Political update for March, 2011

Not Western Values?

Secretary of State Hillary Clinton spoke at the Human Rights Council in Geneva, Switzerland last week. After singing the praises of democracy and what I usually call enlightenment values, she said “Democratic change must grow from within. It cannot be implanted from the outside. And let me be among the first of many to say the West certainly does not have all of the answers.”

After more praise for things like democracy and free speech, she said: “These are not Western principles or American ideals. They are truly universal, lessons learned by people all over the world who have made the difficult transition to sustainable democracy.”

Clearly she is trying to maintain this administration's policy of differentiating themselves from the Bush Administration and appeasing Islam. And, just as clear, that’s just the kind of talk that makes Republicans and conservatives say "stop the apology tour.” Unlike some of my Republican/conservatives friends, I have never believed that Barack Obama is anti-American or wants us to fail. But, there is a question of whether he is using faulty tactics to further his foreign affairs strategy, and Secretary of State Clinton is helping to implement it. The strategy is to get other regimes to like us more and therefore be more cooperative with us. It’s hard to fault that as a desire. But, the tactics include apologizing for American behavior and displaying a level of humility which he hopes will highlight the difference between this administration and the Bush administration’s more muscular approach.

You’ve probably seen the clip of Barack Obama bowing to the King of Saudi Arabia and asked yourself – what’s up with that (unless you really believe Barack Obama is a Muslim and was acknowledging his lord and master)? I cringed. I watched it a few times to see if I was just falling for a right wing narrative – I don’t think so. It seemed to me the left wing dismissal of it as misreading the president's movements was a falser narrative. Then the Obama administration gave nearly a billion dollars to help rebuild Gaza after our ally, Israel, legitimately defending itself, took it apart, instead of letting Iran pay for it. It has to be wondered if this approach to winning hearts and minds scored any hits in Gaza with anyone but secret anti-Hamas Gazans. Then President Obama went to Cairo and made a speech which included:

“I've come here to Cairo to seek a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect, and one based upon the truth that America and Islam are not exclusive and need not be in competition. Instead, they overlap, and share common principles -- principles of justice and progress; tolerance and the dignity of all human beings.”

That may have made some scratch their heads and ask in what Muslim country there was tolerance and dignity for all human beings, at least as we might recognize it? But, in fairness, that is not all he said:

“The United States has been one of the greatest sources of progress that the world has ever known. We were born out of revolution against an empire. We were founded upon the ideal that all are created equal, and we have shed blood and struggled for centuries to give meaning to those words -- within our borders, and around the world. We are shaped by every culture, drawn from every end of the Earth, and dedicated to a simple concept: E pluribus unum – ‘Out of many, one.’”

And also words which sound very much like the ones spoken by Hillary Clinton:

“That does not lessen my commitment, however, to governments that reflect the will of the people. Each nation gives life to this principle in its own way, grounded in the traditions of its own people. America does not presume to know what is best for everyone, just as we would not presume to pick the outcome of a peaceful election. But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn't steal from the people; the freedom to live as you choose. These are not just American ideas; they are human rights. And that is why we will support them everywhere."

It was a mixed speech, at best, frequently praising democracy and our values, but, while not ignoring militant Islam, he was quite tepid about it. As if - the two systems are different but equivalent. The two cultures are not equal when it comes to discrimination and abusive relationships built right into the system. He was clearly looking for the same type of reset he wanted with Russia. The problem is, as I see it, there aren’t any countries which seem to respond to his overtures. Russia? Iran? Gaza? Syria? No. No. No and no.

The truth is, many of the ideals Mrs. Clinton was speaking of in Geneva and the president in Cairo are in fact creations of Western civilization, at least in the sense that they have continuity and as we have them now. You can say, well, Confucius had a golden rule just like ours. But, China's history has not one of a free society. In fact, arguably, all the advances of China today are due to its adoption of at least a form of capitalism, and, all of its defects, ideology which has been at its greatest in the East – such as central planning.

