Monday, March 7, 2011

Snyder v. Phelps - Just roll with it

So yesterday, the Supreme Court ruled in favor of Margie Phelps and the Westboro Baptist Church against a grieving father.  As much as I think that it would be nice if WBC disappeared up their own rear ends, the fact is that the court's judgment is not the worst thing that could have come out of this case.  I don't agree with it, but in a close call like this, I would prefer to have a little too much freedom than not enough.  But I'm going to complain anyway.

Brief History of Free Speech/The Problem with the Majority/What I think a proper standard COULD be

If there is one thing to scrutinize in terms of our understanding of free speech in relation to Phelps is how the doctrine has evolved over time.  We did not use to consider a civil suit to be an actual constraint on liberty; only government action could give rise to a legitimate free speech defense.  This is based more or less on the classical ideas of liberty in the United States.  People should be free to do as they see fit, and be free to reap what they sow in terms of their actions.  If you look at early case law in things like libel suits and such among private citizens, courts rejected free speech arguments out of hand.  If the government did not institute the action, free speech could not be a valid defense.

But as I believe, and many judges have pointed out, the letter of the law is often not the lived experience of the law.  Judge Harlan really harps on this in his dissent in Plessy, basically arguing that separate but equal doctrine was impossible from a practical perspective.  He famously pointed out that everyone "knew what [this was] really about."

The venerable Justice Harlan, working hard on his dissent in Plessy

This applies to First Amendment issues too.  Although a suit for libel, slander, IIED or other civil actions are certainly not government action, they have a practical effect of shutting down certain avenues of speech.  You are much less likely to say or do certain things if you know you are going to be turned into a potential cash pinata for a jury to slam open because you said or did things they had a moral problem with. 

Then again, I think that there are two problems with our modern understanding of free speech.  First, we do not appreciate the context that those earlier cases truly emerged from, and we definitely don't appreciate what was really being applied.  There was definitely not much in terms of Constitutional law to apply really until after the turn of the century, and even then, what really dominated how cases like this turned out were local understandings of decency.  There was not some broad national understanding of shared values of free speech or free exercise during the 1800s.  Look at such things as Chaplinsky v. New Hampshire, from 1942, to see a court applying an older standard of free speech.  Alito echoes some of this in his dissent, although his dissent is rife with holes that are hard to ignore, and was quite self-serving in some respects.

I point all of this out because there is a problem with the majority.  In our quest for a more perfect understanding of the First Amendment, I really do believe that we have abandoned a lot of common sense.  Most jurists despise the phrase 'common sense,' and with good reason.  Common sense dictated that slavery was acceptable.  Common sense dictated that a woman could not be admitted to the bar.  Common sense was an acceptable argument for many institutions and practices that many Americans now look back on with a shared national shame.  But in my opinion, this is not a valid reason to completely abandon common sense, and Alito sort of scores a headshot in one part of his dissent implicitly using this argument.

Alito argues that it is hard to say that allowing the tort of IIED to succeed here truly cools a person's free speech due to the high threshold for even getting that claim in the door.

As an aside, I saw some people online criticizing the attorneys for Snyder for combining the epic with the protest in the case, believing they should be kept separate.  Keeping them separate would have meant bringing two IIED claims, and having to meet this standard:

"This is a very narrow tort with requirements that "arerigorous, and difficult to satisfy." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §12, p. 61 (5th ed. 1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe.

Meeting this standard two separate times would have been much less likely. Even if they somehow managed to win at the trial court, the Court of Appeals would have almost certainly have dismissed for failure to state a claim.  However, for some reason Snyder's counsel did not maintain this argument at trial.  I am not sure why this path was chosen, and I think it may have been a mistake.  But its important to remember that the Court had launched headlong into the free speech analysis and had decided that it was going to rule purely on that basis.  In other words, if the picket was going to be protected, the epic was going to be protected.  The relative degree of offensiveness was essentially taken off the table.  Another possible reason was the fact that Snyder actually found that epic on a search for his son's name on Westboro's site.  This messed with the 'intentional' aspect of the Tort claim.  In any event, while the epic was really probably worse than the actual picket, the facts were very bad for Snyder.

