Muzzle Awards (continued)|
Buy a brick, get censored
Newburyport officials had an inspired idea. In order to raise money to refurbish Woodman Park, people were given a chance to buy bricks for a walkway next to the children’s playground. For $60 apiece, they could have their brick inscribed with anything they wanted.
Or so they thought.
The walkway was opened in September 2000 amid the customary celebratory hoo-hah. Within days, though, the city had received complaints. It seemed that two of the bricks did not conform to the norms of contemporary political correctness. One brick said jesus loves you. Another: for all the unborn children. Obviously, neither message was bound to be wildly popular with everyone. Clearly, however, both were heartfelt expressions of opinion.
Newburyport mayor Lisa Mead could have used the occasion to send a message about tolerance and diversity of thought. Could have, but didn’t. Her response was to have the bricks removed. “It’s public property, and it’s not a place for religious or political speech,” Mead told the Boston Globe.
Imagine that. A space such as Woodman Park, like the sidewalks of the Back Bay, is the very definition of the public square, and the mayor of Newburyport doesn’t want people using it to offer their opinions on politics or religion. What would Tom Paine say?
As it turned out, the brick inscribed for all the unborn children wasn’t even intended to convey the anti-abortion-rights message that anti-free-speech zealots assumed. The brick had been bought and paid for by Marie Cupo, who was paying tribute to her daughter Marina, whom she lost late in pregnancy in 1997. “I was not suggesting any kind of political statement at all,” Cupo, a member of the Friends of Woodman Park, told the Boston Herald. “It gave me pleasure to see my brick in the path.” Not that there’s anything wrong with political or religious messages. But it is cruelly ironic that a brick intended to honor a dead child was censored on the grounds that it appeared to convey a political message that some found offensive.
Even worse, Mead’s actions ended up mobilizing the forces of the loathsome Pat Robertson, whose American Center for Law and Justice (ACLJ) — intended as a religious-right counterpart to the ACLU — filed suit in federal court on behalf of Cupo and Thomas Savastano, the man behind the jesus loves you brick. ACLJ lawyer Ben Bull told the Globe, “The city didn’t have to allow any private speech on these bricks, but once it did allow private expression, it cannot discriminate on the basis of popular or unpopular ideas.”
Robertson tie-in or no, Bull got it exactly right. For Mayor Mead to invite residents to buy inscribed bricks and then decide which ones passed muster was reprehensible, and a clear violation of the letter and the spirit of the First Amendment.
We the People
Denying prisoners the right to vote
The Federalist warns repeatedly and eloquently about the dangers of a democracy in which the majority simply votes to take away the rights, liberty, or property of the minority. Unfortunately, that is precisely what happened in Massachusetts last fall, when voters approved by a 64 percent margin an amendment to the state constitution that bars prison inmates from casting ballots.
Thus did Massachusetts join 47 other states, leaving only Maine and Vermont as enlightened enough to understand that even felons should not be stripped of all their political rights, and that voting helps prisoners stay connected to the communities they’ll be rejoining upon their release.
In this instance, politicians were falling over themselves to take credit. Paul Cellucci had pushed hard for the measure when he was governor. So had House Republican leader Fran Marini, the chief sponsor of the referendum. It passed overwhelmingly each time it came up in the legislature for a vote, winning by 155 to 34 in 1998 and by 144 to 45 in 2000.
In the end, though, it is the voters themselves — We the People — who must take responsibility for this regressive step. The amendment wouldn’t have taken effect without the support of the public. And it obviously had that support, winning “yes” votes from more than 1.6 million of us.
To be sure, Massachusetts remains more progressive than many states. In April of this year, Connecticut officials approved legislation to restore voting rights to felons who are serving probation, a right that has not come under threat in Massachusetts. Then, too, some states permanently bar felons from voting, even after their sentences and probation have been served, which effectively disenfranchises many in the African-American community. Look at Florida, where the US Commission on Civil Rights found that an effort to purge felons from the voting rolls was so botched that many eligible voters were turned away on Election Day.
Still, Massachusetts’s reputation for enlightened, progressive politics took a hit when the last vestiges of democracy were removed from inside the prison walls. As Harvard Law School professor Charles J. Ogletree Jr. wrote in an op-ed piece for the Boston Herald, “If passed, this will be the first time in our history that we have amended the Constitution to restrict, rather than to expand fundamental rights.... Society expects prisoners to reform and become model citizens but this measure denies them the means to participate.... This measure is mean-spirited, ill-considered, repressive and regressive.”
It is also, as Ogletree noted, unnecessary. Some 20 years ago the state’s Supreme Judicial Court took care of the biggest potential problem, ordering that inmates vote by absentee ballot provided by their hometowns — thus preventing, say, MCI–Cedar Junction inmates from wielding the balance of power in Walpole town politics.
“Since approximately 97 percent of those incarcerated are eventually released, it is in the public’s best interest for released offenders to know how to intelligently and appropriately have a voice in their communities,” Ogletree wrote.
For more than 200 years, the state constitution, written in large measure by the suddenly fashionable John Adams, incorporated the enlightened approach espoused by Ogletree. It’s hard to imagine a more insulting monument to Adams than banning people from exercising their democratic rights.
Overreacts to crude frat prank
The brothers of the Dartmouth College fraternity Zeta Psi did not cover themselves in glory when they published two sophomoric, sexist newsletters, the Zetemouth and the Sigma Report.
