June 15, 2021

Jack the Ripper and Mother Theresa are both likely to be in any large crowd in New York City and other densely populated places. Obviously, one can’t generalize. New Yorkers are neither all vicious like Jack the Ripper nor angels like Mother Theresa. Similarly you can’t generalize from either of them to people who shared their gender, color, national origin, religion or any other large group defined by biology or parentage. Their presence in New York crowds is simply a statistical probability – in any large crowd there are both wonderful and terrible people. I remember witnessing a dispute between two drivers, one of whom jumped out of his car and yelled as loudly as he could “You Iranian!” That was obviously silly, they didn’t know each other from Adam, but Iranian was the curse de jure. It was all too common but by erasing all the nuances, that kind of loose mudslinging didn’t help this country figure out how best to negotiate with Iran.

People may not know the history or want to admit it, but we all have skeletons in our racial, religious and ethnic closets. Africans and African-Americans are just as decent as every other group but some Africans are still raping, slaughtering and taking slaves in Africa. Many of us, regardless of our religious affiliations live in areas dominated by Catholics, but I’m not afraid that they’re going to enslave me because Catholic religious law, called cannon law, once described at length whom Christians could and could not enslave. Participation in the East and West African slave trade was fairly widespread among European and Middle Eastern countries as well as white Americans. My Iranian hosts when I was in the Peace Corps condemned what they believed was the continuing slave trade in Arab nations. But most of the people in all of those places are lovely and trustworthy. I’ve had my pockets picked in Spain and Chile but mostly met wonderful people in both. Prejudice doesn’t work as generalization and it doesn’t work as collective responsibility. If it did, all of us would falling through the sinkhole to hell.

Generalizing good or bad traits as characteristics of everyone of particular backgrounds is the very definition of prejudice and all of us have to fight that mentality. There has been a tendency lately for progressives in this country to join the nincompoops in making generic statements about Jews as if we are all responsible for trying to destroy the Palestinians and other crimes. Actually many of us have spoken out and fought against those evils. Generalizations don’t work with respect to Jews any more than they work with respect to Blacks. Some claim that Jews need no protection because they’re rich. Even if that were true, take note that Black success and wealth was a trigger for the massacres and burning of Black communities in Tulsa, OK, Rosewood, FL, Wilmington, NC and other places. Some sort of moral grid of who can be attacked is both stupid and dangerous.

American ideology reinforced by the three post-Civil War constitutional amendments is that we are all entitled to the equal protection of the laws. Both as law and as ideology that principle is tremendously important – no one, including those who think of themselves as progressive, gets a pass on that one.

Prejudice parts the sinkhole to hell.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 15, 2021.

The Stress of Race

June 8, 2021

There’s a moment when we first experience race. As a kid, I remember reading something about my team, the Brooklyn Dodgers, that described a player, not a star, but a good ballplayer, in a hotel room, trying to rub the black off his skin. That image was deeply disturbing. Even as a kid I understood or maybe what I read explained the deep hurt that racism inflicts.

I tried to find the story for this commentary and found a story about Charles Thomas, a Black teammate and lifelong friend of Branch Rickey when they both played for Notre Dame. It seemed different from what I remembered. My old memory may have merged with the Charles Thomas-Branch Rickey story but I suspect it was a common experience, one that made some of the first African-American fortunes in cosmetics and hair straighteners.

Risks in dealing with cops and white people are a constant fact of Black life. The Warren Court, that’s right, the Warren Court decided cops could stop and frisk people without what the constitution requires for a seizure or arrest. That meant all hell could and did break loose. Almost anything an African-American did or does can look suspicious to a cop – putting keys in one’s door, a kid running when an officer appears (actually quite a reasonable response), driving a nice car, or reaching for something in the car (even in response to a request from a cop), jogging in a white community, looking “furtive” (whatever that means) or standing together on a street corner – ambiguous actions that wouldn’t look troubling when whites do it, but combined with common prejudices become lethal suspicions. Blacks are left trying to prove discrimination, that authorities wouldn’t do that to whites. Good luck. Even when African-Americans prove discrimination, the Supreme Court says so what!

