." Another supervisor, who signed off on the bad write-up, had in a different context referred to drill weekends as "Army Reserve bullshit" and "a bunch of smoking and joking and a waste of taxpayers' money." While the final decision maker had nothing against Staub's military service, she did review his personnel file, which contained the disputed write-up alleging that Staub had mishandled a routine job assignment. Among other allegations of misconduct, that write-up motivated the otherwise neutral decision maker to terminate Staub, prompting his lawsuit.

A jury ruled that Staub's termination violated USERRA, awarding him $57,640 in damages. The verdict drew in part from the negative write-up by the supervisors who frowned on Staub's military obligations. The Court of Appeals for the Seventh Circuit threw out the verdict, concluding that bad actors along the chain of command did not cause Staub's termination because they did not have "singular influence" over the final decision maker, even if the latter did not undertake a "robust" investigation into the negative allegations against Staub. Raising the burden on plaintiffs attempting to show that the process was infected by a discriminatory supervisor along the way, the Seventh Circuit stated that the civil rights laws "do not require the decision maker to be a paragon of independence. It is enough that the decision maker is not wholly dependent on a single source of information and conducts her own investigation into the facts relevant to the decision." The Supreme Court has taken the case to decide under what circumstances employers may be liable for employment discrimination where the events leading up to the plaintiff's termination was tainted by a supervisor who harbored discriminatory intent, even if the final decision maker did not.

The Cat's Paw

In many discrimination cases, the plaintiff argues that the sole decision maker harbored discriminatory views in violation of Federal law. In that scenario, there is no dispute that the decision maker was the only bad actor. In contrast, the Staub case raises an issue that affects employees in the modern, hierarchical working environment, where promotion and termination decisions follow a multi-supervisor decision making process that may be infected along the way by a manager harboring discriminatory views toward workers protected under the civil rights laws. When someone is fired as a result of a biased supervisor whose input affects the termination decision, courts refer to this theory of discrimination as the "cat's paw," named after a 17th Century French fable where a monkey persuades an unsuspecting cat to grab chestnuts from the fire. The monkey profits after the cat burns her paw, having taken the monkey's word for it. The Supreme Court has never decided a case on the cat's paw theory and its past rulings have given little hint on whether it would allow discrimination plaintiffs to win their case without showing that the final decision maker was motivated by racial, gender, or any other form of unlawful discrimination.

In their written submissions to the Supreme Court, Staub's lawyers argued that "so long as the official whose actions led to injury was an agent [of the employer], it is unimportant whether that official was the first or last in the series of decision makers involved." Quoting from a prior Supreme Court decision in the employment discrimination field, the lawyers added, "where a supervisor exercises the authority actually delegated to him by his employer, by making decisions...affecting the employment status of his subordinates, such actions are properly imputed to the supervisor to make them."

In addition, they attacked the Seventh Circuit's "singular influence" theory of cat's paw liability as too narrow and inconsistent with the general rule in employment discrimination cases that "corporations are responsible for the knowledge and motives of subsidiary officials, even if those motives are not communicated to ultimate decisionmakers."

The attorneys further argued that under the "singular influence" standard, "an employer is not liable so long as the final decisionmaker relied at least in part on any information that did not come from a biased official. That rule invites employers to largely immunize themselves from liability for violating USERRA or federal anti-discrimination laws merely by requiring human resources officials to go through the motions of reviewing information from two different sources, which usually would require no more than a quick pro forma glance at a worker's personnel file."

In contrast to Staub's arguments in the Supreme Court, some Federal courts around the country have made it nearly impossible for plaintiffs to challenge terminations that were influenced by biased supervisors. As the Supreme Court noted in 2009 in an unrelated case, "the least employee-friendly standard asks only whether 'the actual decisionmaker' acted with discriminatory intent." That standard would insulate the employer from liability no matter how racist or sexist influential lower-level supervisors were.

With courts around the country issuing conflicting opinions on how to apply the "cat's paw" theory of discrimination, the Supreme Court took up the Staub case to establish a workable rule. Although the Court draws upon a large body of case law and common-law legal principles in interpreting relatively terse statutes like Title VII, its rulings necessarily reflect the biases and life experiences of the justices. All of them went to Ivy League schools and, particularly the more conservative justices, held high-ranking positions in government and the private sector before ascending to the Federal bench. If the justices did work as rank-and-file employees, they did so briefly. It is fair to say that none of them ever brought an employment discrimination lawsuit or found themselves vigorously cross-examined by management's counsel about the disputed contents of their personnel files. Only one Supreme Court Justice, Ruth Bader Ginsburg, actually represented employment discrimination plaintiffs.

At times, even the conservative Justices get it right in ruling on employment discrimination cases. In 2000, the Supreme Court set aside reams of pro-employer case law from the lower courts that practically required plaintiffs to produce "smoking gun" evidence of discrimination in order to win their cases. Over the last 25 years, the Court has also been sensitive to the claims of sexual harassment plaintiffs in ruling that trial courts may not throw out these cases before viewing the victim's work environment as a whole and paying "careful consideration of the social context in which particular behavior occurs and is experienced by its target."

Since the Supreme Court usually decides cases after the lower Federal courts have issued conflicting rulings on the same issue, it has a range of legal interpretations to choose from. These conflicting rulings by experienced Federal judges around the country further confirm that many legal problems have plausible solutions on both sides of the ideological spectrum. Since the cat's paw theory of discrimination is a fresh issue for the Supreme Court, we only have informed guesswork in predicting whether the Justices will favor employees or management on this issue.

Hostile Questions

One place to look is the oral argument transcript from November 2, 2010. Since most of the Justices ask questions at argument, the transcripts give journalists and researchers a sense of how the Justices see the issue before they issue a ruling.

The most conservative Justice on the Court, Clarence Thomas, rarely asks questions. However, the four other Justices who comprise the Court's conservative bloc were skeptical in questioning Staub's lawyer at oral argument when he suggested that any significant discriminatory link in the chain of decision making makes the employer liable for discrimination. The exchange went like this:

JUSTICE ALITO: Could I just ask where your argument leads? Let's say that an employer calls in an employee and says: "Now, we have to decide who to lay off and we have looked at your record over the last 10 years, and here it is, all the evaluations you've gotten over the past 10 years, and based on all of that, we've decided that you are going to be the person to be laid off." Now if it turns out that one of those evaluations was rendered by someone who had an anti-military bias, would that...be a prima facie case against the employer?

SCHNAPPER: It would.

JUSTICE ALITO: Even if the employer at that time...made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?

SCHNAPPER: Yes. There is nothing in the statute or in the common law that creates a special rule for thorough investigation.

JUSTICE KENNEDY: Well, that's a sweeping rule. I was going to ask a related hypothetical. Suppose the officer who is in charge, charged with the decision to terminate or not to terminate, says: "I'm going to have a hearing. You can both have counsel." And...suppose the two employees that were allegedly anti-military here testified and they said there was no anti-military bias, and the person is then terminated. Later the employee has evidence that those two were lying. Could he bring an action then?

SCHNAPPER: Yes. Yes.

JUSTICE KENNEDY: That's sweeping. That almost [ensures] liability insofar as the director of employment is concerned. He has to insure. He has done everything he can, he has an hearing, and he has almost absolute liability.

As the Court frowns upon overly broad legal arguments, Justice Kennedy's suggestion that Staub was making a "sweeping" point does not bode well for the plaintiff. Yet, in the context of employment discrimination law, which prohibits biased decision making that has a negative effect on the employee's career, Staub's attorney was simply suggesting that if the final decision maker unknowingly ratifies a discriminatory act that leads to the employee's termination, the employer is liable for discrimination. That is not a remarkable proposition, but it was to these Justices.

Other questions at argument from the more liberal Justices reflected impatience with the Seventh Circuit's narrow "singular influence" rule which means the employer can prevail if a discriminatory influence was among many that led up to the employee's termination. Yet, even Justice Scalia, perhaps the Court's most prominent conservative, suggested that the hospital's lawyer was making an extreme argument in proposing that the plaintiff cannot win unless the final decision maker himself harbored discriminatory intent.

