Showing posts with label Free speech. Show all posts
Showing posts with label Free speech. Show all posts

Friday, November 02, 2018

Methoughts on Metoo!

The new guy was 44. He had needed a job badly, his assets being down to near zero. Finally, an old acquaintance in a corporate office recognized his name on a resume and told a co-worker to give him an interview in a branch several states away. He got the job and was really happy when he showed up for work.

They showed him around so he could meet everyone. It was a typical New York corporate office. Very diverse. Men and women, all adult ages, various ethnicities, including in management. Got an office and a computer, found the coffee room, got a pass to the office, learned three computer passcodes, one for his computer, one for the database, one for expenses.

They told him he could break in during the first two weeks, but he memorized everything he needed to in an hour and he felt he could start right away and figure out anything he had too as he worked. Maura, the office manager came into his office with a small stack of pamphlets in her hands. Big smile. Giggled a lot.

“Bet you are going to love these.”

“What are they?”

“Office policies. Discrimination, other fun stuff.” She giggled again. He had a feeling she giggled after everything she said. “You’re in luck, actually,” she said. “There’s sexual harassment training at 1 pm in the basement auditorium.” Then she giggled yet again.

He thought about making the obvious joke about knowing how to sexually harass someone, but thought better of it. Not on his first day. He didn't know her well enough. When she left, he started reading. It had been a while since he worked in an office. About 15 years. He remembered a race awareness meeting that hadn’t gone so well. He had wondered then why they had wanted to poke the bear and make everyone uncomfortable. He started getting a bad feeling as he read. Uh oh.

After lunch, everyone in the office gathered around a big table and some stood encircling them against the wall in the conference room. The leader of the meeting, Francine Bangela, was a consultant on sexual discrimination, appeared to be in her 30s and was dressed very conservatively. She did not giggle but smiled a lot no matter what she was saying. It made the new guy uncomfortable and he didn't think he was alone in that. She gave a 20 minute talk and slide show on what sexual harassment meant, and how it wasn’t just touching someone inappropriately or threatening them. It included a whole variety of things that seemed to cause a lot of people around the table to drop their eyes, if not their heads, although others nodded vigorously, and the manager, Mr. Peeble, who didn't seem like he smiled or giggled a lot, mumbled “right, right.”

After she was done, she went  around the table and asked people to talk about times that they felt discriminated against or harassed or where they thought they might have inadvertently harassed or discriminated against someone else. One woman related a story of being assaulted at a job ten years earlier. She was obviously still affected by it. Another woman seemed very comfortable sharing having been stalked by a co-worker and stopping it by complaining about it to management. Others were very uncomfortable speaking and had much more difficulty relating anything. No one admitted to harassing anyone, although two men tried, one almost laughing as he did. It was a failed attempt at humor and almost everyone put their head down. Ms. Bangela continued to smile but said nothing in response, not even the customary, “thanks for sharing.” Finally, after 15 others, it came to the new guy.

“Oooooh, it’s my first day. I’d rather just listen.”

“Oh, no,” said the manager, Mr. Peeble, the serious nervous looking man who had hired him. “It’s the best way to jump into our value system. Go ahead.”

The words "value system," made the new guy cringe. “I’d better not,” he said mildly.

“No, I think you’d better.” said Peeble, fixing him with a self-important stare, meaning, it's not an option.

He groaned a little. “Okay.” He stood up, which seem to lift everyone’s heads a little. What was he doing, some eyes seemed to say?

“Well, though I’d rather not speak, I do give these things a lot of thought. Like everyone, I mean, who is not against people touching someone who doesn’t want to be touched, or trying to force someone to date them for advancement. You have to take a hint and not just at work.”

There were some nods and people seemed relieved that his standing up didn’t mean he was going to say something crazy. Peebles seemed pleased and nodded too.

Then the other shoe dropped.

“But as for the other stuff you said, no, I won’t. I can't. I’m sorry, but I didn’t sign on for that.”

Heads now snapped up and Peeble, looking at Francine Bangela, squinted and bit his down on his lower lip.

“I don’t understand for a second why I can’t say, ‘You look nice today,’ to anyone. Just how can that be offensive? If you should be able to say anything in this world to someone without offending them, shouldn’t that be it? In my experience, when someone compliments someone else, the person getting the compliment is pleased, or most people are anyway. They don’t immediately think, what do you mean - wasn’t I looking good yesterday? And the person in the next office who overhears it isn’t thinking What about me? I’m devastated. And if somehow we've now made people uncomfortable hearing it, then I'm against this - whatever it is.

Can’t we just be co-workers and differ a little or make some mistakes without paying with our jobs. I’m not a young man looking to date anyone. If some young guy likes some young woman and she either likes him back or doesn’t, so what? How is it any different here than at a supermarket so long as they do their job? No, they shouldn’t be dating in the office, but if they meet here – where else are you going to really get to know someone? Does it have to be at a bar or online where everyone knows it is phony? And if God forbid two people like each other and steal a kiss once in a blue moon or hold hands when no in is looking, or if it makes things exciting because people talk about it, and it makes memories sweeter when everyone is older, or they end up a couple, is that really so terrible? I know some people now think so, but it’s normal in the real world, absolutely normal and I still think most people think so. Because, no offense, all this new stuff, all this draconic, you’re fired, you must this, you can’t that stuff, is the opposite of normal. That’s why we have to learn it in these meetings and in pamphlets. Because it’s not normal. It doesn’t make sense. Honestly, it’s a little crazy. And when I was a little younger, yeah, that's how it was.

I know you just went over some stuff that was taboo, but nothing is going to happen exactly like your examples. No one is really going to know how to apply these vague rules except by taking them to some extreme max. If they made sense to anyone, we wouldn’t need these meetings. We’d have learned it in kindergarten. We’d just get another email every year that said, hey, please remember your manners. 

I'd ask you to raise your hand if this applies to you but I know you are afraid to get fired. I don't blame you for that. So don't raise your hand if your afraid to get a text because someone at work might see it and claim it's offensive. See, everyone. Don't raise your hand if you have to look around to see whose is standing nearby before you make a wisecrack. Really, why can’t we make a joke and have it fall flat or be unfunny or not funny to everyone? Is it really so terrible? Because, if nothing else, if you can’t handle a joke that's not meant to personally insult you, it’s your fault and not anyone else’s. Yet people are getting fired over jokes. People are getting fired over one stupid remark because someone else didn't like it. What happened to “please don’t say that again?”

