Author Archive for ari-waldman
Thank you and Goodnight (and Some Thoughts on Anti-Gay Discrimination in Schools)
posted by Ari Waldman
It has been an honor and a pleasure to be a small part of the Co-Op community these past two months. I learned a lot and had fun doing it! I’d like to thank everyone for their indulgence and comments, with special thanks to Danielle for inviting me in the first place.
For my final post, I would like to follow up on what is going on the Anoka-Hennepin School District in Minnesota.
In the mid-1990s, the District adopted a health curriculum policy prohibiting teachers from teaching that homosexuality is “normal” or a “valid lifestyle.” According to the anti-gay organization that lobbied the District to adopt that rule, “[t]he homosexual lifestyle does not reflect the community standards of District #11, nor is it regarded as a norm in society.” That policy was extended beyond the health curriculum in 2009, when the District adopted a so-called “no promo homo” rule and a neutrality policy that stated that “[t]eaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”
In a Complaint from the Southern Poverty Law Center (SPLC) representing several students, the SPLC notes that the policies act “as a gag policy that prevents school officials from complying with their legal obligations to keep safe students like Plaintiffs who are perceived as LGBT or gender non-conforming. This gag policy requires District officials to enforce anti-harassment policies in the case of anti-LGBT bullying differently from other types of bullying. Teachers have understood the [policy] as inhibiting them from aggressively responding to anti-gay harassment, inside or outside the classroom. The gag policy also prohibits school staff from countering anti-gay stereotypes or presenting basic factual information about LGBT people, even when necessary to address anti-gay hostility within the student body. For example, pursuant to District guidance, the [policy] prohibits staff from even mentioning the fact that it is the position of the American Psychological Association that being gay is not a choice— a position that is the consensus of all major accredited and professional mental health organizations. The [policy] severely limits or outright bars any discussion by school officials of issues related to LGBT people in or out of the classroom, a limitation
that is not placed on any other category of persons.”
The SPLC raises Equal Protection, Title IX and Minnesota Human Rights Act arguments. The full Complaint is available here.
There are also free speech arguments. Do you think SPLC should have emphasized the ways in which Anoka-Hennepin’s policies infringe on the free speech rights of teachers?
July 31, 2011 at 9:25 pm
Posted in: Education, First Amendment, LGBT
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Comic-Con and Social Networks
posted by Ari Waldman
Comic-Con is many things: awesome, hilarious, tragic, fun, hilarious, expensive and hilarious. Every July, San Diego becomes the homeof more than just balmy temperatures and the alt-rock tones of Jason Mraz; it hosts Comic-Con, an extraordinary pop culture event that brings together Trekkies and Chris Evans (the 2011 Captain America), Jedis and Ryan Kwanten (of True Blood) and more than a few people who have never picked up a comic book. I’ve joined the crowds the past two years because, well, it’s what you do in San Diego this weekend.
I have found that Comic-Con is a prime beneficiary of the decline of anonymity in online social networks.
Facebook may be leading the way in the fight against anonymity, but digital communities built around shared interest in science fiction are giving Mark Zuckerberg a run for his anti-anonymity money. To be sure, online games like World of Warcraft (WoW) allow you to create fantastic identities and personae for yourself, but I had a feeling they have become so much more than that. I did not know from experience: I enjoy Sci Fi and have my share of SyFy shows waiting on my DVR, but I’ve never played WoW. I was never a big gamer, even when “Where in the World is Carmen Sandiego” actually came on those large black floppy discs. So, I did what any nerd would do: I went to Comic-Con to test a theory.
I looked for groups where members were of similar ages (thus excluding families), but did not restrict myself to any particular age, race, gender or costume. I spoke to about 100 people. I wanted to know where they met their friends: online or in person? If online, on what platform? If not on a traditional social networking site like Facebook, where? Did they ever have pseudonyms or online identities that hid their real identities? If so, how and when did they come out of the closet to meet each other? In other words, I was trying to understand the role of online anonymity in social interaction among people at Comic-Con, many of whom are highly wired.
Of 107 people, 67 met the friends they were with at the time online. Notably, that is not the same as saying that nearly 2/3 of respondents came to Comic-Con with people they met online, but still, that is a staggering number! In any event, all of them eventually ”met” or “found” each other on Facebook, but some initially linked up through sci-fi themed groups. But, since it all happened through Facebook, no one was anonymous.
Not all relationships started on Facebook’s science fiction corner. A few knew each other as frequent commenters on Gateworld.net, an all-things-Stargate fan website; some were WoW buddies who “never kept [themselves]hidden. He sounded cool, so whatever. It’s all on Facebook or MySpace anyway.” Another young man met his Jedi-clad friend “playing a few different online games. In the chat rooms, he mentioned he was from China and I thought that was so cool, especially since I live in Georgia.” He meant the country, not the state. The two struck up a friendship, became MySpace “friends,” then Facebook “friends” and then decided that they both should meet each others’ friends at Comic-Con. I also met a few young women who lamented that I wasn’t in costume and said that they too bonded online as three of the precious few females to comment about the show Warehouse 13 with any frequency. “As soon as I saw another girl, I immediately asked who she was and where she was. She then friended me on Facebook and I had a friend in a place called Riverside, California. I live in Oklahoma.”
Comic-Con attendees bear the brunt of a lot of stereotypes, none more common than of the adolescent, nonathletic boy who projects the kind of person he wants to be into his WoW elf. But, my initial research suggests that these men and women are not hiding behind the perceived anonymity that their online games could provide. Instead, they see their digital selves as extensions of their physical selves and their online identities as ways to help them meet people in real life. It is difficult for all of us to meet new people, so while an elf-self may be a foot in the door, the man behind the elf wants nothing more than to drop his mask and allow his digital community to supplement his physical community.
