Via Beat The Press, I learn that the University of Alabama is suing artist Daniel A. Moore for using the colors red and white. From the New York Times:

Mr. Moore’s paintings, reproduced in prints and on merchandise, violated the university’s trademark rights, the suit said. It asked a federal judge to forbid him to, among other things, use the university’s “famous crimson and white color scheme.”

The University isn’t suing Moore because it doesn’t like how he paints their football team. The University is suing because Moore’s paintings are available on merchandise (calendars, coffee mugs, etc.), and the University — which has its own football-related calendars and mugs to sell — is hoping to wipe out a competitor.

I think this is censorship, both in the technical sense of the government (through the court system) shutting people up, and in the broader sense of unfair duress being used to shut people up. U of A football games are public events, and an important part of local culture; as an artist, Moore has every right to paint about football games. The U of Alabama owns their team franchise, but they don’t own Mr. Moore’s mind, or Mr. Moore’s paintbrush; if they want to protect themselves from the horror of artists painting what they see, they should stop allowing the public to view their games.

* * *

Arguably, if the Court rules in the University’s favor, that will be viewpoint based regulation.¹ If Moore had done critical paintings of the U of A football team — had he, for example, created paintings criticizing the football team (justly or unjustly) for racism, sexism and homophobia — then he would have been entitled to strong First Amendment protection. But because his paintings boost the team, rather than criticizing it, it’s quesitonable whether Moore’s protected by the first amendment.

This is true of all sorts of fan creations, not just sports paintings. Henry Jenkins writes:

One paradoxical result [of current copyright law] is that works that are hostile to the original creators and thus can be read more explicitly as making critiques of the source material may have greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions. A story where Harry and the other students rise up to overthrow Dumbledore because of his paternalistic policies is apt to be recognized by a judge as political speech and parody, whereas a work that imagines Ron and Hermione going on a date may be so close to the original that its status as criticism is less clear and is apt to be read as an infringement.

[…] A key point here is that I regard all or at least most fan fiction to involve some form of criticism of the original texts upon which it is based — criticism as in interpretation and commentary if not necessary criticism as in negative statements made about them.

The public has a right — or it should have a right, anyway — to react to and interpret the culture surrounding us, including by making culture of our own in response. This has become especially important in the internet age. Before the net, fans still created “response art,” in zines and in APAs; but this art was for the most part hidden from the view of corporate legal departments.

Jenkins coins a phrase that I think should spread:”The public right to cultural participation.”

For me, the phrase, the public right to cultural participation is a key concept underlying the book’s discussion. If I had my way, the right to participate would become as important a legal doctrine for the 21st century as the right to privacy as been in the late 20th century. I argue elsewhere in the book that a right to participate might be abstracted from the combined rights listed in the First Amendment and the right to participate would include the right to respond meaningfully to core materials of your culture. In that sense, I might go beyond our current understanding of fair use.

[Crossposted at Creative Destruction. If your comments aren’t being approved here, try there.]

1. Viewpoint based regulation is “The regulation of expression because of the particular opinion or position that expression supports or rejects. Viewpoint based regulations are unconstitutional.” (back)

At Balloon Juice, long-time Republican John Cole writes:

In short, it really sucks looking around at the wreckage that is my party and realizing that the only decent thing to do is to pull the plug on them (or help). I am not really having any fun attacking my old friends- but I don’t know how else to respond when people call decent men like Jim Webb a pervert for no other reason than to win an election. I don’t know how to deal with people who think savaging a man with Parkinson’s for electoral gain is appropriate election-year discourse. I don’t know how to react to people who think that calling anyone who disagrees with them on Iraq a “terrorist-enabler” than to swing back. I don’t know how to react to people who think that media reports of party hacks in the administration overruling scientists on issues like global warming, endangered species, intelligent design, prescription drugs, etc., are signs of… liberal media bias.

And it makes me mad. I still think of myself as a Republican- but I think the whole party has been hijacked by frauds and religionists and crooks and liars and corporate shills, and it frustrates me to no end to see my former friends enabling them, and I wonder ‘Why can’t they see what I see?”

There’s more - it’s worth reading the whole thing. John Cole is a Republican I have a lot of respect for. It’s hard to name many others.

I’ve been trying for years now to approach political disagreement with respect for my opponents; to remember that I might be wrong, and to treat even those I disagree with as inherently deserving of decent treatment from me. Lately I’ve been losing that conviction. The Republicans are the party that tries to win elections by bashing gays, and by trying to lower black voter turnout; they are the party that believes that the President should have the right to throw people in prison indefinitely and have them tortured without representation, trial or oversight; they are the party that supports censoring inconvenient scientific findings.

I can’t respect any of that. And I have a lot of trouble respecting anyone - even people I genuinely like and consider friends - who votes for the current Republican party.

So where does that leave me? Can I really justify my participation in Creative Destruction, which is (as I understood it) predicated on the idea of right-wingers and left-wingers disagreeing in a forum where mutual respect is practiced? On the other hand, I still see no benefit to the kind of discourse that is common in the blogosphere; treating other people like crap, calling people who disagree “wingnuts” or whatnot, etc.. I agree with most of the left-wingers I read on the substantive issues, but I don’t like the arrogance, the spitefullness, and the contempt. (Most right-wing bloggers exhibit these same traits, too.)