And, I’m not trying to be funny, but, I do not understand about not using “boys and girls” or “ladies and gentlemen” when addressing people because we might be wrong about how someone sees themselves sexually. Some people think there are other possibilities than man and woman or they are a man who thinks he is a woman or vice versa and it's really confusing to the rest of us, even for people who are sympathetic to them. I know, I’m not qualified to talk about chromosomes and I don't have answers and I personally don't really care what bathroom they use. But, if we can’t tell the difference between boy and girls, at least most of the time, so that we can't even use an expression we've used all of our lives, I mean, how are we supposed to tell the difference between harder things like right and wrong and what’s good for the company and what’s not? Can’t we even make the most simple decisions and use the most rudimentary phrases without fear that maybe one out of a thousand times someone will disagree?”

He took a pause and looked down at Ms. Bangela, who had a stiffer smile now. He wondered if when he finished, she would just pretend he hadn’t said anything or if she would suggest to Peebles that he was a mistake and had to go. That would be a shame, because he really needed the money. His first paycheck was going to pay next month’s rent with not a day to spare.

“But, we were talking about sexual discrimination and harassment and I guess I got a little off topic. I guess what I’m saying is I came here to work, and that’s what I want to do. I didn’t come here to meet women or have a relationship or bother anyone or anything else like that. But, people talk at work, and some people do have relationships of all types from lunch buddies to marriage. I don’t know how you do your job or have a life without talking to each other. I can see just walking around my first day people do talk here, do have fun and it’s not 100% work. You can’t do that and not have the possibility of offending someone, and not have the possibility that someone might get mad at someone else or take advantage of someone else, just like anywhere else. And it shouldn't be so scary. 

Well, I’m sure I upset some people today and they wish I’d have just shut up and made some inconsequential remark. And others will wish they said what I just did or maybe they'll tell me thanks for saying it, but you shouldn't have. I’d have been fine not speaking. But, since I had to, I guess I thought hanging on to just a little bit of freedom was more important than paying my rent next month.

I’ll just finish up by saying, and I mean no offense by this - Ms. Bangela, you look nice today. Mr. Peeble, you look nice today. Boys and girls, you all look nice today. That’s all I have to say."

--

The next month, not surprisingly, he couldn’t pay his rent. Sometimes he felt good about it and even free, and sometimes he just looked online for a job.

*

I hope you all realize that was fictional.  There’s a smattering of semi-auto-biographical underlay in there, but not the burn-all-bridges speech, which is purely fictional and wish-fulfillment. But, I bet people would be cheering in the movies if some character said some of that. It's probably too long for a movie. And somehow I doubt in real life that they’d actually let anyone finish making the speech at a mixed corporate meeting. Either someone would shout him down, or grab the mike, or maybe someone would start shrieking that they didn’t feel safe.  I’m 99% sure I’ll never have another job, but I’d love to have one if I could just make that speech and get fired for it. To get back to the movie version for a second, I think women in the audience would be cheering too, because, at least many women my age, – and certainly not all, keep telling me they think what is going on is nuts -- too far.

I did leave my last job writing, not about this kind of stuff, but a fairly polite, yet bridge-burning severance letter to the company detailing how hard they made it for myself and my co-workers to do our job and how much like a Dilbert comic strip it had become. Not too long after I learned that the letter, directed to HR, very quickly sped not just around the company, but the industry. Some people from other insurance companies and law firms suddenly knew who I was (“Oh, so you’re the guy who wrote the letter”). At least four employees of my company quit after reading my letter, one guy well over a year later. I’d like to think there were others, but, obviously, I don't know. It was my fifteen minutes of mini-fame. Sometime later I ran into the manager who was responsible for hiring me (the one who saw my name on a resume and got me my interview). Maybe she took some heat for it. She was furious I wrote it. At first. Then she got over it after she asked why I didn't raise these things while I still worked there and I told her I wrote pretty much the same letter every year when they asked for input and it was always ignored. 

But, back to the whole metoo movement. We have had a short period of male domination in our species, if we are counting only homo sapiens, roughly 315,000 years, give or take the last year or so (that’s a joke, folks. Savor it, because, even funny jokes on many topics could be soon be deemed illegal hate speech). 

Until shortly before my lifetime, the workplace, except for times of war or some few fields where women were the mainstay, men were ubiquitous at work or at least as bosses. During WWII, and increasingly in my lifetime, women worked more and more. My mother went back to work when I was a boy, went from a secretary to a full-time college instructor (not quite a full professor, she died before she could get a doctorate), and by the time I was in law school, half my class was female. Men still dominate many fields, but women are increasingly managers, bosses, owners, entrepreneurs in almost every field that isn't very labor-intensive. Even there they've broken in. Even in fields where male physiology makes it exclusive to them (say NFL football), women usually have their own professional league, though without the financial reward. 

Sexual harassment, not to mention assault, at the workplace has always been a problem, as it has been probably everywhere. There was a time, a couple of lifetimes ago, when women barely had legal rights, when men could legally rape (we would now call it rape) their wives and amazingly, there was not much punishment even for their murder. Men are bigger and stronger than women for the most part and that’s usually the way the cookie crumbled. Even in our country and in other western countries some heinous laws took a long time to fall and lasted well into my lifetime. I believe Texas was the last state where a man could legally not rape his wife.

That was then. It’s a lot different now (I’m sure there are some who would contest that – it’s ridiculous to do so). Arguably, women, like most minorities in America, have more rights than men. You can argue that men do not need laws protecting them, nevertheless, the laws setting aside a certain amount of jobs, or protecting women from violence, or from discrimination, either do not exist for the benefit of men, even if written neutrally, or are often applied by courts or businesses so as to exclude men. For some, laws written to benefit women (or other minorities or formerly oppressed groups) are not enough. 

My rule of “up from oppression” states: When any long-oppressed group ceases to be oppressed, reformers are usually not satisfied with equality but wants revenge or to be on top. 

Colloquy: In order to achieve supremacy, the formerly oppressed group will never admit equality, but will carry on as if it is just as oppressed as it ever was until supremacy is achieved.

Of course, you note I said reformers. Most people just want to go to work and go home at the end of the day.

Obviously, sexual harassment and assault still exists and not just in the workplace. But, I feel sure the statistic that 1 out of 5 women will be raped in their life that we so often hear quoted (Nat. Sex. Viol. Res. Ctr.) is grossly exaggerated. However, when I was young, I was surprised by how many of my female friends confided to me that they were sexually assaulted to some degree, some of it pretty severely (I'm not going to say, but you would happily kill the male if you caught them in the act), although none – none – said they were technically raped.  It is very fair to say to me, of course, what makes you think you are being fully reported to by them. That’s true, though they seemed to me to be pretty open about other things that were close enough to rape, I find it hard to believe they would not have told me. So, today I called two women I’m close with who I know have many friends. One was relatively older, one relatively younger – I asked both how many of their friends have confided to them that they were raped. Both thought about it and said “none.” I’m not saying rape doesn't exist or never happened to anyone I know who hasn't said so. I'm just saying I think the reported rate is grossly exaggerated for political purposes. I'll leave aside the ridiculous view pushed by some that women never lie about rape. I doubt many do, but to suggest any group doesn't lie about anything is pretty silly. We know it happens.