Written in the breathless prose of young men who drink a lot of beer and can’t get laid, they include passages such as this caption beneath a picture of a topless woman, purportedly photographed in Cancun, Mexico, as reported in the student newspaper the Dartmouth: “No, it’s not [Brother X’s] girlfriend ([Female student]’s tits are too small), [Brother Y]’s sister (too round) or even [Brother Z]’s Cancun hookup (not old enough to have tits). Yup, it’s just another Cancun chick faced with the easy choice of either flashing hundreds of strangers or spending the night with [Brother A].”
Then there’s this particularly incendiary line: “Next week: [Brother X]’s patented date rape techniques!”
What came to be known as the “sex papers” demonstrated that Bluto Blutarsky is alive and well at Dartmouth. But that should have been the end of it. It wasn’t. At Dartmouth, you see, boorishness isn’t just offensive, it’s an actual offense — the kind that can get a fraternity shut down and thrown off campus.
The newsletters, which were never meant to be circulated outside the frat house, were discovered in April, reportedly by a female student rummaging through Zeta Psi’s trash. The fraternity’s national executive committee placed the Dartmouth chapter on probation.
That wasn’t enough for Dartmouth officials. In May, Zeta Psi was “derecognized” — that is, it was permanently dismantled at Dartmouth, having been found “guilty” of harassment and of two violations of the college’s “minimum standards” requirements. The college’s dean, James Larimore, wrote an open letter that was like something out of 1984, saying in part: “Since the allegations against Zeta Psi surfaced, there has been considerable discussion on campus of issues of freedom of expression. Some argue that anything that an organization can characterize as expressive conduct must be tolerated even though it violates the rules and standards of our community.... I respectfully disagree with that view, which I believe is corrosive of the very idea of a residential college.” Clearly Larimore’s idea of a residential college does not include the First Amendment.
The buck, though, stopped with Dartmouth College president James Wright — and he, rather than overruling Larimore and upholding the fraternity’s free-speech rights, piled on, writing, “Zeta Psi undermined fundamental values we hold dear. When such conduct violates our standards, the College must take action.”
The kind of idiotic speech Zeta Psi engaged in doesn’t have to be exalted. Protests, letters to the Dartmouth, and demands for an apology all would have been appropriate. The brothers might have learned a lesson.
As it is, they have learned a lesson: that Dartmouth College values political correctness more than it does freedom of expression. It is, needless to say, the wrong lesson — not just for the brothers, but for everyone else on campus as well.
US Court of Appeals for the First Circuit
Tells judge to shut up
US District Court judge Nancy Gertner wanted to correct what she believed to be a mischaracterization of her actions in an important case appearing before her: a complicated lawsuit brought by the parents of 10 white students who were seeking to end race-based admissions in the Boston Public Schools.
The parents’ lawyer, Chester Darling, had told the Boston Herald that Gertner had rejected his bid to expand the suit into a class action covering all white students. The Herald also reported that Darling had filed a motion asserting “that Gertner allowed a similar class-action suit to be brought against Suffolk County by women who claimed they were illegally strip-searched at the jail.”
What irked Gertner was that she had yet to rule one way or the other on the class-action issue. So on July 28 of last year she wrote a letter to the Herald saying, “I did not refuse to hear arguments on the case. I did not refuse to schedule a hearing. Just the opposite.” The hearing, she explained, would take place in September. Then, in a follow-up article published by the Herald on August 4, Gertner elaborated on Darling’s comparison to the Suffolk County case, saying, “It was absolutely clear every woman had a claim. This [the school-admissions suit] is a more complex case.”
Darling, believing Gertner had spoken out of turn, asked the US Court of Appeals for the First Circuit to remove her from his case. And the appeals court — despite finding that Gertner had demonstrated no bias — sided with Darling, ruling on February 5 that Gertner had created “an appearance of partiality,” even though she “understood her own comments as entirely ethical explanations of the reasons behind court procedures.”
Through its action, the appeals court managed to pull tighter the veil of secrecy that already surrounds our most mysterious branch of government. “I’m really worried by this code of silence that the judiciary tries to impose upon its members,” Paul McMasters, First Amendment ombudsman for the Freedom Forum, told the Phoenix (see “Code of Silence,” News and Features, February 23). “The whole judicial system is closing more and more upon itself. It’s not just the public’s right to know that’s damaged, but the stature and status of the judicial system itself.”
Federal judges do not have a First Amendment right to speak out — free speech, sadly, does not extend to the workplace, and Gertner’s superiors can decide what is appropriate speech and what isn’t. But muzzling judges except within the confines of the courtroom, says civil-liberties lawyer Harvey Silverglate (a Phoenix contributor and former law partner of Gertner’s), contributes to the perception that judges constitute a “priestly caste.”
That can harm public confidence in the judiciary. Witness the ongoing saga of Massachusetts Superior Court judge Maria Lopez, who was excoriated last fall after she chewed out a prosecutor and handed a light sentence to a convicted child molester. (Disclosure: Lopez is the wife of Phoenix publisher Stephen Mindich.) Lopez is now being investigated to determine whether she improperly passed on to supporters information about the molester’s victim. All this could have been avoided if the rules had simply allowed her to explain her reasoning in public.
In the Gertner case, it’s the appeals court’s very solicitude that is so chilling. No, the court ruled, she did not show any bias in writing and speaking to the Herald. Nor did she do anything that she believed was improper or unethical. But she was punished anyway.
Gertner’s letter to the Herald said in part: “I am always available to speak to the press. I strongly believe that what we do as courts and judges must be accessible to the public.”
Dan Kennedy can be reached at dkennedy[a]phx.com.
Issue Date: June 28- July 5, 2001