Admittedly, my tiny sample set answered informal questions in an unscientific survey. But, this concept — who we really are online and what are we really doing — has implications for the kind of policies websites, intermediaries and users would want to adopt to make the Internet a safe community for all. If we don’t want to be anonymous and have less and less need for it, why should we put safety and certain rights at risk in the name of protecting absolute anonymity? If even elf-selves are eschewing anonymity because of the community-building possibilities of Facebook and Gateworld.net, perhaps anonymity is not part of the liberating potential of the Internet. Perhaps community-building is.
July 22, 2011 at 6:40 pm
Posted in: Culture, Cyberlaw, Web 2.0
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Tragedy in Minnesota
posted by Ari Waldman
Over the past two years, seven students have committed suicide in the Anoka-Hennepin County School District in Minnesota. Most of them were bullied because they were either gay, perceived to be gay or failed to conform to gender stereotypes. Seven deaths is seven too many. Finally, CNN comes around with a report.
Anoka-Hennipin is the largest school district in Minnesota and it has a so-called “neutrality policy” when it comes to homosexuality. The policy states that teachers are not supposed to take sides on any issue relating to being gay. Focus on the Family, represented in the CNN Report as favoring the neutrality policy, admits that the policy bans teachers from saying, “It’s ok to be gay.” It muzzles teachers from addressing the root cause of the seven suicides, i.e., students being attacked because of sexual orientation, sexual nonconformity or perceived sexuality, because teachers are not allowed to sit down with the attacker and explain to him that being gay is ok and is no reason to be subject to harassment. The only thing teachers can do is say bullying is bad. It would be like trying to teach physics while forcing teachers to be neutral regarding gravity: The apple falls to the ground, but I cannot tell you why.
In fact, the neutrality policy is anything but neutral — it represents a value judgment that the word “gay” is off limits at any age and that teachers cannot be trusted to address incivility, discipline and discrimination in their own classrooms. The policy is an overreaction, steeped in Focus on the Family’s offensive, yet oft-repeated canard that accepting gay kids for who they are is indoctrination or, inexplicably, forced teaching of gay sex in public schools.
If peer-to-peer harassment is based on sexual orientation, and we have endless evidence of the striking connection, the neutrality policy prevents us from solving the problem:It gives tacit and sometimes explicit permission to continue discriminating against victims based on sexual orientation by forcing the exclusion of sex and sexual orientation from the equation. If you can’t tell a bully that it’s wrong to beat up a gay kid because being gay is ok and instead can only say it’s wrong to beat up other kids, how does the bully learn that it’s ok to be gay?
July 21, 2011 at 1:00 pm
Posted in: Uncategorized
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The Pluses of Google+
posted by Ari Waldman
I love shiny new toys. Sometimes, its a crisp new book (Pauline Maier, for one… thanks Gerard!); other times, it’s something plush and adorable, like the yellow Angry Birds doll my 5-year-old nephew “bought” for me last month. Last week, it was Google+.
Google+ is social networking done the Google way. The soft launch is part of Google’s long-running master plan to enter the social networking market and try to do it better than the basically moribund MySpace and the supposedly plateauing Facebook. We are told that Google+’s chief asset is its ability to simulate real relationships, and our different interactions with different types of friends, on the Internet.
Google+ introduces us to circles, where you can take the 800 or so “friends” you would have on Facebook and break them down on your own terms. You have friends, acquaintances, co-workers, well-wishers, frenemies, those-guys-you-met-at-that-terrible-bar, whatever. And, you can use these classifications to tailor your interactions, thus avoiding the problem of your mother, sister or child accessing a picture meant for your pals.
There are also sparks, which are news and video aggregators. It is easy enough to tell a spark what you enjoy doing when you’re not working on important affairs of state, thus allowing you to spend “more time wasting time without wasting your time looking how to waste time.”
And, hangouts are Google+’s attempts to recreate chance encounters. I’m not sure these are completely functioning yet, though. Remember when you used to visit the mall or walked through the West Village and ran into someone you hadn’t seen in years? Hangouts attempt to turn an online social networking into a place where anything social can happen, only with Google+, you “bump” into someone through a video message.
Let’s assume for the moment that all this works as well as we hope and that Google+ allows us to recreate real life in the virtual realm. Facebook is not really trying to recreate real life and simulate precisely how we interact with one another in the physical world. It is trying to supplement it, foster new interactions in new ways. At times, we don’t like that. Facebook’s forced socialization and privacy issues give many social networkers pause. There are many other digital technologies that seek to supplement our physical social world. Grindr, a geolocating social networking service for gay men, is one such example. Grindr allows its members to be out and about, smartphone in hand and find other gay men in the vicinity. Its purpose is to eschew traditional social networking that keeps you saddled to your computer and to let you physically meet people you have something in common with who may be living across the street or down the block. It is interactive, mobile and a multi-purpose tool.
So, Google+ is trying to forge a different path, i.e., using the Internet as an extension of our physical social circles and to keep those circles the way they are now. Of course, that is not to say that Google+ will not bring us closer to new friends — we can still interact with friends of friends, let people we barely know into our network and share content with whomever we please. But, Google+’s chief draw appears to be its greater fidelity to real life. If that is true in the long run, as Google works out the kinks and listens to its users, is that what we want in our online social networks?