The metoo movement started, like many movements, for a good cause, or a great one, in this case, specific outrage bubbling over of a seemingly sex-crazed, perhaps rapacious movie producer, well known in his industry for taking advantage of actresses – Harvey Weinstein. I know, I’m pre-judging the case, and I always say don’t do that, but, when so many women come out, like with Cosby, it’s pretty hard not to believe its likely true.

The opposite works for Kavanaugh – so many women speak of him as behaving like a gentleman and defender of women throughout his life that Ford’s story from 35 years ago, presuming it is true, is at best a teenage anomaly. The second story, by the (anonymous) mother of (anonymous) someone else who supposedly saw him an (unknown) someone else up against a wall – I mean, come on (his gf at the time, said it definitely didn’t happen to her - he was always a gentleman), and the third story of the witness to the alleged multiple drug induced gang rapes has I think has been shown to be completely bogus. Yet a fourth story of rape in a car by BK and judge has come out by an older woman who now admits she just made it up for political purposes and it has been referred for criminal charges. Even Ford’s story ended up so full of holes – not that any Senator really challenged it – that there is at least some reason to believe it might have been political or just the wrong guy. I don’t know though. My guess, and it is just a guess, hasn’t changed that she genuinely believed it was Kavanaugh. I wrote about the matter recently, so I'll leave it there. 

Women speaking out about sexual assault or harassment is still a good cause, one I’ve encouraged with female friends, not to mention my daughter, ever since I’ve been young. Even decades ago the courts intervened to protect women who were being abused, and, sometimes the police did too (sadly, sometimes not when a police officer was the abuser). I couldn’t be more overjoyed of the changes in the sports world, especially gymnastics. That protection may (I hope) finally be afforded young athletes is long overdue. There probably can’t be enough lawsuits. To think of what has gone in the gymnastics world for so long is disturbing beyond words. You’d like to think that parents of athletes in sports other than gymnastics were intelligent enough to be on guard in their childrens’ sports too, but, sadly, I don’t have faith in parents as a group. Not after all we’ve seen.

One question I have asked in commenting online that I do not see many others asking - I think it has been drummed out of people's heads - is where are the parents. All these stories of young athletes and actresses/actors getting abused and I want to know - where were their parents and friends. Apparently, many were saying, shut up or you won't get paid. I know what I taught my daughter. You are always respectful to your bosses and helpful to your co-workers but you do not have to take any abuse, not even verbal. She actually took it much further than I did when I was a kid and it was almost comical the rules she put in place with her bosses (all male) to assure their future good behavior. One temperamental stable owner was not allowed to speak with her, after some nasty attitude, if they wanted her to stay on, but had to address her through his wife or another employee. The only time there was a threatening component to it, a crazed co-worker on email, she addressed management and he was gone instantly. It wasn't that she was a bear. Every boss I ever met fell over themselves to rave about her to me because of her attributed, but she wasn't going to be abused because her parent taught her she didn't have to be. I know that it doesn't mean she might not be abused anyway, but at least she understood she didn't have to be.

Some of these stories out of Hollywood irritated me and a lot of other people. There was a big difference between a secretary in an office who needed her job being groped and an actress trading sex for a role. Some of them were harassed, of course. Certainly, not all of them, and I'm not suggesting they should have to do anything they didn't want to or that a job should be dependent on it. But, if you read the stories closely you have to ask yourselves, what exactly happened? I read Salma Hayek's story several times and I still don't know what her complaint is except that Weinstein (guilty of other things) wanted to have sex with her and she said no. He insisted she write a lesbian scene in a movie she was doing about a lesbian artist and he was right - it was, in my opinion, the only reason at least many people wanted to see it. Her looks and the lesbian angle. It is still not a crime for a rich man to want to have sex with a beautiful woman. It may be obnoxious, even hateful. And I fully embrace her telling him to go f' himself. Which it seems she did, though I'm not sure in those words.

All that said, it was very easy to predict the movement would spiral out of control quickly, and it did. And it is a problem, not a sideshow. We went from toppling celebrity and powerful sexual predators, always a good thing, but very limited, to the spread of a puritanical and completely hypocritical lifestyle in workplaces throughout the country and parts of Europe that I suspect cuts down on very little actual harassment and abuse – because people who do things like that usually don’t care about rules – and makes life joyless and a little crazy for others. It is not just that it has a negative impact, it tends to drown out the important aspects of it. Not a few women have said to me that they have no patience for metoo, within months of it starting.

But it has also added to the trend of crushing things that are pretty important, like free speech and other plain normal behavior. I see it just in the behavior of friends who tell me they are scared at work.  I don’t think most people find it an exaggeration. What you have is a few hundred big-name celebrities or corporate bigwigs losing their jobs, many of whom might deserve it, but some of whom probably do not. Many people have written complaining, not about corporations paying attention to sexual harassment, but doing so without thought, without what is sometimes referred to as “due process” (which really doesn’t apply to companies) but really means “fair play” or at least some kind of reasonable investigation or chance to explain oneself. A good example of this is Matt Lauer. Now, I have no real information about him. Maybe he is not a good guy (honestly, until a few years ago, I didn’t know who he was – I don’t watch network news). But, when the story broke about him, he was gone almost instantly and what disturbed people, was that the only story that did come out, was of his consensual relationship with a younger co-worker who, apparently, out of guilt (she was married), maybe because of other problems she had – or maybe because she felt she couldn’t say no (more on that later), passed out. But, what I commented on in the article on Lauer, and I was relieved to see many others did as well, was – wait a minute – is this it? Consensual sex? Is this why they fired him? They hinted there were other things. Maybe there were and they were worse. But, maybe not. I don't trust the press any more than law enforcement. Well, forgive me for being cynical. Maybe it is him who doesn’t want them out there. I have no way to know. But, how could they have investigated all of this and made a decision so quickly? It smacked of politics, and that is never a good thing. We’ve seen that repeated over and over. Probably, much of the time it’s deserved. It’s still a bad idea. Then, when you get to the comedian, Aziz Ansari, who was crucified by the movement for literally having consensual sex with a woman who came home with him and treating her very decently when she said she changed her mind - you want to scream. 

