Civil Liberties

New York City mayor Mike Bloomberg has strong words for the New York Civil Liberties Union and other civil rights activists who are concerned about racial profiling by the NYPD. He said in part:

The attacks most often come from people who play no constructive role in keeping our city safe, but rather view their jobs as pointing fingers from the steps of City Hall. Some of them scream that they know better than you how to run the department. Some have even sued the NYPD and demanded a federal monitor over NYPD operations. They've also drafted politically driven legislation that is a reaction to two NYPD practices: Stop, Question and Frisk; and counter-terrorism intelligence gathering.

 

Criticism of the NYPD has increased in recent weeks following the suspicious NYPD shooting death of 16-year-old Kimani Gray, whose family and supporters are still calling for a full investigation.

Related: A Short History of Racial Profiling in the United States

If we look at relevant precedents and follow them to their logical conclusions, the Supreme Court has already legalized same-sex marriage on a national level. Whether they have the political will to acknowledge this is, of course, another question entirely.

Let's follow this step by step:

1. We know that marriage is a civil right because the Supreme Court said so in Loving v. Virginia (1967), the ruling that outlawed bans on interracial marriage.
2. We know that lesbians and gay men are protected by the equal protection clause of the Fourteenth Amendment, because the Supreme Court said so in Lawrence v. Texas (2003).
3. We know that the federal government, and states, are prohibited from depriving any identifiable group of their civil rights under the equal protection clause.

Justice Scalia is fond of saying that the equal protection clause deals only with race, but it never even mentions race; justices who weave that limitation into the amendment out of whole cloth are interrupting the amendment, not interpreting it. It applies to racial discrimination, of course--because that is, by definition, a violation of equal protection--but that's not what the text of the amendment addresses.

So it's simple, really: the Supreme Court has already implicitly said that states may not ban same-sex marriage. What is needed, now, is for five or more justices to stand by what the Court has already said--a considerable test of their political courage, to be sure, but not much of an intellectual challenge. That work has already long since been done.

Related: What is Marriage? | Four Arguments in Favor of Same-Sex Marriage

To hear the U.S. Supreme Court say it, racism is incredibly simple and very easy to address. As conservative justices prepared to kill section 5 of the Voting Rights Act earlier this week, Justice Antonin Scalia made a bold but not particularly uncharacteristic statement--describing the right to vote as a "racial entitlement." I say not particularly uncharacteristic because he said much the same thing in his concurring opinion in Crawford v. Marion County, where he argued that intent--and not effect--should determine the constitutionality of voting laws that have a discriminatory impact.

Although his rhetoric is more divisive than that of most conservative justices, his views on discrimination are not far outside of the Court's mainstream. The Court essentially upheld an intent-based definition of racism in Parents v. Seattle District (school desegregation), Crawford v. Marion County (voting rights), and Ricci v. DeStefano (affirmative action), thumbing their collective noses at critical race scholars who point to the much greater cultural impact of institutional racism.

As the Court continues to address complex racial issues, and to further parse the impact of the Fourteenth Amendment, it would be encouraging to see some evidence that the justices are willing to acknowledge the fact that institutional racism is a cultural force--that it must be taken very seriously, and confronted without naiveté.

Related: 10 Racist Supreme Court Rulings | What is Voter Caging?

I said it in November:

[C]onservative Republicans still control the House - but it is clear that they can't afford to placate or offend their party's nativist base. If they repeat the mistakes they made when they introduced HR 4437, they will severely limit their growth potential not only among Latino voters, but also among other voters of color ... On the other hand, if the Republican Party does concede ground and allow a path to citizenship, the Tea Party will become more aggressive - and, no doubt, field primary challengers who will pick away at more moderate Republican incumbents. This is a no-win situation for Republican policymakers.

But if he plays his cards right, Sen. Marco Rubio (R-FL) just might make me eat my words. Mother Jones' Adam Serwer describes a Rubio comprehensive immigration reform proposal that presents a relatively non-punitive path to citizenship. The broad outline of Rubio's proposal--which hasn't actually turned into a piece of legislation yet--has been endorsed by Paul Ryan, and subsequently may stand a better-than-50% chance of passing the House, assuming it receives Democratic support (and, unless there are some serious surprises in it, it will).

Serwer wonders if Rubio really means it:

Rubio might merely be providing conservatives cover on immigration reform by sounding like he's open to compromise. He might just be boosting his own profile. Talking about immigration reform without proposing anything concrete wins Rubio plaudits from conservative thought-leaders without fully alienating the hard-line immigration opponents in his party.