The idea of democracy comes to us from Greece. The idea of separation of powers from there and Rome, and more recently the coin was termed by a Frenchman (Montesquieu). Most of the ideas of liberty we possess come from the rights of Englishman or were specifically designed by our founders – such as the first amendment religion clauses. While admonitions against and punishments for crime have been found in all organized societies, that is not what they were talking about. And, even if toleration has been found in some societies at some times and places (even in Islam), it was not sustained and institutionalized anywhere but the West.

We don’t have to claim we made up everything - there is nothing new under the sun, as we well know too - but the values of the West are one of the reasons that citizens of Islamic and others flock to the West, and not visa versa. There is nothing wrong with saying we got some things right and have sustained them, even if imperfectly, and the most important of them are the enlightenment values - and that includes capitalism. If we don’t claim these and promote them as better than other ideas, why would anyone else think they are a good idea?

The Middle East

It’s interesting, probably sad, to note, that despite the revolutions taking place across Northern Africa and the Middle East, the always volatile Gaza and also the more pacific West Bank have remained quiet. What are we to make of that?

The main reason has to be is that the groups that are rebelling are of the same country, peoples, religion and culture as they are protesting about. Tunisians against Tunisians, Egyptians against Egyptians, and so on. There is no doubt that Israel would view any rebellion as a threat to its existence and crack down hard, possibly even harder than Libya. It is also hard to imagine a Palestinian revolt being successful for the same reason. And they've tried before.

While the West Bank, ruled over by the Palestinian Authority finally seems to be determined to abstain from violent opposition, and to develop its infrastructure and society, and perhaps some day be free of occupation, Gaza has not.  But, it is surprising that Gaza’s leaders, Hamas, have had patience at this time and would not try to take advantage of the swelling of feeling in their neighbors, perhaps the world. This moment will pass and it looks like it will without there being an uprising. Perhaps it is because it is only 3 years since Hamas last tried and they are still rebuilding. Perhaps the last “war” was more than even their leaders could bear. Perhaps they are wiser than we in America give them credit for.

Complete peace is probably not possible while the current leadership of Gaza remains in power. But, it is also interesting to note that Gaza’s own people have not rebelled against their own leaders, which means they are either satisfied or cowed.

I won’t try and predict what is going to happen there and I won’t give my usual schtick about Israel needing to lead by getting out of its settlements in the West Bank. Since no one predicted the uprisings that took place, we can’t even begin to guess what will happen next.

But, let me say this. It is a shame. Although peace and a two state solution seems no closer than ever (despite revelations of how close it was while Ehud Olmert was Israel’s prime minister), it should happen. No conflict in the world has the same effect on the rest of the globe as this one. I wonder if I will ever see peace there in my lifetime.

And the winner . . . What? No one is running?

You just can’t tell. We were well into campaigning 4 years ago for the 2008 presidential election, and all we hear now is speculation. Newt Gingrich didn’t even announce forming an exploratory committee on March 3rd, as was expected, but only announced a website with the word explore in the address. So, now I guess we have exploratory committees to explore whether their should be an exploratory committee.

I’ve said before that the Speaker will be hard to predict, but I was betting against it, and I still will. Although fairly sure about Ms. Palin and Mr. Huckabee not running (which Fox has almost confirmed for us by not suspending their contracts), the idea machine is harder to predict with any certainty. But, I am sticking with my “no”.

Tim Pawlenty, who may have the best nickname, this time around, T-Paw, is still testing the water, but he won’t even get into his bathing suit yet. While Mr. Gingrich is busy burnishing his image with religious types by talking about his faith, in the hopes that they forget he cheated on his old wife with his new wife while he was blasting President Clinton for the same thing, Gov. Pawlenty is practicing his anti-gay rhetoric to help him win them over. It rather disgusts me, but he seems to believe it will help. In the meantime, I have some advice for him – never, ever give another stem-winding speech. He’s just not good at it and it doesn’t come out as sincere.

Whoever runs for the Republican nomination knows he has to please the south as a block, or his/her chances of winning are slim. That's not going to be difficult for a Sarah Palin or Haley Barbour, but others will have trouble. One of Mr. Gingrich's problems may be that he converted to Catholicism, his present wife's religion, and that is not big in the south. In my little southern town, I've calculated we have about 1 church for every 85 people, but not one of them is Catholic.