We have seen the use of free speech as a defense grow over time.  New York Times v. Sullivan and the Flynt case are pretty famous examples.  But I feel that the Court has taken a pretty drastic step in this case, because as I read it, I have a hard time imagining ANYTHING that won't be protected speech so long as it is on public property.  Honestly, where are we going to draw the line?  Is there a line?

I think that the old 'fighting words' standard is an acceptable standard for free speech purposes; I have trouble finding fault with it.  The standard is as follows:

 “To constitute excluded fighting words, the words must do more than merely "annoy or offend;" they must be "inherently inflammatory." They also must amount to "a direct personal insult" that is "directed to the person of the hearer" and must "have a direct tendency to cause acts of violence [by that person]" so as "to incite an immediate breach of the peace." The question is whether the words are such as "to provoke the average person to retaliation."Professor Nimmer meets Professor Schauer (and Others):  An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment,” 39 Akron L. Rev. 483, 502(citation omitted)

Pictured:  Fighting Words^

There is a problem with this standard, as applied to this case, but I will point it out in the next section.  But I find it disturbing that the majority just sort of breezes over this with a slight mention and applies no analysis.  This leads to only one of two conclusions:  They thought that the speech Phelps pushed was nowhere near the level of fighting words, and if that is the case where in the world is the threshold for that?  The other possibility is that they have just further marginalized this doctrine as a category of unprotected speech.

Here is my other big problem with the majority.  Everyone has made a very big deal out of the fact that Westboro followed a state regulation in terms of keeping a certain distance from the funeral, getting a permit, and following the procedure to protest.  But that regulation guarantees that the State itself will not interfere with, nor punish, the demonstrators.  Yes, if they had followed all of the rules and then were marshalled out of their designated area by police, than I would be outraged.  But the State did not punish WBC, nor did they pursue WBC.  Snyder did.  That is a completely different issue, as it is a suit originating from a private citizen.  The court should not have the ability to insulate private citizens from liability against other private citizens just because one of the party followed ONE set of rules. 

For anyone crying foul here, just think about it in terms of what you do everyday.  When you drive your car, you are required to drive the speed limit, stay in your lane, stay off your phone, and numerous other state imposed requirements.  If you hit another person's car, even while following all the rules, the suit is not dismissed out of hand because the action is sensitive to the context of the accident.  There are plenty of situations where you could potentially follow all of the rules, but still be liable for negligence, or even battery, and be liable to a private citizen.

Perhaps this is just a quaint and provincial view of the Constitution.  But I feel as though the true spirit of our rights cannot be summed up as absolute, inassailable freedoms.  Yes you should have the right to free speech.  You also have a right to be sued for a private citizen for injuring him or her with that free speech.  This is generally still true, but it is becoming less and less potent as a legal maxim.  I cannot agree with that.  The Bill of Rights was designed to protect us from our Government; not as some sort of ticket to have a free for all where we say and do whatever the hell we please without regard for our fellow citizens.  WBC argued that this was public speech (which I will address), and not directed at Snyder.  However, just casting something in generalized terms should not make the conduct public when the conduct is obviously being centered around a private figure.  The protest revolved around Matthew Snyder; not the capitol building.

So for me, the proper thing to do would have been to evaluate the claim of IIED on it's merits, and basically ignore the First Amendment.  WBC never once challenged that they actually inflicted the injury upon Snyder.  Not once.  The entire time they argued that because they were exercising free speech (and also throwing free exercise around in there), and because they followed a state law, that the IIED claim should fail.  That's pretty much one of the most cocky arguments you can throw at a court especially when the threshold for IIED is pretty much unreachable in most jurisdictions.