The Civil Rights Movement and the riots that followed the assassination of Martin Luther King scared whites. Blacks were lynched for over a century, whole Black communities were burned to the ground and the people in them killed as in the notorious Tulsa massacre. Not to mention the Klan’s reign of terror on Blacks and their supporters before and during the Civil Rights Movement. But once whites were scared, everything else disappeared.

We don’t know from our own experience that African-Americans are regularly pulled over without reason. Most assume that cops have good reason to pull someone over. As a lawyer who worked in and for the Black community, I knew that was nonsense. But if you’re not there when it happens, how would you know? When a cop shoots a Black, how would a white know what happened unless someone takes a video from beginning to end? Are you going to believe a cop or an African-American? Judges will tell you that cops do not have a good reputation for honesty. And cops have told many of us in the law straight out that they violate the law and lie about it. It’s obvious when they repeatedly use stories that already passed judicial muster. They study the decisions and learn what to say. As one judge told me, we don’t know when they’re lying.

So just being Black on the street in America can be very stressful. No wonder, and how sad, that those young men were trying to rub the color off their skin, and that it became important to say that black is, in fact, beautiful.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 8, 2021.

Voting Rights Now

June 2, 2021
Make the Promise of Democracy Real for Everyone: Tell the Senate to pass the For the People Act (S.1)

The Torah teaches “Love your neighbor as yourself.” Together, we can build a society in which everyone experiences wholeness, justice, and compassion. The #ForThePeopleAct and #JohnLewisVRAA will ensure every voice is heard equally and elections reflect the will of the people. @TheRAC #ForThePeopleAct #JohnLewisVRAA #PassS1Now

Refunding Policing

May 31, 2021

I attended a zoom meeting on the various attempts to reformulate policing in New York. The effort to reform policing was no more productive than I expected, with the panelists largely describing the failure and explaining why it didn’t have better results. At one point I wrote in the chat that we should consider eliminating the 911 calling system. I think the moderator took it as a joke. Actually I was trying to point out how police are asked to do many things they shouldn’t be asked to do. Breaking 911 down into separate components could sidestep some of that – provided that there are other services available to call. That of course is the rub – everything depends on funding: other services have been beggared to pay for too much policing.

Years ago I phoned a former fellow student at law school. He’d devoted himself to the lives of those less fortunate. When I called, he’d joined the faculty at one of the country’s best law schools. Naturally, I asked what he was teaching. Tax! I barely held on to my chair. But his point was clear – everything depends on funding, whether through the budget or so-called tax expenditures. By getting into tax law, he was getting into all of society’s choices. We can say whatever we want about what the police should do and how they should do it, but we’ve funded them to handle virtually all citizen needs – with weapons.

Research on decision-making describes so-called garbage-can decision-making. Use whatever you pull out of the can as a tool. Doctors wear stethoscopes, carry tongue depressors, and tools for checking your heart and blood. Our primary care doctors spend a lot of their time referring us to people who know more about our specific problems than they do. But they care about us and try to get us the right services, most of which should make us healthier. Police don’t carry stethoscopes or refer us to experts, and what they carry isn’t benign but that’s what they’ve got.

The culture of policing, passed down from senior to junior officers, doesn’t help. Think about the reasons people go into policing. There isn’t just one but given the constant carrying of weapons and permission to subdue or overpower people, one reason, repeat one reason, that some people will join the force is to act tough. It’s no answer that there are good cops – bad ones spoil the barrel and teach the rest.

