Monday, August 14, 2017

Some NFL Issues

Two players dominate sports talk radio these days--Ezekiel Elliott and Colin Kaepernick.  The Elliott matter just came up a few days ago when Commissioner Roger Goodell handed down a 6-game suspension for a series of domestic violence incidents a year ago with his ex-girlfriend.

Some commentators whine vociferously that this is unfair because Eliot was never charged with a crime. This is a totally irrelevant point.  The NFL conducted an intensive year-long investigation, and went into the matter in considerably more depth than a city prosecutor ever could have.  It seems some people don't understand that we have prosecutorial discretion in this county, meaning that prosecutors get to pick and choose which cases they want to pursue with criminal charges, and which ones are not worth the expenditure of their limited time and resources.

One especially ignorant commentator on CBS sports radio complained that the NFL should turn over all of its evidence to the city prosecutor for prosecution. The idea that any prosecutor would want to pursue this at this late date is ludicrous. What would be the point? We are talking about  misdemeanor violations by someone with no prior criminal record, meaning the defendant, even if found guilty, would surely get probation, or perhaps a deferred prosecution agreement would be entered into prior to trial. We are not talking about a serious felony here.

The NFL proceeded correctly by doing an exhaustive investigation.  Perhaps the 6 games is too long of a suspension, but certainly the NFL wants to send a message that domestic violence simply will not be tolerated. And it might turn out to be just the wake-up call which Ezekiel Elliott needs, in order to grow up and become the good citizen which the NFL wants its players to be.

And somehow, the Colin Kaepernick saga continues to receive hour upon hours of air time. This is an absurd phenomenon.  What gets commentators (and callers) all riled up is that Kaepernick has yet to receive a job from another NFL club, after he left the 49er's at the end of last season.

People argue that he is one of the 96 best quarterbacks in the country, as if that should settle things.  Of course Kaepernick had the right not to stand for the national anthem, which is what started this whole controversy almost a year ago now.  And of course NFL owners have the right not to hire him, if they feel he is not a good fit for their organization for whatever reason. End of story, let's move on to something worth talking about.

Monday, July 31, 2017

George Will at his most Thought-provoking.

1.  On Non-voting.  A symposium on "the problem of declining voter participation" prompted a 1983 column in which Will took issue with the idea that low turnout is a "problem". He says that "As more people are nagged to the polls, the caliber of the electorate declines. The reasonable assumption about electorates is: Smaller is smarter."

Will points out that democracy depends on consent of the governed, and "nonvoting is often a form of passive consent". It is only when the people are riled up that voter turnout rises, as in Germany in 1933, when turnout was close to 90%.

Will says that "the glory of our politics, as conducted by two parties with low ideological flames, is that the stakes of our elections, as they affect the day-to-day life of the average American, are agreeably low". This is in line with Will's oft-expressed conservative view that government's influence in everyday American life is, and should be, minimal.

Finally, when it comes to presidential elections the result in most states is a foregone conclusion, making it seem pointless to vote.

2.  On "community".  In analyzing the 1984 election between Reagan and Mondale, Will waxes philosophic on various notions of community. He says that Mondale's notion was of a national community, in which the federal government would try to foist on the nation its various schemes and programs, a liberal idea which gained prominence in the 20th century.

Will argues that this view is wrongheaded, because it "envisions a degree of national cohesion and central direction known only in wartime". Only in wartime does the country come together with a unity of national purpose. Otherwise, we are a far-flung collection of local communities, united only in the sense that we all participate in national elections (and even these are really only state-by-state elections, so there are no truly "national elections").

Will argues that the national unity sought by liberals like Woodrow Wilson, FDR, and LBJ led to the federal government "becoming a divisive force, a hammer pounding local communities", using "bureaucratic edicts and judicial fiats to assault against the traditional prerogatives of locality and neighborhood to define and preserve their own ways of life. In the name of the national community, liberalism tried to break smaller communities to the saddle of the national government."

The upshot is that Will sees the 1984 election as a referendum on the issue of whose idea of community is best. The country resoundingly sided with Reagan's idea that the country is a collection of communities, an "archipelago", if you will, of diverse local communities.

What makes this onto my "most thought-provoking" list is the impact this issue has on the question of individual liberty vs. the rights of the community. If a given community wants there to be no abortions in its midst, does that comunity have the right to ban them? Should it have that right? Will would argue that the answer is yes. Should it have the right to ban what it regards as pornography? Again, Will's answer is yes.