JUSTICE SCALIA: You have to get us to believe—and I'm not sure we will—that motivating factor in the decision refers to motive on the part of the person who made the decision. That's essentially your point, isn't it?

DAVIS: Yes.

There is always a danger in reading the tea leaves at oral argument. The Supreme Court does not issue rulings right away. Sometimes they ask questions at oral argument that do not reflect their views on the case. The Justices draft opinions and attempt to persuade others on the Court to join them. A 5-4 ruling can go the other way during this time. Surely the Court knows this case would affect the rights of millions of workers, as the Court's interpretation of the civil rights laws are binding on all lower courts and it may be years before the Court again takes up the issue to clarify any uncertainty produced by the ruling in this case. One thing is certain. While a Democratic Congress was able to overrule the pro-employer Ledbetter statute-of-limitations case in 2009, so long as the Republicans control the House, any negative ruling by the Court in Staub will remain undisturbed.

Stephen Bergstein is a New York attorney who writes on civil rights decisions (www.secondcircuitcivilrights.blogspot.com).

Grateful Dead: Scarlet Begonias (1977)

Z Magazine
September 2010

By Stephen Bergstein

On August 7, Elena Kagan took the oath to serve on the U.S. Supreme Court, the final stop for all constitutional litigation and the tribunal that issues authoritative interpretations of the Bill of Rights, which include the First Amendment. As these rulings cannot be overturned by Congress, the Supreme Court wields power that is hardly commensurate with the relatively meager public scrutiny attracted by the nine Justices who serve lifetime appointments.

Kagan's appointment will not change the balance of power on the Court. She replaces John Paul Stevens, who was the most liberal Justice at the time of his retirement. That Justice Stevens was a moderate Republican who was appointed by President Ford in 1975 only confirms how far to the right that Court has shifted. As it now stands, the Court has four liberals and five conservatives, one of whom, Justice Anthony Kennedy, occasionally votes with the liberal wing. Since the Court's conservatives show no sign of retiring anytime soon, Court watchers believe that the conservative majority will hold for years to come, even if President Obama's re-election in 2012 forces them to remain on the Court for another four years to avoid being replaced by their ideological opposites.

While Kagan's nomination attracted renewed public scrutiny to the Court, that attention has overlooked a profound recent shift in the Court's First Amendment jurisprudence. This omission was particularly significant in light of Kagan's expertise in First Amendment issues.

Indeed, when the New York Times in July 2010 commemorated the fifth anniversary of the appointment of Chief Justice John Roberts, in noting the Court's sharp turn to the right over the last few years, it drove home that point in describing Hudson v. Michigan, a Fourth Amendment case that granted the police additional authority to conduct unannounced home searches. The Court handed down that decision in 2006 only after President George W. Bush appointed Justice Samuel Alito to replace Justice Sandra Day O'Connor, who had heard oral arguments in the case, but retired from the Court before casting her vote. Based on her comments at oral arguments, the New York Times suggested that Justice O'Connor would have suppressed the evidence in that case and struck down the search as unconstitutional. Justice Alito sided with the police.

Garcetti v. Ceballos

An important First Amendment case, also from 2006, met the same fate as Hudson v. Michigan. That case, Garcetti v. Ceballos, split the Court 4-4, after Justice O'Connor heard oral arguments in the case but retired before the Court could issue a decision. Legal scholars believe that, as the Court's long-time swing vote, her practical approach to constitutional issues would have resulted in a victory for the plaintiff, a Los Angeles assistant district attorney who suffered retaliation after blowing the whistle over an illegitimate search warrant. After Justice O'Connor left the Court in 2005, the Court heard the case again and voted 5-4 against the plaintiff, setting a new standard governing the First Amendment rights of public employees to speak out on the job without fear of retaliation, including termination. Issued in 2006, this ruling has nearly eviscerated the rights of conscientious public whistleblowers who stick their neck out in the pursuit of good government. Justice Alito voted with the majority in Garcetti.

Prior to the Garcetti ruling, the Supreme Court had framed the legal question as follows: if a public employee spoke out on any matter of public concern, they generally could not suffer retaliation. Public or private speech that drew attention to "any matter of political, social, or other concern to the community" constituted speech on a matter of public concern. In outlining this framework in 1983, the Court ruled that, "When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." For many public employee whistleblowers, particularly if they did not belong to a labor union, this broad "public concern" standard was likely their only protection against arbitrary termination or demotion.

Garcetti changed the ground rules as the new legal standard narrows the "public concern" definition. Under Garcetti, work-related speech is not protected under the First Amendment if that speech is made pursuant to the employee's official job duties. The Court stated, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." One of the concerns guiding this new rule was the need for governmental employers to maintain "sufficient discretion to manage their operations." The Court is also reluctant to second-guess routine personnel decisions, expressly declining to "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business." Under Garcetti, the emphasis is no longer on the importance of the whistleblower's speech, but on the government's need to maintain an efficient workplace and discretionary supervisory authority over employees.

Applying this test for the first time in Garcetti, the Court held that while the assistant district attorney raised serious concerns in the workplace about the propriety of a search warrant, since he made that speech pursuant to his job responsibilities, it was not free speech, but work-related speech and he, therefore, had no constitutional recourse against his retaliation. A case that could have prevailed at trial before a sympathetic jury was rejected by the Supreme Court, which said the plaintiff did not speak as a citizen, but as an employee who was paid to discuss these matters with his supervisors.

Workplace Efficiency

Over the years, the Supreme Court has carved out other ways for government employers to prevail in free speech and whistleblower claims under the First Amendment. When the Court initiated this line of cases in 1968, it held that even if the employee does speak on a matter of public concern, the government can still win the case if the employer reasonably believes the speech would disrupt workplace efficiency, i.e., if the speech interferes with efficient government operations. As interpreted by the lower courts, the employee could still win the case if his speech was sufficiently important to outweigh the government's interest in maintaining efficient operations. Under this framework, whistleblowers who spoke out against government corruption enjoyed far greater rights than the government's interest in maintaining workplace efficiency. In 1977, the Court ruled that even if the employee is terminated in retaliation for speaking out on matters of public concern, the government could still win the case if it proves that it would have hypothetically terminated the employee even without taking the speech into account. The Court has also entitled public officials to certain immunities from litigation if the lawsuit raises unique or novel issues of First Amendment law.

But these defenses did not limit the meaning of "public concern" speech. Under Garcetti, there is no balancing of interests between the employee and her government employer. If the employee speaks out against embezzlement, nepotism, or other egregious abuses of authority, the First Amendment does not protect her if that speech grows out of her job duties. If the best whistleblowers speak from personal experience about malfeasance or corruption, they are now the ones with the fewest First Amendment protections. Very often, the whistleblower speaks out from what she has personally witnessed. Chances are, she knows about government misconduct as a result of her daily job responsibilities. That connection—speaking out pursuant to job duties—brings the case within Garcetti and denies the employee any recourse if she is terminated or demoted in retaliation for her speech. In contrast, less dramatic speech, such as a letter to the editor on a matter of general public interest unrelated to the employee's daily work responsibilities, remains protected under the First Amendment.

For these reasons, over the last four years, Garcetti has had a devastating effect on the rights of government whistleblowers. As the lower federal courts must faithfully apply Garcetti's reasoning in similar First Amendment cases, they are routinely dismissing lawsuits that would have gone to trial less than a decade ago, before Garcetti.

Garcetti's broad reach does not simply restrict the rights of whistleblowers. The United States Court of Appeals in Manhattan had long been known for its broad constitutional protections for government whistleblowers and public employee speech in general. However, in January 2010, applying Garcetti for the first time, the Court of Appeals, led by two Republican-appointed judges, ruled in Weintraub v. Board of Education that a school teacher who filed a union grievance protesting the discipline of an errant student did not engage in free speech, but official-duty speech, and could therefore be disciplined in retaliation for the grievance. Further embellishing Garcetti's language that public employee speech is not constitutionally protected if it is made pursuant to official job duties, the Second Circuit ruled that the teacher's grievance enjoyed no First Amendment protection, reasoning, "under the First Amendment, speech can be 'pursuant to' a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was 'pursuant to' his official duties because it was 'part-and-parcel of his concerns' about his ability to 'properly execute his duties,' as a public school teacher—namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning." This legal reasoning was unthinkable prior to Garcetti.