Definitely not every day, but certainly every week I hear a couple of stories of some sex-discrimination over-kill. Yes, of course, anecdotes, but, just as before we verified that there was one extra-solar planet out there, we knew there must billions or more, and are now just starting to find them, we can know the same about these acts of over-kill. If I hear of a few, there are oh so many happening, even if millions are just people not doing things they'd ordinarily do. In the last week alone (the week I wrote this – about a week ago), I heard the following. You don’t have to believe me, of course, but all of these are true stories – at least, there is no embellishment from me (I can’t speak for those who told me, though I doubt it, or the news stories):

A friend, a middle-age female supervisor in a large company, asked me my opinion on something that happened at her job. She told me that a group of women in her section wanted a male co-worker fired. In her view, he is an excellent worker, very intelligent young man who shows up and never gets in trouble, but also seemed a little bit “odd,” as if perhaps he might be "on the spectrum,” or maybe just very awkward. Their complaint - one of them suspected he may have looked at her legs because she thought she may have been a little too exposed. She didn’t see him do it, but she thought he may have. He said nothing and did nothing wrong that she could see. In fact, she herself verified later that he had to have been paying attention to what was on the computer screen as he remembered it later. The second complainant had no accusation but thought he was creepy. The third one also had nothing specific. That was the complaint. As the supervisor, she didn’t think they had any complaint at all, but they wanted to make one. She sent them to the office attorneys. The attorneys sent them to HR. I don’t know why. Did they even have a clue as to the law? HR, thank God, kicked it back, and said, if you want to get rid of him, you need to find something wrong with his work, as he didn’t do anything wrong. Now, why would they say that? Yes, he did nothing wrong, but why bring up his work? It’s not supposed to be a “now try this” situation.  In my view, the women sexually harassed this guy.

A few days later, I was told by public employee that they were told the new policies included that you were not allowed to tell someone that they “looked nice today” because that implies that they didn’t look good other days and it might hurt their feelings. That found its way into my story. Also, adults were advised not to refer to the children as “boys and girls” because you might offend the one student in the school who had a gender (I don’t know the right word) disorder, dysphoria? And how do we know who is a boy or a girl? Good f’g grief. Of course, we know. At least 99.999% of the time. Right now, amazingly, there is a fight over it, and there is or will be lawsuits, about whether a boy or girl means what it has meant since the words exist. And it is not the same thing as what does “marriage” means. Because marriage was a legal term, a conceptual term, and you can change the law. And while you change a word about a noun, like a horse, you can’t change the thing itself, biologically, not without evolutionary change on a massive scale that will likely take millions of years. So, if the country decides, henceforth boys will be called girls and girls boys, and we actually all do that – then that’s what they will be, but they will still be this thing and that thing, and it is not really going to happen, anyway.  

Obviously, being disturbed at the fear in the workplace of not being able to say “you look nice today,” is not unique to me. It’s not that I have this driving need to say those particular words to anyone. I work in a room by myself for the most part. But, it’s the principle that we are no longer free in many senses and getting less free. There is a movement over so-called “hate speech” that is getting stronger all the time among young people. Do not think if the far left becomes stronger politically that it will not try to enforce a speech code as it has tried on college campuses for years – we already have the blueprint for it. Go to thefire.org and see what they fight against. Safe zones and speech codes all directed at speech that the left, not the right, doesn’t like. It is very one-sided. Ironically, free speech used to be the reverse, something the left sought to protect and the right sought to restrict. What happened? We already have these things in Canada and Europe. It is not consistent with our first amendment rights. It is a little worrisome for a reason. For the last 100 plus years, the left has eventually won most of the culture wars, and, I agreed on a lot, probably most of it. But, I can't say that is so anymore. I think it reached a plateau where my above rule of "up from oppression" has come into play. The problem is with the right, is that if left to themselves, we'd still be in the dark ages and they've only progressed to where they are by being dragged along by the left. Just as one example. Most conservatives I know are actually fairly open-minded about things like sex and women working. But, that's after decades starting with the '60s of the sexual revolution. Back in the '50s, many people didn't think women should wear short pants, let alone work. But, more on that another week.

Here’s another story. Last week, I read an article that a PBS writer was fired – fired! because he looked at a picture of Meghan Markle and said “Not bad.” Can it be in America that to make a remark that implies a member of the British Royal Family is good looking is so frowned upon that you will lose your livelihood? He didn’t get a reprimand – “We frown on commenting among others in the workplace that might imply royalty might be good looking.” Leave aside how absurd the whole idea of royalty is in the modern world to begin with.  He just didn’t get a dirty look. He lost his job. His job! Because he thought someone who made her living on her looks and in reality became royalty largely because of her looks - was good looking, and said it out loud. What was he allowed to say? "God save the Queen!" "My, how regal?" In fact, it's possible, even though her race is the subject of a news story, he'd have been fired for just mentioning her race.

It's a picture. When we see a picture, we say things like, that's pretty, or nice or wow, she's cute. Save me from ever having a job again. By the way, he has bitterly complained that nothing happened to the women at the station who referred to the princess as “hot.” Of course, it didn’t. Because none of this has anything to do with really protecting women. It has to do with power politics and who is on top now. I mean, shouldn’t the whole metoo movement at the very least bar celebrities, including royalty, from dating or marrying super-models or good looking women, at risk of losing their phony-bologna careers?