Here is "where the rubber meets the road", in that there are no easy answers to these questions. Does it even make any sense to talk about the "rights" of the community? I have a hard time wrapping my mind around this question.

3.  On "identity politics".  Will did not use this term, but he was perhaps the first to expose the fallacy of engaging in identity politics when he wrote, after the 1984 election, that "Democrats tried to use Geraldine Ferraro to get half the electorate to act from frivolous motives. The selection of her was condescending toward women, an attempt to trigger collective, reflexive voting by women on something other than serious issues."

We have seen today that the use of identity politics has gotten completely out of hand. An example is when I was called a misogynist by a Facebook friend for not jumping on the Hillary bandwagon after Sanders withdrew. Ordinarily I would not name the offender, but in this case she is a public figure so I can name her: Stephanie Krehbiel.

I made the rather innocuous and obvious observation that Hillary Clinton was boring and preprogrammed as a candidate. Ms. Krehbiel jumped all over me for this; she said that a woman is unable to show personality because then she will be rejected as too emotional.

I replied with the example of Elizabeth Warren, a very passionate woman who won election and remains very popular to this day, despite being very emotional about what she believes in. This example completely refuted the allegations of Ms. Krehbeil and her minions.

And yet, they continued to barrage me with misogynist complaints, claiming that anybody opposing Hillary on personality grounds must be a misogynist! I responded with an account of my long history of observing and commenting on presidential elections, which goes back to 1960 (approximately twice as long as Ms. Krehbiel has been alive). During this time I have often commented negatively on male candidates whose personality defects made them poor candidates to lead the country.

Notwithstanding my patience in offering this explanation, Ms. Krehbiel not only failed to apologize, she failed to even acknowledge my explanation. Talk about a closed mind!

Every national commentator I have seen has echoed my comments. The adjectives differ from commentator to commentator, but the idea is the same: Hillary Clinton was stiff, stilted, dull, boring robotic, unspontaneous, uninspiring, lacking in passion, uncomfortable in her own skin, and unable to think on her feet. I suppose Stephanie Krehbiel thinks that we are all misogynists?

The use of identity politics has exploded in recent times, to the detriment of our democracy. And the reason for this is people like Stephanie Krehbiel, who see people not as individuals but as part of some sociological group, and who refuse to listen to anyone who disagrees with them.

Friday, June 9, 2017

The Hubris of Theresa May

Theresa May called a British election three years early, thinking it would consolidate the strong hold of her party on the British Parliament. Instead, she failed to receive even a simply majority!

Her hubris is evident in several respects. She refused to debate her opponent, which is odd in light of the fact that British parties actually represent particular points of view, in contrast to American parties.

Also, her party had to walk back a position taken in its manifesto, the first time in British history this has happened. The position which came under intense attack was a proposed policy of forcing elderly people to pay more for their in-home care.

Interviews with British voters by NPR showed that nobody felt that May was "on their side", in contrast with the Labour candidate who resonated with voters by decrying cuts in government services.

Looming over the entire election was the "Brexit" issue, which May has completely bungled by blindly following the narrow 52-48 election result, instead of showing true leadership by trying to ameliorate the effects of this unfortunate vote. Instead of showing leadership, she showed "followership", and this is what came through to voters who have rejected her phony "leadership".

Saturday, June 3, 2017

Free Speech in U.S. vs. Europe

One of the most striking things about the Floyd Abrams books (see last post) is the difference between free speech in the U.S. and the rest of the world. We read almost daily about dissidents in third world countries being persecuted for their opposition to their governments.

But what is striking is that Europeans do not enjoy the free speech freedoms that we take for granted in the U.S.  In "The Soul of the First Amendment", Abrams says that all of the cases he discusses in which truth was a defense in a libel trial would have turned out differently in Europe.

Abrams cites many examples of the European hostility to free speech, but the one that is the most striking is a principle adopted in 2014 by the European Court of Justice, in which the "right to be forgotten" was enunciated. Under this ruling, Google and other search engines were required to remove content deemed to be old enough that it was "inadequate, irrelevant, or no longer relevant".

