Early Morning, April 4

Martin Luther King, Jr. was killed forty years ago in Memphis. Much attention has been paid to the last paragraph of his last sermon:

Well, I don't know what will happen now. We've got some difficult days ahead. But it doesn't matter with me now. Because I've been to the mountaintop. And I don't mind. Like anybody, I would like to live a long life. Longevity has its place. But I'm not concerned about that now. I just want to do God's will. And He's allowed me to go up to the mountain. And I've looked over. And I've seen the promised land. I may not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I'm happy, tonight. I'm not worried about anything. I'm not fearing any man. Mine eyes have seen the glory of the coming of the Lord.

But the whole sermon, delivered forty years and a day ago, is worth a read.

Posted by Alice Ristroph at 08:19 AM | Comments (1) | TrackBack

Qualified Immunity and Saucier v. Katz

Thanks to Dave and the rest of the authors here for inviting me to guest this month. I'm really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff's constitutional claim before turning to the defendant's assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III's ban on advisory opinions.

In this article, a follow-on to a piece I wrote in 2002 I argue that if the Supreme Court were to either permit courts to resolve the remedial question first (as it has in the ineffective assistance of counsel context) or to require federal courts to do so (as it has in the habeas corpus context) then lower court judges will inevitably skirt important constitutional questions and the law will be denied definition and clarity. I argue that the merits of claim should be bypassed only where it is clear a priori that the plaintiff will not be entitled to a remedy.

Posted by Sam Kamin at 01:11 PM | Comments (6) | TrackBack

Pension Parity Sought by Retired Black Police Officers

[Cross posted on Workplace Prof Blog]

To those who believe that the bad ol' days of segregation and unequal treatment of minorities is behind us, I give you this story from the LA Times about retired black police officers in Georgia who are still trying to get a remedy for past injustices:

A "whites only" sign was still hanging on the precinct house water fountain in 1964 when James Booker joined the suburban College Park police force. He soon learned it wasn't the only thing off limits to Georgia 's new black recruits.

Until 1976, black officers were blocked from joining a state-supported supplemental police retirement fund. Today, white officers who entered the fund before that year are taking home hundreds of dollars more every month in retirement benefits than their black counterparts.

The now-retired black officers have been lobbying hard to change that, but eight years after they began an effort to amend the state constitution and give them credit for those lost years is stalled in the Legislature. The Georgia Constitution prohibits the state from extending new benefits to public employees after they have retired.

If lawmakers don't take action in the final weeks of the legislative session, the battle will move to the courthouse this spring, said state Rep.Tyrone Brooks, an Atlanta Democrat and civil rights activist leading the officers' campaign.

Come on, Georgia, do the right thing. Give these police officers who gave the best years of their lives the pension payments they have always deserved. If not, this situation will continue to be an unwelcome reminder that much still has to be accomplished in the area of racial justice in the workplace, especially in the South.

Posted by Paul Secunda at 11:01 AM | Comments (3) | TrackBack

MLK on Social Equality, Fellowship, and Love

In observance of Martin Luther King, Jr. Day, here are some thoughts from Christopher Phelps, a history professor at Ohio State:

King's sermons from 1948 to 1963 . . . remind us of King's immersion in the black Baptist church and of the wide range of theological sources and social criticism he drew upon. For King, Christianity was the social gospel. His outlook was astonishingly radical, especially for the McCarthy era. In a college paper entitled "Will Capitalism Survive?" King held that "capitalism has seen its best days in America, and not only in America, but in the entire world." He concluded a 1953 sermon by asking his congregation to decide "whom ye shall serve, the god of money or the eternal God of the universe." He opposed communism as materialistic, but argued that only an end to colonialism, imperialism, and racism, an egalitarian program of social equality, fellowship, and love, could serve as its alternative.

Down riot-torn streets, he continued his quest for audacious social transformation by means of creative tension, compassion, love, inclusion, and humility. . . . The aspirations he left unfulfilled — especially for social equality and economic justice — may yet supply the legacy for a renewed American hope.

Given the disparities chronicled in Dalton Conley's Being Black, Living in the Red, King's agenda appears more timely than ever.

UPDATE: I just saw this post by Jon Hanson; very interesting take on King's legacy.

Posted by Frank Pasquale at 08:16 AM | Comments (3) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron's characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I'll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Posted by Dave Hoffman at 03:00 PM | Comments (2) | TrackBack

Scenes from a Lawyer's Life

The Arts Section in today's New York Times highlights the renewed interest in the work of Diego Rivera, exemplified by a series of exhibitions ongoing in New York. The theme is Rivera's stepping out from behind the overwhelming interest in his third wife, Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife's grandfather, Nathan Milstein, a lawyer in Detroit, who did work for and befriended Rivera and Kahlo. (Family legend has it that Kahlo made a pass at him, but this is unconfirmed.) Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties, and his seventy-four year tenure as a member of the bar is supposedly one of the longest in Michigan history.

Alene and I spent many hours going through his voluminous files. One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these. The documents are tantalizing. For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

The Rivera piece inspired me to go back through some of the files this morning (a quiet Christmas task). I realize now it's entirely likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the F.B.I. director of long memory must have objected.

As to his practice, I'm just now organizing a series of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation. There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units." (The Communist Party (Opposition), or the Communist Party (Majority Group) as it was originally called, was a splinter group from the main Communist Party USA, organized by Jay Lovestone. Lovestone shows up here; he visited Detroit, and met with Nathan and Bojer.)

The American Civil Liberties Union was interested in intervening on Bojer's behalf. On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: "The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party." Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

As to Nathan's political views, here's an excerpt from his tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation "drives" and "spectacular raids" then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

Just an ordinary kid from an ordinary school in an ordinary city. Whose parents had been aliens.

(Cross-posted at Legal Profession Blog.)