I think that kindness and respect is better than being hurtful. I think a style of discourse based in hatred and power-over is supportive of everything I hate, and that trying to treat everyone decently is profoundly more radical than othering and cruelty. I don’t think that acting like arrogant jerks with no regard for anyone but our own group actually creates change for the better in any way: it doesn’t reduce racism, it doesn’t reduce inequality, it doesn’t fight sexism, it doesn’t do anything but support bullying and power-over relationships.

So I think it’s better to treat people we disagree with, with kindness and respect, when we can. But I’m not feeling much respect, lately. I’m faking it.

And I think it’s worth faking it; I think it would be a better world if everyone faked respect for other people, even when they’re not feeling it. But I have a lot more doubts about that than I did a year or two ago.

I’m honestly distressed by the rule changes in Congress over the past six years; rule changes that are about reducing oversight on the executive, and about cutting Democrats out of meaningful discourse entirely. This is not how American government was designed to work. It is not how any previous congress in living memory, Republican or Democrat, has acted. And it shows, I think, a profound lack of commitment to the ideals of representative government, of checks and balances, and of intellectual humility.

There’s an image of a donut of discourse. Inside the donut hole are the principles that everyone in the society who is at all respected, agrees on: A constitutional democracy is better than a dictatorship, racism is bad, cheating on elections is wrong, etc.. The donut itself is contested areas; issues that people can disagree with and still be seen as reasonable, rational, and deserving of respect. In this area we find the controversies - abortion, affirmative action, socialized medicine, war on Iraq, etc.. Finally, there’s the areas outside of the donut: 9/11 was a plot orchestrated by Jews and the Bush administration, Nazism is good, and so on.

I’m beginning to think that my picture of the donut looks radically different than the conservative picture of the donut. And if that’s so, is there really much basis for discussion?

Crossposted, with a degree of irony, at Creative Destruction. If your comments aren’t being approved here, try there.

I first read about a protest against the Minutemen at Columbia on Foolish Owl’s blog. For those who don’t know the Minutemen are an American group, who specialise in vile anti-immigration racism and have taken it on themselves to police the Mexico-US border.* The Young Republicans at Columbia had invited . Anti-racist/immigrant rights groups got together and organised a protest outside. Some people also went inside and disrupted the speech (either by unfurling a banner, or shouting the speaker down - I wasn’t there, and only have dial-up so I can’t watch the video - it’s irrelevant to my argument).

I absolutely support and applaud this sort of protest (I’ve done this sort of protest, just for the record). But what I wanted to address directly was the idea that by disrupting the event (however they did it) interupted this man’s right to free speech. The Happy Feminist was reasonably vocal in her disapproval:

But no it wouldn’t change my analysis. You protest outside, you write scathing editorials, and you publicize the fact that the College Republicans are basically inviting a hate group onto campus. But as a matter of both tactics and ethics, disrupting the actual speech isn’t right.

and

And to be crystal clear, no, I would not agree with shouting down a pro-life speaking or anti-feminist speaker.

It’s the same principle as the Jewish ACLU lawyer who defended the right of Nazis to demonstrate in Skokie. No matter how noxious and personal and awful he found what the Nazis were saying, he still defended their right to say it.

To me the principle of freedom of speech is to stop those with power limiting the speech of those without power (particularly stopping the state limit people’s freedom of speech, but I think the role of companies in limiting people’s speech also comes under the same analysis). The idea that respecting freedom of speech means listening in silence while someone says something you find offensive seems ridiculous to me. All freedom of speech guarantees is the ability to speak - it doesn’t mean that anyone has to listen to, or respect, what you’re saying.

Shouting down a speaker isn’t interfering with free speech; it is free speech.

What I find just plain weird, is that this argument is generally only applied to people who are speaking in formal settings. On Saturday the neo-nazis held their annual rally and there was a reasonably large counter protest which stopped them meeting where they wanted to meet, and shouted them down (more on that in a second). Very few people jump up and down and says a counter-demonstration is interupting the nazis freedom of speech. But when someone is an invited speaker - when they have backing by some institution, some power base then somehow they have more of a right to free speech than they do on a speech corner. That seems like the wrong way round to me. Those who are in positions of power, generally need less, not more protection against their rights being infringed.

So I have absolutely no ethical qualms in holding banners, chanting, or communicating in any way, while someone I disagree with is speaking. I exercise my freedom of speech by not being silent.

That doesn’t mean I think that shouting at people is always the best tactic. The counter-demonstration against the neo-nazis is a time where I thought the tactics were wrong. There aren’t very many neo-nazis in New Zealand, but they tend to be exactly sort of violent thugs you’d expect (two years back someone vandalised the graves of jewish people, and they attack people as well as graves).

To me, the point of protesting against neo-nazis is to make it really clear that white supremacy is not welcome. I see this message as not just for the nazis themselves, but also for everyone who walks by. But there’s never any purpose to the anti-fascist demonstration except to piss the nazis off. I strongly suspect being protested against makes the nazis feel cool and important, so the counter-protest ends up being counterproductive.

I do think that we need to organise to ensure that fascists don’t get a hold. But we don’t do that by shouting at them. Political racism has appeal for working-class people who believe that they should be better off than they are. By saying “it’s the jews/immigrants/Maori who are to blame for your situation” various groups (including mainstream political parties obviously) use racism to organise and gain support. The only response to those lies is to present what we see as the truth - to show that it is capitalism that is to blame for people’s economic problems, and that it can be fought.

I didn’t attend Saturday’s anti-fascist demonstration. I’m sick of them, sick of the macho atmosphere, and sick of activists who seem to get their kicks by playing cops and robbers with fascist groups, as if it’s the most important work in the world. There’s a real macho culture to these sorts of demos, that makes me very uncomfortable.

I’m really glad I didn’t go, as there seems to have been a distinct lack of political analysis at the counter-protest. “More hair than brains” may be an amusing chant towards skinheads - but actually our problem isn’t with their hair cut, or their intellect. Likewise a whole crowd chant of ‘Ugly, Ugly, Ugly’ seems to miss the point.

But most disturbing to me was that some supposedly anti-fascist protesters shouted “cocksuckers” and “faggots” to the nazis. Now I don’t want to tarnish the entire demonstration with the misogynist homophobic actions of a few. I have a lot of friends who were at the demonstration, and I know that they would neither shout that, or stand silent while someone else chanted it. But I think it shows that my fears about a macho atmosphere are not unreasonable.

* Just for a short break and disturbing story. My sister once met someone who worked for the US border patrol at a party. When asked what he did he flipped out his badge (which he’d carried with him to Wellington, presumably to impress the girls) and said “I shoot Mexicans”. Just a reminder that the Minutemen are only one of the violent racist groups on the Mexican-US border.

Also posted at Capitalism Bad; Tree Pretty

This week’s letter comes via Sokari over at Black Looks. I think Sokari has said it well enough, so here are her words:

The horrific events taking place in Uganda should be a wakeup call for everyone. People may think that they are safe from harassment and arrest because they are heterosexual. Not so, a witch hunt affects everyone irrespective of their sexuality. Your neighbour takes a disliking to you and before you know it you are being accused of being gay or a lesbian. People may think this is not their problem because they are not Ugandans. Think again, it happened in Cameroon, its happening in Ghana right now and with the new laws in Nigeria it may soon happen there. The fundamental human rights of African citizens are slowly being eroded in Uganda, Nigeria, Ghana, Kenya and Cameroon as religious extremists and repressive governments join in a pact against freedoms.

Today Red Pepper went ahead with the threat to out Ugandan lesbians.

“Give us the name of the lesbian in your neighbourhood and we will shame her”

All over the blogosphere I read the talk, the theories of this that and the other on race, on gender, on sexuality, on feminism. The human rights violations that are taking place in Uganda and elsewhere are not theory but reality. A reality that has today destroyed the lives of men and women in Uganda and in whose name? Religion and Repression - homosexuality is touted as being unAfrican but Chrisitainity, Islam, Repression and Bigotry are?

Some background into the present gay hunt taking place in Uganda.

For close to two years, Human Rights Watch said, officials have regularly threatened and harassed lesbian, gay, bisexual and transgender Ugandans. In October 2004, the country’s information minister, James Nsaba Buturo, ordered police to investigate and “take appropriate action against” a gay association allegedly organized at Uganda’s Makerere University.

State-owned media have repeatedly called for stronger measures against homosexual conduct. On July 6, 2005, a writer in the government-owned New Vision newspaper urged authorities to crack down on homosexuality, saying, “The police should visit the holes mentioned in the press, spy on the perverts, arrest and prosecute them. Relevant government departments must outlaw or restrict websites, magazines, newspapers and television channels promoting immorality – including homosexuality, lesbianism, pornography, etc.” Later that month, local government officers raided the home of Victor Mukasa, a lesbian activist and Chairperson of Sexual Minorities Uganda. They seized documents and other materials, and arrested another lesbian activist and held her overnight.

On September 29, 2005, President Museveni signed into law a constitutional amendment banning gay marriage. The amendment says that “marriage is lawful only if entered into between a man and a woman,” and specifies that “it is unlawful for same-sex couples to marry.” A parliamentary spokesperson said at the time that criminal penalties for engaging in such marriages would be imposed later.

The government has also silenced discussion of gay and lesbian rights and lives. The Broadcasting Council, a board of government censors, fined a radio station 1.8 million shillings (more than US$1000) for hosting a lesbian and two gay men on a talk show, where they protested against discrimination and called for repeal of the sodomy laws. In February 2005, the Media Council – a state censorship board – banned a staging of the play, “The Vagina Monologues,” by the U.S. author Eve Ensler, because it “promotes illegal acts of unnatural sexual acts, homosexuality and prostitution.

Men named in the Red Pepper’s August 8 article have reportedly already been threatened and harassed. Ugandan activists point out that, in a deeply patriarchal society, accusations against alleged lesbians could subject them to violence in the family and community. U.N. statistics in 2000 showed that 41 percent of Ugandan women had suffered domestic violence.

A March 2005 Human Rights Watch report on “abstinence-until-marriage” HIV programs in Uganda found these programs were denying young people accurate information on HIV transmission and on sexual health. These programs also intrinsically discriminate on the basis of sexual orientation. With a legal ban in place against gay or lesbian relationships, the programs promote only permanent abstinence and are uniformly silent about safer sexual practices. Promoting abstinence until heterosexual marriage is the continuation of an outright denial by the Ugandan government that lesbian, gay, bisexual and transgender people exist. In March 2002, while accepting an award for his country’s HIV/AIDS prevention programs, President Museveni said simply, “We don’t have homosexuals in Uganda.”

“Uganda’s once-successful HIV/AIDS prevention programs are already reeling from the impact of silence and bad science,” said Stern. “Driving vulnerable people underground can only hamper those programs further.”

There are different ways people can help and it is important that as many Africans as possible take action. Since time is running out, the most efficient action would be to call directly the editor of Red Pepper in Uganda:
Arinaitwe Rugyendo; Tel: +256 712 973 077, +256 772 760 106, +256 312 279410

The journalist who wrote the article with the list of names is called Denis Sabiiti. You can call him on +256 312 26 1813.

You can also send a protest to the editor’s. Email rugyendo@mail.redpepper.co.ug

There’s a good interview with Kirby Dick, director of the indy documentary This Film Is Not Yet Rated, in the current issue of Bitch Magazine. The film is about the ratings board of the Motion Picture Association of America - the folks who decide if each film is “G,” “PG,” “R” or “NC-17.”

Three points of interest (including a chance for you to fight crime from your very own home!):

1) Homophobic & Sexist Double Standards In Movie Ratings

The MPAA uses a double-standard for films with queer content. For example, the same year that “American Pie” — featuring who-knows how many scenes of masturbation and one scene of apple pie-bumping — was rated “R,” the lesbian-themed “But I’m A Cheerleader” was forced to remove a fully clothed, “very tame” mastrubation scene to avoid getting an “NC-17″ rating. (For most movies, “NC-17″ is a commercial kiss of death.)

According to the blog Boy Culture, the MPAA is not only homophobic but also sexist: “The film convincingly argues that the MPAA discriminates against sexual pleasure, particularly female sexual pleasure.”

2) Conflict of What?

Here’s a negative review of “This Film Is Not Yet Rated.” The review is written by Harry Forbes, Director of the Office for Film & Broadcasting of the U.S. Conference of Catholic Bishops. From Forbes’ review:

To uncover the identities of the MPAA ratings board — ordinary parents who quite logically are kept anonymous to protect them from pressures from the studios and filmmakers — Dick hires a private investigator, Becky Altringer of Ariel Investigations, to surreptitiously stake out MPAA headquarters in Encino, Calif., snooping around the guard’s station in front of the building, going through the garbage of board members at their homes and using other similarly questionable methods.

What Mr. Forbes neglected to mention in his review is that he, Harry Forbes, is himself one of the MPAA ratings board members whose identity is revealed by “This Film Is Not Yet Rated.” (This is pointed out on the film’s blog). It’s dubious for the subject of a film to write a review of that same film, but to do so without disclosing such an enormous conflict of interest demonstrates an appalling lack of ethics.

3) Take A Bite Out Of Crime!

Have you ever wanted to be a crime fighter? Well, here’s your chance! Check out this quote from the Bitch Magazine interview:

Before I submitted the film, I called up the administration of the ratings board, and I said, “Can you assure me that there will be no copies made of this?” And they assured me, in writing, in e-mail, and on the phone, that not only would no copies be made, but that only the raters would see it. Well, I subsequently learned that an MPAA attorney had seen it. I learned that [MPAA president] Dan Glickman had seen it…

I got a call from an MPAA attorney who said “Look, Kirby, I have to tell you, we have made a copy of your film. But you don’t have to worry, because it’s safe in my vault.” [Laughs.] I can tell you that wasn’t reassuring. In a way I wasn’t surprised, but on the other hand, there’s such hypocrisy there. The MPAA has launched this huge antipiracy campaign, and on their website they define even one act of unauthorized duplication of material as piracy. And that’s exactly what they did.

I checked out the MPAA website, and it is indeed crawling with anti-piracy messages. Fortunately, they also provide a free phone number to call and report piracy to the MPAA: 1-800-662-6797. Or, if you prefer, there’s a web form you can fill out.

I’m certainly planning to call and report that Dan Glickman, CEO and President of the MPAA, conspired to illegally copy a copyrighted movie. I strongly encourage all “Alas” readers to do the same.

[Crossposted at Creative Destruction, where the moderation is light as a feather, stiff as a board. If your comments aren’t being approved here, try there.]

Last week i focused on the U.S. Congress’ attack on Net Neutrality. Sticking with the theme of the internet, i’ve decided to highlight a case involving Yahoo!, the Chinese government, and a journalist. The following information is from Amnesty International:

Shi Tao, a Chinese journalist, is serving a ten-year prison sentence in China for sending an email. Writing about a Communist Party decision, Shi Tao sent the email to the USA using his Yahoo account. The Chinese authorities accused him of “illegally providing state secrets to foreign entities”.

According to the Court transcript, the evidence that led to Shi Tao’s sentencing included account-holder information provided by US internet company Yahoo. Disturbingly, it has recently come to light that Yahoo may have also released data which could have contributed to the arrest of another dissident, Li Zhi.

Shi Tao was accused of sending an email summarizing an internal Communist Party directive to a foreign source. The Communist Party directive had warned Chinese journalists of possible social unrest during the anniversary of the June 4 Movement (in memory of the Tiananmen crackdown), and directed them not to fuel it via media reports. Imprisoned for peacefully exercising his right to freedom of expression, a right entrenched in international law and the Chinese Constitution, Amnesty International considers Shi Tao a prisoner of conscience.

Companies must respect human rights, wherever they operate. Yahoo’s actions are not justifiable: the company unconditionally met the Chinese government’s request for information on Shi Tao, and allegedly contributed to Li Zhi’s detention.

Paradoxically, Yahoo has stated that it believes in the core values of “excellence, innovation, customer fixation, team work, community and fun”. Yet, the company has signed the Public Pledge on Self-Discipline for the Internet Industry, effectively agreeing to implement China’s draconian system of censorship and control.

Amnesty International has raised its concerns with Yahoo. The company has responded but has not addressed all the concerns raised.

Find out more about Yahoo’s and Amnesty International’s position on the Shi Tao case

Learn more about human rights in cyberspace from Amnesty International

Write to Yahoo now, expressing your concern about the company’s role in assisting in the violation of Shi Tao’s rights. Yahoo must use its influence to secure Shi Tao’s release. You can check out this page for a sample letter or you can write your own letter and send it to the following (send all emails to both Jerry Yang and David Filo):

Jerry Yang and David Filo
Co-founders, Chief Yahoo & Directors
Emails: jerry@yahoo-inc.com; filo@yahoo-inc.com
Alternative emails:
Michael Callahan, Senior VP General Counsel: callahan@yahoo-inc.com
Gregory Coleman, Exec VP Global Advertising Sales: gcoleman@yahoo-inc.com

Yahoo Customer Care
Yahoo! Inc.
701 First Avenue
Sunnyvale, California 94089
USA

If you can, call Yahoo Customer Care to make your points over the phone: 001-408-349-1572

This week, the Chancellor of the University of Colorado officially announced his intention to fire Ward Churchill. That doesn’t mean that Churchill has been fired, yet - there’s still an appeals process to go through, plus Churchill has announced that he’ll sue the University.

Joanne Belknap, a women’s studies professor at U of Colorado, summed up the Churchill case well:

…A seemingly white male, who’s benefited immeasurably through co-opting an American Indian identity, is providing rich fodder for the right and the racists (often one in the same) to damn, discredit and/or dismantle ethnic studies programs, not just at CU, but across the country.[…]

In this case, in daring the media and university to come after him, Churchill apparently didn’t care that when they revealed his co-opted identity and sloppy (even unethical) research methods, that it was ethnic studies programs that would take the real hit. Of course, Churchill may be taking a few hits as well, but he seems to enjoy his “I’m-a-bad-boy-leader-of-the-oppressed-world” identity. The real tragedy is that Ward Churchill has done an incalculable amount of harm to ethnic studies programs in order to promote himself.

There’s no doubt in my mind that Churchill is a dishonest scholar. Among his many academic dishonesties, what I somehow find particularly galling is his habit of citing claims to essays he wrote under different names, thus giving the false impression that his claims were supported by independent authority.

It’s true, of course, that Churchill only got in trouble for his academic dishonesty because of his unpopular political opinions. That’s disturbing to me, because it could create a chilling effect on unpopular speech. And it’s also true that few or none of the right-wingers calling for Churchill to be fired for his dishonest scholarship, called on the AEI to fire John Lott (Lott did finally leave AEI two months ago, but it’s unclear if he quit or was fired).

Yet despite all that, the kind of academic cons Churchill committed should be legitimate cause for firing, just as the AEI should have fired Lott years ago. Fighting to protect the job of a dishonest and lousy scholar is not the way to defend either leftism or free speech. Besides, Churchill does more to harm than to help progressive causes, as Professor Belknap argued. Facts and evidence, by and large, support left-wing views; dishonest scholars like Churchill don’t help the cause, they muddy the waters.

If we want to stand for the academic freedom of lefty professors, let’s start with some professors who deserve a defense, like David Graeber and Joseph Massad (see also here).

And while we’re at it, we should also object to the appalling case of adjunct professor Thomas Klocek, who was fired for his pro-Israel views.

PLEASE NOTE: Comments on “Alas” are sometimes heavily moderated; if you’d like to avoid all that, you may leave a comment on the same post at “Creative Destruction.”

CBS News

Under the Senate bill, approved without objection by the House with no recorded vote, the “Respect for America’s Fallen Heroes Act” would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral. Those violating the act would face up to a $100,000 fine and up to a year in prison.

If I’m understanding the bill correctly, it only covers national cemetaries.

What I find telling and disturbing is that this same disgusting behavior by the same group occured at the funerals for those who died of AIDS and at the funeral of murder victim Matthew Shepard, but no law was passed to stop this group’s hate speech until they started targeting heroic victims.

To me there is a clear difference between free speech and harrassment of individuals and this group has a long history of engaging in a pattern of harrassment. If this law and others like it only protect certain funerals, they should be thrown out because the law is based on why protesters are there (merit of the victim) and not on what they are doing.

Also posted on my blog, abyss2hope.blogspot.com

From Overlawyered.com :

In suburban Washington, D.C., Bono Film and Video has an announced policy of refusing to duplicate material that owner Tim Bono regards as contrary to his Christian values. Now the Arlington County (Va.) Human Rights Commission has held a public hearing and investigated Bono on charges that he discriminated against Lilli Vincenz by refusing to duplicate her Gay Pride videos.

I don’t usually agree with free-market libertarians, but in this case I think they’re right: the business owner should be free to discriminate based on content. If Tim Bono doesn’t have the right to turn down this business, then it follows that similar businesses have no right to turn down xeroxing flyers advertising the KKK - or anti-gay videos produced by Conservative Christians, for that matter. (In both cases, the person turned down could claim to have been discriminated against on the basis of religion).

I don’t think that Bono should be free to discriminate against a customer’s identity; if Virginia wants to force Bono to accept gay customers (or black customers, or Jewish customers, or transgendered customers, etc), then that’s okay by me. (I remain convinced that the Supreme Court’s decision in Dale vs. Boy Scouts was wrong). But although the line between discriminating against who customers are and discriminating against what a particular customer’s job says is blurry, it’s still a line worth maintaining. In this case, the government should defer to the free speech rights of bigots to be bigots.

(On the other hand, just as Mr. Bono has a right to follow the mistaken, bigoted dictates of his conscience, queer and queer-positive customers have the right to follow the dictates of their consciences and refuse to bring any business whatsoever to Mr. Bono. I don’t think such boycotts - from either side - are great forms of political activism; but Mr. Bono started it, and if his business suffers I’ll have no sympathy.)

Dale Carpenter, a same-sex marriage advocate I respect a lot, brings up a tougher case:

Catholic Charities of Boston has decided to stop providing adoption services rather than comply with a state law prohibiting discrimination against gay couples.

Gov. Mitt Romney (R) has proposed a special exemption from this law for religiously affiliated adoption agencies; gay groups have responded that this would amount to discrimination that places politics before the interests of children. […]

Private agencies contract with the state to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. […]

Until recently, Catholic Charities coexisted peacefully with this anti-discrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. […] But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. […] Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children “would destroy the child’s future, it would be an act of moral violence against the child.” Catholic Charities is reluctantly bowing to this pressure.

Of course, anti-marriage equality folks have already been spinning this as an example of the Goodridge decision (the decision which established the right to marriage for same-sex couples in Massachusetts) leading to a crackdown on religion. That argument is dishonest; it’s the Catholic Church, not the Massachusetts government, which has changed policy in the wake of Goodridge. In effect, the Vatican is trying to pick a fight over gay rights.

Carpenter makes a compelling argument that the Catholics should be granted their exemption. Since there are plenty of non-religious adoption agencies able to take up the slack, an exemption won’t actually deprive same-sex couples of the chance to adopt, nor will it deny any children the chance to be adopted.

Exemptions to laws of general applicability inevitably raise slippery-slope concerns. All kinds of exemptions exist in all kinds of laws. Each is an invitation to slide down a slope, but we seem to manage it. Title VII is understood to exempt the Catholic Church from having to hire women priests, for example, but that hasn’t gutted employment-discrimination protection. […]

If we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but our resulting discomfort is an acceptable price for living in a religiously pluralistic and free society. […] If we can’t respect others’ exercise of religious conscience in a case where it costs us nothing to do so, can we really be said to respect religious liberty in a meaningful way at all?

Carpenter’s argument is persuasive. In my heart, I’d like the Massachusetts government to drive Catholic Charities out of business, because I find what the the Vatican is doing disgusting and hateful. But “revenge” isn’t a principled reason to oppose religious freedom in a pluralistic society. (Dammit!)

However, I’m skeptical about the “religious liberty” flag Carpenter is waving. Is there really any threat to religious liberty here? No one is being prevented from praying, from performing rituals, or in any other way from practicing their religion. It is possible to be a practicing, religious Catholic without running an adoption agency in Massachusetts (indeed, I suspect that the large majority of Catholics run few if any adoption agencies).

Nor am I convinced that religious liberty should extend to freedom from anti-discrimination laws so long as no one is hurt. Suppose that the Vatican wanted to open a “no Latina or Latinos allowed” private school - should that be acceptable so long as there were enough open slots in other schools that no child would be deprived of a good education?

But of course, even if it wanted to, the Vatican wouldn’t dare do that. And that’s the point. Suppose the Vatican had sent a message that no more adoptive placements with Asian families were to be allowed? My bet is that no one would find that acceptable, and there would be no question of granting an exemption to anti-discrimination law to coddle the Pope’s loathing of Asians.

What’s the message sent by an “it’s okay to discriminate against queers” exemption? That exemptions like this still seem reasonable to many - so long as the targets of discrimination are gay - is a measure of how much lesbians and gays are not seen as fully human. If the interests of lesbians and gays were seen as fully important the way that (say) the interests of Jews are, this legislation would be seen as beyond the pale.

Normally I dislike “send a message” arguments about legislation. Laws are not post-it notes, and the rights and lives of individuals shouldn’t be trampled on to make rhetorical points. In this case, however, the legislation would do little harm either way. According to Carpenter, whether or not the exemption is granted will have little or no impact on any individual child’s odds of getting adopted, or on any same-sex couple’s chance of adopting a child. With so little directly at stake here, I think it’s appropriate to consider the indirect results, such as the message sent.

An exemption to discriminate against gays, when no such exemption against other groups would be granted, endorses the still-pervasive belief that gay and lesbian interests are unimportant, trivial, disposable. In contrast, refusing to allow this exemption says that expanding discrimination against same sex couples - even when apparently “harmless” - is not reasonable, not mainstream, not acceptable. It’s hate, and the government of Massachusetts shouldn’t practice giving a special green lights for spreading hate and prejudice against citizens of Massachusetts. For that reason, I think Carpenter’s position is mistaken.

Curtsy: CultureWatch.

NOTE: Comments on “Alas” are heavily moderated - especially comments by right-wingers. If you’re having trouble posting here, try the unmoderated comments to the same post at Creative Destruction.

1. Larry Summers is a mirror of the lefty-basher’s soul.

As I argued in a post last week, U.S. copyright law has enabled Knopf, the original publisher of the English-language version of The Second Sex, to prevent any new translations from being published. This is a problem, because the English translation Knopf uses is both inaccurate and incoherant.

There is an online petition asking Knopf (and its owner, Random House) to allow a new translation to be published. So far, only 137 people have signed it; “Alas” readers should be able to double that easily. So please, as a favor to me, if you enjoy “Alas” at all; take 20 seconds and go and sign the petition.

* * *

I just ran across an excellent (but very long) article on the subject, “While We Wait: The English Translation of The Second Sex,” by Toril Moi. The article includes some examples of bad translation, many of which require a background in formal philosophy to appreciate. Some, however, are obviously outragious even to non-expert readers.

And here’s another one, from Knopf’s translation of de Beauvoir’s introduction:

Moi, who has worked hard at talking to Knopf, also briefly discusses the publishing situation:

* * *

On a mailing list I read, there’s a rumour going about that Knopf has reached an agreement to allow a new translation, but so far no one has been able to confirm the rumour. In the meanwhile, I’d encourage people to sign the petition anyway, since it certainly won’t do any harm.

Chances are, if you’re an American feminist, you’ve never read Simone de Beauvoir’s The Second Sex. Even if you’re a highly educated feminist who takes pride in having read at least a sample of all the important first- and second-wave feminists, you probably haven’t read her. Neither have I, even though I thought I had (it was assigned reading back when I was a Women’s Studies student).

You see, the real Simone de Beauvoir isn’t available in English - only in the original French. The English version I and many other English-reading feminists have read, is translated so badly that at times it says the exact opposite of what de Beauvoir intended. From a New York Times op-ed by Sarah Glazer:

In addition, about 150 pages of The Second Sex is cut out of the English language edition.

There are qualified translators who’d love to take on the project; there are publishers, such as Harvard University Press, eager to publish a better-translated, complete Second Sex.

But the publishing house Knopf has the exclusive English-language rights locked up until The Second Sex goes into the public domain - in 2056. Knopf refuses to do an updated transation themselves, and they refuse to allow anyone else to publish one, either.

So, it appears, that ends the matter. Translating The Second Sex is too big a job for anyone to do for free. The marketplace would pay someone to translate it - but our ridiculous copyright law won’t allow the free market to function.

UPDATE: See also this post, which has some impressive examples of bad translation follies and a link for a petition.

This post was removed by request of the author.

A Pennsylvania school district is being taken to court for allegedly violating the free-speech rights of a parent who came to her sons kindergarten class to participate in Storytime during “me week” which gives the parents a chance to come to the classroom and read stories to the children from their own childs favorite book. Principal Thomas Cook of Rutherford Institute, a conservative christian oriented non-profit, has taken up her cause.

The school board has defended Principal Cook, stating that the law prevents advocacy or teaching of religion.

Here is the passage that she wished to read to the children (Psalm 118):

From a Harvard Crimson article regarding the Harvard faculty’s vote of “no confidence” in Larry Summers:

“Academic freedom is on trial, and…a victory for President Summers’ critics will be a very significant blow to academic freedom in American higher education,”? said Winthrop Professor of History Stephan Thernstrom, who likened criticism of Summers to McCarthy-era tactics of suppressing free speech.[…]

But Dillon Professor of the Civilization of France and Professor of Comparative Literature Susan R. Suleiman rejected [Thernstrom’s] argument that Summers’ critics were silencing free speech.

“The one thing that really pushes my buttons is when people try to paint every legitimate action as a form of political correctness. I really find that that is a blunt instrument and that is McCarthyite tactics,”? she said, provoking applause from many faculty members.

Reality check: No one has released a list of 30,000 books which libraries are expected to pull from their shelves. No one is being yanked before Congress and asked to choose between “being in contempt of this Committee and going to jail or forcing me to really crawl through the mud to be an informer.” Ten thousand people (to use Ralph Brown’s conservative estimate) have not been fired. The FBI is not secretly talking with employers to make sure that blacklisted people remain unemployed. And as for academia:

The main academic purges occurred from 1952 to 1954 when the congressional committees had run out of more glamorous targets and turned to the nation’s colleges and universities. Dismissals were not automatic; an academic hearing usually followed the congressional one. Though the faculty committees that mounted the investigations did not normally demand that their colleagues name names, they did expect them to cooperate and discuss their past political activities. People who refused, who felt that such questions were as illegitimate as HUAC’s, were invariably fired. So were most of the others, especially at schools where conservative or politically insecure administrators and trustees refused to accept the favorable recommendations of faculty committees. In a few cases, if a professor had tenure, taught at a relatively less vulnerable private university, and cooperated fully with the institution’s investigation, he or she could retain his or her job. But these were exceptional cases and they often masked the less publicized dismissals of junior professors, who were invariably let go when their contracts expired. By the time the McCarthyist furor subsided, close to a hundred academics had lost their jobs for refusing to cooperate with anti-Communist investigators. Several hundred more were probably eased out under the FBI’s Responsibilities Program and similar measures.

Once fired, the politically tainted professors could rarely find other academic jobs. Like the Hollywood blacklistees, they were confronted with an unacknowledged but thoroughly effective embargo.

Does anyone seriously think that, say, Harvard professor and Summers supporter Stephen Pinker is going to be subjected to this sort of treatment? Or his critics?

In short, the criticism of Summers - and of Summers’ critics - doesn’t bear any real similarlty to McCarthyism, and suggesting otherwise trivializes McCarthyism.

Crimson link via Crescat Sententia.

I really intended to post on “Alas” today, but I got distracted into posting comments on this Family Scholars Blog thread instead. What’s at issue there is the argument that we shouldn’t have marriage equality because that might lead to people being criticized for saying that heterosexual marriage is best.

Aside from the total lapse of logic there (people will be criticized for saying that regardless of if same-sex marriage is legal), I’m struck by what seems to me to be the stunning pettiness of the argument. Who cares if people get criticized? What difference does that make?

A lot of the argument there seems to come down to the mysterious conservative belief that anyone has a right to a life free from criticism, and if they ever are criticized that’s the same as censorship. It’s the ultimate in entitlement politics, I think.

It reminds me of this exchange I had in the “Alas” comments a while back:

Mark O’Reilly: Women in the workforce are given privilege due to political correctness. IF you as much render a HINT of criticism toward a female you get the old and not so true anymore label of “Misogynist.” So that in itself, the denial of Free Speech for men will trump this entire list no matter how long it is constructed.

Ampersand: Just to clarify: are you saying that if a man is criticized for alleged misogyny, that means his Free Speech has been denied?

Mark O’Reilly: Ampersap,

Yes, absolutely! When you label someone “misogynist” you attempt to silence that person with intimidation and you try to discredit that person so no other person will listen to that person. It’s done all the time and it’s a tactic used by feminists so that nobody can question their credibility or hold them accountable. It’s like a fascist state.

I wouldn’t worry about this view if it were just one or two crackpots - but I run into variations on this “we conservatives are entitled to not be criticized” argument again and again. Although there were a handful of legitimate complaints having to do with overzelous “hate speech” laws, the majority of the complaints about “PC thought police” a few years back, consisted of conservatives saying it made them uncomfortable to be criticized when other students found their views misogynistic, heterocentrist or racist.

Did no one ever tell them that it’s not “thought police” when someone is criticized or made uncomfortable?

Over on Marriage Debate.com (and in a slightly longer pdf version on his organization’s website) Anthony R. Picarello, Jr. argues that same-sex marriage might be bad for free speech. He makes four points.

So what? Under current law, if a Catholic Church hires a divorced and remarried woman to be a teacher, they cannot legally choose to refuse her spouse the medical plan they extend to the spouses of all the other teachers.

Religious employers have a right to not be discriminated against because of their religion. They don’t have a right to ignore the same laws that all businesses, religious or not, have to obey.

Again, so what?

No one is denying the Salvation Army the right to their religious convictions. However, neither the Salvation Army, nor anyone else, has a right to be free of all consequences for their decisions.

Voters are free, through their elected representatives, to set up rules regarding who the government will and won’t sign contracts with (within Constitutional limits; voters are not free to make a “this city will never contract with Jews” law). All employers - religious or otherwise - can set their hiring rules so that they qualify for government contracts, or not. But when the Salvation Army or any other employer freely chooses hiring rules which exclude them from government contracts, then that’s their own decision, and they’ve freely chosen to suffer the consequences.

In this point and his previous point, Mr. Picarello isn’t calling for free speech for the Salvation Army. In effect, he’s calling for religious employers to be given an absolute pass from employment law. But enforcing the law exclusively against atheist and secular employers isn’t non-discrimination; it’s discrimination against secularists and athiests, which is just as wrong as discrimination against the religious.

It would certainly be wrong if anyone was found guilty of a hate crime just for preaching against gay marriage. But that will never happen in the United States, which - unlike Canada and Europe - has a strong First Amendment guarantee of free speech.

There is a long list of Canadian and European style hate speech laws which have never been made law in the US, because the First Amendment prevents such laws. There is no reason to suppose this will stop being true when same-sex marriage is made legal.

In Massachusetts, Justices of the Peace don’t have a legal right to turn down legal marriages, any more than county clerks have the right to refuse to issue legal marriage licenses. That’s because they’re government functionaries; their job is administrating marriage policy, not picking and choosing who can legally be married.

In contrast, a member of the clergy is free to refuse to solemnize any marriage for any reason. That’s because a rabbi or minister or whatever is not a government employee administering the law; they’re primarily acting as a representative of their religion, which is not a governmental organization.

To bring a real-world example in, Justices of the Peace in Massachusetts can’t legally refuse to perform an interfaith wedding just because they personally disapprove. In contrast, many Rabbis refuse to officiate at weddings between Jews and non-Jews. If Mr. Picarello’s legal theory were correct - if clergy didn’t have more freedom to discriminate than Justices of the Peace (and county clerks) - then Rabbis would have long ago been stripped of the right to solemnize marriages in Massachusetts. Unsurprisingly, Mr. Picar