I think Rubio very well might, because suggesting a citizenship path for undocumented immigrants may, in fact, have already alienated right-wing nativists (look at what happened to John McCain). It's not the sort of thing that a prominent national Republican in a Southern state would casually say, especially if he plans to run for president. We can also safely assume that Paul Ryan considered the political implications of endorsing Rubio's proposal before he did it. Are these two young, conservative Republicans ready to buck their party's nativist history on immigration reform? Maybe. Just maybe. And in this political climate, "maybe" is a pretty big deal.

Related: Tea Party Bill Would Repeal Birthright Citizenship | History of Undocumented ("Illegal") Immigration

...because nobody has to. It's already ineffective, and is unlikely to affect federal gun control policy in any significant way.

The first meaningful U.S. Supreme Court application of the Second Amendment came in 2008 with DC v. Heller, which struck down the District of Columbia's ban on handguns. Before that, you have to look back to the Cruikshank and Miller cases--neither of which feel much like a landmark case, and both of which affirm a very narrow interpretation of the Second Amendment.

Pre-Heller, I called for more clarity from the Court. While Heller was a step in that direction, the ruling seems to have been specifically written to avoid creating precedents that might affect other gun control policies. Heller becomes directly relevant to the federal debate only if there is the political will to support a specific federal ban on handguns. There are enough Republicans, and rural Democrats, to pretty much guarantee that this will not happen within the near future.

It's possible that the Court could set a new Second Amendment precedent that would be more expansive, and affect more federal policies, but a narrowly-written 5-4 ruling does not point to that possibility. More likely, the Supreme Court will continue to leave federal gun control policy alone, as it has historically done.

The real obstacle to more expansive federal gun control is political, not constitutional--and if the institutional gun rights movement continues to advocate that we censor media, discriminate against the mentally ill, and surround ourselves with armed government guards, it will find few allies among American civil libertarians.

Related: History of the Second Amendment

The text of the Fourteenth Amendment is clear: if you're born in the United States, you're a citizen. Period.

But House Republicans want to change that:

[Rep. Steve King (R-IA)] is once again advocating to "clarify" the portion of the 14th Amendment that protects birthright citizenship ... King is not opposed to the Amendment on its face, but maintains that the framers did not account for illegal immigration.

In 2010, King told a Cityview, a local newspaper, that "the framers did not consider the babies of illegals when they framed the 14th amendment because we didn't have immigration law at the time, so they could not have wanted to confer automatic citizenship on the babies of people who were unlawfully in the United States."

Actually, we've had federal naturalization law since 1790--78 years before the Fourteenth Amendment was ratified--and the Fourteenth Amendment was specifically written to protect the children of laborers whose full citizenship status had been challenged. In any case, you can't amend the Constitution by passing ordinary legislation, so Rep. King's legislation would appear to be dead in the water.

But it can be a useful barometer on another issue: comprehensive immigration reform, which already promises to generate considerable opposition within the Republican Party. So watch Rep. King's bill closely--the more influential co-sponsors he can bring in, the less likely it is that House Republicans will be willing to consider bipartisan comprehensive immigration reform legislation in 2013. Which, considering what happened the last time a Republican-led House tried to tackle comprehensive immigration reform, might be for the best.

Related: History of Undocumented ("Illegal") Immigration | GOP, Obama Face Tough Decisions on Immigration

My favorite of W.H. Auden's poems (and one of his least favorite) is the rightly famous "September 1, 1939," which includes these memorable lines:

All I have is a voice
To undo the folded lie,
The romantic lie in the brain
Of the sensual man-in-the-street
And the lie of Authority
Whose buildings grope the sky...

One of the central recurring themes on this site throughout 2012 has been the legacy of American censorship. As I've written about the history of government censorship in specific context and media--newspapers, banned books, schools, the Internet, comic books, music, art, and television--I've come to a better understanding of what I think censors have tried to accomplish, or at least what I think most citizen supporters of censorship have tried to accomplish. It's not so sinister, really--not on the level of intent. They want us to be better people. They want children to grow older without making the kinds of decisions that will come to haunt them as adults. They want to save our souls. As romantic as it is to present censors as people who are motivated solely by political concerns, or get some sort of erotic thrill out of power, most citizens who have supported restrictions on media have done so for decent reasons.

It's the public officials who represent this constituency who have had the sinister intentions, the dark urges, the cynical need for power. The rest of us, by and large, have just been caught up in the moment.

