Copy editing finally done for Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. It’s scheduled for publication in January by NYU Press – still a few months off but it feels like a big milestone.
I haven’t been putting personal notes in my blog, but I had the pleasure, on the 9th, of attending a Red Cross Volunteer Recognition event where my wife, Jeanette, was presented with the J. Spencer Standish Community Service Award in Recognition of Outstanding Service, an award which is not presented annually, for her work as a trainer in safety services over a wide area of the state. Our daughter came in from Cincinnati for it and our son wrote from London. It was a very special evening and I was and am a very proud spouse.
What really matters about the decision about Texas license plates? The conversation is all about the plates. That’s a part of what lawsuits do. They get us talking about the specific example, the thing that the plaintiff wanted to do.
Yet surely the plates themselves are no big deal. The Sons of Confederate Veterans could have advertised their treasonous admiration for the Confederacy on a bumper sticker and other signs. Their rebellion has hardly been scotched because they can’t get it on their plates.
One larger issue is the justification, the reasoning of the decision. Breyer says they can’t put it on their plates because the plates aren’t theirs at all. They are the plates of the great state of Texas. And Texas won’t put its confederate past on its license plates.
That actually is troubling. We decide lots of issues of free speech by deciding whether the speech belongs to government. That troubles me because it doesn’t ask what the free marketplace of ideas needs. Not that the decision about the plates should have been any different but the explanation is different, and in law, explanations matter. They tell you about many cases.
Free speech doctrine is driven by the needs of the system of free speech. But the distinction between our speech and government speech is all about property. I get very suspicious when the boundaries of freedom are decided by rules and discussions unrelated to free speech, and instead about what belongs to the government.
If the clinic belongs to the government it can tell the doctor what to say. If the legal aid society belongs to the government, can government tell the lawyers what to say? Justice Stevens tweaked Justice Souter in the middle of the argument about legal aid lawyers over Souter’s position in the decision about doctors and whether they could say anything about abortion. And if the government likes the speech of one group more than another, can government decide to make it their speech and subsidize it while penalizing the other? Well actually the Court said yes even though it also says government has the obligation to treat everyone equally. So that comes out as just as equally as the government wants. That’s some equality. But that’s how government, courts and law can speak out of two sides of their mouths.
So the Court claims a big blow for free speech – a blow so hard it’s no more than a joke. Why is it worth anyone’s while to bring a case like that to the Supreme Court? That’s very expensive, especially the time it takes of a team of attorneys to put the papers together and prepare for the argument. It costs a lot more than the paltry sum for the vanity plates or even the $8000 for a new plate design. People sometimes bring suits like that for the impact it will have on the law if they win. And people sometimes bring suits like that for the publicity. Now everyone knows the Texas secessionists are fighting mad. The goal isn’t the plates. It’s the PR. You win by losing as much, maybe more, than by winning.
But now there’s another brick in the insidious doctrine about how government owns the opportunities for private speech. How about corralling demonstrators in pens where they can’t be seen during a political party’s convention? After all, the streets are public. And how about throwing citizens into the same pasture with giant corporations to see if they can be heard? After all, if corporations are people, then they have minds, mouths and rights. That’s what happens when important decisions are based on irrelevancies.
— This commentary was broadcast on WAMC Northeast Report, June 22, 2015.
 Walker v. Tex. Div., Sons of Confederate Veterans, 2015 U.S. LEXIS 4063 (U.S. June 18, 2015).
 Rust v. Sullivan, 500 U.S. 173 (1991).
 Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001).
 Regan v. Taxation with Representation, 461 U.S. 540 (1983).
 Cf. United States v. Kokinda, 497 U.S. 720 (U.S. 1990).
 Citizens United v. FEC, 558 U.S. 310 (2010).
My wife and I are back from a reunion of Returned Peace Corps Volunteers (RPCVs) who had served in Iran, and a conference with some of this country’s experts about Iran.
Our first plenary speaker, Bill Beeman of the University of Minnesota, is a very well-known scholar about Iran. He described the complexity of their system of manners and the ease with which foreigners misunderstand Iran. I asked about Iran experts in the State Department. Beeman explained that Secretary Kissinger attacked what he called clientitis, where experts sympathize with the country they study and resist what political leaders want to do. Following Kissinger, the foreign service routinely rotates diplomats to prevent too much specialization. That has advantages and disadvantages; dialogue between experts deeply steeped in a culture and generalists with other concerns is important.
Beeman added that many in Washington claim expertise about Iran, connected with think tanks with axes to grind. Scholars independent of ideological organizations can afford to see reality without coloring it with what they want to happen. Certainly independent scholars need to be heard.
I am convinced that Beeman’s message about the complexity of Iranian culture and the ease of misunderstanding it is accurate. All former Peace Corps Volunteers, and others who have immersed themselves in a foreign culture, can attest to the ways that cultural signals are easily misunderstood in both directions. In diplomacy that can spell disaster.
Our headline speaker was former Ambassador John Limbert, the last U.S. ambassador to Iran and a hostage for 444 days. Limbert now teaches at the U.S. Naval Academy.
I brought Beaman’s comments to Ambassador Limbert. He responded that the State Department has some knowledgeable people and a seasoned negotiator like Secretary Kerry can pick up a great deal by listening closely. I teach interviewing and I know the importance of active listening that seeks to understand without substituting one’s own assumptions. But I couldn’t shake concern that decades of detachment from Iran will handicap negotiators on both sides. It’s too easy to see each other as hostile and assume the worst, or to miss what is really important to them and misunderstand what they are actually offering. That’s especially difficult because so many people claim to know what Iran intends.
As an example of the complexity of our and Iran’s interests, Ambassador Limbert described the U.S. expectation after the Revolution that Iran would be hostile toward the Soviet Union. The Russians had treated Iran as part of its empire for a long time and there were good reasons for Iranian hostility. But Iran did its best to maintain friendly relations and trade with the USSR. Had they suddenly become pro-Soviet? Or were they defending themselves by trying to avoid incurring Soviet wrath. Limbert’s point was that we have to learn to see their actions through their eyes, not our own, to understand and respect their own Iranian nationalism just as they must respect ours.
We have many overlapping interests. But Iran also cares about the mistreatment of Shi’a populations in the Middle East. Iran sees that as defensive and about justice, not about conquest or aggression. It is easy for Iranians to see the US as supporting a ring of Sunni dynasties around Iran.
That doesn’t create any clear picture of what should happen. Limbert’s point is that diplomacy is both necessary and difficult. Seeing it simply as us against them misses the complexities and the opportunities. In other words, give diplomacy a chance.
— This commentary was broadcast on WAMC Northeast Report, May 16, 2015.
I have been an admirer of Senator Elizabeth Warren for many years, ever since she spoke here at Albany Law School some time back in the 90s. But I respected her decision not to enter the primaries to contest the nomination of Hillary Clinton. Obviously I never had to decide whether I would choose to vote for Warren or Clinton, but I came to the conclusion long ago that the candidates I liked best had no real chance of winning. So I have tried to keep my picks within the realm of the people I thought could win.
But Bernie Sanders is forcing me to rethink what to do. Simply put, the Democrats have lost much of the constituency for real, liberal, politics, politics for Americans with average incomes, politics for people who are being given the shaft by business as usual. Those folk have been part of the constituency of the Democratic Party for years. But many of them have been staying home and not voting. Or deserting.
The Occupy movement showed that there is still some life in that constituency. And it showed that American politics and Democratic Party politics can be rejuvenated. Except that it collapsed – not for lack of support but because it was never organized for the long haul.
Bernie gives hope to those of us who care about giving people real opportunity and a fair shake. He gives us a symbol we can rally around. Putting it in the political process is very different from opening a tent on Wall Street. Bernie is trolling for votes. His success will measure the possibility of returning to an America that is fair to all.
Years ago a congressman by the name of William Fitz Ryan represented a liberal district in Manhattan. His brother served on the Board of Directors of the program I worked for and commented that for Congressman Ryan, pushing Congress from the left, created opportunities for his fellow legislators to shift the battleground.
I think Bernie is in that tradition. If he can arouse the mass of us who care about each other’s fate, and arouse the many whose lives are crushed by the disinterest and hostility of those who have power and money, then Bernie can shift American politics from the rut it’s been rattling around in for several decades.
In that way, Bernie is more than a candidate. He represents a cause. He can be the beginning of a movement and an organization. The crucial thing we have to do is to take advantage of his candidacy, win, lose or draw, and build on it toward a stronger, fairer politics, and a stronger America, whose future is not limited to what may be good for a few big donors but is premised on the ways that investing in our country and its people can make a stronger, wealthier, more successful America for all of us.
Go Bernie. And may the rest of us come along, to push the campaign cart, organize for a long push, and celebrate a greater America.