Here's more from the tribute:

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss. As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes. Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment. Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself. Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation. Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

Posted by Jeff Lipshaw at 11:22 AM | Comments (1) | TrackBack

Ah the Good Old Days When You Could Spy Without Help: Private Companies and Their Cooperation with Eavesdropping

Yet again technology is cited as a problem requiring change. This time it is in the familiar realm of government access to telecommunications. As the New York Times reports:

The federal government’s reliance on private industry has been driven by changes in technology. Two decades ago, telephone calls and other communications traveled mostly through the air, relayed along microwave towers or bounced off satellites. The N.S.A. could vacuum up phone, fax and data traffic merely by erecting its own satellite dishes. But the fiber optics revolution has sent more and more international communications by land and undersea cable, forcing the agency to seek company cooperation to get access.

This information is not exactly new, but the article also notes that it is not just recent terrorist concerns that have prompted the government to seek help in tracking communications. The N.S.A. and the D.E.A. have apparently been “collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions” since the 1990s and the program may be expanding. At bottom the concern is that the Bush Administration wants to offer retroactive protection for the companies that cooperated with the government because as Attorney General Mukasey and director of national intelligence have argued without that protection would be reluctant to help. Yet the article details that some companies such as Verizon may have cooperated and even run a line to a military facility whereas others refused to cooperate because they feared public reaction regarding their privacy. Immunity thus is not necessarily why the companies did not cooperate.

Put differently, how affording such protection makes sense is unclear unless the immunity would work in a way analogous to prosecutorial immunity: “You have to work with us.” “But it’s against the law.” “Maybe. But you aren’t liable anymore so just do it.” Again as long companies fear “customers’ demands for privacy and shareholders’ worries about bad publicity,” the immunity should be less of an issue. Still from an in-house attorney perspective, persuading the other executives that the best practice is not to cooperate would be harder to do if there is general immunity for cooperating in breaking the law. The immunity removes a powerful argument against what should be a practice to be avoided.

image: Thisbe - John William Waterhouse Wikicommons

Posted by Deven Desai at 02:36 AM | Comments (0) | TrackBack

Predatory Lending: Meet Jonathan Swift

At the new website of the Predatory Lending Association, aspiring lenders can find concentrations of "working poor" customers in their neighborhood, calculate effectively usurious loans, not blacklist crusaders against payday lending, including Liz Warren, and learn all the arguments that goo-goos will make against high-interest borrowing. One Q&A in particular should be familiar to contracts professors (or maybe just those, like me, who use Randy Barnett's Perspectives book):

Myth: Payday lending is comparable to selling yourself into slavery.

Reality: Although there is a market need for slavery, people do not choose to sell themselves into slavery. Free choice is the difference between payday lending and slavery.

(There is even a neat chart to make the connection more clear.) On the discussion boards, you can share your thoughts with other predatory lenders. Sure, it all seems a little too cute, but it's worth checking out anyway.

Posted by Dave Hoffman at 04:32 PM | Comments (2) | TrackBack

Twenty-Five Years of Broken Windows

James Q. Wilson and George L. Kelling recently revisited their broken windows theory of policing in a brief essay that appears in the November issue of The Atlantic. In a 1982 issue of that same magazine, they advanced their now well-known hypothesis that a decrease in visible signs of public disorder would lead to a reduction in crime rates. To be fair, the format of the essay—which appeared as one of many commenting on the “The Future of the American Idea”—did not lend itself to nuanced reflection. But because broken windows helped make community policing commonplace, sparked proposals for dramatic changes in criminal procedure doctrine, and is a key element in the biography of Rudolph Giuliani, Wilson and Kelling’s readers can be forgiven for hoping for a bit more.

In their new essay, Wilson and Kelling write, “Virtually all of the evidence we have from studies of police suggests that restoring order is associated with a drop in crime. This is reassuring, but it may not be conclusive. The idea has never been fully tested.” This does not satisfactorily answer scholars who have questioned whether a reduction in serious crime actually follows an increase in public order. Most importantly, it does not address whether a drop in serious crime—if it occurs—stems from the reduction in public disorder or from the increased surveillance that aggressive misdemeanor arrests make possible.

Wilson and Kelling also write, “Decency in public places may be only a small part of the American idea, but especially for those people living in dangerous, gang-ridden neighborhoods, it is an important one.” This is a statement with which it is difficult to argue. But it says nothing about whether constraining disorder is the best use of limited police resources, or how the police choose their targets in a public order campaign, or whether addressing disorder can ever mean more than moving it to a less visible place. We would all benefit from knowing more about how the original proponents of broken windows would answer these difficult questions.

Posted by Sarah Waldeck at 10:16 PM | Comments (0) | TrackBack

Reparations and Net Benefit

As reported in outlets like the National Law Journal, Connecticut professor Robert L. Birmingham has taken a leave of absence following a strange incident in which he apparently showed the class a racy video clip -- complete with scantily clad strippers -- as part of an in-class argument against reparations for slavery. Some commenters have suggested that this case raises potential questions of academic freedom. Let's set aside those issues, to focus on the substance of Birmingham's argument as reported in the NLJ.

The NLJ summarizes Birmingham's argument as: "The sometimes controversial professor asked students to make a case for slavery reparations in light of the fact that much of Africa is beset by war, famine and AIDS." Law.com later summarizes:

In an e-mail, one student in the remedies class characterized Birmingham's classroom exercise as a "syllogistically perfect" argument that the students, try as they might, were not able to disprove in 15 minutes of discussion. The professor questioned whether reparations are logically due for American descendants of slaves, who generally enjoy a much better standard of living than modern West Africans whose ancestors were not enslaved," the student wrote.

Of course, this basic argument isn't limited to Birmingham, and is quite familiar to reparationists. It's a point often raised by reparations critics like David Horowitz.