Then there’s us. Our calls for police protection are often laced with prejudices about “them.” Remember the term paddy wagons for police vans? Ethnic slurs are buried in our daily language. Many police forces were organized as corporate union-busting security forces – armed with guns and clubs. And in parts of the country, police were successors to patrols that kept former slaves in their place – white men riding out to catch Blacks seeking freedom, both before and after the Civil War when they were nominally free. The Klan became deeply enmeshed in many police forces. Schwerner, Chaney and Goodman were killed by cooperation between Klan and police. In other words the historic origin of many police forces in this country had nothing to do with obeying the law and everything to do with violating it. Culture and traditions die hard.

If chiefs of police stay long enough and work hard enough they can counteract it, but they have to be very strategic, not about compromising with their officers or appeasing them, but getting their support. That’s possible. I just haven’t been seeing it done. So I’d focus on the funding to get the services we need.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 1, 2021.

Stop Making the Whole Black Community Pay for the Failures of the Albany Police

May 28, 2021

POLICE ALWAYS FIND SCAPEGOATS: The Albany police and sheriff agreed to “prevent” the big stuff, especially murder, by hauling people in for trivial stuff. That’s outrageous. It is designed to make it look like they are doing something by targeting the Black, poor and minority communities. They always pay the price for whatever is going wrong and here we go again. I am disgusted.

PREJUDICE AS POLICY: Sheriff Apple says he “firmly believe[s]” that increasing enforcement of the small stuff will solve the big problems.

WRONG, WRONG, WRONG: Policing the small stuff means that police attention will be drawn to the wrong people at the wrong places at the wrong times.

MAKING IT WORSE: They want to make life miserable and give African-American kids an education in crime in holding pens and jails.

NEVER MIND EVIDENCE: There is no evidence that policing small stuff solves serious crime. This is New York City’s acknowledged failure brought to Albany.

PREJUDICE RULES: Following police myths and what they “really believe” in the face of actual evidence gives free reign to their prejudices.

DITCH THE MAYOR, THE CHIEF AND THE SHERIFF: Stop the crud and stop the cops from taking their failures out on our kids and making everything worse. Better to throw Sheehan, Apple and Hawkins to the wolves and revamp police funding in its entirety.

Payback for Election Rigging

May 24, 2021

It couldn’t be clearer that Republicans claim that Democrats rigged the 2020 election because they can’t imagine winning an election except by rigging it. Now preparing for the 2022 elections, they aren’t bothering to revise their policies to gain popularity among the American public, and instead are busily doing what they kept claiming Democrats did – rigging the election. Among other forms of chicanery:

  • They’re rigging the election by manipulating polling places so that opposition voters have to wait in long lines to vote if they haven’t given up first;
  • They’re rigging it by prohibiting anyone from bringing voters food and water so many won’t stick it out and stay on line waiting to vote;
  • They’re rigging it by making voting costly;
  • And most recently, they’re rigging it by trying to punish poll workers for doing their jobs honestly and scare them from allowing Blacks and Democrats to vote.

Obviously, Republicans see no path to victory except by violent attacks on the U.S. Capitol, Congress, and on peaceful opposition demonstrators, and by rigging elections or lying about the results without legal or moral limits on their behavior.

And they’ve sufficiently politicized the Supreme Court that it:

  • took down the Voting Rights Act, which was designed to protect the right to vote, even for Democrats,
  • allowed corporations to finance political campaigns with money from the corporate treasury, turning our democratic system into a slush fund for the privileged;
  • but the Court denied relief against gerrymandering voting districts so that the actual vote tallies have little impact on which party comes out ahead and mostly to help Republicans keep control of many state legislatures.

I have no respect for partisan shills under the shield of black cloaks, and partisanship has no place in voting machinery, vote counting and judicial decision-making. It’s time to take such partisanship out of bounds.

But the even bigger problem is disloyalty. Having forced much of the country to swear during the McCarthy years that we would not use force or violence to overturn the Constitution, they are trying to overturn the constitutional system of elections with force, violence, and a parade of lies, all to guarantee government of, by and for Republicans, destroying accountability to the voters and the democratic system itself.

I’m angry and ready for payback, ready to investigate Republican disloyalty, make them swear on penalty of perjury that they are not trying to overturn the Constitution by lies, fraud, force and violence. I’m ready to chase Republican cheats out from every hiding place, and tar them with the brush of disloyalty which they so richly deserve.

The pragmatic side of me says that Democrats and fair-minded Republicans will have to do everything possible to pass the For the People Act or similar legislation to stop the fraudulent destruction of the electoral system. The For the People Act would solve many of those problems but it won’t slake my anger. I’m ready to see supporters of election chicanery on the hotseat and behind bars for disloyalty. I’m ready to demand loyalty oaths for a democratic America where everyone’s vote counts. The only people I would deport are those who deny the principles of democracy. Sic the Department of Homeland Security and its Immigration and Customs Enforcement after them. We don’t need traitors.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on May 25, 2021.

Fairness Doctrine for the Internet

May 14, 2021

What will it take to restore a responsible, truth-telling, media?

I’ve talked with you about how section 230 of federal communications law protects fraud and other lies. Publishers, like newspapers, magazines, TV and radio stations have been responsible for the falsehoods they broadcast and could be sued for circulating false claims on their systems. But that rule was removed for much of the internet in its early days. Eliminating publisher responsibility for interactive computer services magnified the outrageous nonsense on the internet.

Social media companies are deciding whether they can carry particular posts or speakers. They’ve been trying to address the best known and most egregious posts. But removing section 230 would impose penalties for falsehood and oblige websites to respect the facts.

There was another rule that brought some decency and civilization to broadcast media. It was called the fairness doctrine. As summarized by the U.S. Court of Appeals:

[T]he fairness doctrine impose[d] a double obligation on the broadcast licensee … [to] devote a substantial portion of available time to the discussion of ‘controversial issues of public importance.’ … [And when presenting such issues] to present responsible conflicting views.”

The requirement “to present responsible conflicting views” used to be stated as a balanced presentation of conflicting views. Wikipedia added “honest” and “equitable” to balanced – certainly a decent aspiration.

In the de-regulatory mood of the 80’s and 90’s, the FCC retracted the rule but the statutory authorization stands for application to broadcast media.

Contemporary mass media have continually heightened the polarization of their presentations. And contemporary social media apply formulas that lead us to posts that Facebook and others think we’d like based on what we’ve clicked on before. That feeds and magnifies our prejudices. It’s an excellent financial model but it does it’s best to keep the left separate from the conservatives, let alone the conspiracy theorists and the white supremacists and vice versa. If polarization is the problem, social media should not have the power to point us at material in a partisan and one-sided way.

It’s not clear that the fairness doctrine could be revived or that the Court wouldn’t reverse or narrow its prior decisions so as to defang it. But my point is that this is another way we’ve polarized our country by changing legal rules that had worked for quite a long time. As I’ve described before, political primaries push both parties toward their extremes and away from each other, a result of progressive changes years ago, the Supreme Court recently changed rules that apply to political contributions, conservatives are changing rules to keep anyone who won’t vote Republican away from the polls, and gerrymander those who manage to vote in order to lock in legislative majorities. All those legal changes help polarize the country. The result is a violent clash, fueled with claims of gun rights even in the House of Congress and at other public offices and political events.

We’ve created an alt-wrong mob. People in mobs feed on each other’s support, lose their minds, give us the dangerous nonsense of outlandish and disproven conspiracy theories and lose their ability to cope with facts. Law has to be yanked back to the side of good sense, peace and values befitting a democratic country. That said, my confidence in the marketplace of ideas has taken a jolt in the wake of the Trump era.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on May 18, 2021.

Enough Already: The US, Israel and Iran

May 6, 2021

On a recent Friday evening, the rabbi asked a congregant to sing a traditional song based on Psalm 133, “Hinneh mah tov umah na’im, Shevet achim gam yachad,” which means “Behold how good and how pleasing, to sit together in unity.” Except she wasn’t singing the tune as I learned it in the summer of 1948 at the age of seven. The rhythm and cadence I remembered was a version being sung in Israel, like many of the songs we learned that summer. For years we were fired by the Israeli example, by the kibbutzim or farms on which people shared everything, and by the struggle for independence. I grew up thrilled by their example and wanting to learn Hebrew the better to enjoy traveling there – until our Temple kicked me out because I‘d become a young critic of our Sunday school and refused to go.

I later discovered that someone I knew and admired was running guns to the Israeli army in 1948. A colleague on the Board of the NYCLU, Jerry was also a member of the Israeli analog to the Civil Liberties Union, fighting against abuses by the State of Israel.

I too became disgusted not only by its denial of civil liberties to its Palestinian minority but also by Israel’s baleful influence on the Middle East. While Iran was quietly working with America to fight both the Taliban in Afghanistan and the terrorists from Arabia, Israel convinced the Bush Administration that Iran was the major problem. Saudi Arabians were responsible for 9/11 but Israel convinced the leadership of this country that Saudi Arabia was the good guy and Iran was the danger. Iran called attention to the radical madrassas that the Saudis supported to develop the extreme version of Islam that led to 9/11. But we stayed friends with Saudi Arabia and haven’t been able to shake off the politics that branded Iran part of the Axis of Evil. Never mind that Iran would have nothing to do with the other so-called axis members – Iran fought a bloody war with Iraq and helped the US deal with the Iraqis but no matter, Iran had to be the enemy.

An increasing body of scholarly literature based on deep dives into diplomatic documents traced that distortion to Israel. Apparently, Israel needed a powerful enemy to convince America it needed more weapons. When Iraq was crushed by American forces, it started warning about Iran – though Israel and Iran were cooperating, and Iran, by popular vote and then with clerical blessing, got rid of the demagogue prime minister Mahmoud Ahmadinejad.

Let’s be clear – few nations are angels. Everywhere nations slaughter each other over race, ethnicity, wealth, resources and other ill-gotten gains. I’d like to see Israel succeed, but not by allying itself with evil and extreme Middle Eastern forces, risking American blood and increasing the problems the Middle East poses for our country. I have no more obligation to support the hard wrong in Israel than the alt-cruel in America. The US needs its own foreign policy, for its own interests, not as a proxy for the worst versions of Israeli politics. And as a distinguished physicist pointed out over lunch a few days ago, even if the Iranians made “enough” fuel to create a “bomb,” with the technology they were using, it would be too heavy to deliver to a target. Instead the nuclear material they’re creating was clearly intended for medical use in hospitals, not as a weapon. America needs to get straight who its enemies are and who is doing what. Let the hawks fly in a cage.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on May 11, 2021.

For A Healthy World

May 5, 2021

One of the effects of serving abroad, call it benefit or burden, is that one sees the relics of lost pasts, civilizations that have destroyed themselves by overusing the resources available to them or by using materials that poisoned the community. It’s quaint, and interesting, but the lesson is humility – we can destroy ourselves, and may be doing it.

Friends and relatives who are scientists have been treating me to the best and the worst of the coming world. One relative explained to me that electric cars will soon overtake gas driven vehicles. Great, even though they will make dinosaurs of our hybrid and the one we bought our daughter.

So I asked a friend in the power industry whether we can deal with fossil fuels by going after specific technologies like cars or whether petroleum would be burned in other ways for other uses so we wouldn’t really get very far? I thought we needed to turn to a carbon tax that would go after other forms of burning fossil fuels. The answer I got was both yes and no. It turns out that automobiles are the least efficient form of using fossil fuels for power, so getting away from the internal combustion engine is progress. Companies that produce electric power are so much more efficient that there is a significant saving even if they burn gas or oil to produce the power. Turning to solar and wind energy would be MUCH better. But if petroleum gets cheaper because it’s not used for gasoline, it will be used to make plastics. Woops. We are already eating plastics in our diet which isn’t good for our health or the health of the foods we eat. So a carbon tax wouldn’t be good enough – we need to regulate the uses of petroleum much more thoroughly. And we need to ban plastics much more generally.

But Americans have turned freedom into the economic freedom to produce whatever they want without needing anyone’s approval. We even created a class of things that get used like medicine but don’t need FDA approval – we call them supplements. Some countries require companies to prove safety and can require that they prove safety to the community for the life cycle of the products.

That galls some people – it’s regulation designed to protect all of us regardless of whether the producers realized they were doing damage. But ever since Reagan we’ve been vilifying regulation, even if it’s designed to protect us. Years ago I refused marijuana even though I was convinced it was safe because, as an illegal drug, I knew its purchase fueled gangsters, criminals and killers. Americans continue to buy and sell other drugs which kill many Americans. Some of us can’t stand other people telling us what we can or can’t do, and claim, instead, the freedom to extinguish other people’s lives. I don’t buy into that so-called “freedom.”

A little respect for science, a little respect for the fact that our doctors and many government offices are trying to protect you and me and our fellow Americans would go a long way. Sometimes what gets called “freedom” is the yellow brick road to slavery. In the case of environmental toxins, it may be the road to extinction.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on May 4, 2021.

The Meaning of the Chauvin Verdict for Killing George Floyd

April 22, 2021

Thank heavens Derek Chauvin was found guilty of the murder of George Floyd. The jury came back relatively quickly which signaled to many of us that they had reached a guilty verdict. Hung juries take a long time. This jury was obviously convinced by the video.

But what does this mean for the future. There have already been more killings. If it is going to take nine minutes worth of video to show that police have murdered someone, it won’t mean much. In the early 1970s my office and many others were struggling with inability to pin responsibility on police for killing so-called “fleeing suspects” – in other words shooting people in the back. I remember bringing the problem to my students at St. Louis U. Law School – I was teaching legal research and writing there as an adjunct. My students were excited to have a real and serious problem to crunch their minds on and went to work enthusiastically. It was a national problem and another office managed to get one such case to the U.S. Supreme Court. In Tennessee v. Garner, the Supreme Court held that “deadly force” may not be “used unless it is necessary to prevent the escape [of an “apparently unarmed suspected felon”] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

At the time it seemed like progress. But every part of that so-called rule has been turned into a set of weasel words that scoot away from any attempt to pin them down. Needless to say, the Court and all the legal offices working on it hadn’t solved anything.

The intervening half century has been filled with repeated disappointment. To a large portion of the public anything police do seems to be in response to a significant threat of death or serious physical injury. Police just might be scared – scared of keys being inserted in a front door, scared of a boy’s back, scared by a man’s lip – the “bravest” are the scardiest.

We used to fret about the impunity of law enforcement in the South. The Klan worked with “law enforcement.” Two white and one Black man, James Chaney, Michael Schwerner and Andrew Goodman had been working to help Blacks register to vote. They were arrested, then released by police in Mississippi in conjunction with a group of Klansmen who followed, stopped, killed and buried the three young men. At the height of the Civil Rights Movement, the federal government brought the resources of the FBI and the Department of Justice to bear. A federal prosecution put most of the killers in prison for at least a few years. It took the killing of two white men and federal involvement to get those convictions. But the rule of impunity continued wherever there was no extensive federal involvement.

The effort to prevent Blacks from voting has never stopped. And the defense of police who are racists or who are in cahoots with racists has never stopped – it has spread north. Do I have to list the names of all those whose murders by police are still unpunished?

Impunity has no place in a civilized country, not for cops, not for people who storm the Capitol, not for people who incite riots and blame those trying to stop their misbehavior, not for the high and mighty any more than for the low and vulnerable. Impunity eats the guts out of a country. Police and their unions who insist on impunity are entitled only to our utter disrespect.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on April 27, 2021.

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