Of course, there are no Mormon temples in my town either, which brings us to Mitt Romney, who also hasn’t announced. I have to admit, despite my visceral distrust of him, and his palpable flip flopping, he still seems to be the only one of likely candidates who might beat the president in an election if it were held today. I do not believe any of the others so frequently mentioned could, other than perhaps Governor Huckabee (and he’s not running – I'm 97% sure).

Yet, I think that Gov. Romney is handling himself well, practicing his presidential airs, staying just out of the spotlight and keeping from saying anything controversial, or worse, stupid. There are polls which have made Ron Paul (not running) and Mike Huckabee (not running), the front runner. I think they are wrong. Among the hoi polloi, Gov. Romney is the true front runner on the right. However, he had better create some feeling of excitement, or he risks Bob Doling himself.

Jonah Goldberg wrote an article the other day where he made predictions about the Republican nomination which sounded a lot like he has been reading my posts (they all read me, you know – in fact, I am convinced that George Will is the guy who is constantly spamming my comments). But, I noticed that Mr. Goldberg didn’t even mention Sarah Palin once in his article. Something has changed in the last month, and as we move forward, it looks like Republicans of all stripes are beginning to recognize she is not running and, more probably, shouldn’t. That’s a big change in a month.

Last, Sen. Rick Santorum – please, for the sake of your family and those who cringe in embarrassment for you - don't run again. You have no shot at getting the nomination. None.

Most hated group wins in the Supreme Court

On October 10, 2010, I wrote the Churchill-Einstein-Gandhi award winning* post, Look, it’s their opinion – Snyder v. Phelps. The case had been argued before the Supreme Court at the time I wrote it, but not decided. It involves the first amendment rights of a church group and its members (who are mostly, I believe, one family) to stand down the street from the funeral of a serviceman and hold up horrid signs castigating the departed soldier, his family and America in general because of our sinfulness. Our sin, by the way, is tolerating homosexuals.

I stated there my opinion that the Phelps and their church were within their rights (however, like everyone who comments on this case, let me add – yccchhh) and I still hold that position, although I admit to weakening a bit. The court ruled 8-1 in favor of the defendants and the plaintiff, the bereaved father, who probably acted out of a sense of duty to his son, must even pay the court costs, although they are not extensive (it’s just the insult of it).

Robert’s wrote what you’d expect he would (if, of course, you have read my previous post, which was, incidentally, also just awarded the No Bell Prize for Legal Commentary*). The Westboro signs, the court stated, contained content which were primarily a matter of public, not private concern, but the church is subject to reasonable time, place and manner restrictions. At the time of the protest, Maryland did not have a criminal statute in place concerning funeral picketing (which law may or may not be constitutional), and the church group sought out the assistance of the local government and followed their rules. The government cannot prohibit speech simply because it’s offensive to some or even all to the speaker because of content.

The most important facts were as follows: “Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.”

The decision held no new law, but applied it to a set of extremely provocative facts that had attracted national attention.

But, I’ve been brief with the majority opinion, signed by all but one judge, for a reason - I've already covered it - and turn to that one judge, Samuel Alito, whose dissent left him alone on the court but probably higher in public opinion. And, despite being in the minority, perhaps he is right. Here’s what he wrote:

The Phelps have a right to express themselves, he acknowledges. They can do so in a myriad of ways and in a myriad of places. “It does not follow however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, ‘most if not all jurisdictions’ permit recovery in tort for the intentional infliction of emotional distress . . . .” 

In order for speech to be available to make out a case for intentional infliction of emotional distress (“IIED”) the speech has to be “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” And, the Phelps admitted that their speech was just so.

Sadly, Justice Alito points out that the strategy of saying horrible things at funerals “works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief.”

Moreover, he asserts, a reasonable observer looking at the Westboro signs would have believed they were asserting that the dead soldier and son, Matthew, was gay. There were also signs that were specifically addressed to his Catholicism (which the Phelps detest) and his military service. The law in some circumstances allows the prosecution of speech criminally and civilly even where it is mixed with protected speech.