Is this really a syllogistically perfect (or otherwise convincing) argument against reparations for slavery?

I'll start with a few assumptions.

There is a wide degree of variation in wealth and standard of living, both in Africa, and in the United States. (Plus, many slaves were taken to other countries such as present-day Jamaica, Haiti, and so on.) However, on the whole, there are a number of areas, such as life expectancy, disease, and education, where persons presently living in the United States enjoy a greatly superior standard of living. I'll assume across-the-board correctness of Birmingham's factual statement that U.S. slave descendants enjoy a better standard of living than people presently living in Africa.

Also, we will set aside for the moment questions of whether the slave trade itself caused some or all of this disparity, by factors like removing able-bodied workers and fostering intergroup strife. Some scholars have suggested that the slave trade contributed significantly to the gap, and that absent the slave trade itself, Africa might not be lagging in these indicators. But let's set that aside for now.

This anti-reparations argument boils down to a "net gain" sort of theory. It says, in essence, "yes, we enslaved Africans. But in the process, we inadvertently moved them to a location where their descendants now enjoy a better standard of living. Therefore, there has been a net gain." It doesn't matter that no benevolent intent to move African-Americans to a better place existed (indeed, any intent was malevolent). The inadvertent net gain should offset any claim for restitution.

Thus, the "syllogistically perfect" argument is this: Yes, government and private actors affirmatively sought to harm Africans (and succeeded very well in doing so), but in the process they also accidentally created a later benefit, and that later benefit should preclude any claim for compensation based on harm inflicted.

Does the law recognize this kind of defense? Should it?

Once we see the chain of reasoning, it's easy to export this to other scenarios, that allow us to better examine the question. Let's look at two hypotheticals.

Hypothetical 1:

ABC Corp's bankers and advisors suggest that the company should launch its IPO in June. Charlie CEO chooses not to do this, because he thinks an August IPO would be better for him personally. That action is a clear violation of his duty of loyalty.

By happenstance, the IPO market tanks in June, and then experiences an unexpected upswing in August. As a result, Charlie's action unexpectedly creates a financial gain.

Should shareholders be able to sue Charlie for breach of duty? His action was motivated by harmful intent, and is a violation of his duty; but he accidentally created a benefit.

And the defense seems potentially reasonable, primarily because there are no damages. It all comes out in the wash, so to speak. The no harm, no foul argument may be reasonable here.

Does that mean that this argument should also apply in the slavery reparations context? Consider another hypothetical.

Hypothetical 2:

Violet Victim lives in the Del Fuego apartment complex. On her way back from work early on the evening of the 20th, Violet is kidnapped at gunpoint by Kenny Kidnapper.

Kenny ties her up and takes her to a secluded location, where he violently assaults her. He rapes her and beats her severely. Then leaves her, bleeding and naked, to die of exposure in the woods. Violet is found a few days later, miraculously still alive, and taken to a hospital where she eventually recovers somewhat from the trauma of her ordeal.

By happenstance, at precisely midnight on the 20th, a gas main directly below the Del Fuego apartment complex broke, and began a fire which immediately engulfed the entire building. There were no survivors.

At trial in the tort action, Kenny asserts the defense, "if I hadn't kidnapped you, you would most likely have perished in the later fire."

Is that defense convincing? Should it block Violet's tort action? Should we really excuse Kenny's harmful actions here?

*

At the very least, it's seems much more complicated to say that there's no net harm here -- that the inadvertent gain of removal from a bad place should outweigh the deliberate vicious acts. One could quite reasonably suggest that the inadvertent benefit of removal from the building should _not_ offset the deliberately harmful actions.

Why would we be more likely to allow an offset in the first hypothetical? Probably because monetary losses are more easily viewed as fungible. The concept of offset assumes some level of fungibility. Mere monetary harms are relatively easily viewed as fungible (and thus capable of being offset). Damages to person are more complicated, and it's not clear that a benefit count for offset against a harm.

Of course, there are offset theories in areas of law. In the criminal context, for example, the Model Penal Code gives the justification of necessity; this is limited, though, and would not apply here. (As my colleague Anders Kaye points out, if I rescue someone from harm, I'm not allowed to simply kill that person the next day, and then assert a defense of net gain -- the idea that since I bought the person an extra day of life, I haven't really done any harm.)

Obviously, slavery is in the category of harm to person. Yes, it's possible to construct arguments that would give an offset for the inadvertent benefit. But those arguments are by no means obvious or self-evident; and in fact, it seems to me that the opposite arguments are quite a bit more convincing.

Posted by Kaimipono D. Wenger at 06:56 PM | Comments (11) | TrackBack

May Day Mea Culpa

On May 1, 2007, 25,000-30,000 demonstrators peacefully marched to MacArthur Park in Los Angeles, in support of immigrants' rights. What transpired at the park was a scene one might expect on the streets of Myanmar -- not Los Angeles. As is now commonplace, there were plenty of video cameras recording the events. Twenty or so protesters threw objects (food, rocks, plastic bottles) at police officers. As this video shows, officers responded by indiscriminately wielding (100 times) batons and firing 146 rubber bullets into a passive and confused crowd. More than 240 people, including 9 journalists covering the rally, were injured. Eighteen police officers also sustained injuries. The mayor of Los Angeles described the events at MacArthur Park as "dark and tragic." Hundreds who were at the park that day have joined what may turn out to be very costly lawsuits for the city.