Citizens United

The Court's strained ruling in Garcetti stands in contrast to its broad protections in other First Amendment contexts. As a practical matter, the modern Supreme Court takes an "absolutist" view of political speech. In 2010, the Court held in Citizens United v. Federal Elections Commission that the First Amendment prohibits the government from restricting independent corporate contributions to political campaigns. Citizens United overruled a 19-year-old Supreme Court ruling. Two years earlier, in Davis v. Federal Election Commission, the Court struck down the "millionaire's amendment," which allowed political candidates to exceed certain spending caps from individual contributions if their opponents poured excessive personal wealth into their campaigns. While the millionaire's amendment attempted to level the playing field, the Court held that it unfairly penalized wealthier candidates, who did not enjoy any comparable spending adjustments. In 2009, Justice Thomas suggested that the FCC's indecency regulations that levy huge fines against television broadcasters may be unconstitutional, a proposition that would overrule two Supreme Court rulings and grant nearly unfettered speech rights to network broadcasters for the first time.

Disparate First Amendment rulings by the Supreme Court mean that some citizens and corporate entities have greater speech rights than others. Garcetti creates paradoxes. First, the public employees who are in the best position to draw attention to government misconduct now have sharply diminished constitutional protection against retaliation from supervisors who do not want any sunlight shining on public malfeasance. Second, while the Supreme Court has gone out of its way to expand the First Amendment rights of both corporations desiring to contribute to political campaigns and wealthy candidates who self-finance their campaigns, its oft-stated desire to promote robust discussion of public affairs has skipped over the rights of rank-and-file public employees completely.

Long before 9/11, the government had maintained a comprehensive spying program to fend off any perceived threats to the American system. Except that the targets of this surveillance were not threats to anything except to the status quo. This was Cointelpro, short for counter-intelligence program, an FBI operation that began in the 1940s and ended in the mid-1970s, the post-Watergate era and Congress and the media began taking a hard look (for the first) time at the massive bureaucracy put in place by notorious FBI head J. Edgar Hoover.

Cointelpro spied on thousands of Americans, and sometimes that surveillance went beyond tapped phone calls and intercepted correspondence. That kind of surveillance is bad enough, but the FBI also destroyed lives and played a role in domestic political assassinations in the name of "national security." Nearly all this surveillance and disruption was focused on left-wing Americans who strongly opposed the status quo through anti-Vietnam war protests, support for revolutionary movements around the world and advocacy against a U.S. economic system in favor of more egalitarian policies. Cointelpro is a dark period in American history, and this country is a much freer place without it.

Why is all of this relevant, decades after Cointelpro shut down? Because Cointelpro records are still coming to light. Sometimes Cointelpro went after celebrities as opposed to local, anonymous leftists. A decade ago, it was revealed that the Nixon administration tried like the devil to deport former Beatle John Lennon. This time around, records show that the government was surveilling radical historian Howard Zinn, a hero to many progressives for his landmark book, A People's History of the United States, which examined American history from the perspective of civil rights and labor activists and the other social movements which stood up against unjustified war and economic policies. This book is a rite of passage for many college students who were force-fed stories about American exceptionalism for 12 years in grade school.

As summarized by Raw Story:

On Friday, the FBI released a 243-page file on Zinn, who died in January at age 87. The release describes the historian as "radical." The documents show the bureau taking an active interest in Zinn since the late 1940s, when he was a student at New York University. The interest continued through the 1950s, as Zinn worked on his PhD at Columbia University.

When the FBI again took an interest in Zinn in the 1960s, documents show the bureau evidently tried to have the historian fired from his job as professor at Boston University.

In a document from the Boston FBI office (see PDF file here), an FBI "source," whose name was redacted from the publicly released documents, was quoted as being outraged over Zinn's comment at a protest that the US had become a "police state" and that prosecutions of Black Panther Party members were creating "political prisoners."

The bureau's Boston office then indicated it wanted to help the source in his or her campaign to unseat Zinn. "[The] Boston [office] proposes under captioned program with Bureau permission to furnish [name redacted] with public source data regarding Zinn's numerous anti-war activities ... in an effort to back [redacted] efforts for his removal."

The new Cointelpro records on Zinn show the government was obsessed with the Brooklyn-born university professor who served as a fighter pilot in World War II. He turned against the Vietnam war and led rallies in the 1960s and 1970s. One of his targets was government surveillance against anti-war activists. Did he know the government was spying on him? He probably suspected it.

So the FBI tried to have Zinn fired from his job, in part, because he criticized the FBI's repressive tactics. This may sound shocking to anyone not familiar with Cointelpro, but it's actually par for the course. That the government could go after high profile people like John Lennon and Howard Zinn for their left-wing activism shows how ruthless the so-called anti-communist crusade really was. Anyone could be a target, and many people were. This kind of surveillance was totally illegal, and it further confirms my view that the United States did not fully become a democratic country until the day that Congress shut down Cointelpro in the mid-1970s.

A Federal appeals court in New York City has struck down as unconstitutional the FCC's broadcast standards intended to get "fleeting expletives" and other foul-mouthed utterances off the air. The Court holds that the guidelines are too vague and have the effect of chilling First Amendment speech.

The case is Fox Television Stations v. FCC, decided on July 13. The FCC has been trying to police vulgar language on television for decades, most famously in the 1970s, when it took George Carlin's 12-minute "seven dirty words" monologue all the way to the Supreme Court, which held in 1978 that the government had greater leeway to regulate speech on radio and television since these mediums were easily accessible to children.

It was a different world in the 1970s, when cable television was in its infancy and there was no Internet. We only had a few channels back then, and it was much easier for children to watch objectionable programming. Despite the explosion of new media, though, over the last 10 years, the FCC stepped up enforcement of expletives on radio and television after celebrities like Bono and Cher (among others) proved themselves incapable of uttering even a public statement without using obscene language. These were called "fleeting expletives" in that the broadcasters did not know this language was coming and therefore could not prevent them. That did not stop the FCC from treating these incidents as violations of government policy, which could cost broadcasters thousands of dollars in fines.

Adopted in 2001, the FCC's indecency policy punishes broadcasters for language that describes or depicts sexual or excretory organs or activities. It also prohibits "patently offensive" language as measured by "community standards." The Court of Appeals strikes down these standards as too vague to place broadcasters on proper notice of when they are going to be fined. In illustrating why this is so, the Second Circuit provides examples that necessarily require the Court to use foul language (like "fuck" and "shit") in fleshing out the opinion. In fact, I have never seen a Second Circuit opinion with so much potty language.

The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit�? in a “NYPD Blue�? episode was patently offensive, it concluded that “dick�? and “dickhead�? were not. The Court observes, "[t]hus, the word 'bullshit' is indecent because it is 'vulgar, graphic and explicit' while the words 'dickhead' was not indecent because it was 'not sufficiently vulgar, explicit, or graphic.' This hardly gives broadcasters notice of how the Commission will apply the factors in the future."

While the FCC says it needs a flexible standard because broadcasters will try to subvert the censorship laws, that argument only further shows how vague the standards really are. The Court of Appeals notes that "If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so."

The FCC does exempt expletives if they are essential to a particular program or part of a "bona fide" news broadcast. In light of the FCC's inconsistent application of this test (which protects foul language in moves like Saving Private Ryan but not gratuitous cursing during the Golden Globe Awards), this cannot work, the Court of Appeals says. "There is little rhyme or reason to these decisions and broadcasters are left to guess whether an expletive will be deemed 'integral' to a program or whether the FCC will consider a particular broadcast a 'bona fide news interview.'�? Broadcasters are going to have to guess whether certain obscenities run afoul of the FCC's decency rules. The First Amendment cannot tolerate this. As the Second Circuit notes:

[W]hen Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.�? With millions of dollars and core First Amendment values at stake, “I suspect�? is simply not good enough.