The benefits are clear — we can avoid the grandmother seeing you at the bar problem. But there are also disadvantages — we lose the liberating potential of reaching new people. What do you think?
July 20, 2011 at 10:46 am
Posted in: Culture, Google & Search Engines, Google and Search Engines, Social Network Websites
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When We Say “Stop Cyberbullying,” What Are Our Goals?
posted by Ari Waldman
Being laid up for a week with a nasty tonsil infection gave me the opportunity to catch up on some Sunday NY Times crosswords (Side Note: I refuse to accept that we’re now spelling the word “epilogue” as “epilog,” Mr. Will Shortz), some nerdy SciFi television and some law review articles on cyberharassment. Many esteemed colleagues, not to mention countless law students, are writing about this or related topics in some way. There is indeed much to talk about. But, what does not get as much play are the assumptions upon which much of the results-oriented scholarship is based.
The face-to-face and online harassment of young people, of any sexual orientation, of any gender, of any race, of any socio-economic status, is a bad thing. For the moment, let us put aside those who cling to the antiquated “this is all part of growing up” meme and assume that we all think harassing, attacking and emotionally abusing young people is bad. But, when we are asked to evaluate potential ameliorative responses — harsh punishments, tolerance education, increasing the role of government and a host of other possibilities — it is not enough to simply assume that a problem exists. In order to compare one response against another, we must first engage in a discussion about the values we’re trying to protect over and above solving the problem.
For example, let us assume for the moment that cyberharassment raises only two issues: the speech rights of harassers and the speech rights of victims. If we have to factor into any solution concerns about these stakeholders’ free speech, must we weigh them equally? No. But, then how do we weigh them? Does it matter whose rights? Sure. Those mean harassing kids don’t deserve their rights, only victims do. But, we all know what that kind of reasoning implies. Does it matter that in our example both the perpetrators and victims are students? Do minors even have speech rights (ask Justice Thomas for a resounding “Pfft. Surely you jest!“).
Do we have an adequate basis for finding an answer other than our own personal prejudices? I think we do, but our Internet speech law misses the mark. The legislative history of Section 230 of the Communications Decency Act (the immunity clause) and judicial opinions in cases like Reno v. ACLU, Ashcroft v. ACLU and Zeran v. AmericaOnline suggest that we determine what to value based on our vision of the Internet user as a modern day “pamphleteer” who can reach out “to a world-wide audience,” and do so “anonymous[ly].” A person like that in an environment like that would value individual autonomy and autonomy-based free speech values more than anything else, devaluing other First Amendment values. That vision of the Internet user and his online experience, however, is simply incorrect. Anonymity as a technical matter does not really exist and social networking platforms like Facebook are making anonymity a thing of the past. And, being a pamphleteer that can reach anyone is a little difficult when all content goes through and can be arranged and censored by intermediaries. This Internet user with this online experience would not only be concerned with individual autonomy above all other things. He would be concerned with his reputation, which can be irreparably damaged by online defamation and misbehavior. And, he would be concerned with getting his voice out there, especially since he is completely dependent upon third parties for access.
July 15, 2011 at 3:24 pm
Posted in: Cyberlaw, First Amendment, Web 2.0
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Some Thoughts on The FAIR Education Act
posted by Ari Waldman
My apologies to the Co-Op community for being incognito the previous week. There’s the wonderful medicine called Augmenten that is finally getting me well!
The quaint Sacramento Bee published an Op-Ed of mine today. It urges California Governor Jerry Brown to sign SB 48: The FAIR Education Act, that asks California school districts to find a way to include references to the contributions of gay Americans in their history or social studies curricula. I see this as an essential tool in combating anti-gay hate and bullying in schools.
Maybe it was a mistake to include my email address at the bottom of the Op-Ed (though that is the Bee’s, and most paper’s, custom) because I’ve already gotten quite a few emails using the word “Satan,” “destroying America,” “sodomy,” “rectum,” “bending over backward” and even a few veiled threats from one person who insisted on reminding me that he is a “real Christian.”
Any time someone mentions the word “gay,” there always seems to be a small, vocal and virulent segment of the population that cannot help but think of sodomy and how “gross and unnatural” they think it is. Historically, it is common for hateful societies to identify and exaggerate physical or personal features of those groups they wish to keep down. In Germany, Hitler published photographs of Jews that over-emphasized hooked noses; in the Jim Crow South, it was terribly and disturbingly common to equate African Americans with monkeys.
But that obvious and outward hate only worked because it tapped into long held, deeply rooted beliefs about Jews and African Americans. Hooked noses symbolized the Jews-as-sinister stereotype for Germans; monkeys reminded Southern whites that African Americans were less than human. Images conjured up by words like “rectum” and “bending over backward” comport with homophobic stereotypes of gay men as sex-crazed, obsessed with pleasure and incapable of love, only lust.
The only way to fight against these stereotypes is to teach reality: that gay people can love each other, that gay lives are no different than straight lives and that gay people have been positive forces in American history. So-called “real Christians” (methinks he doth protest too much!) may be unreachable, but that is because their religious leaders feed into the stereotypes and teach them. To suggest that forces of tolerance and acceptance are not allowed to teach the truth to combat these devastating stereotypes is to accept the legitimacy of hate, homophobia and discrimination.
July 13, 2011 at 12:40 pm
Posted in: Education, LGBT
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Gays… In… History…
posted by Ari Waldman
A colleague was poking fun at the Catholic Church’s stated opposition to teaching students about the contributions and discrimination of gay Americans throughout history by making the phrase, “Gays in history,” sound spooky, like a ghost out of the campy (and hilarious when you’re an adult) old Scooby Doo cartoons would say it. That reminded me of Mel Brooks’s “Jews… In… Space…” joke at the end of History of the World Part I, echoed in almost the same campy way.