Dasean Jackson was rumored to have filed an amicus brief

But we are mortified at the idea of punishing people for things they say.  For some reason or another, American jurists seem to have little to no faith in their own profession's ability to discern an unpopular viewpoint from an absolutely outrageous assault upon another person or someone who is only trying to rile up trouble.  Yes, we have abused people's right to free speech in the past.  But that was a different time; not just socially, but legally.  A lower court judge in Kentucky in 1850 would have been in charge of a veritable fiefdom.  Should a person be found guilty of violating some obscure ordinance regarding the dissemination of unpopular literature in a small town they could be in quite a bit of danger.  Getting appeals was difficult, and getting representation was also incredibly difficult.  Moreover, in many places contingency fees were unheard of, meaning a poor plaintiff was not going to be a plaintiff at all.  The bottom line is these sorts of things would be very unlikely today.  Our legal system is now TRULY a state/federal system, as opposed to before when a small town Kentucky lawyer would probably never have to argue a case in Lexington or Louisville.  The ACLU has chapters everywhere.  I just do not see us being washed away in a sea of arbitrary laws and ordinances designed to squash unpopular viewpoints, nor do I think that we are in danger of losing our rights down some invisible slippery slope.  Our fears are not founded when viewed under a totality of our present circumstances.

Our relationship with free speech regulation

The court also seems to suggest that because the issue is one of public concern (the fate of our nation because we don't string up all the gay folk?) that the speech is protected.  As I noted before, the protest hovered around a private ceremony, which is plenty good enough to transform the nature of the speech.  It was about the death of Matthew Snyder, and why they were glad he was dead.  They simply cast it in generalized terms, and the court nodded approvingly.

Let's create a hypothetical here.  Let's imagine for a moment, that a person is a convicted sex offender, and has had to register his name and address.  Let's call him Nathan Ray Batey, and let's also assume his crime was minor.  Now let's just say that one day, a member of the local PTA finds out that a sex offender lives in her neighborhood.  So she organizes all of her friends together to stage a picket, on a public sidewalk, across the street from his house.  Their signs say things such as "God Hates Sex Offenders," "Sex Offenders are Destroying America," "All Sex Offenders Burn in Hell," and "Thank God for Chris Hansen."

What would we do without Chris Hansen

So those are all matters of public concern, but isn't it just slightly coincidental that they happen to be marching around across the street from a registered sex offender?  It is even the slightest bit possible they might attract some unwanted attention to Mr. Batey?  But by the analysis of this court, Mr. Batey has no remedy so long as they are in a public place and do not mention him by name, unless the city has an ordinance specifically forbidding such an action (Frisby v. Schultz, briefly mentioned).  If that is truly the length and breadth of our analysis of public speech, I call it epically goofy.  I read that part of the opinion as a license to harass without fear of a common law remedy, and actually completely agree with Alito.

Why the dissent is ALSO wrong

As I have devoted so much time to the majority, you may get the impression I completely disagree with them.  That's untrue, I just question how they arrived at their destination.  Alito is also guilty of an absolutely ferocious blunder:  He takes issue with the standard of the majority (which I honestly could not parse out of that opinion), but then offers an even worse standard.  His standard would hold that speech which intiates a public dialogue or debate is protected. 

I honestly don't know what in the world that is supposed to mean, but I do know this:  There is a whole lot of speech out there that does not initiate a public dialogue.  There is really no framework for analyzing something like that; I don't know how you would even go about it.

"Here you go lower courts......why don't on that...." J. Alito

The fighting words standard does not help as much here as you might think for two reasons:  First, fighting words do need to be directed at a person in an easily demonstrable fashion.  Like the angry baby in the picture above, who is obviously challenging your very manhood. 

Don't wuss out; show him how you roll.