Obviously, this isn't just me raging against the changing of the world as I age. Many have rejected the excesses of the movement. The very sexy (although I guess also very old) French actress, Catherine Deneuve, and many other actresses signed a letter, now known as the Deneuve letter, which said, basically, stop! Here are a few great quotes:
 “A woman can, in the same day, lead a professional team and enjoy being the sexual object of a man, without being a ‘slut’, nor a cheap accomplice of the patriarchy.” 
Imagine that: they are actually saying a woman can enjoy being the sexual object of a man and still be a professional! Why not? There’s nothing wrong with it. We would not exist if that stopped. Of course, these were women saying it. There is no reason a man should not be able to say it if we are truly equal. 
“Rape is a crime. But insistent or clumsy flirting is not a crime, nor is gallantry a chauvinist aggression.”
“This expedited justice already has its victims, men prevented from practicing their profession as punishment, forced to resign, etc., while the only thing they did wrong was touching a knee, trying to steal a kiss, or speaking about ‘intimate’ things at a work dinner, or sending messages with sexual connotations to a woman whose feelings were not mutual.” 
Long before, but again accelerated by, metoo arose the crazy idea that relationships between a boss and a subordinate are inherently wrong, because a fraction of them are abusive. Talk about throwing the baby out with the bathwater. I do know of one relationship between a married boss and a subordinate which ended badly for her, but I can't say at all it was because of any kind of abuse. If anything, she was probably abusive to others in her office who hated her because of her position.  Every other boss-subordinate relationship one I’ve known, was either permanent, or they ended up as friends or with the worker leaving like any other employee who moved on. It doesn't mean bad endings don't happen. It means I do not think it is so common or the results so devastating that it should be banned for all. It is not kids smoking cigarettes or lead paint in walls. I know in all the offices I worked on of very few women who complained of being harassed by the boss, who wasn't firmly put in his place and who obeyed. In one case I remember a woman who cried to me that her boss danced too close with her at a party, but admitted she had flirted with him to get what she wanted at work and felt she asked for it. I saw that too. I didn't blame him and he didn't put his hands on her. For many people, torpedoing all the good relationships to protect a handful of abusive ones is fine. Not with me. My own 28-year old relationship was very traditional – I was her boss, she was my secretary. It took exactly one look for something to click with us. It was at least lust at first sight and the relationship wasn’t long behind. Though I’ve been punished for it in other ways for 28 years (of course, this will be the first post she’ll read in ten years – you know that) I’d love to stand up at a meeting and say, which one of you is going home with me tonight to tell her we have to split up because it was wrong from the start? Of course, like many men my age (many of my friends and I have discussed it), we can think of many consensual flirtations or relationships from decades ago that we have no doubt we'd be accused now of having done something wrong, both at work and in dating. All of us say, thank God we were young then. Most of the women I've talked to about it feel that way too. I can think of one exception but not because anyone ever touched her or tried to bully her into a relationship. It was more of a glass ceiling thing.
Anyway, I got off track as usual. Here’s one from September I enjoyed, I believe out of Britain (could be Australia):   “Mr Sofocleous, 24, from Cyprus, faced disciplinary action last month after he re-tweeted an article by The Spectator on his Twitter titled 'Is it a crime to say women don't have penises?', with the comment: 'RT if women don't have penises'.  

The postgraduate philosophy and psychology student was dismissed from his position at the university after the tweet sparked outrage.
He was also fired from his position as editor of Durham University's online magazine The Bubble, and forced to resign as president of free speech society Humanist Students.”
BTW, as far as I know, "RT" just means retweet. Either he was making a joke or just saying people should retweet the article. Either way, when people are fired from jobs because of a sentence that someone else doesn’t like it’s a problem, unless it is really something incredibly heinous, maybe advocating genocide? We are capable of both having women able to speak out about getting groped and not crushing free speech at the same time.
This one is more familiar, but I really looked into it for the first time. Is there anyone even in the heart of New Guinea who doesn’t know Google, the for-profit company that gets more and more political all the time, and which fired an engineer, James Damore, who wrote a memo – something employees were invited to do – gently (and I mean gently) criticizing Google’s diversity policies, after accusing him of perpetrating gender stereotypes. Was it really out of line he asked that men and women be treated the same?
His post is often called “anti-diversity.” But, if you actually read it, of course, you see he plainly states that he is pro-diversity.  But, he backed up what he offered with citations, write or wrong, and those who criticized him just said it was “hostile,” without even saying what was wrong about it. That’s a problem. Wired Magazine published an article on his “Pernicious” Science. You can read that article, but I don’t think you will find anything actually pernicious. If you are honest as Damore, you will admit your own bias, one way or the other. But, for all the bias in the Wired article, they don’t really show you anything “wrong” about his research. They actually confirm a lot of it, and show how some of his argument can be disputed. Okay, that sounds like most science and most arguments. He was not writing a scientific paper. He was supporting his argument with some science and invited others to disagree. And, again, because he’s honest and asking for an honest discussion, Damore says, of course, he is biased too. I love it when people say that, because so few people do. So much more honest than Google or Wired. And, they fired him for it. 
Damore asks Google to consider its political programming and unconscious biases, not to discriminate against men or any group and to consider whether biological differences between men and women might contribute to there being fewer women engineers. He wants people to be treated as individuals, not members of a group, like male or female. That is, do not mentor women, and not men, because you think there are fewer women engineers as a result of dastardly male behavior. He is a political conservative, a rarity at Google and believes it is why he was fired. I doubt his lawsuit will go anywhere. Interestingly, the NLRB administrator who recommended dismissing his administrative complaint (and he did drop it), said his statements about women created a hostile environment despite being “cloaked” in science – which kind of makes them sound as if they were based in – science? “Cloaked,” of course, is a loaded word. Kind of like “ilk.” People use to show a relationship in a negative context.
Whether you think some of his points are wrong or not concerning the biology of men and women and they may be (I really don’t know – its psychology – can anyone know for sure?), his overall point is hardly outrageous. A claim by a woman at Google that she didn’t feel “safe,” was far more outrageous in my view, certainly a lie, and much more in keeping with gender stereotypes. His being fired was definitely outrageous. It was an opinion. An invited one. It’s not like he was saying blacks or Jews should be exterminated or women should stay at home either. He said men and women are different – something that female psychologists who practiced human sexuality behavior write about all the time. Why is this different?
It doesn’t matter if I give you one or a hundred anecdotes or a thousand anecdotes. It is just like an analogy. It can never be close enough if someone doesn't want to believe it. Yet, people are terrified, literally terrified that someone might see a joke on their texts or email, and they will be fired. Many are terrified of giving an opinion. They are right, they will be fired in many jobs. For a joke. Or for an opinion. Because, as I said to my favorite liberal on more than one occasion – Congratulations, you guys killed America’s sense of humor. It's as if conservatives and liberals have changed places in a number of ways over the course of the last few decades. The conservatives were the stodgy puritans who didn't laugh a lot. They'd be the ones dressing up in masks, trying to stop someone else from speaking. The worm turns, as they say.
I’m never going to work for a company again. I’d probably be fired the first day. The last time I had a job I refused to go to the meeting on race (racial something – Relations? Diversity? Maybe if I went, I’d know). Good thing. There was a huge dust-up, a black woman appropriately used the dreaded N-word and a white woman appropriately used it and, uh oh, well, the black women, or at least some of them, did not like that. I heard about it before I got back and then I just didn’t come back at all. It caused racial discord in an otherwise diverse and racially harmonious office for about a week. I had it happen in a class I taught once too. But, whether it be racial workshops or sexual harassment training, if I went, they'd probably fire me and if I didn't go, they'd probably fire me, if not for being insubordinate, probably for insurance reasons. Something annoying.
Speaking of sexual harassment training, it is now mandatory in New York. We are trying to figure this out, but it seems like it is mandatory for everyone. It is not clear to me if it includes people who work for themselves, which, of course, makes no sense whatsoever. Pisses me off. No, I do not believe that anyone is going to learn anything from it and it would offend me to be told I need to be trained how to behave with people, even if the way I would behave might offend someone here or there. Too bad. People offend me all the time. I get over it. They should too.
I doubt they will ever be found so, but I do believe that state or federal government telling our employers to train us in how we speak to others so as how not to offend them, violates the first amendment, even if I agree with them. I’m not going all lawyer on you, but I might develop this someday. Like my fellow sufferer formerly employed by Google, I’m all for diversity too, but I don’t like, for example, that the New York State Bar now makes lawyers include diversity training (even though I will likely never hire another lawyer) in hiring practices. It offends me that they think I need to be taught that it’s okay to hire a minority and it would really offend me if they try to teach me that I should hire someone of this ethnicity rather than that ethnicity (I actually didn’t have to take such a class this year by virtue of my birthday being one day before the effective date). A constitutional challenge? I’m thinking about it? If I can only get someone to pay for it. I know the ACLU won’t, as they seem to out of the civil rights business and only in the “social justice” business.

