MonthMarch 2015

When Freedom Of Speech Bumps Heads With Civil Rights

A couple of days ago my good friend, Renwei Chung, the brilliant young writer for the esteemed website, Above the Law, asked me what I thought about the University of Oklahoma’s decision to expel two fraternity members who led a racist chant on a bus. My immediate response was that it was a tricky issue, and upon sober reflection I have come to the same conclusion.

Why? Well, to begin with, as several legal scholars have pointed out, the students’ words, however odious, were protected by the First Amendment’s guarantee of freedom of speech. These opinions were based on numerous court decisions holding that hateful, racist speech is protected by same.

Now, exceptions do exist. And official punishment could be legal if the students’ chant constituted a direct threat, leading a reasonable person to fear for his or her safety, or if it was likely to provoke an immediate violent response. Such was not the case here, however, as the chant occurred on a bus occupied by all-white fraternity members and their dates heading to a formal event, causing neither of the two aforementioned caveats to occur.

Later, though, videos of the chanted song emerged online, with the lyrics using racial slurs to boast that the fraternity would never accept an African-American member, and going so far as to refer to lynching with the words: “You can hang’em from a tree” according to newspaper accounts. The University President, Mr. David L. Boren, concluded that two students who had a leadership role in leading the racist and exclusionary chant should be expelled, as the subject chant created a hostile educational environment for others, which is a violation of Title VI of the Civil Rights Act of 1964, which forbids creation of a racially hostile environment in schools.

While I find the actions of the two students to be despicable, and I applaud the prompt action of President Boren to make it crystal clear that such behavior is odious to the University and reflects only the attitude of the two students (and some of their cohorts), and no one else, I nevertheless believe that the punishment doled out was illegal.

Why? First of all, there is no significant evidence that a racially hostile educational environment was created. The University of Oklahoma has many thousands of students, and the actions of a single fraternity involving say approximately 100 people chanting an admittedly obnoxious racist song on one occasion does not instantly create such a racially hostile educational environment.

Secondly, even if one could find that it did, many legal scholars who were interviewed in different news articles that I read were universal in pointing out that Title VI could not take precedence over First Amendment rights.

What I believe President Boren should have done is: (1) Condemn the students’ actions in the strongest possible language, which he did; (2) Have all of the student leadership groups at the University issue like statements of condemnation on behalf of the student body; and (3) Notify the subject students and all of their fraternity members that while their First Amendment Rights were in effect at the University, their future actions were going to be closely monitored to insure that as a result of same no student would have to fear for his or her safety, that no provocation of an immediate violent response was likely to occur, and that no racially hostile educational environment was created—and should the exercise of their First Amendment Rights meet either of the two exceptions, that expulsion would immediately follow, along with prosecution for violation of Title VI.

The great philosopher, Voltaire, taught that: while I may not agree with a single word you say, I will defend with my life your right to say it. We live in a free society, and in it one is free to be a bigot under the First Amendment, as long as the aforementioned exceptions to it are not in play. As a society our remedy is to condemn such bigotry, and if education of right and wrong cannot persuade bigots to eradicate their odious views, then to refuse to associate with them, socially or economically.

 

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Selma Revisited

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Last Sunday marked the 50th anniversary of Bloody Sunday, when 600 protestors, led by Martin Luther King, Jr., began marching from Selma to Birmingham in support of voting rights. They were met on the Edmund Pettis Bridge by Alabama State troopers dispatched by segregationist Governor George Wallace, who attacked them with tear gas, leather whips, and billy clubs, an unprovoked act of violence whose bloodshed outraged most Americans and was a major factor in the subsequent passage by Congress of the Voting Rights Act of 1965.

When I picked up my newspaper on the following Monday, the front page featured coverage of the celebration of that anniversary, highlighted by a photo of President Obama hugging Representative John Lewis of Georgia, who marched alongside MLK, Jr., and was bloodied during the tragic events of that historical day. And as my mind flooded with memories of the 1960’s Civil Rights Movement, the question Have we overcome? also trailed into view and set off an intense reflection.

Well, we have done better, I concluded. After Brown v. Board of Education desegregated schools, we further reduced discrimination in commerce and transportation via the Civil Rights Act of 1964, and with respect to voting courtesy of the Voting Rights Act. And, I noted with a smile, in that photo my eyes were focused on the President of the United States—an African-American. That’s something I wasn’t sure I’d ever live to see, flowed my next thought, so yes, we have progressed, some positive change has occurred. But, Have we overcome? still lingered to narrow my smile.

In view of recent events, the answer to that question is a resounding no! First off, in 2013, the U.S. Supreme Court gutted the key enforcement provisions of the Voting Rights Act, removing the Federal Government’s authority to supervise electoral requirements in our states and insure that discriminatory practices were not in play. Then, further, as David Love reported in via the Tribune News Service, “the Tea Party-led Republican Party has made voter disenfranchisement and suppression a top priority. Voter ID laws across the country have put up obstacles for blacks, Hispanics, Asians, the elderly, young people, and others. Some state legislatures have reduced voting days, including the Sunday before Election Day, when black churches organize campaigns to go to the polls. Moreover, as Al Jazeera has reported, Republican officials in 27 states have initiated a program that could purge 7 million voters from the rolls, particularly brown and black Americans.”

And, why? To prevent voter fraud is the answer provided, despite the fact that study after study after study reveals that voter fraud is so insignificant as to be almost non-existent. The real reason is that the voters sought to be removed from the polls overwhelmingly vote for Democratic Party candidates!

So, a new version of the poll tax, calling into mind the phrase, the more things change, the more they stay the same. And what is truly tragic is that most Americans, including most of our citizens who identify themselves as Republicans, are not in favor of retreating from the racial progress America has made, but are witnessing a regression fostered by a small, highly vocal, and extremely well funded right-wing minority that has hijacked the Republican Party and is dictating dangerously undemocratic policies that threaten to undermine the fundamental right to vote of millions of their fellow citizens.

No, indeed, we have not yet overcome. Race remains a huge problem in America, and if anyone doubts that sad fact, recent events in Ferguson, Missouri, make the truth of that assertion clear and undeniable.

In a community that is 67% black, the police department is almost exclusively white. An accident? No. And after a thorough investigation of the events and the culture surrounding the Criminal Justice System in Ferguson, on March 5th the Justice Department issued a scathing report, describing the Ferguson police and Municipal Court “as a system whose primary function was to make poor African Americans pay as many fines and fees as possible for petty offenses, real or invented.”

After reading accounts of this report in The Oregonian, once again that haunting phrase, the more things change, the more they stay the same, echoed into mind and triggered a vivid memory of the first jury trial I was involved in when I was a Deputy Public Defender in Compton, California, almost half a century ago. Depicted in detail in my novel, Gideon’s Children, the main character, Matthew Harris is defending a male African American charged with having been drunk in public. And when the jury panel of 200 persons from which twelve would be selected for trial is seated in the courtroom, Matt is stunned by his observation that not one of them is black, even though the community from which they are drawn is upwards of 80% African American.

The good news is that while Matt Harris was defeated by the stacked deck a half century ago, today the outrageous situation in Ferguson is being corrected. In the past few days, the officials responsible for the conspiracy of discrimination at work there have resigned or been removed, including the city manager, the police chief, and the municipal court judge. Unfortunately, the anger from years of persecution has unleashed violence from a few members of the community, resulting in two police officers being shot. Most hopefully calm will prevail so that plans for a new and better government in Ferguson can be implemented. I also believe that it would be helpful if those persons responsible for the utterly despicable actions in Ferguson were prosecuted for civil rights violations, thereby sending a message to all who would engage in like actions.

What worries me is that if the regressive forces at work are allowed to prevail, and millions of people of color are disenfranchised, and other Ferguson-like conditions are not ferreted out and remedied, then violence of a more significant magnitude will occur. For if a huge segment of our populace is not allowed to participate, and also feels that the Criminal Justice System is targeting them for grossly unfair treatment, then the respect for the Rule of Law necessary for it to govern disappears.

All of us lead busy lives. But each of us needs to make the time necessary to contact our local,  state, and federal representatives, and let them know that we are adamant in our desire for a new Voting Rights Act that insures voter participation by all segments of our society, and urges them to foster and nourish programs designed to promote excellent relationships between police and the communities which they serve.

Hopeful Beginnings

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Today, my novel, Gideon’s Children, is being released, for which I am both extremely excited and equally grateful. My excitement is on high, because finally G.C. now has the opportunity to contribute to the growing discussion about the need to improve the workings of our Criminal Justice System, and thereby protect the individual constitutional rights that are the cornerstone of America’s democracy. And I feel so tremendously grateful, due to my gigantic good fortune in having such an oceanic body of family and friends who have enthusiastically supported my endeavor and continue to cheer me on. To those of you who have shared life with me for many years, heartfelt thanks are warmly flowing your way. And to new friends who I have not yet had the pleasure of meeting in person, individuals such as the renowned litigator and legal scholar, Michael Tigar, and the brilliant young columnist Renwei Chung for the highly regarded website Above The Law, who gifted G.C. with such favorable reviews, heartfelt thanks are also flowing to you.

The second hopeful beginning that I wish to share with you today also engenders both excitement and gratitude. Since I began my blog, its theme has been the vital importance of the judicial branch of our government, and the crucial need to improve the workings of our Criminal Justice System so as to protect individual constitutional rights and maintain the Rule of Law which founds American Society.

We all know that a problem cannot be solved unless we first admit that it exists. But until recent tragic events occurred in Ferguson, New York City, Cleveland, and Los Angeles, relatively little attention has been paid to improving the numerous facets of our Criminal Justice System by elected officials and organizations with the power to influence.

However, as reported by Carl Hulse in the New York Times on February 18th, an extremely important development seeking to change this lack of  focus has occurred. “Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center (Center for American Progress), a Washington-based liberal issues group…usually bitter adversaries have found at least one thing they can agree on: The nation’s criminal justice system is broken.” And to fix it, they have come together to back a new organization: The Coalition for Public Safety.

Joining the Coalition in an unusual bipartisan approach, from the political spectrum’s left and right are the American Civil Liberties Union, Americans for Tax Reform, and the Tea Party–oriented Freedom Works, and the Coalition plans a multi-million-dollar campaign on behalf of emerging proposals to “reduce prison populations, overhaul sentencing, reduce recidivism, and take on other similar initiatives.”

A second goal of the Coalition is “to show lawmakers in gridlocked Washington that factions with widely divergent views can find ways to work together and arrive at consensus policy  solutions.”

I hope that those of you who are reading this are breaking into smiles that steadily widen as the possibilities for real progress sink in, accompanied by a grateful, prayerfully toned, “Wow!” And our prayers are indeed needed, for the problems are numerous and complex, and the viewpoints within the Coalition widely divergent. And in recognition of the extremely difficult task they have assumed, the leaders of Coalition have agreed to a three-year time period to determine whether they can achieve success.

Obviously it won’t be easy, and progress most likely won’t come quickly. However, I’d like to suggest that in a day and age when the principal activity of our two major political parties, at all levels of government, is hurling the word “NO!” at each other, followed by a barrage of name-calling, this endeavor by the Coalition for Public Safety is the very best news reported since I can’t remember when.

A hopeful beginning, indeed. To be celebrated and supported by all of us. In fact, because we very much NEED for the Coalition to reach its goals, in an age of information overwhelm and shrinking attention spans, each of us needs to take a vow not to allow the Coalition and its work to fade from view, and to instead follow its progress towards its goals and support it whenever possible by contacting our elected representatives in support of its bipartisan solutions.

As always, thank you for listening. And please share this good and hopeful news with your friends.