It’s funny because at that time (1981), there had been no Jews in space. It’s also tragic because there have been plenty of gay Americans throughout history that deserve mention and, yet, most schools never mention them. They mention Martin Luther King, but not Harvey Milk; they mention Japanese internment and Jewish extermination, but not medical experiments, torture and murder of gays. It is as if gays have been erased from history.
That is where some of us in California have stepped in. SB 48, the Fair, Accurate, Inclusive and Respectful (FAIR) Education Act, would ask local school districts to find a way to teach some of their students about the contributions of gay Americans as part of their history or social studies curricula. It does not grant special treatment to gay people; it simply rights a wrong — gay people have been erased from American history.
There is considerable evidence that this kind of policy — what I called “soft power” in my previous scholarship — is the most effective at reducing the frequency and effects of anti-gay bullying and cyberbullying in schools. It brings gay people away from the fringes of society and recognizes that they, like everyone else, have been part of this grand national experiment since its early days. It also recognizes that the deletion of an entire group from history is a devastating form of group injury that provides a tacit ok for someone to write “All Faggots Must Die” across someone’s locker.
I have written about all that elsewhere. Rather than rehash it, I would like to engage the Co-Op community in a discussion to answer the following question: To what extent is opposition to proposals like SB 48 and, say, gay-straight alliances, founded on our squeemishness about sex in schools, in general, or distaste for gays, in particular?
Bill Eskridge has argued that many of our student speech precedents could be understood as part of a general unease about talking about sex with kids. The school, some think, should be the purest of pure places of learning, not muddied by words like “penis,” ejaculation” or whatever the Urban Dictionary is coming up with these days. This same unease could have no impact on teaching about African American history or Asian American history; those groups’ differences are not based on sexuality. Gays are sexual minority, not a racial one. A discussion of who Harvey Milk was and what he died for is inexorably bound up with a discussion of sexuality, in general, that some people do not want in our schools.
That is the argument, at least. And, you can call me skeptical. I do not doubt that Americans have been squeemish about sex in schools, but there is something unique about the opposition to SB 48. It’s about gayness not sex.
Los Angeles Archbishop Jose H. Gomez condemned the measure as an attack on the family.
“The family is God’s first beautiful gift to us,” Gomez writes. “Because each one of us came into this world as the fruit of a mother and a father’s love. America needs strong families to nurture the values and virtues we need to live as a free and just people.” The measure, Gomez said, is a “dangerous government intrusion into parents’ rights. This amounts to the government rewriting history books based on pressure-group politics. It is also another example of the government interfering with parents’ rights to be their children’s primary educators.”
Chris Clark, pastor of East Clairemont Southern Baptist Church in San Diego, objected to the bill because it attempts “to teach that homosexual behavior is normal, that it’s acceptable, and that people because of their sexual behavior are somehow heroes in our society.”
That sounds like the problem here is not sex. It’s gay sex. The Church has decided that gays are not worthy of recognition in education. I disagree. The contributions of gay Americans throughout history deserve recognition in our public education because of those contributions. This is not about granting every minority, including “albinos” and “polygamists,” a set “number of lines in each textbook,” as Fox & Friends guest University of Dayton history professor Larry Schweikart argued this morning. It is about recognizing and honoring contributions to American democracy that have not been recognized simply because some
July 8, 2011 at 2:17 pm
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Be Proud, Not Frustrated
posted by Ari Waldman
June was Gay Pride month, and it was a particularly special Pride for me, for New York and all gay people. It was great for me, of course, because I had the honor of blogging at Co-Op (and I’m doubly honored to continue into July!). It was really great for me, for New York and for many others when the Empire State legalized gay marriage hours before gays from all over the world were planning on taking to the streets anyway to celebrate community, equality and the exceptionalism of the gay culture. So, the celebration started a bit earlier.
In fact, June 2011 capped a remarkable few years for the gay rights movement. There was Iowa and Washington, DC on the marriage front. President Obama and the Democratic Congress gave us hate crime legislation and, more importantly, the repeal of the odious “Don’t Ask, Don’t Tell” ban on openly gay service in the military. And, the President did not stop there: he extended benefits to gay partners, enforced hospital visitation rights for any hospital receiving Medicaid, and in perhaps his most lasting contribution to equal rights for gay Americans, he declared that state action discriminating on the basis of sexual orientation deserved heightened scrutiny and, therefore, the Defense of Marriage Act (DOMA) was unconstitutional.
So, why are some of my gay friends so frustrated with the President?
Why do they get upset that he has not “evolve[d] already” toward support for same-sex marriage? Why do some see him “no different than the Republicans when it comes to gay rights”? Are they just demanding? Ungrateful? Impatient, petulant children?
I certainly know my share of petulant children, but I don’t think that’s it. I would like to suggest that some gays are frustrated because they don’t understand President Obama’s unique (and refreshing) form a progressivism.
July 1, 2011 at 12:02 pm
Posted in: LGBT, Politics
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#OnTheEdge
posted by Ari Waldman
For those so inclined/interested/bemused/not yet tired of hearing about it…
The New York State Assembly has just introduced a series of amendments to the same-sex marriage bill. They are available here. The amendments were drafted during three-way consultations with Governor Cuomo (and his team), a select group of NY State Senate Republicans and Senate Democrats. Assembly Speaker Sheldon Silver, who seems like he has been Assembly speaker since the Taft Administration, is cool with the amendments. It will pass the Assembly, and one would imagine the amendments would not be introduced in the Assembly were they not guaranteed to pass in the Senate.