Really, I'm worried about us. We've gone from a country that decided that free speech means that we have to hear offensive words to a country that suspends kids for dressing up as scary people on Halloween (like, recently, the Columbine killers) or fires a tv host because she asks why its racist for a white child to be Diana Ross for Halloween - and then she apologizes for it before they fire her anyway. What is wrong with it? It's racist to suggest a white kid cannot be Diana Ross? It smacks of apartheid to say a white child cannot pretend to be a black singer or a black child could not pretend to be a white one. Why in the world can we elect a black president and yet we are paralyzed by the thought that white children should pretend they are black. What's not offensive anymore? 
Okay, I'm done. There's so much more that could be covered, but, at some point you just have to stop and say - next time. The last few days my thoughts started to turn to the all-important topic of – Brady or Rodgers (or Brees or Manning)? Which I think comes next.

Wednesday, April 27, 2016

What have we wrought?

I am not the first to say this – political correctness on campus and with our young has risen to a dangerous level. It has to be smashed. I don’t mean we should smash them, but they have to be suspended and/or thrown out of college, teachers and administrators who support it need to be fired, and parents and students who oppose them need to be praised and protected from vicious retribution. We need to stop now the crazy ideas about safe zones from speech they don’t like and micro-aggressions, which can mean anything.

Today I watched a video of a speaker at a school being interfered with by a student in the audience who kept interrupting. The topic was free speech. The student was screaming – from what I could here – something about hate speech. When she was threatened with being evicted from the auditorium she started frantically waving her arms and screaming – what I can’t say – it sounded like a baby balling. Perhaps she had been told to behave this way. https://www.youtube.com/watch?v=ANgl54duC0A.

We must educate too. Interrupting others, invading their talks, grabbing their microphones – is not free speech. It has nothing to do with free speech. It is in fact a violation of law, probably everywhere. Sadly, even politicians seem to need this. The next time I hear its free speech from a commentator, panelist or politician, I’m driving to the studio and interrupting.

Unfortunately, we can’t expect college administrators or teachers to help. In Swarthmore College, just as an example, students took over a board meeting that the board members had already agreed to be an open forum. And essentially blathered away, not letting anyone else speech. Apparently, the school feels helpless. Rather than backing down and accepting the change, the board members should have called the police.

A few students who didn’t want any part of it had to leave. There was nothing else they could do. In another recent example a student who was part of a discussion group in class about rape pointed out that a frequently cited statistic about rape was overstated and he gave his reasons. His reward for adding to the discussion was being told by the professor he could no longer participate in class discussions.

These intolerant, angry students, are not there to learn, they are there to spread their ignorance and practice to be Maoists, which might seem like a good idea to them right now. No thanks. I attended college in the ‘70s, not that far from the sixties. I saw a few rallies (really few; I despised them as I continue to despise meeting of most sorts in my middle age). But, there was nothing like this - even in the 60s there was generally more respect in a sit-in. And, honestly, they had a lot more to complain about.

Someone I know who is incredibly left leaning, and though white, identifies almost completely with any minority and group he believes is underprivileged or discriminated against, told me of going to a meeting where a Black Lives Matter representative was one of the speakers. He wouldn’t give up the mike, invited friends onstage, lectured the audience, overwhelming liberal about their racism, and was generally obnoxious. He was mortified to be lectured like that, but kept repeating that he understands why they behave that way.

Personally, I think behavior like this is incipient fascism, and I’m not surprised when violence breaks out. It is what they want. Although today I heard that Clinton had a BLM protestor thrown out, she and the other Democrat candidates have given encouragement to this behavior. As obnoxious as Trump is, and as stupid as he was to encourage violence, I preferred what he did to what the Democrats did. Frankly, it is going to get uglier and I expect more violent.

It’s not only the schools, of course. People now live in terror that someone on their Facebook or similar account might say something politically incorrect. They are afraid to joke in public. No humor is permitted where anyone might be made fun of except for white males.

The other day I called someone I know a “faggot.” He is a great person, very reasonable and I can’t think of a bad thing anyone has to say about him - ever. He’s also gay, and apparently very sensitive about the word. I was kidding him in response to a story as to how wimpy he behaved as a child. It was a reflexive remark and I wasn’t thinking about his being gay. Of course I know the derivation of the word and what it can mean, but I grew up with people calling each other faggots. I thought one day it might come out of my mouth with the wrong person and it did. I felt bad, and when he said, a little heated, that it was “not alright,” I said “I know, but it’s a phrase I’ve used for 35 years and I didn’t mean that.” I don’t know why I said 35 years. It is probably closer to 50 years. I doubt I knew about the gay meaning for a few years. Sure, I could have thought about it, but in the spur of the moment I didn't. Hopefully, I'll be more careful in the future. But, absent-mindedness is kind of built into me.

We dropped it after that. But I did tell another friend what happened, who said I should have asked if he ever called anyone a “bastard?” That has a duel meaning too. So does “idiot,” and “retard.” And so on. I’m not talking about racial slurs that have no other meaning other than to demean someone (I’ve joked about that but have never called anyone a slur). Like the “N” word or the “C” word for women. But, are we no longer to be able to use common phrases that have other meanings to us. I’ve learned many people who use the word “putz” or “schmuck” have no idea what it really means in Yiddish (hint, men have them, women don’t).

The political correctness gets worse and worse. Honestly, I try not to say words that offend people where there is no need for it, but at some point, you should be able to speak colloquially without offending anyone. I have a friend, Jewish, who is sensitive about non-Jews using the word “Jew.” I have another Jewish friend who is offended when people use a word in place of “Jew,” like “Jewish person.” There both terrific people and a lot of fun. But, sometimes you can’t win with this stuff. I'm sure I've offended both of them at least once if not more, but I don't feel bad about that. I mean, Jew is the actual word for Jews. How do you get around it? "The chosen people?"