The zinger here is that there is evidence that the vague broadcast standards have, in fact, chilled free speech. There is no greater threat to free speech than evidence that vague rules will make broadcast and radio executives think twice about certain programming. For example, under the FCC's revised speech standards, some CBS affiliates were afraid to re-broadcast a documentary on 9/11, which included foul language from real footage of the World Trade Center attack. A radio station canceled a planned reading of a Tom Wolfe novel because it contained adult language. Bona-fide news programs are also being chilled, particularly political debates involving a politician who had previously used expletives on the air.

How would you like to be strip-searched? In New York, jails cannot strip-search inmates willy-nilly. Under the Fourth Amendment (prohibiting unreasonable searches and seizures), people arrested on misdemeanors, for example, cannot be searched this way. That rule more or less applies around the country. But it gets violated all the time. It even happened in Iowa.

Some women in Iowa went to President Bush's campaign rally in September 2004. They were charged with trespassing because they were standing where they were not supposed to be. They showed up not to praise Bush but to condemn the Iraq war. The strange reality that First Amendment lawyers discovered over the last few years is that presidential rallies carry different free speech rules than other rallies and that Secret Service are given significant leeway in regulating these events in the name of security. So that when no one told these protesters they they could not stand in certain areas near the rally, they were arrested for trespass and sent to the County jail. As described by the federal appeals court which ultimately heard the case, here is what happened at the jail:

After being arrested and charged with simple misdemeanor trespass under Iowa law, the two women were taken to the Linn County jail. At the jail, despite the fact neither woman was suspected of hiding weapons or contraband and had only been charged with a simple misdemeanor, Linn County Deputy Sheriff Michelle Mais conducted a "full strip search" of the two women in violation of jail policy. The "full strip search" required the two women to strip naked and included a visual body cavity search. In a visual body cavity search, detainees must bend over and spread their buttocks and allow an officer to inspect their rectal area. The visual body cavity search also included an inspection of the women's vaginas. While Nelson was searched, the top half of a Dutch door to the room in which the search took place was open, and male jailers passed by the open door during the search.

The trespass charges were dropped, which means they were totally innocent. The strip-search was unauthorized and humiliating. When the case went to trial against jail officials for the illegal search, the women testified about what it felt like to be searched like this. So lets play a little game here: imagine your mother or your sister is testified as these women did at trial:

At trial, McCabe and Nelson described the humiliation and trauma they experienced as the result of being forced to stand naked in front of a complete stranger and expose intimate parts of their body. Barb Hannon bailed the two women out of jail and described them as being in "shock." Both spent the night crying. When describing the search, McCabe testified she was "horrified." She said it was "like it was happening to another person, like – like I was almost standing back watching this happen to me, because I just couldn't – I couldn't wrap my brain around what was going on." Nelson testified she was "humiliated, and I felt violated. I felt as though I had lost control of my own body. I couldn't imagine many things that would be worse." Nelson was diagnosed with depression following the arrest and search, and obtained medical treatment for her depression.

The jury, God bless 'em, ruled in the womens' favor on the strip searches, awarding them so much money that the trial court had to schedule another trial to ensure that the damages award was more in line with acceptable standards. The new is not that they won the case but that courts have placed clear limits on when jail officials can strip-search detainees -- particularly people who have not yet been convicted of anything -- but those rules are routinely ignored. Even in New York, which probably deems itself more enlightened than Iowa, strip-search rules are regularly ignored, to the embarrassment and humiliation of the victims of this municipal malfeasance. We often hear about sex scandals and bribery scandals and even environmental scandals. Ever hear of a Fourth Amendment scandal?

We watch in horror as the oil spewing through the Gulf of Mexico washes ashore New Orleans and the rest of the southern states. This was no natural disaster, this was a man-made disaster. It comes at a time when the country is debating the usefulness of regulations, as if the Wall Street meltdown in 2008 -- resulting from the go-go years of unrestricted investing -- did not put that debate to rest.

The dirty secret of American politics is that both political parties are weak on regulatory policy. The Republicans may be worse than the Democrats, but both parties are beholden to corporate America and the view that it's all OK if someone is making money. The men with the money are the ones who donate to the political campaigns, but more broadly, capitalism is the national religion, and pro-regulation politicians and thinkers are still labeled as anti-business and even anti-American.

The below article from the New York Times on May 14, 2010 confirms that this oil disaster did not have to happen. The government was not enforcing regulations intended to prevent this problem, and this omission was conscious, not negligent. I am reprinting the article in full. The ways in which profiteering is reasonably regulated to protect health, safety and environmental concerns remains an under-appreciated aspect of American government. But this ain't no Lady Gaga. It's the difference between a sustainable ecosystem and death. When are we going to start to care?

May 13, 2010 U.S. Said to Allow Drilling Without Needed Permits By IAN URBINA

WASHINGTON — The federal Minerals Management Service gave permission to BP and dozens of other oil companies to drill in the Gulf of Mexico without first getting required permits from another agency that assesses threats to endangered species — and despite strong warnings from that agency about the impact the drilling was likely to have on the gulf.

Those approvals, federal records show, include one for the well drilled by the Deepwater Horizon rig, which exploded on April 20, killing 11 workers and resulting in thousands of barrels of oil spilling into the gulf each day.

The Minerals Management Service, or M.M.S., also routinely overruled its staff biologists and engineers who raised concerns about the safety and the environmental impact of certain drilling proposals in the gulf and in Alaska, according to a half-dozen current and former agency scientists.

Those scientists said they were also regularly pressured by agency officials to change the findings of their internal studies if they predicted that an accident was likely to occur or if wildlife might be harmed.

Under the Endangered Species Act and the Marine Mammal Protection Act, the Minerals Management Service is required to get permits to allow drilling where it might harm endangered species or marine mammals.

The National Oceanic and Atmospheric Administration, or NOAA, is partly responsible for protecting endangered species and marine mammals. It has said on repeated occasions that drilling in the gulf affects these animals, but the minerals agency since January 2009 has approved at least three huge lease sales, 103 seismic blasting projects and 346 drilling plans. Agency records also show that permission for those projects and plans was granted without getting the permits required under federal law.

“M.M.S. has given up any pretense of regulating the offshore oil industry,�? said Kierán Suckling, director of the Center for Biological Diversity, an environmental advocacy group in Tucson, which filed notice of intent to sue the agency over its noncompliance with federal law concerning endangered species. “The agency seems to think its mission is to help the oil industry evade environmental laws.�?

Kendra Barkoff, a spokeswoman for the Interior Department, said her agency had full consultations with NOAA about endangered species in the gulf. But she declined to respond to additional questions about whether her agency had obtained the relevant permits.

Federal records indicate that these consultations ended with NOAA instructing the minerals agency that continued drilling in the gulf was harming endangered marine mammals and that the agency needed to get permits to be in compliance with federal law.

Responding to the accusations that agency scientists were being silenced, Ms. Barkoff added, “Under the previous administration, there was a pattern of suppressing science in decisions, and we are working very hard to change the culture and empower scientists in the Department of the Interior.�?

On Tuesday, Interior Secretary Ken Salazar announced plans to reorganize the minerals agency to improve its regulatory role by separating safety oversight from the division that collects royalties from oil and gas companies. But that reorganization is not likely to have any bearing on how and whether the agency seeks required permits from other agencies like NOAA.

Criticism of the minerals agency has grown in recent days as more information has emerged about how it handled drilling in the gulf.

In a letter from September 2009, obtained by The New York Times, NOAA accused the minerals agency of a pattern of understating the likelihood and potential consequences of a major spill in the gulf and understating the frequency of spills that have already occurred there.