On Tuesday, the Los Angeles Police Department issued a lengthy report on the incident (available here). The upshot of the report is that the LAPD admits that serious mistakes were made. Planning for the rally was poor. Officers underestimated the rally's size -- despite the fact that large May Day rallies had been held at MacArthur Park for decades. Pre-event planning meetings were requested, but not held. Requests by officers for additional resources were denied. Critical units assigned to the rally received no crowd control training in the 18 months leading up to the rally. No media viewing area was established -- despite a settlement agreement subsequent to the 2000 Democratic National Convention in Los Angeles (another event during which police reacted violently to crowds) expressly requiring such an area at future events. There was a severe breakdown in the chain of command. An "unlawful assembly" order was prematurely issued, interfering with the First Amendment rights of peaceful protesters. Instructions to disperse were issued a minute after police had started firing rubber bullets, and only in English (despite the fact that the crowds were comprised mostly of Spanish-speaking immigrants). The LAPD report includes a series of recommendations to be implemented by June 2008. These include:

-- reviewing policies regarding crowd management
-- including rank, serial numbers and names on ballistic helmets and tactical vests
-- designing a highly mobile sound unit vehicle
-- developing protocols for LAPD videographers
-- coordinating with event organizers prior to major events
-- reasonably accommodating credentialed members of the media
-- requesting Air Support Division to provide aerial video documentation
-- establishing a clear chain of command
-- standardizing the criteria for After-Action Reports
-- updating the 1996 Training Bulletins in regard to crowd control

LAPD leadership, while accepting responsibility, also appears to be patting itself on the back for being open and frank in assessing its officers' performance. While the self-assessment is laudable, the LAPD report raises as many questions as it answers.

It is truly remarkable that something like the May Day debacle could occur nearly 8 years after the "Battle in Seattle" that erupted during the 1999 World Trade Organization protests. In Seattle, as in Los Angeles, officers resorted to tactics that increased confrontation and disruption. There, as in MacArthur Park, there was a lack of planning, a failure of the chain of command, and premature resort to unlawful assembly orders. Any responsible police force, particularly one that polices as many public demonstrations as the LAPD, should have carefully studied the detailed after-event reports from the WTO protests -- which read as templates for the just-issued LAPD report -- and made warranted policy adjustments. None of the recommendations in the LAPD report are original or unique to the situation. Indeed, one would have expected a police force of LAPD's size and experience to have long ago implemented most if not all of them. Why was this not done?

The "escalated force" protest policing on display in MacArthur Park harkens back to the 1960s. As social scientists have observed, in the United States and other Western democracies the "escalated force" model was replaced several decades ago by a "negotiated management" model, which includes careful planning, coordination with demonstrators, and clear chains of command -- precisely the things that were missing on May 1. For reasons not apparent from its report, LAPD is either not aware of this seismic shift in policing practices or temporarily forgot about it on May 1. Either way, it seems apparent, as the report recommends, that LAPD must institute substantive protest training programs for all of its officers. Why was negotiated management not stressed prior to this -- at the very latest in 1999 after the Seattle protests, or after the 2000 Democratic National Convention in Los Angeles?

The LAPD clearly has its work cut out for it. We ought, however, to be careful about casting too-narrow aspersions on the LAPD. Although the violence in MacArthur Park was unusual, the mismanagement of public demonstrations is not as uncommon as one might think. Just ask officials in the several cities that have recently been forced to pay substantial settlements or judgments, as a result of civil rights violations by their own police forces at mass public events.

Posted by Timothy Zick at 10:50 PM | Comments (3) | TrackBack

Diversity?

Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything "extra mild." Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It's like the question I often ask my classes: Can you have a preference for a preference?

How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:
White elite eduated male
White elite ed. female
African American ed. elite male
African Americna ed. elite female
White non elite female
White non elite male
African American non elite female
African American non elite female

The ranking is, no surprise, consistent with social comfort and, let's face it, given that there is no evidence that one group is better at law teaching than another and that law professors can "interpret" resumes to mean anything, social comfort plays a big role.

So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it's the former and it's not even close. They have a preference for a preference for diversity but the real preference is just not there.

So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:

1. What was your father or mother's occupation?
2. How much school did your father and mother complete?
3. How much student debt have you accumulated?
4. How many people do you know at an Ivy League school?
5. Ever worked at McDonalds, washed cars, or bagged groceries?
6. Anyone in your family on welfare.
7. Has anyone in your family done time?
8. Ever been out of the US?
9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)

When and if law faculties get serious about diversity, let me know.

Posted by Jeffrey Harrison at 09:02 PM | Comments (25) | TrackBack

Regulating Private Military Companies

Blackwater has of course been in the news. And the House has acted twice in the past week to regulate private military companies. One, H.R. 2740, according to the Times “would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.” The other, H.R. 400, is designed “to make it easier to convict private contractors of defrauding the federal government during wartime.”

A couple of years ago I wrote an article about this area. One thing is clear: the use of private military contractors is not going away soon and can often have benefits. As such I proposed that rather than looking to legislation alone, the U.S. government, which accounts for massive portions of many private military contractors income stream, should take an old school contract approach to the jurisdiction problem. In short if the government wants to be serious about the issue, it can simply demand that any contractor adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. An additional legislative layer is required, however. Protection for whistleblowers is vital for any criminal or profiteering law to have teeth. These events occur far away and when people have come forward as happened in Bosnia, the company involved was quick to try and paint those who spoke up as trouble makers with all the usual employment repercussions. Peter Singer’s work in the area details much of the problem and is worth a read. My paper, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies, covers some of the history of the use of PMCs by governments and NGOs, the way PMCs can be used well, the reasons international law falls short of addressing many of the issues that are bound to arise, and then offers a possible solution to at least make sure that when crimes occur people know about them (a real problem in many cases), and they can be prosecuted. There is of course much to do in this area. The paper seeks to be a starting point.

Posted by Deven Desai at 06:31 PM | Comments (1) | TrackBack

Please Don't Feed The Homeless

Efforts to purify public places of the indigent and homeless are longstanding. Through police orders to "move along," sweeps of public areas, bans on panhandling and other public activities typically engaged in by the homeless, and other "broken windows" measures, officials have long sought to control the indigent and homeless territorially. As I argue in a recent article, these efforts have generated a kind of "geography of purification" -- particularly in many of the country's largest urban areas.