Second, they really were (in the epic) insulting Matthew Snyder, the deceased.  This is sort of a standing problem.  Can Matthew's father enforce the rights of his son's good name when his son no longer has an interest in same?  That is actually a pretty gnarly question, and one that would have made this case REALLY interesting.

To wrap it up, I do like where the court comes down in some respects.  The facts of the case were actually bad for Snyder, and the majority probably made the right call coming down where they did.  My only problem is that this case sets a bad precedent, and I fear that the 'content' v. 'manner' analysis that used to matter so much is now truly dead. 

Life goes on.  Let's see what happens now.

Tuesday, March 1, 2011

Black Jack Pershing and the 'Terrorists'

There is a very prevalent internet story that moves around in certain circles, rearing its head from time to time to stand for the proposition that the best way to end the war in Iraq and Afghanistan is to 'terrorize the terrorists.'  I first came across this story my junior year of college.  I was interested to see if it was true so I decided to go to the library and do some research.  I mean what was I going to do otherwise?  Actual homework?  Suffice it to say, the story (as told) is entirely false.  Here is the typical gist of the tale, although I have seen at least 5 or 6 different forms of it:

"HOW TO STOP ISLAMIC TERRORISTS...... it worked once in our History...
Once in U.S. history an episode of Islamic terrorism was very quickly stopped. It happened in the Philippines about 1911, when Gen. John J. Pershing was in command of the garrison. There had been numerous Islamic terrorist attacks, so "Black Jack" told his boys to catch the perps and teach them a lesson.
Forced to dig their own graves, the terrorists were all tied to posts, execution style. The U.S. soldiers then brought in pigs and slaughtered them, rubbing their bullets in the blood and fat. Thus, the terrorists were terrorized; they saw that they would be contaminated with hogs' blood. This would mean that they could not enter Heaven, even if they died as terrorist martyrs.
All but one was shot, their bodies dumped into the grave, and the hog guts dumped atop the bodies. The lone survivor was allowed to escape back to the terrorist camp and tell his brethren what happened to the others. This brought a stop to terrorism in the Philippines for the next 50 years.

Pointing a gun into the face of Islamic terrorists won't make them flinch.
They welcome the chance to die for Allah. Like Gen. Pershing, we must show them that they won't get to Muslim heaven (which they believe has an endless supply of virgins) but instead will die with the hated pigs of the devil."

Sith Lord Black Jack Pershing

That is the general gist of the tale, but as I said, I have seen it in various forms.  For reasons I am confused about, or possibly in denial of, this story has made Pershing sort of a hero to some people.  If it is true, it is pretty horrific, and does not speak too well of the man, nor of our armed forces in general.  Fortunately it is false.  Pershing was a very intelligent leader, who took over the lead in the Southern Philippines against the Moro Rebellions not because he was ruthless, but because he was respected by many of the Moro tribes for his compassion and empathy. I decided to finally write about this because for some reason I have received this story 3 times in the last week.  I will address the backdrop of the tale first, and then address it's various components.

First of all, most of the time the story claims that Pershing was a native of Mississippi.  Not true, he was born in Missouri.  Ok, got that off my chest.

Contrary to popular belief, Missouri has given us more than Mark Twain and shitty beer

Second, the Moro Rebellions in the Philippines were not as much the result of 'Islamic Terrorism' as they were about a fundamental misunderstanding (see: failing to do homework) of the political structure of the Moro tribes, and a total set-up by the Spanish.  When the Spanish-American war ended, Spain ceded all of the Philippines to the United States including the Muslim minorities in the south.  What they did not mention was the fact that Spain had fought against nearly constant rebellion in that region during their attempts to colonize the area, and only signed a peace treaty sometime during the 1870s or early 1880s.  What they also neglected to mention was that as soon as they signed that treaty, they peaced out pretty quickly, and pretty much decided it was not worth the effort to exercise de jure control in the area.  The only garrison they had in the area was in the largest city in the south, Jolo, and they handed it over in 1899.  Probably while smirking and giggling.  So we quickly ran off to sign a treaty with the Sultan of Sulu, Kiram, to ensure Moro neutrality in Spanish American relations and that they would not side with Filipino insurrectionists in the south.  However, we discovered rather quickly that we had sort of been had.  The Sultan did not really have any authority to speak of in internal affairs of the Moro tribes; in fact he never had any.