The letter accuses the agency of highlighting the safety of offshore oil drilling operations while overlooking more recent evidence to the contrary. The data used by the agency to justify its approval of drilling operations in the gulf play down the fact that spills have been increasing and understate the “risks and impacts of accidental spills,�? the letter states. NOAA declined several requests for comment.

The accusation that the minerals agency has ignored risks is also being levied by scientists working for the agency.

Managers at the agency have routinely overruled staff scientists whose findings highlight the environmental risks of drilling, according to a half-dozen current or former agency scientists.

The scientists, none of whom wanted to be quoted by name for fear of reprisals by the agency or by those in the industry, said they had repeatedly had their scientific findings changed to indicate no environmental impact or had their calculations of spill risks downgraded.

“You simply are not allowed to conclude that the drilling will have an impact,�? said one scientist who has worked for the minerals agency for more than a decade. “If you find the risks of a spill are high or you conclude that a certain species will be affected, your report gets disappeared in a desk drawer and they find another scientist to redo it or they rewrite it for you.�?

Another biologist who left the agency in 2005 after more than five years said that agency officials went out of their way to accommodate the oil and gas industry.

He said, for example, that seismic activity from drilling can have a devastating effect on mammals and fish, but that agency officials rarely enforced the regulations meant to limit those effects.

He also said the agency routinely ceded to the drilling companies the responsibility for monitoring species that live or spawn near the drilling projects.

“What I observed was M.M.S. was trying to undermine the monitoring and mitigation requirements that would be imposed on the industry,�? he said.

Aside from allowing BP and other companies to drill in the gulf without getting the required permits from NOAA, the minerals agency has also given BP and other drilling companies in the gulf blanket exemptions from having to provide environmental impact statements.

Much as BP’s drilling plan asserted that there was no chance of an oil spill, the company also claimed in federal documents that its drilling would not have any adverse effect on endangered species.

The gulf is known for its biodiversity. Various endangered species are found in the area where the Deepwater Horizon was drilling, including sperm whales, blue whales and fin whales.

In some instances, the minerals agency has indeed sought and received permits in the gulf to harm certain endangered species like green and loggerhead sea turtles. But the agency has not received these permits for endangered species like the sperm and humpback whales, which are more common in the areas where drilling occurs and thus are more likely to be affected.

Tensions between scientists and managers at the agency erupted in one case last year involving a rig in the gulf called the BP Atlantis. An agency scientist complained to his bosses of catastrophic safety and environmental violations. The scientist said these complaints were ignored, so he took his concerns to higher officials at the Interior Department.

“The purpose of this letter is to restate in writing our concern that the BP Atlantis project presently poses a threat of serious, immediate, potentially irreparable and catastrophic harm to the waters of the Gulf of Mexico and its marine environment, and to summarize how BP’s conduct has violated federal law and regulations,�? Kenneth Abbott, the agency scientist, wrote in a letter to officials at the Interior Department that was dated May 27.

The letter added: “From our conversation on the phone, we understand that M.M.S. is already aware that undersea manifolds have been leaking and that major flow lines must already be replaced. Failure of this critical undersea equipment has potentially catastrophic environmental consequences.�?

Almost two months before the Deepwater Horizon exploded, Representative Raúl M. Grijalva, Democrat of Arizona, sent a letter to the agency raising concerns about the BP Atlantis and questioning its oversight of the rig.

After the disaster, Mr. Salazar said he would delay granting any new oil drilling permits.

But the minerals agency has issued at least five final approval permits to new drilling projects in the gulf since last week, records show.

Despite being shown records indicating otherwise, Ms. Barkoff said her agency had granted no new permits since Mr. Salazar made his announcement.

Other agencies besides NOAA have begun criticizing the minerals agency.

At a public hearing in Louisiana this week, a joint panel of Coast Guard and Minerals Management Service officials investigating the explosion grilled minerals agency officials for allowing the offshore drilling industry to be essentially “self-certified,�? as Capt. Hung Nguyen of the Coast Guard, a co-chairman of the investigation, put it.

In addition to the minerals agency and the Coast Guard, the Deepwater Horizon was overseen by the Marshall Islands, the “flag of convenience�? under which it was registered.

No one from the Marshall Islands ever inspected the rig. The nongovernmental organizations that did were paid by the rig’s operator, in this case Transocean.

Campbell Robertson contributed reporting from New Orleans, and Andy Lehren from New York.

This article has been revised to reflect the following correction:

Correction: May 15, 2010

A previous version of this article misidentified the government agency where Kendra Barkoff is a spokeswoman. She is with the Interior Department, not the Minerals Management Service.

I have been counting down the greatest live rock and roll performances of all time. Scroll down for numbers nine through two. We have now reached number one.

The Allman Brothers are still around today, but it was only a brief run with the great guitarist, Duane Allman, who died in 1971 in a motorcycle accident. Another band member died a year later, also in a motorcycle accident. Praise the Lord that the Allman Brothers recorded the Fillmore concerts from 1971. That double album has not a wasted note. The highlight is this song, the greatest live performance of all time, In Memory of Elizabeth Reed, an instrumental that just goes on forever, and you wish it could go on forever, but it ends after 13 minutes. These boys could play, and I have never heard anything better.

There are two ways to take in this performance. The full, uncut version is available from Grooveshark. The YouTube version is below.

As we count down the greatest live performances in rock history -- only one to go! -- let's a take a moment, as they say in the new-age world, to reflect and review. Reflect on my own concert experiences over the last 28 years since the time, as a 15 year-old, that I walked into Nassau Coliseum for the first time to see the Police.

It may not sound remarkable to say that my first concert was the Police at Nassau Coliseum, but it was. Seeing a great band in its prime is a rarity. Nowadays, bands and performers play live until they drop. The economics of the industry demand it. Royalties from album sales are dropping like a rock now that music fans are stealing music right and left and sharing files and listening to free music in YouTube and Grooveshark. Playing live is the best way for these bands to make any money.

In 1982, there were fewer oldies acts. The Police had been making records for only 4 years, but their career was still on the upward trajectory. Their biggest album, Syncronicity, was still a year away, and during summer 1983 I saw the Police again at Shea Stadium. The Nassau show was better, more intimate. Shea is too large to see a concert. And the show was so big that two bands opened for them. The opening act for the opening act was an unknown band from Georgia that the rock critics loved and that I had barely heard of. I did not pay attention when they played a 20 minute set. I should have. R.E.M. was about to release one of the five best albums of the 1980's, Murmer.

The New York metropolitan area is the most prominent market for rock concerts. So large that when I was in high school in the early-to-mid 1980s you could not see the top-shelf acts without paying a scalper. Tickets were less expensive back then. Tickets for the Police show at Nassau cost only $12 (we sat in the upper deck, behind the stage), and I paid my buddy, a scalper, $20. That buddy was responsible for the memorable shows I saw in high school: David Bowie; Genesis; the charity benefit at Madison Square Garden with Eric Clapton, Jeff Beck and Jimmy Page; The Who at Shea Stadium (the Clash opened the show).

Sometimes you went to concerts just to see certain legendary performers, even if they were past their prime, like the Beach Boys, Moody Blues and Yes, all playing in the mid-1980s. They seemed old, but they were not much older than I am today. Maybe the concert highlight of the time was U2 at Giants Stadium promoting the Joshua Tree album, in 1987. I drove down from college with a guy who lived in my dorm (we sat in different areas). Little Steven from Bruce Springsteen's band opened up and taunted the Reagan administration with a profane tirade against Oliver North.

Sometimes I got lucky. I saw the Grateful Dead in 1995 only a few weeks before Jerry Garcia died. We saw Jerry dying right there on stage, I guess. It was not a great show, and it was hotter than hell, I tell ya, but I always said I wanted to see the Dead at least once, and that's all I got. I also saw Stevie Ray Vaughn a few times in the mid-1980s. No one could know he'd die in a helicopter crash in 1990. Same goes for Frank Zappa, who left us in 1993.