Recently, some localities, including Las Vegas and Orlando, have enacted bans on feeding the "indigent" in certain public places. The Las Vegas ordinance prohibits "providing food or meals to the indigent for free or for a nominal fee" in a city park. It defines "indigent" as "a person whom a reasonable ordinary person would believe to be entitled to public assistance." Violation of the Las Vegas feeding ban carries a $1,000 fine and/or six months in jail. Officials claim that feeding the indigent and homeless in places like public parks interferes with recreational and other uses of public space, poses "safety" concerns owing to the large numbers some "mobile soup kitchens" attract, and discourages recourse to established social service providers. Opponents of the ordinances argue that feeding the homeless ought not to be criminalzied, and that officials are primarily concerned with creating a purified public landscape in which the indigent and homeless are less visible. As with other laws governing public expression and conduct, the feeding bans pose a delicate balance. They pit the governments' interests in safety and public order against fundamental personal interests in public presence, identity, and receipt of aid.

As written, some of the bans would seem to prohibit the feeding of persons based almost entirely on their appearance. They are, in that respect, vulnerable to vagueness and other procedural challenges. As the text of the Las Vegas ban shows, it is difficult to define "indigency" such that a ban on public feeding can be fairly enforced. Further, outright bans (as opposed to more tailored regulations) on public feeding are vulnerable to First Amendment speech, assembly, and association challenges. The Las Vegas ban has now been permanently enjoined, although city officials are permitted to continue to enforce existing (and generally applicable) permit and trespass laws. Officials have nevertheless vowed to amend and revive the feeding ban. In April, Eric Montanez, now 22 and a member of the advocacy group Food Not Bombs, was arrested while feeding more than 25 people in an Orlando public park. In a trial of first impression, Montanez's case is now being presented to an Orlando jury. During the trial, Montanez's supporters are serving breakfast, lunch and dinner in the park during a three-day "ladle fest."

No one wants public parks to be transformed into soup kitchens. Permit and other public order laws would seem to be sufficient means of ensuring order and public safety. Whatever the outcomes in Las Vegas and in the Montanez trial, the problems associated with homelessness and indigency will not disappear from public view. Rather than criminalize public aid, officials ought to consider and enact more substantive measures to address these serious problems.

UPDATE: Montanez has been acquitted by the jury.

Posted by Timothy Zick at 01:25 PM | Comments (2) | TrackBack

The ACLU's "Declaration of First Amendment Rights and Grievances"

Last week, at a symposium held at American University, the ACLU unveiled a new report, entitled "Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances." I'm proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States government:

• Ignores its representative mandate by governing in the shadows.
• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.
• Secretly uses private parties to spy and seeks immunity to cover their illegalities.
• Silences dissent.
• Prevents citizens from petitioning their elected offi cials.
• Profiles individuals and denies freedom of movement based on association.
• Falsifies information to deny liberty.
• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.
• Prevents soldiers from communicating with their families and prosecutes their lawful speech.
• Silences whistle blowers.
• Censors the press, broadcast media, and Internet based on content.
• Prosecutes the press for revealing illegal programs.
• Obstructs oversight by elected officials.
• To preserve secrecy, places secret holds on bipartisan open government legislation.
• Funds religious programs.
• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to "[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying" and "[s]ecretly use private parties to spy" are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it's essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.

Posted by Neil Richards at 12:01 PM | Comments (2) | TrackBack

Thoughts On Jena and the Civil Rights Movement

This past Thursday, we may have witnessed the face of the contemporary civil rights movement. Reacting to what they perceived as unduly harsh and discriminatory charging decisions by a local district attorney in the beating of a white student by six black students (the "Jena Six"), thousands of protesters descended on the tiny town of Jena, Louisiana. The controversy in Jena actually originated with the hanging of nooses by white students from the tree pictured at right, which was near a high school (it has since been torn down). White students had apparently long insisted that only whites were permitted to sit under the tree. The students who hung the nooses were suspended for a few days. Months passed, but racial tensions did not recede. Ultimately, there was an altercation that resulted in the charges noted above.

Some of the reporting on the "Jena Six" protest expressly invoked the 1960s civil rights movement. Some have even suggested that the "Jena Six" protest may mark the dawn of a new civil rights consciousness or movement. Several notable aspects of this recent protest suggest both similarities to earlier civil rights episodes and some important differences. As for similarities, the protesters clearly thought it important that they assemble and express their frustration in the town itself. As noted below, there was a substantial amount of online networking. But in the end, there was a felt need to assemble and speak in a physical place where protest was likely to be noticed (by the media, of course, but also by members of the Jena community). By their presence, the protesters sought to make Jena a symbol of the unfairness of the criminal justice system, just as Selma has come to symbolize inequality in the franchise and Little Rock the stigma of segregated education. When they descended on the town, protesters instinctively used specific places within the town -- the courthouse where one of the "Jena Six" was thought to be held and the tree -- to amplify their message. They appear not to have sought permission, by permit or otherwise, to assemble and speak. In that sense, at least, the protest was defiant. In these respects, the Jena protest looked on the surface much like street protests of the 1960s.

Despite these similarities, there were some substantial differences between the Jena protest and earlier civil rights protests. Unlike protests of the 1960s, the reaction time from event to assembly was remarkably short. Indeed, the protest in Jena was organized and effectuated almost overnight. Protest spontaneity was facilitated to a large degree by new technologies and media. Word of the "Jena Six" spread rapidly on the Web. At least since the 1999 Seattle WTO protests, activists have been relying upon new technologies to organize public demonstrations, document events on the ground, and in some cases counter police tactics. During the Jena protest, civil rights activists embraced these methods. News and protest plans were disseminated on blogs administered, and heavily trafficked by, African-Americans. African-American talk radio also played a critical role in bringing protesters together. This access to media was important in both organizational and expressive terms. In previous eras, protesters had to rely upon media like television to convey their message. With mobile, hand-held technologies protesters were able to document the events themselves, from their own perspectives, allowing them to bypass media filters to some extent. Further, unlike previous civil rights protests -- but like most Web-originated swarms -- the "Jena Six" protest initially lacked a traditional organizational structure or distinct leadership hierarchy. Indeed, civil rights leaders like Jesse Jackson and Al Sharpton were apparently caught somewhat off guard by the reaction to events in Jena (Rev. Sharpton said he learned of the controversy on the Web). The Jena protest, unlike prior civil rights displays, was not part of a more sustained campaign; once it was over protesters quickly left the area. Finally, and fortunately, this time there was no violent reaction -- by either police, who mostly stayed in the background, or citizens (who mostly stayed home). (There were, however, some menacing statements regarding the "Jena Six" on the Web.) There were no hoses, no dogs, and no physical altercations between protesters and police. The marches and demonstrations appeared peaceful and generally well-organized. By most accounts, the mood of the protesters could be described as concerned, but generally relaxed and even at times festive.

What, if anything, might these similarities and differences indicate regarding the future of the civil rights movement?

Of course, the observations above relate only to the external or public face of what may or may not be a new consciousness or movement in the making. Much will depend on the broader dynamics of social movement organization. Still, some tenative conclusions might be drawn from this event. Technology, and in particular African-American blogs and other media outlets, seems to have great potential in terms of producing a rank-and-file that is better informed, rapidly reactive, empowered, and more effectively networked. On the other hand, a movement consisting principally of decentralized swarms that rapidly form, and just as rapidly dissipate, would not seem sustainable. Much will depend, of course, on how networking and other technologies are used subsequent to these public events. But a "quick strike" model of contention, where protesters rapidly organize and engage in contests in various places, seems less likely to be effective than a long campaign. The monks and other protesters who had been marching in Myanmar until today's violent crackdown by authorities were on the streets for a month. Although they were punctuated with prominent public displays, the Freedom Rides and civil rights marches of the 1960s were part of lengthy campaigns.

The decentralization of the Web raises another issue, namely whether there can be an effective civil rights movement without a traditional hierarchy or structure. Note that in Jena, national civil rights leaders did eventually arrive and play somewhat prominent roles. They have now taken the cause of the "Jena 6" to Capitol Hill. A movement originating in media networks like the Web will likely still require a substantial degree of centralized authority -- at least in the long term. In any event, one lesson the current leadership might reasonably draw from Jena is that they too must become part of Web and other media networks. The final point relates specifically to the public displays themselves. As noted, protesters descended on Jena with little notice. They marched peacefully, in organized columns, through the town and to specific places. But there was no disruption, no striking visuals of protesters clashing with authorities, no escalation of force by police -- in short, none of the sorts of things that helped vault Selma, for example, into the national consciousness. One question, then, is whether there can be a new civil rights consciousness or movement without such episodes.

Posted by Timothy Zick at 02:55 PM | Comments (5) | TrackBack

The Contemporary Protest Movement

In a book I have tentatively entitled, The People Out of Doors: The First Amendment, The Expressive Topography, and the Preservation of Public Liberties, I examine the many limitations on contemporary political protest and other First Amendment activity in public places. One of the things I thought much about while I was writing the book was the continued relevance and salience of the traditional public protest in an era of hyper-technology. In this weekend’s New York Times Magazine, Michael Crowley touches on this theme in a piece about the methods and effectiveness of the anti-war protest movement. Crowley’s principal focus is on modern-day methods of protest and, in particular, protest organizing. As he reports, protest repertoires like conference calls, lobbying, and mass emails are replacing the public demonstrations, door-to-door canvassing, and street theatre used in earlier social and protest movements. Crowley wonders whether technological advances in communications and organization will actually create a more effective protest movement than existed, say, in the Vietnam era. He seems skeptical -- and with good reason. Thus far, despite organizational improvements, fundraising successes, and regular access to legislators including House and Senate leaders, the anti-war movement has achieved little tangible progress in halting the war or bringing home the troops.

Crowley’s piece highlights two substantial errors that contemporary protest and other social movements seem vulnerable to making. The fact that, as Crowley states, “[t]he Internet, not the street, not the campus, is the fundamental component of today’s anti-war movement” portends a premature abandonment of the streets and other public places. The Internet is a necessary tool for organizing, raising money, and conveying messages. Indeed, no contemporary protest movement can succeed unless it harnesses the benefits of bandwith. The first error, however, is to assume that the Web can replace tangible places of protest, and that democracy-by-technology can replace on-the-ground grass-roots activity. The “virtual march on Washington,” staged online by one of the principal anti-war movement organizers, could not produce the solidarity or impact of a real march on the Capitol. Nor can online polls and petitions replace more embodied forms of protest and protest organizing. As I argue in the book, the people cannot effectively self-govern solely by sitting in front of computer monitors and typing on keyboards. Although they did not ultimately produce legal reform, last summer’s immigration protests showed how a tangible public presence can attract attention and at least start a national dialogue. By contrast, who watched or even noticed the “virtual marchers”? Anti-war protest organizers have not yet entirely abandoned traditional protest repertoires. But they are moving in that direction. The people must continue to assemble “out of doors,” both in the physical/tangible sense and in the sense that they occupy spaces outside mainstream political institutions.

The second error relates to the difficulty in situating a movement “out of doors,” in the sense that it is truly removed from institutional politics. Political scientists have shown that particularly since the 1970s, the act of protesting has itself generally been institutionalized. Changes in public permitting laws and methods of protest policing are largely responsible for this phenomenon. Protest organizers have also been co-opted. Organizers now regularly meet with police and arrange in advance such things as arrests, the location and contours of demonstration zones, and parade routes. What is happening, as Crowley’s article shows, is that the organizers of protest movements are becoming further integrated into the core political establishment. As one principal organizer put it: “Last time [it] was done in the streets. People were concerned about civil society breaking down. You have to play in politics, which is something we do very explicitly.” Disruption and contention, two of the principal assets used in prior social and protest movements, are being replaced by polite entreaties and cooperation between protesters and legislative staffers. The absence or rancor, passion, and genuine protest (properly targeted, in the case of the current war, at both parties) indicates that protest organizers have not only been institutionalized, but in fact are in danger of being captured -- by the very political process that has thus far produced the “endless war” movement members decry. “Playing in politics" is fine up to a point; indeed, it is sometimes strategically necessary. If they continue down the present path of institutionalization, organizers will occasionally win the war of words with slicker media campaigns, more precise polling, and coordination of political messages with legislative allies. Without an effective "out of doors" protest movement, however, the Bush Administration will win the political battle over the war.

Posted by Timothy Zick at 12:30 PM | Comments (4) | TrackBack

Public Protest, Militarization, and Critical Democratic Moments

Thanks to Dan and the others here at CO for having me as a guest this month. The 2008 presidential contest is under way, which means we can start looking forward to the national party conventions. I want to take a look back at the policing of public expression at the 2004 Republican National Convention in New York City. Familiar on-the-ground tactics such as protest zones, barriers, mass arrests, and permit denials were effectively used to control dissent and channel public protest. As some readers may recall, many RNC protesters were effectively relegated to a remote site on the West Side Highway, some distance from the convention. This was not as troubling as the cage built for protesters at the 2004 Democratic National Convention (pictured), but it was hardly facilitative of public protest and expression. If history is any guide, we can expect similar tactics to be used in 2008.

I want to focus, however, on a different aspect of public policing at the RNC. As reported in the New York Times, the New York City Police Department engaged in widespread surveillance of activists and protest groups prior to and during the RNC. Some of the details of that surveillance were first made public this summer, as a result of discovery in a lawsuit filed by protesters and others arrested at the RNC. In connection with my research for a book about public expression, I recently reviewed hundreds of pages of the almost-daily “RNC Intelligence Updates” and “Situation Reports” compiled and distributed by law enforcement. Among many other events, officers and undercover detectives reported the following potential threats to public safety:

• A planned “Bands Against Bush” music show. NYPD officials observed that “the mixing of music and political rhetoric indicates sophisticated organizing skills with a specific agenda.” The intelligence item notes that police departments in several cities where similar events were scheduled had been notified.
• Plans by a group known as “Axis of Eve” to use partial nudity as a “protest tactic.” Without apparent irony, the intelligence report states: “The event is said to include the participation of roughly 100 women in thong type underwear and will be advertised heavily amongst the media for maximum exposure.”
• The possible presence at the RNC of graffiti artists riding “magic bikes” – customized bicycles equipped with spray paint dispensers and videotaping equipment.
• Performances by “The Living Theater” entourage, whose purpose according to one intelligence report “is to raise community awareness on political or social issues,” and the “Surveillance Camera Players,” who engage in street theatre protests concerning the use of public surveillance cameras.
• The (frequently) reported whereabouts and apparent intentions of Aron “Pieman” Kay, whose signature form of activism apparently consists of throwing pies at people.
• Plans by a New York City-based group to use art murals and street theater to spread a “peace message.”
• An Iowa group’s plans to hold a film festival as a prelude to the RNC.

• The erection of a “Bushville” tent city on private property in Jersey City, New Jersey.
• A protest rally organized in part by the Hip Hop Action Network,” featuring Sean “Puffy” Combs (a.k.a. P. Diddy), Russell Simmons, LL Cool J, Jay Z, and Alicia Keys.
• Plans by the anti-war group “Not in Our Name” to conduct a poetry read in Central Park.
• Planned leafleting activity by a group called “United for Peace and Justice.”
• A mock “Iraq War Crimes Tribunal” by the International Action Center featuring, among other participants, Ramsey Clark.
• A weekly vigil by “Grandmothers Against the War.”
• A march across the Brooklyn Bridge by “Mothers Opposing Bush.”
• A demonstration by devotees of the late country singer Johnny Cash, who were reportedly planning to dress in black and play Cash music.
• A “wet anti-Bush” T-shirt contest.
• A day-long Buddhist meditation.
• An indoor “anti-Bush” lecture at St. John the Divine church.

The fact that the NYPD prepared for a mass public event like the RNC is hardly surprising – particularly post-September 11, 2001 and in New York City. We obviously want and expect law enforcement to be vigilant during large-scale public events. What is chilling, to use a somewhat elusive First Amendment term, is the breadth and extent of the NYPD surveillance. The eighteen-month surveillance operation extended not only to several U.S. cities, but to other countries as well. Police also monitored activists’ discussions on various websites and included a daily “Web intelligence” item in their reports. They frequently flagged protesters’ organizational and fundraising events. The examples above are representative of most of the intelligence gathered, which focused on peaceful and lawful political activities and dissent.

The NYPD’s surveillance of public protest activity probably did not violate the Constitution (although some may have run afoul of a longstanding consent decree). But the manner in which public dissent was treated at the RNC signifies an important turn in the policing of public protest. In the United States (as in other Western democracies), protest and public contention more generally have been largely institutionalized for some time. But owing to a number of causes, including the 1999 WTO protests in Seattle and the events of September 11, 2001, public protest and dissent at critical democratic moments (national party conventions, presidential inaugurals, political campaigns, and world summits) now take place in a “militarized” environment. Militarization includes not only the physical transformation of public places but, as the recently released documents show, widespread “intelligence-gathering” activity. In the developing surveillance state, nearly every instance of planned public contention and every protest utterance appear to be “of interest” to law enforcement. In the daily intelligence reports, NYPD officers and detectives frequently referred to protesters in terms generally applied to suspected terrorists – as “extremists” with “anti-Bush agendas.”

The NYPD documents, in particular, leave the distinct impression that public dissent itself was regarded as a threat to public order and safety. Would-be dissenters are now on notice that their activities, however peaceful and lawful, will draw close official scrutiny. Whether this and other aspects of militarization will chill public dissent at future critical democratic moments remains to be seen.

Posted by Timothy Zick at 09:02 AM | Comments (1) | TrackBack

HIV/AIDS and Human Rights in China – Law Professors to the Rescue?

I was supposed to be in China this week. A New York-based NGO called Asia Catalyst had organized a meeting on HIV and human rights. It was meant to bring together an emerging network of grassroots Chinese HIV advocates with experienced AIDS lawyers from around the world. Late last week, as Reuters reports, the Chinese government stepped in. The meeting was cancelled, the organizers told that “the combination of AIDS, law and foreigners was too sensitive.”

God knows it is flattering for any law professor to be thought of as a threat to social order, but the truth is, our meeting would have been good, not bad, for China. Virtually every country that has mounted a successful drive against HIV has depended in significant part on NGOs to provide services to gay people, drug users and sex workers -– people who are often inclined to duck and cover when government health officials come around with offers of help. Defending the rights of people with HIV is a crucial step towards creating the sort of social environment in which prevention and care reach those who need it. Independent legal advocacy organizations can productively push debate around politically sensitive policies (like de facto discrimination against homosexuals, or the criminalization of sex work), and challenge stigmatizing attitudes. They can monitor the public and private agencies funded to deliver health care and other services to people with HIV. NGOs also provide independent avenues of cooperation and communication with foreigners. And, just for the record, China is far from a disaster on the AIDS control front. More than most countries, its government has paid attention to the evidence and invested substantially in proven interventions like needle exchange. China’s response is not perfect, but it compares well with that of other countries similar stages of their epidemic development. (China's HIV program is described in a Lancet article; there's also a comment arguing that China is devoting too many resources to HIV in comparison with other, more prevalent health threats like smoking.)

Unfortunately, the Chinese government is not well-disposed to independent social action, particularly when it might be amplified through contact with foreigners. Some say it’s the Olympics – only nice news from China in the next 12 months, please. Others point to the report that there were something like 87,000 public protests in China in 2005 – enough to make any leadership cadre appreciate a little civil obedience. There’s the pessimistic view that the current leadership is Putinizing the nation, building up China’s military and getting tough on dissent on the home front. Whatever the causes, Chinese leaders are, as a group, ambivalent about civil society. Both NGOs and an independent legal system have the potential to help the Beijing regime deal with its terrible problems of corruption and social injustice – within the law. Many Chinese leaders recognize this, and there is support within the state for these developments. But in the case of our meeting, someone in the Public Security Bureau looked at the prospect of independent human rights lawyers networking with obstreperous global advocates – and blinked.

Like it or not, anyone promoting civil society and the rule of law in China has got to deal with this ambivalence. All kinds of actors in China – government officials, new capitalists, NGOs, members of the rising middle class, peasants – are jostling on road to the future, not entirely sure where they want to end up or the best way to get there. From a pragmatic point of view, one of the best things outsiders can do is invest in the intellectual infrastructure of human rights, rule of law and good governance. One excellent way to do that is to support the work of Chinese academics.

Law professors – the engine of social change. Alright, that’s a bit incredible, so let me put it another way: in China now, it is useful to see “civil society” in functional, rather than categorical terms. The true non-government sector is growing exponentially, but it is hemmed in by legal restrictions and undermined by a lack of money – both of which reflect to some degree the government’s impulse to retain control. At the same time, organizations formally within government -- universities, media, “GONGOs”, even religious organizations -- perform many of the functions of independent civil society in the West. And when it comes to developing new ideas in the human rights and anti-stigma line – specifically when it comes to making the case for progressive, evidence-based policies for HIV control -- academics are typically in the vanguard. The Chinese government is reasonably open to research, social inquiry and policy proposals. It is far more comfortable hearing uncomfortable truths and suggestions for reform when they come from institutions that are under state control, even if that control is in practice exercised lightly and sporadically. Thus, well-established journals and academic publishers regulatory put out papers outlining the same sort of policy recommendations that one would see in our own academic literature. My Chinese colleagues and I had no difficulty, for example, conducting a study of how police and other public officials treated drug users at syringe exchanges, methadone clinics and AIDS research sites, or publishing an article about the tensions between criminalizing sex work and preventing HIV. In fact, China’s leaders seem to pay more attention to the evidence and ideas mustered by academics than our own leaders do. To take just one painful example, China’s central government is paying for needle exchange while ours continues to refuse, and China now has four times more exchanges in operation than we do in the US.

In China today, professors are documenting the social factors that promote HIV, writing about the impact of stigma, law enforcement, rules on migration. It was a Chinese law professor, Zhou Wei, who brought the landmark case of Zhang Xianzhu vs. the Personnel Bureau in Wuhu City, the first successful administrative lawsuit on Hepatitis B discrimination in employment in China. Professor Zhang Beichuan from Qingdao University is a leader in the effort to de-stigmatize homosexuality. Professors influence not just government officials, but also the intelligentsia, civil society and, perhaps most importantly, generations of students. In the end, human rights and the rule of law are ideas, and spreading ideas is still something universities do pretty well. I’m hopeful that China is growing into a freer and more open society. I’m convinced that it will only do so with Chinese ideas leading the way.

Posted by Scott Burris at