Alito takes what he says are the 3 main positions of the majority opinion and declares them all wrong. First, he disagrees that the statements made generally concerned public matters, but were statements about Matthew and those were vulnerable to suit. Second, it matters not at all that the statements were not part of a private grudge, but only made because of a strategy to increase publicity for their views. To the contrary, Justice Alito argues that a private grudge should be more protected than an excoriation of a private citizen based on a cold and calculated strategy to garner publicity. And, third, it really shouldn't matter that the Phelps were protesting on a public street. Neither a physical assault or fighting words are immunized by being done in public - why should intentional infliction of emotional stress?

Justice Aliton finished with a philosophic or political argument rather than a legal one. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.”

This is a very difficult case emotionally. It is not hard to believe that many people wish humiliation, pain and even death on the members of the Westboro Church for their cruel tactics. I know I despise them, and I'm sure the 8 justices aside from Alito do as well. A change in one of a number of single facts might have made a difference to me. If the church group had placed a sign in the church window where the funeral was held or stopped plaintiff’s car or shouted down the ceremony, it would be easy to say they crossed the lines. But, this is why the Phelps are so careful – they want their message heard and they are disciplined in obeying the laws so that they are not stopped.

However revolting the Phelps are, we protect their speech so that our speech is protected. Virtually every day online I see comments made, occasionally directed to me, which are hateful, false or designed to be hurtful. Only rarely do I see them rise to the level of the Westboro group, but once we cross the line of stopping some speech which is not violating a content-neutral law because most of us don't like it, where do we stop? I find, for example, many statements I read about ordinary American Muslims online and in the media offensive, but would not for a second wish that the speakers were prevented from offering their opinions or that they could be sued for having them. Certainly, I emotionally find such attacks on Nazis, Bolsheviks or fascists, for example, just fine. We cannot draw a line that is dependent on personal opinion of the speech's worthiness, nor the worthiness of the offender and offendee.

That being said, let me try to make an argument in support of Justice Alito’s opinions. Suppose instead of Catholics, who are perceived as a very large and powerful group, these statements were made about Jews, or blacks, or, unlike Matthew, actual homosexuals. Do you think the Supreme Court’s opinion might have come out differently? Suppose, if Matthew was Jewish, the signs said "Christ killers" and "They have all the money".  It is quite possible, although impossible to prove.

If the Phelps are constitutionally protected in making these purposefully hurtful statements, how can we justify any hate speech law that is not a face to face confrontation (where the fighting words doctrine kicks in)? Was this not anything but hate speech? Or, are we just going to pick some groups who are protected (say, blacks, Jews and gays) and too bad for everyone else? It doesn't seem morally right or legally just. In fact, in the case entitled R.A.V. v. City of St. Paul (1992) the court invalidated a hate symbol ordinance which prohibited certain symbols such as a burning cross or a swastika "which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender".

Finally, we do have a fighting words doctrine which allows laws to punish some speech made directly as a confrontation where the content seems to have know social value but seems likely to cause a violent reaction. Here, we must again remember that, first, the Phelps violated no law, and there was no confrontation at all. In fact, Mr. Snyder did not even know that there was a protest until later. The fighting words doctrine cannot apply even though I suspect that if the Dalai Lama’s mother was subject to the scurrilous statements made about her that Mr. Snyder later heard about his son, he’d want to punch some of the Phelps clan in the mouth.  

But, let me also offer one little silver lining. If a group as offensive and hated as Westboro Church can win in the Supreme Court, it tells us not everything is partisan and political, even if it sometimes seems so. The majority made, in my view, a wise and courageous decision. And though I appreciate Justice Alito's concerns, I think, in the end, he is wrong.


*I created the celebrated Churchill-Einstein-Gandhi Award and the No Bell Prize previous to finishing this post. It is not unexpected I will win more in the near future as other nominations are likely. I am considering establishing a Pull Its Ear Prize Award for Journalism, as well.