The coolest and strangest concert experiences come to mind. Bruce Springsteen at Giants Stadium in September 2009 included the Born to Run album in its entirety. I see now that Springsteen is religion in New Jersey. His shows resemble some kind of revival. Todd Rundgren playing in a cape and bare feet in Poughkeepsie in 1995. Some lunatic throwing an explosive into the moat at Jones Beach Theater during an Eric Clapton show in 1983. Lucinda Williams in 2009 stopping her show in Peekskill, N.Y., because she did not like the acoustics and making the audience wait a few minutes while she coordinated the sound system anew. Taking my 80 year-old mother-in-law to see K.D. Lang in Kingston, N.Y., last year.

The best concert experience was seeing Yo La Tengo at Colony Cafe in Woodstock, N.Y., in 2007. Yo La Tengo is an alternative rock band that sometimes takes requests from the audience and tells stories between songs when it plays in small venues. I went because I was digging their new album at the time, which had a fantastic song, The Race is On Again, which blew my mind when I heard it for the first time one day on the road and I played it over and over like 20 times. I had to see Yo La Tengo at Woodstock!

There is nothing like Woodstock in the autumn chill. The good wife came along, and we got a table one level above the stage, no more than 15 feet from the band. I couldn't see the guitarist finger the chords, but I got a great view of the drummer's head. When I realized that the band was not going to play the new album in its entirety, I gathered the nerve to shout out, "I have a request." The singer/guitarist was sitting down so he didn't turn around. He just responded, "which is ...?" I shouted, "The Race is On Again." They played it, a mesmerising performance, as cool as the album version. I felt like a little kid who got an autograph at Yankee Stadium. Good timing for me. The band then played its encores, incluing an NRBQ song that I had never heard, a great version of this mysterious song.

The next day, I found the Yo La Tengo website and sent the band an email to request the name of that NRBQ song. I also told them I was the guy who made the request. The band responded right away! The NRBQ song was "Hit the Hay." And they thanked me for the request, said it was a good song to play live. Instant email communication from the band you saw the night before. The millionaire bands would never do this, and if they did it would be from a public relations intern. I'm pretty sure it was the band that responded to my question. How cool was this?

Number 2. It's been quite a ride tracking the greatest concert performances of all-time. Number 10 was talking Heads' Once in a Lifetime. Number 9 was Grateful Dead's Bertha from 1978. Eight was the Beatles Rooftop Concert, from 1969, right before the breakup. Lucky number 7 was the Who's Young Man's Blues, from Live at Leeds. Number 6 could only be Joni Mitchell at the Last Waltz. U2 lands in fifth place, with Electric Co., from the 1983 live album. Springsteen's Rosalita is number 4. And Eric Clapton's 1971 performance at the Fillmore East is number 3. Scroll down below to see the videos.

We are now at number 2. When you're number 2, you try harder. But there is no embarrassment in being number 2. Jimi Hendrix is number 2, his performance of Hey Joe, at the Monterey International Pop Festival, from 1967.

Jimi only became a household name in 1967, after playing around with the Isley Brothers and Little Richard in the early-mid 1960s. His first album came out in early 1967, and his appearance at Monterey introduced him to the American rock community. What a performance! Jimi looked the part, wearing an outrageous outfit, wild hair and looking like no one that anyone had ever seen before. And he played with his teeth.

Jimi was just getting started in 1967, but he only had a few years left. He died in September 1970. That's not a lot of time, but Jimi sure made the most of his time in the studio recording hundreds of hours of music that the record company is still releasing to this day. There are many live albums to play with, and they are all very good. But live Jimi is about seeing live Jimi. This clip may be number 2 on my list, but visually it's number 1 all the way.

Eric Clapton has been around a long time. Forty years ago, he was considered the best guitarist in rock and roll. But Eric had a problem. He was in love with George Harrison's wife. George was Eric's best friend. This caused a lot of emotional problems for Clapton. Eric was also using hard drugs. From 1966 through 1970, he did release some great albums, first working with John Mayall's Bluesbreakers, then Cream, the Blind Faith, and then his solo career, calling his band Derek and Dominos.

This concert was from 1970, when Derek and Dominos played the Fillmore East in New York City. No one knew that Clapton would go into seclusion shortly after this concert. He came back in 1974 playing much more laid back music, almost morphing into country rock with some blues solos to remind us that he still had it going on. No one knew that this performance was the absolute greatest moment of Clapton's career, and that the downhill slide that awaited him was right around the corner. This performance was as good as it was ever going to get. The intro alone makes it into the top 10 (for the top 10 so far, click on www.psychsound.com and scroll down the list).

Number 10 was Talking Heads. Number 9 was Grateful Dead. Number 8 was The Beatles' rooftop concert. The Who was Number 7. Six was Joni Mitchell at the Last Waltz. Five was U2's Electric Co. Scroll down for them all. We are now up to number 4. Number Four is Bruce Springsteen, maybe the greatest live performer of all-time. I have many, many Springsteen live CD's and Mp3's, some from the mid 1970's and some from the 2000's. I saw him at the Meadowlands for the first time in 2009. No one plays it like Bruce, a tireless performer. This one's Rosalita, a rave-up from 1978.

Did you know that Springsteen's first two albums flopped? Greetings From Asbury Park and The Wild, The Innocent, the E Street Shuffle were both released in 1973. Rosalita was from the E Street Shuffle album. No one was buying. Then Bruce released Born to Run in 1975 and after Time and Newsweek threw him on the cover the same week, he became the superstar who helped bring rock out of the 1960s and into the 1970s. Hard to believe those first two albums did not sell. How can a song like Rosalita be a secret for so long?

This video is a must-see. This is prime Bruce. This could have been my number 1 choice. But, it isn't. But I will say this: choices 3 through 1 all predate this Springsteen performance. Which means that Rosalita from 1978 is the greatest live performance of the last 30 years.

We are up to number 5 on the Greatest Live Performances List. Scroll down for numbers 10 through 6. Number 5 is U2's performance at Red Rocks in 1983, a show that became the live album that caused a lot of us to realize that the new decade had its own rock superstars who were going to be as good as their predecessors. U2 was getting off to a good start, and they were only going to get better.

Almost halfway there! If you're a Johnny Come Lately, number 10 was Talking Heads' Once in a Lifetime. Number 9 was the Grateful Dead's Bertha. Number 8 was the Beatles rooftop concert. Number 7 was The Who's Young Man's Blues, from Live at Leeds. Scroll down to see videos of each song.

Number 6 can only be Joni Mitchell's Coyote, performed at the Last Waltz in 1976. The Last Waltz was the final concert of The Band. If you didn't know, there was a band called The Band. Most bands break up quietly. Not The Band. They turned it into a federal case, inviting their friends to play along. See how they all got along during this song? So why did The Band stop performing together. I believe it was because they weren't getting along. That did not stop Joni from turning in a tour de force.

Joni Mitchell is fantastic. I have never heard a bad Joni song. She played guitar like no one else, using alternate tunings, giving her a unique sound. Throw in her Canadian voice and you got the best performance from a great concert. It was The Band's concert, but Joni Mitchell stole the show.

Lucky number 7. Scroll down for numbers 8 through 10. The Who could really shake it in their prime. Live at Leeds is one hell of a live album. Recorded just as The Who were hitting their stride, in 1970. The highlight of that album is Young Man's Blues, with a searing Pete Townsend guitar solo. You didn't know Pete Townsend was a great guitar player? Oh, yes he was.

The Who were the great live band of the 1970's, Pete Townsend oozed rock and roll. You'll know that if you watch any concert footage from that period. The death of beloved drummer Keith Moon in 1978 was a real speed bump in the history of the band. Moon was replaced, but The Who skipped a beat. When I saw them in 1982 at Shea Stadium, The Who were good, but not great. You cannot turn back the clock. But there are no has-beens in rock music. Only high points. This one's a high point.

We're at number 8 already? Number 10 was Talking Heads' Once in a Lifetime. Number 9 was Grateful Dead's Bertha. Number 8 is upon us.