Despite the fact that we are talking about true information here, Google nonetheless had deleted over 4000,000 articles as of 2015.  Examples include the following:  1) a story about a policeman whose assault on a man was filmed and who was jailed for 21 months; 2) an article about people under 30 suffering strokes; 3) an article about a 27-year-old man who was killed in a plane crash in Nepal.

The list goes on and on, but the point is that these are stories containing true information, and to order them removed from Google shows the antipathy Europeans have to free speech. Personally, I prefer the U.S. approach, which gives me the right to discuss matters of public interest in a  free and robust manner.

Tuesday, May 30, 2017

"Speaking Freely", by Floyd Abrams

Floyd Abrams, the country's top free speech lawyer, describes in this 2005 book a number of his most memorable free speech cases. The most memorable, of course, was the 1971 Pentagon Papers case. In that case the Nixon Administration took the New York Times to court in an attempt to prevent the publication of the Pentagon Papers, which was a study undertaken by the U.S. government to figure out how we got mired in the Vietnam mess. Abrams represented the Times. The government's argument was that publication of the papers would jeopardize national security.

The issue was under what circumstances should the courts impose "prior restraint" on a proposed publication. A past case had held that the First Amendment generally prevented prior restraint, and the only exception ever mentioned was from a 1931 case, in which it was stated that publication of "the dates of departures of ships during wartime" could be prohibited.

Abrams won this case 6-3 in the Supreme Court, as the government failed to prove that any significant harm would result from the proposed publication. Indeed, when Abrams contacted the government witnesses ten years later for an article he was writing, not a single one of them could cite a single instance in which publication of the papers had resulted in any harm to U.S. security interests.

Most of the cases Abrams discusses involve the principle that true information, lawfully obtained, about matters of public interest, cannot be suppressed. The first such case Abrams discusses was a Virginia case involving a Virginia statute that criminalized the reporting of confidential information about a pending disciplinary proceeding against a sitting judge. A unanimous Supreme Court held that the truthful report could not be subject to criminal sanctions.

Next Abrams discusses a West Virginia case in which a newspaper disclosed the name of a juvenile offender who had shot and killed a classmate. Again, the truthful report of information, lawfully obtained, about a matter of public interest was held to be immune from criminal liability.

Then we have a case in which the singer Wayne Newton sued NBC for a report documenting Newton's ties to organized crime. Again, the information was shown to be 100% true, and Newton was sent on his pathetic way with no recovery.

Next we have a case in which the Long Island newspaper Newsday reported on heroin trafficking in Turkey. A Turkish citizen who had been named as a drug trafficker sued for libel, but was rebuffed when the truth came out at trial.

Then a 1982 case in which ABC was sued by Victor Lasky, a notorious right-wing journalist, for being mentioned in a special on McCarthyism in the 1950's in a small West Virginia town. Again, Lasky was shown to all wet, due to the diligent efforts of Abrams and his team.

A different kind of issue presented itself in the Brooklyn Museum case. Here New York mayor Rudy Giuliani was attempting to pull city funding from the museum, because he personally objected to a single painting which was part of a special exhibit. Abrams successfully obtained an injunction against this action. This case arose before Giuliani became something of a national hero following 9/11; it certainly shows Guliani in a much less favorable light than in the 9/11 aftermath.

And then we have the McCain-Feingold campaign finance reform case. This law attempted to reform campaign financing. Abrams pursued a case against this law, but lost 5-4 in the Supreme Court. The three conservatives, Scalia, Thomas and Rehnquist, along with Kennedy, were with Abrams, while the four liberals, Souter, Breyer, Stevens, and Ginsburg, joined by the middle-of-the-road O'Connor, voted to uphold the law.

It is interesting to note that liberals in this country were almost uniformly in favor of the law, and the appearance of Abrams on the conservative side represented a break in the traditional support he had enjoyed from liberals. Abrams makes a persuasive case that the limitations on speech represented by McCain-Finegold are improper under the First Amendment.

As Abrams describes in 2017 book, 'The Soul of the First Amendment", he again represented Senator Mitch McConnell in a later case, the infamous (to liberals) Citizens United case. Here the court unanimously rejected the restrictions on campaign spending, so Abrams got, in effect, the last laugh on this issue.

Like most liberals, I have a visceral dislike of the Citizens United ruling, but Abrams makes a convincing case that it is correct. He points out that very few of the million-dollar donations to super-PACS since the ruling have come from corporations, which were the subject of the ruling. And, the 2016 election, in which well-funded candidates like Jeb Bush got soundly trounced, sheds doubt on the doomsayers who fear money has corrupted our politics.