As we look at a new year full of new civil liberties controversies, the temptation to get caught up in the moment is one that we need to acknowledge and take into account when we make public policy decisions. That doesn't mean that we need to reject it--there are times when we should get caught up in the moment--but a careful inventory of our hopes and fears will help us avoid repeating the mistakes of the past.

Happy New Year, my friends.

What happens when you appoint a puritanical pro-censorship activist as a U.S. postal inspector, give him free rein, and pass a law in his honor? Civil libertarians found out a century ago when Anthony Comstock became a national figure--inspiring culture warriors, and horrifying civil libertarians, for generations to come.

In the 97 years since his death, his influence as a censor has been felt by journalists and pornographers alike. And when a new generation of censors discovered radio and film, the temptation to restrict...well, temptation was too hard to resist.

Free speech isn't always beautiful, patriotic, or conducive to good life choices--but it represents our best traditions, just as surely as censorship represents our worst.

Related: History of Copyright

The National Catholic Reporter's Michael Sean Winters has taken issue with LifeSiteNews, which has gradually expanded its focus on abortion to cover what it calls "the increasingly conjoined issues of the right to life, defending marriage, and immigration enforcement." If you're wondering why opposing abortion has anything to do with opposing same-sex marriage or deporting immigrant families, you're not alone. Winters writes:

[H]ow on earth did the people at LifeSiteNews come to see the issue of right to life and "immigration enforcement" as "increasingly conjoined"? One wishes they would see the issues as conjoined in the manner in which Bishop Daniel Flores of Brownsville, Texas, saw them as conjoined in his Steele lecture earlier this autumn...

In the lecture to which Winters refers, Bishop Flores makes a strong argument for humane immigration policy on the basis of human dignity--and quotes Archbishop Thomas Rodi of Mobile (emphasis mine):

This new Alabama law makes it illegal for a Catholic priest to baptize, hear the confession of, celebrate the anointing of the sick with, or preach the word of God to, an undocumented immigrant. Nor can we encourage them to attend Mass or give them a ride to Mass. It is illegal to allow them to attend adult scripture study groups, or attend CCD or Sunday school classes. It is illegal for the clergy to counsel them in times of difficulty or in preparation for marriage. It is illegal for them to come to Alcoholic Anonymous meetings or other recovery groups at our churches. [...] The law prohibits almost every activity of our St. Vincent de Paul chapters or Catholic Social Services, [...] If it involves an undocumented immigrant, it is illegal to give the disabled person a ride to the doctor; give food or clothing or financial assistance in an emergency; allow them to shop at our thrift stores or to learn English; it is illegal to counsel a mother who has a problem pregnancy, or to help her with baby food or diapers, thus making it far more likely that she will choose abortion.

I suspect LifeSiteNews means to say that anti-abortion policy, anti-gay policy, and anti-immigrant policy all connect because they're "biblical," which of course directly contradicts what the Bible actually says about immigrants (and indirectly contradicts what the Bible says about lesbians and gay men as well). But if there is one consolation to take from Winters' blog entry, regardless of whether one agrees with his views on abortion or immigration, it's that there are still plenty of people who do not warp Scripture to conform to the teachings of Rush Limbaugh.

Related: Civil Liberties and the Roman Catholic Church

Facebook has a good record on some issues, and a spottier record on others. When it comes to privacy, Facebook isn't all that great--but when it comes to protecting users' copyrighted content, it's ahead of the curve.

So it came as a surprise to me to see a Facebook "copyright notice" hoax making the rounds. Putting aside the fact that a status update can't revoke the terms of service by which the status update itself is distributed, I'm trying to figure out why anyone thinks Facebook shouldn't have a non-exclusive, revocable right to distribute their content, since we are specifically using Facebook as a medium to non-exclusively, revocably distribute what we post. If I write a status update, I want to give Facebook permission to redistribute it--otherwise, none of my friends can read it--and if I didn't give them that permission, I could arguably post a status update and then sue them for copying it to friends' news feeds.

Facebook users should make sure that the site's decisionmaking process remains democratic, and push for more privacy options--but it makes very little sense to protest against a company's decision to legally protect its option to redistribute content if redistribution of content is the primary function that company serves. We don't complain if a car moves when you press down on the gas pedal or a radio makes noise when you turn it on, and we shouldn't complain that a web service designed to redistribute what we write does, in fact, perform as advertised.

Related: History of Copyright