Beatles Rooftop Concert: Get Back (1969)

When the Beatles stepped off the stage at Candlestick Park in 1966, only they knew it was their last concert. They took some time off and then went into the studio to record the Sgt. Pepper's album. Concerts were pointless by 1967. Their music was too sophisticated to play it live, and they needed the time to perfect the music in the studio. By 1969, the Beatles were not even getting along anymore, and it's a miracle that they agreed to the performance below.

This is not really a concert. The Beatles were recording and filming the Let it Be album in early 1969 when they decided to set up on the roof of their office building in London. That's right, the Beatles had an office building for Apple Corps, the business they set up after their manager, Brian Epstein, died. The Beatles were not getting along, and the fact that they became businessmen made things worse. Playing a concert on the rooftop would liven things up, but it didn't last. Some killjoy called the police, and that was that. Don't you wish you were there?

We're at number 9. Click here for number 10. The Grateful Dead are known as one of the all-time great live bands, but when I saw them in 1995 for the first time (a few months before Jerry Garcia left the building) they were running out of gas. Still, weak Dead is better than no Dead at all. Bertha is shown below. This one's from 1978, a period that many Deadheads regard as their finest. This one's got a nice riff, I'll say that. Many of them did.

Thanks to YouTube, I can identify the greatest live performances in rock history. It occurs to me that nearly every rock and roller has released live albums, many of them sub-par. But there are some real gems, and some live versions are better than the studio versions. Over the next few weeks, I will list the greatest live performances in rock history, counting down to number 1. Comments, hate mail, suggestions and cash (especially cash) are welcome.

Number 10: Once in a Lifetime -- Talking Heads (1983)

The studio version is OK. But the live version is the highlight of Talking Heads' concert movie, Stop Making Sense. The song funks along for a few minutes, and David Byrne is not afraid to let it shake. Things pick up toward the end as the band reaches the climax. David brings it home with some gyrations that he's now probably too old to get away with today. Watch him chug his way back to his feet toward the end. Like body art.

Fear is the new currency in the age of Obama, whose opponents are ahistoric and more than a little uneducated, celebrating ignorami at Fox News and faux political leaders like Sarah Palin. The Republican opposition has no ideas and specializes in slopping around the crap like a jailhouse cook who has to step away from the grill to serve the ungrateful inmates.

Every new terror attempt only brings out the forces of ignorance who claim that Obama is making this country less safe. This argument presumes that Obama is taking in a different direction than his predecessor. If only were that true. It is not. Jane Meyer, a New Yorker staff writer, places in context the Obama administration's recent decision to try the 9/11 terrorists in federal court in New York. The Republican line is that we cannot try these people in federal court and that military tribunals are the only option, and that American law enforcement should not be allowed to question accused terrorists.

This excerpt from her recent article tells me that the fear-mongering that passes for political debate is as nourishing as the prison slop. Note: "Holder" is Attorney General Eric Holder. Here we go:

Holder, despite the controversy he has inspired, has not actually pushed for radical change. Indeed, critics in left-leaning legal circles have complained that he has kept too many of George W. Bush’s counterterrorism policies in place. For example, Holder’s Justice Department has continued blocking lawsuits by people who were subjected to extraordinary rendition—the practice of sending suspected terrorists captured abroad to countries known for administering torture—on the ground that such litigation would expose state secrets. Even some former members of the Bush Administration see more continuity than change. Bradford Berenson, who served as a White House lawyer when the Bush Administration was forging its controversial legal approach to terrorism, told me that “from the perspective of a hawkish Bush national-security person the glass is eighty-five per cent full in terms of continuity.�?

Holder told me that he was frustrated by much of the criticism over the handling of Abdulmutallab. “What we did is totally consistent with what has happened in every similar case�? since 9/11, he said. “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.�? Without exception, he noted, every previous terrorist suspect apprehended inside the country had been handled as a civilian criminal. Even so, critics such as Krauthammer were denouncing Holder for failing to send Abdulmutallab directly to Guantánamo. As a senior national-security official in the White House put it, “It’s a fantasy! Under what alternative legal system can Special Operations Forces fly into Detroit, and take someone away without court oversight?�?

According to Kate Martin, the director of the Center for National Security Studies, in Washington, the military can’t simply grab suspects inside the U.S. and hold them without charge or a hearing. “It violates the Constitution, which extends to everyone inside the U.S.,�? she said. “You can’t be seized without probable cause. You have the right to due process, and to a trial by a jury of your peers—which a military commission is not.�? Confusion on this point may derive from the Bush Administration’s controversial handling of two suspected terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested in the U.S. by law-enforcement officials, and indicted on criminal charges. But Bush declared Padilla and Marri to be “enemy combatants,�? which, he argued, meant that they could be transferred to military custody, for interrogation and detention without trial. (Neither suspect provided useful intelligence.) The cases provoked legal challenges, and in both instances appeals courts ruled that Bush had overstepped his power. The Administration, not willing to risk a Supreme Court defeat, returned the suspects to the civilian system.

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo. The makeshift military-commission system set up by Bush to handle terrorism cases has never tried a murder case, let alone one as complex, or notorious, as that of Khalid Sheikh Mohammed, who will face the death penalty for the murder of nearly three thousand people.

The Bush Administration obtained life sentences in the criminal courts for two terror suspects arrested inside the U.S.: Richard Reid, the so-called shoe bomber, and Zacarias Moussaoui, who was planning a second wave of plane attacks. (Reid was read his Miranda rights four times.) When the Bush Justice Department obtained these convictions, the process was celebrated by some of the same people now criticizing Holder. Giuliani, after the Moussaoui trial, said, “I was in awe of our system. It does demonstrate that we can give people a fair trial.�?

Holder told me that he was “distressed�? that people “who know better�? were claiming that the courts were not up to the job of trying terrorists. He added that he found it “exceedingly strange�? to hear this argument from Giuliani, who had been a zealous prosecutor. “If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,�? Holder said.

There is no evidence suggesting that military commissions would be tougher on suspected terrorists than criminal courts would. Of the three cases adjudicated at Guantánamo, one defendant received a life sentence after boycotting his own trial; another served only six months, in addition to the time he had already served at the detention camp; the third struck a plea bargain and received just nine months. The latter two defendants—Salim Hamdan, a Yemeni who worked as Osama bin Laden’s driver, and David Hicks, an Australian who attended an Al Qaeda training camp—are now at liberty in their home countries, having been released while Bush was still in office. It’s impossible to know how these same cases would have fared in the civilian system. But the case of John Walker Lindh, the so-called American Taliban, offers a comparison between the two systems, as it closely parallels the case of Yaser Hamdi, a Saudi-American who was captured in the same place (Afghanistan) and at the same time (2001). Lindh, who pleaded guilty in a criminal court, is now serving twenty years in prison. Hamdi, who was declared an enemy combatant, was held in military detention, without charge; in 2004, after a court challenge, he was freed, and is now in Saudi Arabia.

Michael Mukasey, who was Holder’s predecessor as Attorney General, has suggested that the military system is better at making terrorists talk. Last month, in the Wall Street Journal, he argued, “Had Abdulmutallab been turned over immediately to interrogators intent on gathering intelligence, valuable facts could have been gathered and perhaps acted upon.�? But the conventional court system has proved surprisingly effective at extracting intelligence. Dozens of suspected terrorists in the criminal system have coöperated with the government, usually in exchange for leniency in sentencing. The government is currently receiving valuable information from David C. Headley, who was indicted last December, in Chicago, for his involvement in terrorism conspiracies in India and Denmark. And, last week, the Justice Department confirmed that Abdulmutallab was now coöperating with the F.B.I. A department official noted, “He has an incentive to talk in the criminal-justice system, which the other system doesn’t offer.�? The key to gaining Abdulmutallab’s coöperation was the F.B.I.’s ability to enlist his family in getting him to talk. Holder asked me, “Would that father have gone to American authorities if he knew his son might be whisked away to a black site�?—a secret prison set up in a foreign country—“and subjected to enhanced interrogation techniques? You are much more likely to get people coöperating with us if their belief is that we are acting in a way that is consistent with American values.�?