One point of politics and one point of analysis. First, to sausage-making. State Senator Ball, a Republican from somewhere other than New York City, came out against the bill before the amendments were finalized. His statement is irking some in the gay blogosphere:
“Knowing that marriage equality was likely to pass, I thought it important to force the issue of religious protections. Over the past few weeks, I’ve had the distinct opportunity of listening to literally thousands of residents, on both sides of this issue, by holding an undecided stance. I thought it was important to listen to all of my constituents and hold an undecided position until the actual bill language was written and everyone’s voice had been heard. Now that the final text is public, I am proud that I have secured some strong protections for religious institutions and basic protections for religious organizations. The bill still lacks many of the basic religious protections I thought were vital, and for this reason, and as I did in the Assembly, I will be voting ‘no.’”
Some have read that statement to mean that Senator Ball “took,” or, rather feigned, ”an undecided stance” in order to push through a number of religious exemptions. Their evidence is not just his language — saying you took an undecided position is not the same as saying you were actually undecided — but also his public decision to vote note before the amendments came out. So, some argue, he faked his way through, knowing he was going to jump ship anyway. That is the argument, at least. I prefer to be a little more optimistic about life (what’s that old saying? the optimist and the pessimist are born and die on the same day, but the optimist lives better?), but what do you think?
As for the amendments themselves, the sticking point has been so-called religious exemptions to the marriage law. I spoke to Brian Ellner (a pro-gay marriage lobbyist who had been working with the drafters and their staffs) and said that religious exemptions are fine — why would I want a clergyman who dislikes gay people to marry me? — but if the exemptions allowed, say, a Jesuit hospital to deny visitation rights to a same-sex married spouse, I would object.
The amendments first clause specifically refers to objections to “the solemnization or celebration of a marriage,” though an admittedly broad reading of the word “celebration” could include any type of “recognition” of the marriage. I hardly think that is a valid interpretation, though.
The second amendment is a bit trickier. It reads: “Nothing in this Article shall limit or diminish the right … of any religious … institution or organization,” or a charitable organization run in connection with a religious organization, “to limit employment or sales or rental of housing … or admission to or give preference to persons of the same religion … or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.”
This appears to be what I was worried about. In New England and in the Mid-Atlantic states (as, I am sure, elsewhere), we have lots of hospitals connected to religious orders (I was born in one!), which could “tak[e] such action” to promote their religious principles by denying spousal visitation rights to legally married same-sex spouses. On the other hand, hospitals with emergency rooms still have to take patients as they come; but it seems that a hospital that treats a gay man, but refuses to let his spouse sit by his death bed, would not be in violation of any law. Still, President Obama has issued regulations that require any hospital receiving federal funds to, among other things, allow for visitation of same-sex partners. Thoughts?
Finally, there is severability. One of the amendments requires that the law remain unseverable, so if one part is found to be unconstitutional, the whole law goes down as unconstitutional. That clause is becoming increasingly common in New York State laws, but I wonder if it could pose difficult questions down the road. What if a hospital connected to a religious order does indeed deny visitation. One reading the gay marriage bill would suggest that hospital could do so; but, then it would run afoul of President Obama’s hospital visitation rule and, say, Article 28 – § 2805-Q of the New York Public Health Law that requires visitation at “any” hospital. How would this play out? Would the severability clause – which, a friend reminded me, is not always sacroscant (United States v. Jackson, 390 U.S. 570 (1968) (punishment portion of federal kidnapping statute was severable despite nonseverability clause)) — become a problem for gay marriage?
In the end, if these amendments mean I can marry the man I love in my beloved home state, then I embrace them. I’m about to draft a similar post for the gay community over at Towleroad. I wonder what my commenters will think.
June 24, 2011 at 5:29 pm
Posted in: LGBT, Uncategorized
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The Virtue of Marriage
posted by Ari Waldman
I have been remiss in many of my posts, talking sometimes about theory and then getting caught up in the same-sex marriage debate in New York, that I forgot that one of Co-Op’s great assets is close analysis of case law. The splendid Turner symposium is only one example of that. So, I thought I would combine an important case with current events.
Yesterday, I had the wonderful opportunity to participate on a conference call with a few pro-gay marriage advocates in Albany and the staffs of some senators. This was probably more a who-you-know, rather than what-you-know opportunity because there are far more experienced minds than mine working hard on same-sex marriage. I casually mentioned that I don’t think referring to my desire to join the institution of marriage as an issue of “rights” is all that persuasive to folks whose interpretations of religious texts make them wary or concerned for the rights of other religious people and institutions. After all, I said, by saying our rights should win out, we are not so subtly minimizing their rights, which have to be regarded as at least competing.
Speaking about marriage outside the rhetoric or rights — “marriage equality”, “we all have the right to marry the one we love” are just two of the common phrases, signs and lines you see at pro-gay marriage rallies — is a bit of a heresy in the gay community. It’s a heresy that I embrace and am starting to write about in my scholarship. It’s a heresy because freedom of choice and non-discrimination are not what the marriage debate is about; those concepts only take us so far. Rather, it’s about whether my union is worthy of social recognition. To see this idea, we need look no further than Massachusetts’s landmark same-sex marriage decision, Goodridge v. Department of Public Health (but we do have to go after the jump!).