I know I haven't reacted like this when someone called me a Jew or even repeated a stereotype. I know I don't get offended when someone points out how slow I walk (crippled). I can't see a reason to get offended. I didn't get offended when someone suggested we bring back the word "bastard" for children of unmarried parents, even though it described my daughter (of whom the speaker was quite fond). I don't like racial slurs, but that's because they are meant to be injurious and there is no other use for them. I try not to even use them in a joke, because I realize how painful they are to people (although I do laugh at racial jokes - doesn't matter the group targeted, even my own. To me the joke is on the bigot, not the target, or the outrageousness of it).

Of course, you don’t have to be a political junkie to know that many people who like Donald Trump, but many others, are so sick of this political correctness. The media, if of course, completely sold on it. Recently, John Kasich, speaking at a town hall meeting, was asked by a woman about campus rape. He made many remarks which no liberal could complain about. At the end, he added and try not to go to parties where there is a lot of drinking. That night, numerous commentators sort of fudged, admitting that there was nothing wrong with what he said, but he probably shouldn’t have. Why? Are they crazy. Every parent concerned about campus rape should be telling their young girls that. It isn’t saying rape is their fault. Its saying don’t make yourself vulnerable. Have we all gone crazy?

Of course, some people think that I’m too politically correct because I’d rather not offend people to a point. Okay. We are all going to have our limits. But, at some point, for me, it goes way past what our society thinks is reasonable, and is being driven by young (which often means stupid) people and a small group of “speech Nazis” magnified by the media.

I have no panacea for this problem. It probably has been and will be ever ongoing. But, now, they need to start in school. The establishment has to become rebellious.

I am no longer teaching as a college adjunct. Haven't for years. But, as much as I liked doing it, it’s a good thing I’m done. Because I’d probably be fired. But, in my mind, those who punish kids for ridiculous reasons need to be fired. Those who make extremely stupid rules need to be fired. Otherwise, we can only expect more of this. I'm not making a prediction this is going to happen, because it is highly unlikely. Likely, it will get worse.

What have we wrought?

Tuesday, May 27, 2008

We demand (somewhat limited) free speech

Imagine it is 2004 and you read that Michael Moore was arrested for making Fahrenheit 9/11 or his comments about the Bush administration. Or, more topical, that Scott McClellan's recent book led to his arrest for maligning the administration during wartime or some such nonsense.

These suggestions seem improbable nowadays in our society. After all, we have free speech. Always have, always will, right? Possibly, first amendment rights are actually deemed by Americans to be the most important of all our rights (leaving aside those passionate gun advocates spurred on by the present partisan debate that feel the second amendment should be first).

It should be noted at first that there was, and sometimes still is, a debate as to whether it was necessary to have a bill of rights, including the first amendment, at all. Alexander Hamilton, for one, believed it would be counterproductive. These rights against the federal government were already in existence, he argued, as well as others. If some of them are set out in constitutional amendments, then the others might be deemed not to exist. He had a point, and it has been argued, successfully and unsuccessfully.

Literally, the first amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This post deals with the second clause of that amendment, "abridging the freedom of speech," sometimes called freedom of expression.

The law on this subject is vast, and no attempt here will be made to do anything but just lightly touch upon some aspects of it it is hoped you might find interesting.

Just to simplify the arguments here, we will take "speech" to mean "expression," as it is commonly accepted (although I know one thick headed Montanan reader who might give me grief about it). Thus, accept for the sake of argument that pictures, writings, symbolic actions, etc., have at least some first amendment protection.

I am actually using the first amendment as an example to make a point that is actually a political heresy, possibly unique to myself. We are trained to say only worshipful things about the constitution and to give credit to the founders for their unworldly foresight. I would argue that it never worked in a myriad of ways. However, this is not an anti-patriotic or anti-constitutional scree. It merely reflects that the constitution was made by failable men who compromised in order to get the job done, and who had no crystal balls which would enable them to write for the ages.

Faced with text that just didn't work in many situations, judges, throughout the two hundred plus years of the country's history, have interpreted the constitution as they saw fit, sometimes reflecting the changing culture and sometimes leading it. While many argue that we need to stick to the meaning of the founders, or, for others, the intent of the founders, I do not believe that even the most assiduous of proponents of this view stick to it when the result would not please them. After all, Thomas Jefferson coined the phrase "strict construction" but derided such lack of flexibility as soon as he obtained the high office.

Even the godfather of modern originalism, Antonin Scalia of The Supreme Court of the United States (and coincidentally the college roomate of my boss in my first law job), acknowledged at his Senate hearing that he understood, for example, that although lashing was not deemed to be cruel or unusual punishment to the framers, he would be happy to draw a line there and forbid it now. It is a fair question (which I would have asked, were I Senator [brief pause for laughter]) to ask if he was willing to draw a line where he thought necessary, how could he complain on principal when others draw different lines? Originalism, although a great theory, falls in upon itself the first time it is comprised.

Frankly, it is a good thing that the "freedom" of speech (or expression) is not taken literally. It would not satisfy any of us if we could say what we wanted but not write it or paint what we wished. The converse is true as well. Imagine a world where no expression could be infringed by the government. Perhaps that sounds great at first. Although in that world, no president could speak in public for the hecklers, no teacher could silence a student in order to teach, no police officer could stop verbal threats, no pornography could be banned in any environment including prime time television, no court, indeed, could carry on its mission if those who chose to speak determined to do so in court. And so on.

Because society could not function were total freedom of speech allowed and culturally seemed not to be able to bear certain other speech (obscenity - but has the internet made that law obsolete outside of child porn and public displays?) various devices were created by judges so that society could, in fact, infringe upon speech all the time. Yet, none of it is found in the constitution.

Despite the appearance of the amendment in 1791, when it definitely only applied to the federal government, it was not until the 1920s when it even began to have much effect and even to be applied to the states through a highly questionable series of judicial rulings that makes sense only if you disregard what the constitution says and just want the world to be a certain way.

Most famous historically speaking, is, of course, the alien-sedition act of the Adams administration which permitted some actual imprisonment of the press (freedom of the press is linked with speech in the first amendment) under limited circumstances.

The actual results of that act were not extreme, and it was was nothing compared to the federal government's actions during the first world war (I'll skip the Civil War -- but Lincoln's intolerance for free speech and press in wartime is well documented), when a many time socialist presidential candidate, Eugene Debs, was imprisoned for just making a speech during which he tried to be very careful about what he said, when an anti-war Senator, Robert LaFollette, was almost expelled from the Senate for his constitutionally protected words (he eventually shut up and survived) and, even crazier, when a movie maker, Robert Goldstein was actually imprisoned for 3 years (sentenced to 10) for making a film about the American Revolution, The Spirit of '76, in which, naturally, the Brits (our allies in WWI), were the bad guys. LaFollette had an eventual resurgence in his career, but Debs' and Goldstein's lives were destroyed. These are only examples. There were many others.