We really are pretty good at doing that

So the predictable happened.  Individual tribal leaders (known as Datus) began to split up according to their individual interests.  Some sided with the Americans, some sided with the Filipinos, and some decided to continue to fight for an independent Moro state. 

In fact, Pershing's first appearance in Moroland was not to violently smash a rebellion of wacky Muslims.  Actually, it was to 'make nice' with some particularly influential ones.  Due to his high level of education, fluency in the local language, and impartial manner, he actually succeeded in getting many powerful Moro tribes to side with the United States.  He was officially declared a Datu by the Moro people, and was considered an essential cog in ensuring peace in the region through his diplomatically gained trust with the locals.  Not because he was in the habit of waging psychological warfare against the indigenous people.

Most of the Moro people in the south, at this point, did not have too much of a problem with the Americans.  While we were more involved than the Spanish, we respected the neutrality agreement, and the Moro loved Pershing.  But we had a problem in the U.S.  The Indian Wars were all over by 1901, and we had an excess of ex-cavalrymen and other veterans that had no more wars to fight in.  The answer was to turf them off to Moroland, to deal with another 'savage problem.'

Again, what happened was pretty predictable.  While many of the servicemen who came actually provided a boost, due to their familiarity with tribal politics, many others brought that same 'kill 'em and let god sort 'em out' mentality that resulted in such travesties as the Sand Creek Massacre.  All it took were some of the unfriendly tribes in the south to attack some American soldiers for all hell to break loose.

Pershing (what was this guy, some kind of hippie?????) insisted that the Americans should not take unilateral action against the offending tribes.  Rather, they should partner with friendly natives in discovering who was responsible for the attacks, who had been fostering anti-American sentiment, and make a point of only punishing the men who took part in the attacks.  The military governor of the Philippines answered with an emphatic "meh," and instead issued a proclamation that the Datus hand over the offenders or face American guns.  Predictably that didn't go too hot, and we found ourselves embroiled in a conflict with far more Moro tribes than had ever been necessary.  In any event, this led to a whole lot of mindless violence that must have had Pershing doing a serious facepalm.

Now we actually get to the supposed story of Pershing's bacon brutality.  The year is correct.  Pershing took over as the third governor of Moroland after two other governors during 1911.  But there are only two prevalent tales of the use of pork to terrorize the Moros, and neither of them involves Pershing.  The first was told by Rear Admiral Mannix who was a young officer in the Philippines.  He related a story to people later in his life about how some officers in the Philippines had taken to the practice of shoving pork meat into the mouths of dead Moros to attempt to frighten their comrades.  However, this story dated from around 1906 or 1907, and definitely did not involve Pershing.  The second comes from the British author of 'Jungle Patrol' named Victor Hurley.  Published in 1938, Hurley's tale involved Colonel Alexander Rodgers of the 6th Cavalry, who allegedly buried Moros in pig skins to intimidate them.

I have a major problem with the second story, primarily due to its conclusion.  Hurley contends that this ended the religious fanaticism of the Moros in areas controlled by Rodgers, but at the same time acknowledges that the violence did not stop.  Instead, he claims, that the Muslim fanatics were simply replaced by (and now I'm quoting) "homicidal maniacs."  So it worked!  But it didn't.  Somehow people who were religiously inspired to fight the occupation changed overnight into just good ol' fashioned psychopaths.  And all it took was a little pig blood.  I honestly have to say that that is the most deluded conclusion I have ever read in my life.

Things have certainly improved, no?
In any event, Pershing was certainly responsible for quelling the Moro Rebellions, but he did not do it by slaughtering the population.  Here are some of the things he did:

1.  He convinced the US government to donate land for the building of mosques (OMG HE WAS A FUCKING TERRORIST)

2.  He streamlined the legal system which had been a big problem since the occupation began.  How boring right?

3.  He scaled down the size of military units, and focused on the quality of their training and mobility.  This allowed them to access deeper into the jungle interior, and is similar to certain things we have done in Afghanistan.

4.  Allowed a limited system of slavery (a prevalent Moro practice) which we had previously abolished.  Our abolishment of that system was one of the biggest problems we had in dealing with the Moros. 

That wasn't all he did, but those reforms were huge (and frankly the only ones I really remember and can easily verify).  But how did he deal with combat?  Well in 1911 he was faced with a massive Moro uprising, where several thousand of them holed up in an inactive volcano called Bud Dajo.  Interestingly, this was the second time they had done this, and the first time of the 1,000 odd Moros who went into the crater, only 6 survived.  They were terrified of us, obviously.  However, the first battle of Bud Dajo was a nightmare for the United States.  Yes, we completely slaughtered all belligerents (and a lot of women and children), but the brutality turned friendly Moros against us.  Pershing was determined to avoid another setback.  The following is a word-for-word excerpt from Pershing's account of the event:

"There was never a moment during this investment of Bud Dajo when the Moros, including women, on top of the mountain, would not have fought to the death had they been given the opportunity. They had gone there to make a last stand on this, their sacred mountain, and they were determined to die fighting . . . It was only by the greatest effort that their solid determination to fight it out could be broken. The fact is that they were completely surprised at the prompt and decisive action of the troops in cutting off supplies and preventing escape, and they were chagrined and disappointed in that they were not encouraged to die the death of Mohammedan fanatics."

So as opposed to giving them any reason to erupt in religious furor against the American forces, Pershing just surrounded them and let them chill out.  That does not seem to be in accord with the sort of thinking that would lead someone to brutally slaughter P.O.W.'s to instill fear in his enemy.  Think about this:  If Pershing's greatest interest was avoiding conflict entirely by granting enemy requests, dealing generously with the Moro people, and engaging in diplomacy with any willing Moro leader, what sense would it make to engage in an activity which would strike any of these individuals as barbarous beyond belief?  That question answers itself.

It would have been stupid.  Major league stupid.

Here is why I am writing about this from a larger perspective:  There is some sort of longstanding pseudo-wisdom which is constantly harkened to which leads some people to believe that simply brutalizing the utter hell out of your opponent is the way to win.  History traditionally tends to show that brutal tactics are more often then not actually a good way to win a war.  In fact, they are a great way to prolong an armed conflict.

I will pose this question to anyone who thinks that these tactics are a good idea:  Let's instead imagine that Muslims invade Kentucky, and begin to brutalize anyone who dares stand in their way. 

I'm not sure why they would invade Kentucky, but let's just say they do

 Let's imagine that they take 50 Christian prisoners and beat the living hell out of them.  Before executing them, they force them to renounce their faith, and say the Muslim Shahada, ensuring that they 'go to hell.'  They then carve pentagrams all over their bodies and cast them into a mass grave.  They relase one guy to go tell everyone what happened.  What do you do?  Do you cower in the corner?  Or do you grab a gun and get after it?

Patrick Swayze knows what we would do

So what in the world makes anyone think that other people around the world are any different? Honestly, I have absolutely no idea.  Pershing's efforts to stabilize the Southern Philippines were largely successful, but it had absolutely nothing to do waging a psychological warfare based on the fear of hell.  It had to do with diplomacy and understanding his enemy.  Interestingly, these are the two least popular battle tactics in the American population at large.

So in summation:  While there is no way to guarantee that the apocryphal tale is false, it is extremely unlikely that it is true.   The gross oversimplification it presents is an incredible misrepresentation of a very complicated conflict.