But the last case discussed here is one in which I severely disagree with Abrams, with no possibility that he will ever convince me otherwise. This was a 2000 case out of Colorado, Hill v. Colorado, which involved a Colorado criminal statute making it illegal to approach another person without her consent within 100 feet of a medical facility, for the purpose of engaging in "oral protest, education, or counseling".

To me this statute is easily defensible, because at its heart it involves actions, not speech. And yet, Abrams defiantly took this to the Supreme Court, where he lost, 6-3, with Thomas, Scalia, and Kennedy dissenting. Justice Stevens' majority opinion upheld the law based on "the privacy interest in avoiding unwanted communication". The decades-old phrase of Justice Louis Brandeis comes to mind here, the "right to be let alone".

According to Abrams, the Hill case was "effectively reversed" in 2014 by an "almost identical" case out of the state of Massachusetts. This was the infamous case of McCullen v. Coakley. Amazingly, this was a unanimous Supreme court decision, and one not easily explainable. The majority opinion didn't explicitly say it was overruling Hill, and mentioned Hill only in passing. Given that two members of the majority in Hill were still on the court, and that other liberals had since joined the court, it is hard to conclude that Abrams is right when he calls the cases "almost identical".

The two case are certainly superficially identical, since both involve a statute regulating protest activities outside abortion clinics. But the problem in the Massachusetts case was that the statute limited activities at all Massachusetts abortion clinics, when the problem the statue was designed to address had existed at only one of the clinics. Therefore, the court held that the statute was not "narrowly tailored" enough to address the problem; i.e., it restricted speech far more broadly than necessary to address the problem.

Another problem with the Massachusetts case is that the named plaintiff was not the typical loudmouthed, rabble-rousing abortion protester. Rather, she was a gentle, kind, caring individual. Hence the case became one of those "hard cases that makes bad law". Indeed, the majority opinion even mentioned the word "caring" in describing her counseling technique.

It is interesting that the same three conservatives who dissented in Hill also objected to the court's reasoning here, though they concurred in the result. The three concurring justices felt that a less stringent standard than "strict scrutiny should apply, since they felt that the statute was "content based".

It is demeaning and condescending to women to think that they would be going to have an abortion without having thought through the consequences. I can only hope that this GOP war on women will some day come to an end.

Friday, April 28, 2017

Letter to National Review

In "The Gorsuch Triumph", Ramesh Ponnuru states that Robert Bork was rejected by the Senate in 1987 "for being too conservative". This is a gross oversimplification, and even a misstatement of, Bork's confirmation problems.
Bork's view was that the Constitution restricted the ability of government to limit our freedoms only to the extent of liberties specifically spelled out in the Constititution. This is the exact opposite of what our Founders intended. The Founders intended that "We the People" were only giving government the powers specifically outlined in the Constitution, with all other powers being reserved to the people. Bork's endorsement of excessive power for the federal government, well beyond that intended by the Founders, can hardly be called "conservative" in any meaningful sense of the word.
But Bork had more problems than this. He came across as aloof and unapproachable, turning off even many of his supporters. As Senator Howell Heflin commented, "He's too professorial".
As documented in Ethan Bronner's "Battle for Justice: How the Bork Nomination Shook America", Bork waffled over key issues during his confirmation hearing, repeatedly flip-flopping back and forth. This made him look hopelessly opportunistic, and called his character into question. Bronner says that Bork "modified views he had held strongly and repeated widely for two decades".  His repeated waffling earned him "the contempt of some fervent admirers".
Ponnuru states that Bork got "burned for his candor". To the contrary, Bork lost because he was unable to communicate his beliefs in an understandable way, despite Committee Chairman Biden's bending over backwards to give him a fair hearing. Consequently, the Senate rightly concluded that he would not make a good Supreme Court justice.

Monday, April 24, 2017

The Wisdom of Maya Angelou

I heard a great quote on NPR the other day from Maya Angelou. She said that “I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”

It struck me that perhaps this explains why Donald Trump could win an election, despite his many falsehoods and misdeeds. People are willing to overlook his many misstatements of fact, because he makes them feel like he is somebody who will stand up for them. What is important, as Angelou states, is not what he says, but how he says it.