June 22, 2011 at 11:49 am
Posted in: Current Events, LGBT
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All Eyes on Albany
posted by Ari Waldman
If the Co-Op world is interested, the New York State Senate is expected to meet today starting at 11 am Eastern (now-ish!) to consider at least two final issues before the end of the legislative session. At the top of the list are, you guessed right, rent control and property taxes. 
Though Governor Cuomo’s team of staffers, Brian Ellner’s team of lobbyists and State Senate Republicans met all weekend to discuss the possibility of a vote on same-sex marriage, there are hints of progress, but no deal just yet. The bill passed the State Assembly for the third time by a wide margin, so the fate of gay New Yorkers wishing to take part in the tradition of marriage remains in the hands of a few Senate Republicans. We don’t know if a vote will even happen today.
Setting aside those who oppose same-sex marriage because they have a visceral opposition to gay people, the sticking point is religious exemptions to the law. Senators Ball, Grisanti and Galand, all upstate Republicans, want broad exemption language that would, in their opinion, prevent religious institutions or individuals from being forced to violate their opposition to same-sex marriage. The problem with that argument is two-fold: (1) those protections are already part of NY state law, and (2) it is one thing to say a church does not have to perform a same-sex wedding if same-sex relationships are incompatible with the church’s teachings (this is a bill about civil marriage, anyway); it is quite another to allow a hospital to ban a man from the death bed of his legally married spouse if the hospital to which EMTs rushed them is affiliated by this or that religious order. Should a same-sex couple, one member of which just had a stroke or a heart attack or was in an accident or was attacked, have to tell the EMTs to go an extra 20 miles to Elmira General because the local St. Peter’s refuses to treat gay people? That is just the kind of perverse situation in which gay New Yorkers would find themselves if Senator Ball’s overly broad exemptions are accepted. To be sure, there could be lawsuits, challenges and demand letters from the ACLU challenging the hospital’s refusal, but their potential success is irrelevant to the gay couples who may be victimized before the wheels of justice move forward.
One other point on this topic. I started a small Facebook group asking friends to commit to donating to NY Senate Republicans who voted for same-sex marriage, hoping to show them that it would be a good thing for their political careers and campaign coffers to vote in favor. Yet, a few lovely people I know found this idea offensive — an ex post donation as a thank-you for voting one way on a particular issue. Admittedly, I see a difference between that and generally supporting a politician every cycle, but how is this any different than upping your donation (or your commitment through volunteering) to a candidate in the next cycle after he or she votes the way you wanted on any given issue or issues?
June 20, 2011 at 11:18 am
Posted in: Civil Rights, Law and Inequality, LGBT, Politics
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What a (Gay) Week!
posted by Ari Waldman
Amidst feverish work on my current paper, I’ve been trying to keep up with the latest developments in gay rights. And, this week was quite a doozy. On Monday, the proponents of the anti-gay marriage Proposition 8 in California argued that the district court’s decision declaring Prop 8 unconstitutional in Perry v. Brown (previously, Perry v. Schwarzenegger) should be vacated because Judge Vaughn Walker, the now-retired judge who presided over the original trial, is in a committed long term relationship with another man and failed to disclose that fact at trial. Judge Ware heard arguments, questioned the proponents incredulously and issued the expected smack down the next day. Remarkably, the Prop 8 proponents are planning to appeal.
Also on Monday, 20 bankruptcy court judges in California’s Central District declared DOMA Section 3 unconstitutional, finding that none of the post hoc justifications for the federal government’s intrusion into state marriage law survived heightened scrutiny.
Then New York Governor Andrew Cuomo and his team stepped up efforts to pass a law that would allow gay couples to marry in New York. Three Democrats in the normally-dysfunctional who voted against same-sex marriage in 2009 switched to yes. Then one Republican, and then another Republican, putting the total number of supporters in the Senate at 31 (32 are needed for passage). Pro-gay rights Mayor Mike Bloomberg, the single largest contributor to New York State Republicans over the last decade, then spent his Bloomsday (haha!) in Albany, lobbying Republican Senators for support. Ted Olson, who along with David Boies is representing the pro-gay marriage side in the Perry case, then wrote an open letter to New York Republicans, pushing the conservative case for gay marriage.
I’ve spent my free time calling Republican senators on the fence, thanking Democrats and Republicans who are already on board and starting a Facebook group that asks people to commit to donating money to the campaigns of any Republican senator voting in favor of same-sex marriage.
I am torn between a feeling of inevitability — this week saw a lot of dominoes falling on the arc of progress — and a sense of frustration — Jews, Catholics and others taking to the Senate floor to call me and my brethren “diseased,” “errors in God’s plan” and “radical homosexual Nazis who wants to destroy religion.” Pleasant. I especially love the “errors in God’s plan” canard when coming from a man like Dov Hikind, an Orthodox Jew, who believes God can’t make mistakes. But, that is another story.
But my feelings are not why I’m writing today — I’ve written about that here. Two legal aspects strike me:
1. Same-sex marriage in New York would be important for a few reasons. There is no citizen initiative process in New York — a constitutional amendment would require a vote of the legislature, as would a constitutional convention. Passage of a gay marriage bill would more than double the number of citizens living in pro-gay marriage states and affect more then double the number of gays. All of this means that gay marriage in NY is a big step forward. And, for those judges — from immigration judges all the way to SCOTUS — looking for political cover, not wanting to get too far afield from public opinion on any given controversial issue, NY would be a powerful step toward recognizing that gay rights is not the wedge issue Karl Rove and the now-openly gay Ken Mehlman made it out to be. Many scholars have written about the political forces behind court decisions, but I wonder what you think a gay marriage victory in NY would mean for gay marriage lawsuits nationwide? I happen to think that President Obama’s heightened scrutiny decision regarding DOMA Section 3 will have a greater impact, but NY is the center of the universe, so it must have an impact, too.