Although free speech has grown (thanks to judicial activity) the following are situations where the courts have allowed limited governmental infringement of speech despite the first amendment's supposed protection:

-pornography/obscenity
-speech at or near places of government activity
-hate speech/fighting words
-speech in school, both secondary and college
-speech that might disrupt the lives of private citizens (e.g., an injunction
prohibiting speech too close to an abortion clinic).
-private lawsuits against commercial speech (e.g., a suit against a magazine that
published an advertisement for a mercenary, leading to a murder)
-slander and libel
-fraud and deceptive advertising
-time, place and manner restrictions (when, where and how you may exercise your speech rights)
- political speech (e.g., the McCain-Feingold laws)

I would suggest that except for the first and last of that list, virtually everyone agrees (once they think about it) with these limitations. The reason for most of them is simple. As Justice Robert Jackson once wrote (I'm paraphrasing here, a lazy blogger's perogative) -- It's not a choice between liberty and order. It's about liberty with order. He is also sometimes credited with the thought that the constitution is not a suicide pact, although, like the first example, he merely restated the thought in his legal opinion. In other words, in real life, the first amendment (among other constitutional provisions) didn't work.


Similarly, Justice Learned Hand, a favorite of this blog, wrote (again paraphrasing)that without order, liberty becomes a license which would actually lead to the denial of liberty for those without the strength to enforce their will against stronger persons.

The fact that most of us like many of these limitations, although possibly to different degrees, is not surprising. It is also true, and becoming more true, that many people don't mind invasions of their privacy if it means a greater feeling of security. I have a somewhat different opinion about that issue though, which I will not go into here.

Still, the degree of these limitations are bitterly fought over and there will never be agreement on any of them. It keeps the courts busy. One problem is that very often in constitutional law, too much liberty for one person may bleed over into depriving the liberty of someone else. For example, if you tell someone they can't have organized prayer in school because it is unconstitutional, they might feel they are being deprived of their right to free exercise of their religion. If you tell someone they can have organized prayer in school, others feel that government is violating the prohibition on establishing religion.

You'll note, I hope, that the above limitations aren't, for the most part, about the content of the expression (again, excepting the first example and arguably the last one) and shouldn't be. Without freedom of content, at least in an alternate venue, the limitations would be intolerable, atleast to modern Americans, who have become used to it.

School free speech scenarios make good examples of the difficulty of deciding these cases. The Supreme Court ruled on one last year in Morse v. Frederick (aka, the Bong Hits for Jesus case). Contrary to some reviews of it, no new law was made. The court applied what is known as the Tinker test, after another case, balancing the child's right to speech against the school's need for order so that it can fullfil its educational mission.

The court held that the school could prevent the student involved from holding up his "pro-drug" sign during a school event. Although Justice Clarence Thomas would have held that school kids have absolutely no free speech rights to begin with, that is certainly the minority position, and one I don't believe withstands close scrutiny.

I'm guessing, of course, but I think most Americans would agree with the court's decion in Morse v. Frederick case if they didn't know which judges voted which way (thereby ruling out partisan influences). But other similar cases are not so simple. Take a west coast federal case in which a student's tee shirt included, among other anti-gay material, writing saying "BE ASHAMED OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" worn after a pro-gay program in the school district was held.

The federal appeals' court upheld the school's punishment of the "offender," at least in part based on the notion that the message struck at gay students' "dignity and self-worth". Another judge actually wrote that it was ok to protect one student psyche from another student's speech based upon a misinterpretation of the bible. Hopefully, he will be the last judge to base an opinion on his biblical interpretation as opposed to an individual's own view.

The Supreme Court reversed the appeal's court's decision without issuing an explanatory opinion. Maybe they interpreted the Bible the same way the t-shirt wearer did. The important thing to ask yourself is if you were the judge, would your acceptance or rejection of gay marriage or "gay rights" would make a difference to you in coming to a decision.

Even more recently, just earlier this month, in fact, a federal appeals court in the middle of this country refused to allow a school to punish a student who wore a Be Happy, Not Gay t-shirt in response to pro-gay t-shirts that other students wore the day before on a school sponsored pro-gay day. Have the courts gotten the message. You can't stop students from wearing anti-gay t-shirts, particularly if there is pro-gay propagandizing in play. The two anti-gay t-shirt cases have been much discussed in legal circles in publications and online.

There are all kinds of permutations of this. Say a t-shirt reads George Bush Sucks, or, George Bush Rocks, depending on your prediliction, and the school has barred political material on shirts. Recently, an east coast federal court refused to permit a school to punish a student whose shirt mocked the president for being a "chickenhawk". Political speech often gets more protection than any other kind, but what if it were a more popular president and we were engaged in a war eliciting violent riots?

How about the rebel flag example? Can a student wear one on his shirt even if it upsets other students who believe it is meant to be a racist statement? How about if there is a Halloween party that day? How about if it is the first day the first black student starts in that school? How about if the flag has a cross in the corner? Or a picture of Robert E. Lee, who is practically a national hero at this point? How about if there are many types of rebel flags on the shirt in a collage (there actually were many different confederate flags)? How about if the words "Honor, Heritage and Equality" appear on the shirt underneath the flag? What if the wearer goes to school in a town where Robert E. Lee and Stonewall Jackson both used to live and are still celebrated (Lexington, Virginia)?

We could go on in that fashion for quite a while, of course, but will give it a rest there. The point is, go ahead and keep telling yourself that the constitution works just fine without judicial tinkering. You'll be in good company, as almost everyone you know will almost certainly agree with you.

All I can do is disagree with you and hope that judges for the most part interpret cases in a way that makes me comfortable, because no constitution really can work without constant help and fiddling around with its meaning adjusted to the ever changing culture. There is always the danger that they will limit speech beyond our desire, of course, and then we might have to rely more on those self centered, cowardly representatives that we actually democratically elected to make decisions.

Even if we think in the abstract that judges shouldn't be making up law and even when we don't like the decisions, for the most part, be glad they do. Because whatever administration is in power, it is not likely to give a lot of thought to your liberty. And on the whole, we have much greater speech rights now thanks to judicial intervention than we did two hundred or a hundred years ago.

Dedication to democracy is crucial as is dedication to liberty; Both are impossible to perfect and the pursuit of each sometimes conflicts with the other, almost requiring some error by courts in making a decision. When there is friction between them, and the answer is not clear, put one finger, and one finger only on the scale for liberty.

I invite your voracious disagreement. It's a difficult subject and you might actually convince me I'm wrong.

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .