PCIA National Meeting

My wife and I met years ago when we both served in the United States Peace Corps in Iran. There have been no American Peace Corps Volunteers in Iran since 1976. Peace Corps Volunteers got to know a wide segment of the Iranian population, as we do everywhere, realized trouble was brewing and Peace Corps officials pulled them out. Here in Albany we’ve been part of a group of former Peace Corps Volunteers who’ve served in all parts of the world. We meet monthly, share a pot luck dinner, provide a forum for newly returned Volunteers, and listen intently to news about goings on in the many countries where we used to serve and the many organizations who work with people there and with immigrants from those countries here.

A few years ago my wife was asked to become president of the Peace Corps Iran Association (PCIA). It’s been a very interesting and active organization. They’ve identified the vast majority of former volunteers, developed a history of the Peace Corps in Iran, published an anthology of stories by former Volunteers about their Peace Corps service, have a book group that discusses literature about Iran, a current events group that meets to discuss developments involving Iran, and they have newsletters about relevant current events and activities of former Volunteers. Even while constantly studying and discussing current events, PCIA avoids taking positions about policy choices other than pointing out to all who will listen that most of the Iranian people, as opposed to its clerical leadership, have long had very warm feelings toward the U.S., alongside considerable national pride.

PCIA just held a national meeting. At all our meetings we’ve shared memories and stories about our experiences. But the depth of the relationships between Volunteers and our Persian hosts was a theme of this meeting. Some of the Persians who trained us to serve in Iran spoke at the meeting and we talked about the effects we had on the Persians and they on us. I discovered that another Volunteer who worked in the same city held weekly discussions with an Iranian cleric; they’d agreed to teach each other Eastern and Western philosophy. I wished I’d been a fly on their wall.

Discussions at their meetings have been consistently level-headed and enlightening. One of the speakers was John Limbert, a former Peace Corps Volunteer in Iran and American diplomat who eventually headed the Iran desk for the Obama Administration. Unfortunately, he was in the embassy when it was seized during the Revolution and spent 444 days as a hostage, but yet manages to focus on the future, not the past, on how we might have a more productive relationship going forward, and has written a  marvelous and very perceptive study of the Iran nuclear deal that I highly recommend. So I feel very grateful for the ability to keep up my interest in and concern for the people of Iran and follow the international politics through the Peace Corps Iran Association.

I know no society where everybody’s an angel or devil. Too many in this country have been immersed in a bath of prejudice – Iranians are this, immigrants are that, rich people are worthy, poor people are not. Level-headed people in the Iranian diaspora have been attacked from various sources with threats and false information to prevent their opposing war, supporting negotiations or the women’s life and freedom campaign. Violence and intimidation make progress and reasonable discussion difficult if not impossible. We can all do better. I know there are better ways.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on June 6, 2023.

Threats to American Democracy

People ask me what I think about Clarence Thomas’ misbehavior. I think it’s important if it gets our eyes back on the prize, on the major threats to American democracy and our civilized way of life.

Political scientists tell us the greatest threat to democracy is the prevalence of guns.[1] Guns, especially powerful ones, make it possible to take democracy down. Once it’s possible, it often gets done. We focus on random murders without seeing the patterns, the growing literature left by the killers of their hatred for democratic government and other people’s rights.[2] The NRA has been led by people who regret the Confederacy’s loss in the Civil War. Gun manufacturers gain regardless of who the targets are. But we all lose.

Political scientists also tell us the growing disparity of wealth is a huge problem for democracy.[3] Fear of falling off the financial cliff makes people vulnerable and desperate. Inability to provide a decent life for oneself and one’s family makes people vulnerable to gangs, armed bands and self-styled militias. But far too few of us are willing to help the desperate or those who fear disaster. The results put us all at risk.

Other countries try to protect their people’s voting rights so great injustices can be cured at the ballot box.[4] But here, partisanship defeats caring for each other. We know how to define and prove gerrymandering but the Supreme Court blocks our ability to stop it.[5] We watch the Court support efforts to exclude voters from the polls.[6] We saw the Court unleash a flood of corporate funds into political campaigns[7] and the willingness of some to let foreign governments interfere in American political campaigns. So we have democracy of, by and for the richest. We can’t wall off own own communities – either we are all part of the solution or we are all victims.

Those were the three themes of my last book. I had joined the chorus of people writing about them, adding only the Court’s contribution to the problem. I thought Americans would be concerned but I’m beginning to think myself naïve. As long as the problem is not in their own back yards right now, most Americans don’t care. And if most Americans don’t care, most politicians don’t care.

Refugees here from Sudan and elsewhere could tell us, if we’d listen, how problems that once seemed far away engulfed them and their families. We exclude fine, decent, honest foreign families but heaven forgive what we might learn from their experience. We’re convinced America is different. But America is as America does and if we don’t protect our system of government, we won’t keep it. NIMBY won’t protect us. The Court could do a lot, but the Roberts Court won’t.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 23, 2023.

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[1] See Stathis N. Kalyvas, International System and Technologies of Rebellion: How the End of the Cold War Shaped Internal Conflict, 104 Amer. Pol. Sci. Rev. 415 (2010); James D. Fearon & David D. Laitin, Ethnicity, Insurgency, and Civil War, 97 Amer. Pol. Sci. Rev. 75, 85 (Feb. 2003); Gary King & Langche Zeng, Research Note: Improving Forecasts of State Failure, 53 World Pol. 623, 637, 652 (July 2001); and see Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics, 170-85 (New York: NYU Press 2016).

[2] See Gottlieb, The threat of white nationalist violence, WAMC Northeast Report, July 19, 2022.

[3] Gottlieb, Unfit for Democracy, 129-41.

[4] Gottlieb, Unfit for Democracy, 67-108.

[5] Gill v. Whitford, 585 U.S. ___ (2018).

[6] Crawford et al. v. Marion County Election Board, 553 US 181 (2008).

[7] Citizens United v. Federal Election Commission, 558 US 310 (2010).

Dominion Voting Systems v. Fox News

I wasn’t able to fit this commentary in before the suit by Dominion Voting Systems against Fox News Network and Rupert Murdoch was settled. But I want to get back to it because I think it is important to understand how misguided speculation was that the Supreme Court might change the rule if the case got to them.

Before the Constitution and before the First Amendment, the old British rule applied here. It made the press responsible for defamation, meaning any damage to someone’s reputation. So the more damaging the truth, the more the press had to pay. It wasn’t until John Adams was president that the Alien and Sedition Acts protected true, though hurtful, statements. But the rule left no slack for mistakes.

In the 1964 New York Times v. Sullivan case the Court finally cut the press some slack. It held:

The constitution[] … prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The original ruling was limited to public officials but the Court quickly expanded that to public figures.

The malice language confuses many. The Court referred to malice for historical reasons. But it defined malice narrowly as statements made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The word “malice” adds nothing. Knowledge of falsity or reckless disregard of the truth became the legal standard after Times v. Sullivan. That meant that honest mistakes are protected but lies and reckless behavior are not.

David McCraw, a vice-president of the New York Times and former student of mine at Albany Law School, spoke in my class on Comparative Constitutional Law and explained how protective that standard is to the media by comparison with other countries which make them responsible for any mistakes and whatever injury to reputation they cause.

So Dominion charged Fox with violating what was already a very lenient standard. It didn’t just charge Fox with screwing up. It charged it with knowing falsehood, deliberately lying, or reckless disregard of the truth, by repeatedly reporting what they knew to be false, reporting as true what they told each other privately was false, and what the evidence they had showed was false. Fox had plenty of slack for mistakes. It could have told its audience that people were making claims and spreading rumors that Fox was unable to substantiate. What it couldn’t do was report rumors and claims as fact that it knew were false or didn’t bother to check. Fox was going too far by reporting fantasy as news. It violated a very lenient form of press responsibility. Condoning reckless falsehoods or deliberate lies has serious consequences.

Overruling Times v. Sullivan would have imposed a stricter obligation on Fox and wouldn’t have helped it. It’s important to recognize that Fox was not being held to a strict standard; it was being held to a very generous standard, and it apparently couldn’t even meet that one.

I think the Court got it right in Times v. Sullivan but some media outlets still fail to live up to their obligation for honest reporting.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 23, 2023.

SUITS FOR ENVIRONMENTAL DAMAGE

It really matters what our representatives think about science, that they doubt, deny and refuse to act on science, that they can’t reckon with facts or add them up. Natural forces will come for us regardless of what they think; they’ll come for our bodies, our relatives, our country, our civilization. Corporate greed and government inaction are heading us for disaster. Racial pride and vanity will collapse before the forces of nature.

Scientists tell us the Arctic and Antarctic ice sheets are collapsing faster than expected. That reveals the existing damage, but, since ice reflects much of the sun’s rays, it also means there is less ice to reflect the sun, more and faster global warming, and changes in the ocean currents that drive both droughts and storms. We are headed for disasters that are Biblical in proportion but too many of our so-called leaders can do no more than mouth bromides about God helping us. I thought God helps those who help themselves but those self-important fools think that only applies to the poor.

I voted for Biden and would prefer him to any likely opponent but he has decided that the people would not tolerate his saying no to the Willow project in Alaska which will pump still more gas and oil for burning and put the carbon they create into the air to speed up the warming of our planet that doesn’t need any more warming. Heaven forbid we get serious about protecting ourselves from global warming and deal with all the various sources of the problem.

I’m happy to see some cities and municipalities bringing lawsuits to have energy companies compensate taxpayers for the increased cost of maintaining roads and fighting forest fires because of the effects of climate change. The Supreme Court even agreed to leave those cases in state courts where they’ll do better than in the federal system.

Roads and forest fires are a small fraction of the costs of protecting ourselves against global warming. I’d also sue the energy companies for the cost of rebuilding levees, relocating homes and offices, retrofitting heating, cooling and kitchen equipment and the electrical grid. I’d love to see them prosecuted for murder, but it makes sense to start with a smaller, more winnable case. Enough. It’s time we get serious like we did on cigarettes except this is more urgent and more important. It’s time to save our families, parents, siblings, children, grandchildren and their friends too.

It will take multiple tries until we get the formula that works in front of the right judges and juries. But I’m tired of waiting, watching and praying.

A preacher I debated quoted Pogo that we have met the enemy and he is us to conclude it’s not fair to go after the big shots. But it’s not fair to let babies, children and each other starve, choke, burn and die because we won’t solve the problem while they’re still alive. Big shots are the ones with their hands on the controls. They have the power and the tools. It’s our job to make sure those tools get used to turn off the fossil-fuel-to-global-warming pipeline – pronto. The politicians job is to cushion the burden on labor, the poor and the vulnerable.

— If you think I’m on target, please pass it on. For the podcast, please click here . This commentary was scheduled for broadcast on WAMC Northeast Report, on May 9, 2023.

Terrific Protest Song by Claudia Schmidt:

Here’s a link to a superb new protest song by Claudia Schmidt that she sang for us at the 8^th Step at Proctor’s last night. Enjoy!

Unions Missing from Public Discourse

There was a time when people had organizations in which they had discussions that crossed partisan lines. In the eighteenth and nineteenth centuries there were dedicated discussion organizations, some called lyceums, some called Chautauquas. They were all over the country and in many small communities. I’ve spoken at the original Chautauqua in western New York. It was wonderful for me – C-Span broadcast it nationally and Chautauqua paid me handsomely to talk about my book on the Rehnquist Court. I never once mentioned Democrats or Republicans. They expected and wanted to hear talks from people with very different views.

Those institutions were founded before the development of a reliable, neutral, national press. That was a twentieth century development, which owed its creation in part to advertisers who wanted to reach everyone without regard to partisan divisions. Some lecturers like Ralph Waldo Emerson were the rock stars of the age. But for the most part, those organizations were participatory – they were not about experts talking down to people. This is also before the professionalization of universities which was also a post-Civil War development with graduate schools on the German model. The great universities that we know today made that leap into specialization in the nineteenth century, the better to dig deeper into understanding the world around. That doesn’t mean they were liberal – they reflected the prejudices of their days – but they were getting involved in the production of knowledge.

Labor unions were another example of the organization of knowledge often at cross-purposes to partisanship. They grew as a third force, as agents for their members, so their partisan alignments depended on what the parties did for them lately – and they switched sides as needed. That meant many workers had organizations they trusted to represent their interests. It was not about party loyalty. It was about loyalty to the workers in their fields of endeavor. I don’t want to get romantic about it. Union leadership made lots of mistakes. What organization doesn’t? But typically they played all sides for the benefit of their members.

The parties did choose sides. Some supported the labor movement and labor interests and some chose to support capitalists. Most prominently beginning with the Reagan Administration, both the Court and the Republican Party have been doing all they could to shrink, defeat and destroy the labor movement. Part of that was about money. But robbed of unions as intermediaries, workers were on their own to understand how economic policies affected them. Without unions many were pushovers for the likes of Donald Trump, who was closely allied with the wealthiest in America and antagonistic to the needs of workers but convinced them the opposite was true, that they should ignore the press and listen only to him.

In other words, the power of a conman depended on stripping American workers of their own organizations, dedicated to workers’ interests.

Yes, strikes give us all problems, but the absence of labor unions threatens the survival of democratic government and the substitution of government of, by and for the wealthy. In other words, unless you are a captain of industry, you ought to be for labor unions, Grange movements and other organizations of working people. Otherwise, it’s just money talking.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on April 25, 2023.

The Problem We All Live With

Two young people were shot in the last few days in two different states for mistaking the address they were looking for. I took a short walk and found myself thinking about a print I own of a famous painting you’ve probably seen. A federal judge ordered New Orleans public schools to admit Ruby Bridges, a six-year-old African-American girl, into the first grade in what had been an all-white school. Norman Rockwell made a picture of her, in pigtails and a white dress, with four faceless federal marshals walking her to school with smashed tomatoes dripping on the concrete wall behind her. New Orleans parents refused to send their children, so Ruby would be alone in the school, and New Orleans hired a teacher, Barbara Henry, from Boston.

Ruby first realized she was famous a decade later when she saw the picture. Rockwell had made a two page spread, titled The Problem We All Live With, for a magazine that circulated all over the country. It was in our homes and doctors’ offices and would have been hard to miss. Seeing it, Ruby realized she had a mission.

The Rockwell Museum brought Ruby to speak a few years ago along with Ms. Henry, who’d come to New Orleans to teach her first grade. They had a reunion, both spoke and Ruby signed her book about what happened. It was a privilege to meet them and of course we bought the book.

Rockwell’s title, The Problem We All Live With, is so apt. Yes, we ALL live with it. African-Americans live with the sense of risk 24/7. Those of us who believe in a fair and decent world where “no distinction would be tolerated in this purified republic but what arose from merit and conduct,”^[1] are revolted and disturbed by abuse of people no matter who it’s aimed at.

Some of us learned from Hitler that hatred is indiscriminate, unreasonable and universally dangerous. Some of us also learned from history that none of us are safe from hatred, that human rights must be universal or they’re totally unreliable. Some of us learned the same lesson from the Ku Klux Klan here whose hatred includes Blacks, Jews and Catholics. Some of us understand that we’re less safe in a world where we demonize other peoples.

My wife and I played small parts in the Civil Rights Movement: she and friends integrated a Greensboro, North Carolina movie theatre. I heard Martin Luther King describe his dream on the national mall in Washington and volunteered in the NAACP’s law office. Stunningly, the movement did its best to train and discipline demonstrators never to respond to abuse with abuse. John Lewis, the Freedom Riders who went South in integrated buses, and many others, took incredible abuse, some killed, others sustaining permanent injuries, but were taught not to fight back. The nonviolent lesson King and others inherited from Mahatma Gandhi, included nonresistance to violence, to show other Americans where the violence was coming from and the complete peacefulness of the demonstrators, both African-American and white.

By the time of King’s assassination and afterward, some of the organizations abandoned those ideals. It’s hard to blame them. How much must one absorb without fighting back? For those whites who don’t yet understand their self-interest in civil rights, let me add that if we expect a future in which we too are treated with proper concern and respect, we all have to be the principle we want others to absorb, and to reign in those who want to use guns to act out their fears and prejudices. We have to be one country, with liberty and justice for all.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on April 25, 2023.

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[1] Thaddeus Stevens, a Pennsylvania congressman and a Republican leader in the fight for the 14^th Amendment, in the House of Representatives, Cong. Globe,  39^th Cong., 1^st sess. 3148  (1866) (June 13, 1866).

Gifts to Supreme Court Justice Clarence Thomas and his wife

The stories coming out about the gifts received by Supreme Court Justice Clarence Thomas and his wife, particularly from Harlan Crowe, have stirred some memories.

About thirty years ago I ran a conference at Albany Law School. Justice Sandra Day O’Connor gave the keynote address. Her remarks are part of a book of the conference papers that I edited and arranged for publication. Multi-authored academic books usually don’t sell well but this one had an audience. Publishers send royalty checks to the editor. But I had told everyone that I would share the royalties among all the speakers, O’Connor included. I don’t believe there was any prohibition about Justice O’Connor being paid for her work. But she wouldn’t take her share and every time royalty checks came, her share went to the Albany Law School scholarship fund at her request.

A decade later, our son was planning his marriage. Our daughter-in-law has a family friend with a lovely home on the Connecticut shore of the Long Island Sound who invited the happy couple to use their place. So Eli asked if I knew anyone in Connecticut who could perform their wedding. Does a lawyer with decades of experience in practice and teaching know any judges? Well yes. So I called my classmate and friend, Judge José Cabranes. José was a judge on the United States Court of Appeals for the Second Circuit and he lives and performs many of his judicial duties in Connecticut. Would José perform the wedding. Of course he said he would be happy to. I believe there had been some change in Connecticut law so he checked to make sure he could do it. He could and we were on.

That raised the question how I could show my appreciation. Other friends on the bench told me he could not accept anything significant. They suggested a book and I remember taking their suggestion and giving José a book, although I no longer remember what book I gave him. And, oh yes, I sent José and his wife photos of José, his wife, Kate, the happy couple, together with my wife, myself and our daughter – but I don’t think those pictures were a problem because they were, in the language of a classic credit card commercial, priceless.

I suspect that Justice O’Connor, my friend, Judge José Cabranes, and our friends who sat as judges on other courts were all going beyond the strict requirements of the law, but they certainly embodied its spirit.

The rules were designed to protect the appearance of justice as well as to remove any temptation to accept bribes or pervert their decisions in favor of friends, colleagues or wealthy patrons. I don’t know whether Mr. Crowe’s patronage had an impact on the Thomases but I see the behavior of Clarence and Ginni Thomas as a symptom of their disdain for rules of ethics and for American democracy. Thomas joined the Court wanting to turn back the clock of American law and politics by a century in ways that would further empower the wealthy and remove all federal protections for the working person.

It’s been reported that Crowe keeps statues and memorabilia of some of the world’s most brutal dictators. I won’t speculate about why, but let me end, somewhat mischievously, by pointing out that a flock of crows are known to birders as a “murder of crows”!

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on April 18, 2023.

The Depravity of Chief Executives

While some people keep trying to “protect” Americans from learning about the worst aspects of America, lawyers have no choice. From the moment we enter law school we are confronted with the best and the worst of America. We have no choice – our job is to deal with it and help others deal with it. One of the first cases we read in my class on criminal law dealt with the trial and conviction of a well-connected Indiana politician and Klan leader for kidnapping, imprisoning, raping and killing a young woman.[1] Once having had our noses rubbed in the cruelty of other people, we look at the world with our eyes open.

Are presidents decent? Some of them. But some were demonstrably corrupt, held slaves, started wars for political purposes that killed enormous numbers of soldiers and civilians and lied about the reasons. I want to believe that presidents are honest, decent, and care about our welfare. But there is nothing automatic about it.

Should chief executives, governors and presidents, be above the law? I shudder to think about the consequences.

Are liars trustworthy?

The Eisenhower Administration initially lied about what Capt. Francis Gary Powers was doing when he was shot down over the Soviet Union. In that case, I understood the diplomatic necessity of Eisenhower’s denial. A “white” lie.

I loved what Johnson did for civil rights but his Administration deceived America about Vietnam.[2] He was also stupid about it – Ho Chi Minh was an admirer of George Washington but it was long after the end of that very bloody war before we realized we could, and now do, trade with Vietnam.

We can disagree about Reagan’s politics, but misleading America about why the hostages weren’t home, while his people were telling Iran not to release them before he took office, was a despicable political ploy that kept people I know and respect incarcerated in Iran – one of them in solitary confinement. Sorry Mr. Reagan, but that was disgusting, even treasonous.

It matters what George Bush told us about whether Iraq had weapons of mass destruction. The subsequent war made everything worse in the Middle East, strengthening violent forces in the region, and shifting regional politics against our interests.

Lies and deception screw everything up. They are responsible for the deaths of millions. They poison the air with false explanations and blame the innocent for political reasons. No – Blacks, Jews, Catholics and anti-fascists did not falsify the 2020 election. Just the opposite – Trump begged, threatened and inspired the intimidation of honest election workers and public officials to change the results in plain site, but the pot calls the kettle black and tries to blame everyone else.

Should Trump be tried? For bilking people who’ve worked for him? For fraud? Sexual abuse? Treason? How about adultery? He’s dangerous. Every word out of his mouth makes this country worse, less safe, less able to deal with its problems. Yes, lock him up and remove him from center stage.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on April 11, 2023.

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[1] Stephenson v. State, 205 Ind. 141, 179 N.E. 633 (1932) and see Karen Abbott, “Murder Wasn’t Very Pretty”: The Rise and Fall of D.C. Stephenson, Smithsonian Magazine, August 30, 2012.

[2] Lieutenant Commander Pat Paterson, U.S. Navy, in The Truth About Tonkin in The Naval History Magazine, concluded “The administration’s zeal for aggressive action, motivated by President Johnson’s election worries, created an atmosphere of recklessness and overenthusiasm in which it became easy to draw conclusions based on scanty evidence and to overlook normally prudent precautionary measures. Without the full picture, Congress could not offer the checks and balances it was designed to provide. Subsequently, the White House carried the nation into the longest and one of the most costly conflicts in our nation’s history.” See also the report in the New York Times.

My Plan for Texas

Normally I like to provide carefully reasoned commentary. But today I’d like to vent. I’m angry.

Governor Abbott wants to pardon Daniel Perry, a killer who has just been convicted for killing a Black Lives Matter demonstrator in cold blood.

And a federal judge in Texas appointed by Trump, Matthew Kacsmaryk, prohibited the federal government from allowing the distribution of mifepristone, a widely use drug to end pregnancies, all over the country.

I have a three-step plan – never mind whether it would work but it expresses my anger, maybe yours too.

Step one – an all points bulletin to capture Abbott, Perry and Kacsmaryk and arrest them – never mind their physical state when arriving at headquarters – as far as I am concerned if cops have some emotional need to put their boots on someone’s neck, those are my candidates. As The Lord High Executioner of Titipu sings in Gilbert and Sullivan’s Mikado, “They never would be missed — they never would be missed!”

Step two – boycott, boycott, boycott everything from Texas, made in Texas, sold in Texas, made by Texas companies or pulled out of the ground in Texas. Boycott it all and boycott the stocks. All of it.

Step three – retroactively accept Texas’ secession from the United States. They want to be the lone star state, good riddance. The country would be better without them and any who want to join them – especially Florida. I’m beyond disgusted.