2. This would be same-sex marriage via legislative vote. I am often asked why it is appropriate to put my marriage rights up for a vote, by a legislature or the people, when everyone else’s right to marry was never up for a vote. That’s fair, but not entirely accurate — state legislatures have changed their marriage rules many times over the last 230 years. In any event, the point is that some believe our rights should not be subject to the fleeting political whims of fickle voters. And, that is certainly a reason to oppose citizen initiatives, in general. Others believe that a multi-pronged strategy for gay rights — in the political arena, in the judicial arena and in the court of public opinion — is the best way to find success. I’ve had this conversation with my readers over at Towleroad for some time, but the sharply leftist commentators do not represent the gay public, nor does the gay public represent the views of a wider set. How would you react if your right to do x or y were up for a vote and could be taken away just as easily? To what extent is the preference for judicial rulings a remnant of a yearning for the Warren Court’s judicial intervention on behalf of minority rights? Or, to what extent are over-thinkers like me missing the point?
Most importantly, the NY Senate has yet to pass any same-sex marriage bill. I hope this week gets even more exciting!
June 17, 2011 at 11:10 am
Posted in: Uncategorized
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You Know It’s Me
posted by Ari Waldman
An important part of my current (and, to me, really exciting) project is the concept of anonymity on the Internet, or lack thereof. Co-Op’s own, Daniel Solove, whose amazing work I have devoured poured over and over read and analyzed many times, has written about this at length, coining the term “traceable anonymity” to refer to this one element of privacy vis-a-vis our Internet selves — I could call myself “youwillneverknowitsme” on my Wikipedia account, but Jimmy Wales could know it’s me by following my IP address.
Traceable anonymity seems to me the baseline for Web 2.0, with the Internet only getting less anonymous as we progress to newer and even more exciting technologies. Social media, for example, already despises anonymity: Facebook has more than 500 million users; 1 in 5 relationships begin through online dating sites, none of which are anonymous; an increasing number of media websites are requiring their users to log in and provide a valid email address in order to comment on posted news stories; and even interactions that might start out anonymous can end in picture and email exchanges, both of which link your online self to your physical self.
The most basic debate is whether this is a good thing. That fascinating discussion is probably more about our individual values than anything else. But, there are at least two more interesting questions (at least to me):
First, is no anonymity the same as no expectation/right of privacy? I don’t think so, though this is a topic I have just started thinking about and reserve the right to change my mind when I learn more and smarter people teach me more. Sometimes privacy means anonymity — John and Jane Doe filings for domestic abuse victims, for example, a topic that Co-Op’s own, the fantastic Danielle Citron, has worked on. But, privacy is not always synonymous with anonymity, as such. We have privacy rights in our person, but the existence of those rights does not depend on us being cloaked from the law entirely.
Second, what are the costs of less (or no) anonymity? One of the frustrating things about online hate and harassment is that it is cheap — there are no transaction costs to hate and little personal and contingent costs after harassing. In other words, it is safer to harass online than in person. The less anonymity, then, the higher the costs of harassing, and that might be a good thing. I could also argue that less anonymity raises the costs of online speech, in general, by snuffing out robust online conversations about politics. But, what exactly would be snuffed out? Things you would never say in person? Again, maybe that’s a good thing.
Of course, I am playing a little bit of the devil’s advocate here, but the conversation is worth having.
Another tid bit I find worth discussing.
When I discuss this lack of anonymity on the Internet with others, I notice a pattern. Older interlocutors, say over 40 (though let me be clear: I do not consider 40 to be “old”) generally agree, but never really thought the Internet was anonymous to begin with. My peers, say 26-40, are the most agreeable. We remember when American Online had chat rooms that you could enter anonymously after creating a pseudonym (thanks to Co-Op reader and hopefully future prof AG for reminding me about that) and have seen the Internet change over the years. But, kids today, say under 25, do not have any conception of anonymity on the Internet. Even if they have a pseudonym here or there, they nonchalantly say something like this: “oh, yeah, ive given people my email or shown them my pictures, im sure they could find me if they wanted.” I am no English major, but that’s hardly what Walt Whitman thought of when he referred to “perfect nonchalance.” At a minimum, that cavalier behavior is something we as parents/aunts/uncles/grandparents have to deal with when our young charges start spending time online.
June 11, 2011 at 3:45 pm
Posted in: Anonymity, Cyberlaw, First Amendment, Privacy
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Another Day, Another Sexting Politician
posted by Ari Waldman
My first reaction to Congressman Anthony Weiner’s admission was, “Oh… my… god!” My second reaction was to laugh — no matter how old we men get, we are all still 12 year old boys inside — and think of a post filled with double entendre. My third reaction was to wonder what this deeply unfortunate story means for tech law.
(NOTE: Any double entendre is purely unintentional! My mother reads these things!).
Brooklyn Congressman Anthony Weiner, a man I have had the opportunity to meet and even challenge to running race, first alleged that his Twitter account had been hacked, then maintained that he did not send the tweet but the image could have been of him and then, finally and mercifully, admitted that he sent the tweet and was carrying on “inappropriate relationships” with “several” women that he met online. Minority Leader Nancy Pelosi has called for an ethics investigation, conservative pundits are calling for the Congressman’s head and the rest of us are probably unmoved. We live in a world where Eric Massa, Christopher Smith, Mark Foley and so many other politicians are sexually crazed and hooked into a virtual world they either do not understand or are simply too arrogant to care about.
Weinergate has obvious lessons on the perils of throwing no caution to the wind regarding your Internet presence. It also reminds us that some men in power tend to lose their grip on reality. But, you do not have to be in Congress to be victimized by careless, stupid digital behavior.
If one divorcing spouse wanted to prove infidelity, perhaps as part of denying a 50/50 split of marital assets, text messages, emails and self-taken photographs on the other spouses cell phone, Twitter history and email inbox may be fair game. Just last year, a New York state judge in part used evidence of a man’s sexually charged conversations with various women online to deny him child custody. Notably, there had been no evidence that this man ever met any of these women in person or committed any sexual act. He messaged them online, adding jpegs of himself. Another judge in New Hampshire refused to use evidence of a divorcing spouse’s virtual interactions without evidence of an actual affair outside the digital universe. Family court judges have wide latitude in this area, but what are your thoughts about these cases?
Outside of the family law context, lewd online behavior can trigger morality clauses in contracts. Assuming for the moment that morality clauses — provisions in contracts that restrict certain elements of or behaviors in a party’s personal life — are even enforceable, sending a lewd photograph of yourself to “several” women with whom you are having “inappropriate relationship[s]” could be grounds for dismissal.
The operative question is whether evidence of digital hanky-panky, without even a hint of actual infidelity or inappropriateness in real life, is enough wrongdoing in these and other contexts. It seems incongruous to simultaneously recognize the pervasiveness and salience of digital interaction today and still diminish the importance of digital inappropriate behavior below face-to-face conduct. We are both virtual and physical beings now. Excusing a person’s bad conduct in the former simply because it happened through packets of 1′s and 0′s on the Internet seems antiquated and a recipe for a blind spot in social norms.
June 6, 2011 at 7:43 pm
Posted in: Culture, Current Events, Cyberlaw, Humor, Technology, Web 2.0
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Insight From San Franciscans
posted by Ari Waldman
Greetings from San Francisco. I am here delivering a paper and chairing a panel at the Law & Society Conference (both are about technology, but more about that in a future post) in a fortuitous bit of travel that makes posting about the circumcision ban apropos. Alas, my amazing colleagues on this site have spoken so well on this topic that I was content to offer my thoughts to my regular Towleroad readers yesterday. The post was mostly about the federal constitutional arguments should the ban pass, but the topic elicited high pitched emotions from the small sampling of the gay community that has the time and inclination to post comments online.
Admittedly, I was shocked at my commentators’ near-unanimity in support of the ban, and that’s not even including those who simply attacked the motives of their opponents and used the kind of rhetoric that Dave Hoffman advised against here. Circumcision may have special cultural significance in the gay community, but if so, that’s news to me. So, I decided to test the theory.
When the post reached near 100 comments, I took a friend to the Castro district, a historic gay enclave, put on a nice shirt and my best smile and asked random passers-by about their opinions on the ban. In a few hours, I spoke to nearly 85 people, 80 of whom identified as gay, lesbian, bisexual or transgender. My friend spoke to 53 people, all of whom identified as LGBT. (By the way, that shocked me, as well. Does no one else visit the Castro? Or did we subconsciously self-select? Or were gay people drawn to a gay guy?). I asked very simple questions:
1. Do you support the proposed ban on circumcision of males under the age of 18?
2. Why? What’s your reasoning in one or two sentences?
This sample is also small and I could not very well ask Likert questions and do a regression analysis in time, so we must take the results with a healthy dose of salt.
Of the 133 LGBT respondents, only 19 supported the ban. The quantitative and qualitative results conformed to my expectations.
The 19 in support used words and phrases like “male genital mutilation,” “like the horrors of rape,” “Jews need to modernize,” “trauma,” “I will never forgive my parents,” “dehumanizing,” and so on. A few also decided to register their personal sexual preferences.
The 114 opposed to the ban used words and phrases like “parents should decide,” “parents make decisions for their children all the time,” “its not a big deal,” “why do we have to keep banning [bleep],” “live and let live,” “if someone wants to do it, who am I to say no,” “why should I get involved in how you raise your children.” More than a few also registered their personal sexual preferences, but there was little correlation between those who volunteered that they were circumcised, or preferred circumcised partners, and those who opposed the ban.
I expected this libertarian streak, if only because I see it in my students when I teach gay rights. Students who support marriage equality, for example, offer libertarian legal and policy arguments as to why marriage equality is constitutional and why it is a good idea. They decry conservatives’ interest in what they, or their gay friends, do in their bedrooms. They wonder how marriage equality can really affect anyone else. These views and questions make sense, and while I have some sympathy for the perspective, I always push back for pedagogical purposes, to make them offer constitutional and precedential arguments rather than just giving me their policy preferences and because it is hardly the best argument for marriage rights.
Libertarianism is like a Monet: it seems awesome from afar, but the devil is in the details. I find myself fighting against its implications in my scholarship and in conversations with students.
In your teaching experiences in any subject area, do you see increasing libertarianism in your students? For those who teach classes about minority and gender rights, are your students libertarians?
June 2, 2011 at 12:34 pm
Posted in: Culture, First Amendment, Law School (Teaching)
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Cyberharassment’s Waterloo
posted by Ari Waldman
I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…
For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.
My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.
Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.
Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.
This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…
I look forward to continuing this and other discussions with this splendid community.
June 1, 2011 at 10:52 am
Posted in: Constitutional Law, Cyberlaw, First Amendment, Google & Search Engines, Legal Theory, LGBT, Web 2.0
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