The news of the week is the Supreme Court's January 21 ruling in Citizens United v. Fedaral Election Commission. The Court said the First Amendment allows corporations to spend unlimited amounts of money on political campaigns. The decision overturns two Supreme Court precedents, one from 1990 and the other from 2003, and gives corporations more rights to influence campaigns than any ruling in history.

This opinion has come under fire as commentators suggest that corporations will drown out political opponents, and that our debased political culture will sink further into the sewer. The concern is also that the Supreme Court continues to believe that corporations are entitled to constitutional rights just as people are. There is enough commentary on these issues to go around for everyone, including an intellectually honest defense of the opinion from a constitutional lawyer.
Here is my take:

1. The conservative majority on the Supreme Court is taking an absolutist view on the First Amendment. The free speech clause of the Constitution is written in absolute terms ("Congress shall make no law ..."). But most constitutional provisions contain similar language, and those provisions are guided by balancing tests devised by the Court in order to ensure that the public's interest in civil liberties is balanced by the government's need to maintain order. The irony is that the Court takes an absolute view on the First Amendment when it comes to protecting corporate interests. This is not a coincidence, at least four Justices on the Court are hard-core conservatives, the product of the activist wing of the Republican Party. While the Supreme Court finds ways to limit the free speech rights of students, publicized trials and the rights of government whistleblowers, corporations have unlimited spending authority under the First Amendment despite Congressional findings that this kind of spending can interfere with the democratic process. Students can be suspended for speaking out of line in school or engaging in parody, and government workers can be fired for whistleblowing in certain instances, but if ExxonMobil wants to spend all its money on a political campaign to scuttle anti-global warming efforts, the government has no authority to reign it in.

2. In justifying its decision to overturn one of its prior rulings, Austin v. Michigan Chamber of Commerce, the current Supreme Court suggests Austin is outdated. Austin was decided by different Justices who have since been replaced by Republican appointees. The Court in Austin said that unlimited corporate spending on campaigns can have a distorting effect. The current Court says this about Austin:

Austin is undermined by experience since its an-nouncement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effectiveway to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds.

Can you believe this? Thirty minute television advertisements are enough to educate the public on political candidates? This is the kind of reasoning from a Supreme Court that is now allowing corporations to spend unlimited monies on campaigns. No one ever learned anything from a television commercial. Which brings me to number 3.

3. Putting aside legal issues for a moment, the reason why campaign finance laws are beside the point is that the only reason we have to curtail spending on campaigns is because campaigns are so expensive. And the reason they are so expensive is that, in addition to large-scale campaigns which require employees and printing presses and other expenses, a good deal of the campaign money is directed toward television advertisements which teach us nothing and distort the issues and push voters toward the candidate with the slickest campaign strategy or multi-media visuals. If much of the public is undecided on a presidential campaign only a few weeks before the election, it is no wonder the ads become more and more offensive and misleading in the days leading up to the big day.

4. Another lesson from this decision is that presidential elections are even more important than we are giving them credit for. I have written about this before. If you hate this Court decision and do not think corporations should have unlimited spending authority in political campaigns, then remember that in 2012, when the next campaign rolls around. The President appoints Supreme Court Justices. This issue is downplayed during the campaign. But once the Justices join the Court, they stay on for life, issuing rulings that could violate everything you stand for. This was a 5-4 decision; it easily could have gone the other way. It did not, because President Bush appointed two men to the Court, both of them staunch conservatives. One of those Justices replaced Sandra Day O'Connor, who probably would not have voted with the majority on this one.

5. This brings us to my fifth point. Justice John Paul Stevens wrote a 90 page dissent. He is almost 90 years old. I would like to see men half his age write 90 page dissents. Justice Stevens is probably going to retire soon. He is also one of the best guys on the Court. Here is part of his opinion:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,�? and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.�? The Court today rejects a century of history when it treats the distinction between corporate and individual campaignspending as an invidious novelty born of Austin v. Michigan Chamber of Commerce. Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law[.]

Do you feel like everything is going to crap? It is. A permanent conservative majority on the Supreme Court is no picnic for those of us who value civil liberties and a workable Constitution. The only guarantee that Obama can give us is Supreme Court appointments that do not further distort constitutional doctrine. There is no guarantee that any President will make a Court appointment. Obama has already appointed one. With Stevens close to retirement, he will probably appoint another. Stevens' replacement will not change the liberal-conservative balance on the Court. One of these days a conservative will retire. They can't serve forever.

The same-sex marriage trial now underway in California is unique for many reasons. The plaintiffs' lawyers are superlawyers David Boies and Ted Olson, adversary lawyers in Bush v. Gore, the questionable 2000 Supreme Court ruling that gave the presidency to George W. Bush. The trial is also unique because they are trying to show that Proposition 8, which prohibits same-sex marriage in California, violates the Constitution. But it is also unique because the court decided that a few courtrooms around the country could broadcast the trial live on closed-circuit television.

That will not happen, however. The Proposition 8 supporters -- the ones who don't want same-sex marriage -- objected to the televised trial. The Supreme Court this week agreed with them and stayed the broadcast. In non-legal terms, the Justices overturned the court order allowing the broadcast. The revolution will not be televised.

There are two components to the Supreme Court's ruling. First, the Court said that the California federal court system did not follow the rules in allowing the broadcast because the proposal did not allow the public enough time to submit their comments for and against. The Court also said that Proposition 8 supporters (the anti gay rights people) will suffer "irreparable harm" if the trial is televised.

This was a 5-4 decision. The five conservatives stood firm on the procedural "violation" like the hall monitor grabs you before you slip into the bathroom without your hall pass. The four justices in dissent called out the majority on this technical objection in arguing that the public had more than enough time to be heard on the proposal. Let me focus on the alleged harm that would befall the marriage opponents had the trial been broadcast around the country.

Emergency court proceedings succeed when someone can show that he would suffer irreparable harm without a court order. Irreparable harm means harm that cannot be fixed or remedied at the end of the case. Financial losses are not irreparable because you can recover them when the case ends. The loss of the right to speak out on political matters represents classic irreparable harm. The alleged irreparable harm in this case was the argument that the anti-marriage witnesses (include paid expert witnesses) would testify different if their testimony is broadcast around the country in light of harassment and threats from their political opponents. The Supreme Court majority reasons, "It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings."

This is quite lame. Witnesses take the oath to tell the truth, and I presume that witnesses testifying about why they support Proposition 8 are able to put their money where their mouth is. Are witnesses really going to testify differently out of fear that they will be harassed by people watching the trial in federal courtrooms around the country? I doubt it. The four justices in dissent have the better argument in favor of public broadcasts. On their behalf, Justice Breyer writes:

I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from thesimple fact of transmission itself. By my count, 42 Statesand two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials. Neither the applicants nor anyone else "has been able to present empirical data sufficient toestablish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process.�? ...

The applicants also claim that the transmission willirreparably harm the witnesses themselves, presumably by increasing the public’s awareness of who those witnesses are. And they claim that some members of the public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order. And that is not surprising. All of the witnesses supporting the applicants are alreadypublicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes�? vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

The likelihood of any “irreparable�? harm is further diminished by the fact that the court order before us would simply increase the trial’s viewing audience fromthe occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court-houses (in all of which taking pictures or retransmissions have been forbidden). By way of comparison literally hundreds of national and international newspapers arealready covering this trial and reporting in detail the names and testimony of all of the witnesses. I see no reason whythe incremental increase in exposure caused by transmitting these proceedings to five additional courtrooms would create any further risk of harm, as the Court apparently believes.

Televising this trial would be the best way to educate the public about our court system, especially since this trial involves a constitutional issue on the legality of laws prohibiting same-sex marriage. Is this prohibition legal? In my opinion, it is not. But that is a topic for another day. The trend should not be to close off trial broadcasts, but to do it more often. What is the conservative Supreme Court majority thinking?