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Tuesday, October 26, 2010

Juan Williams' firing reflects fear and favor in the media

Poor Juan Williams. He learned the hard way that journalists hired to report or analyze the news without fear or favor can't expect to air their personal prejudices and still pretend to be impartial -- except that too often, they still can.

What makes Mr. Williams' situation particularly disappointing is that the view he expressed -- that he "feels nervous when he sees religiously attired Muslims on planes" -- reflects a profound ignorance both of Islam as a religion and the ways in which terrorists operate.

First, to the firing. Without knowing all the facts behind NPR's decision to fire Mr. Williams, I think it was wrong if NPR canned him simply for stating an opinion -- however ignorant -- while nonetheless permitting him to work simultaneously as an NPR "news analyst" and a FOX station opinion "commentator."

(Hypocrisy alert: for all his bloviating about free speech for Williams, Bill O'Reilly played a lead role in the firing by Comcast of long-time Boston newscaster, Barry Nolan, who was canned in 2008 for distributing fliers at an Emmy award dinner expressing his personal opinion that O'Reilly didn't deserve the award.I guess that's one opinion that O'Reilly doesn't think deserves First Amendment protection!)

But the real question for NPR and other news outlets is why they permit Williams and other reporters to wear both news and commentator hats in the first place.

It didn't used to be that way. Until recently, reporters weren't allowed to serve on both the "opinion" side of a news operation and the "news" side. Of course, reporters always have had personal opinions (and have a right to them). But their job was to report all sides of a story, keep their personal opinions out of it, and let the readers and viewers draw their own conclusions.

The blurring of lines between "news" and "opinion" is one of the worst things to happen to journalism in recent years. The proliferation of media platforms and, apparently, job contracts that permit journalists to work both sides of the fence leads inevitably to confusion between what is news and what is personal bias.

The rise of pretend-news shows like the O'Reilly Factor and the Daily Show, as well as in the use of opinion pieces masking as "news analysis" on the front pages of the Boston Globe, New York Times, Wall Street Journal, and NPR, has further muddied the distinction between news and commentary.

The result is that viewers and readers struggle to find "trusted sources" of news -- a situation that doesn't bode well for traditional news outlets trying to compete against infotainment programs.

Now, to the ignorance reflected in Juan Williams' expressed fear of getting on airplanes with people whose dress identifies them as Muslims.

Someone needs to explain to Mr. Williams that the Saudi and Egyptian men who carried out the 9/11 attacks weren't wearing Muslim garb. To the contrary, they had shaved their beards and donned western-style clothing in an effort to board the plane without attracting notice.

Mr. Williams should feel relieved when he sees a person on an airplane who is wearing his identity publicly and proudly -- that person has nothing to hide!

Beyond the a-historical and illogical nature of Mr. Williams' remarks, however, lies nothing more than a fear of difference. It's the same kind of fear that leads some white people to feel nervous when a black man boards a subway train -- and it is equally irrational and ignorant.

None of us is free from the chains of ignorance and fear, but few of us have a platform like FOX news or NPR upon which to air them. Access to such megaphones implies an ethical responsibility (if no longer a job requirement) that people who ostensibly report the news won't use their media outlets to amplify racial or religious bigotry, their own or others.

Internet censorship is not the answer

Perhaps I'm overly suspicious of the government, but it really burns me when lawmakers hide behind the guise of protecting our children to justify unnecessarily broad extensions of government power.

This is precisely what happened when the state legislature and Governor Deval Patrick passed a hastily-drawn statute that imposes up to five years in prison and a $10,000 fine for anyone who sends an email or text message, or posts on any listserv or any website, any material that a zealous prosecutor might construe as "harmful to minors."

What does that mean? Well, for one thing, the law could be used against booksellers, art outlets, medical websites and family therapists -- and a lot of private citizens like you and me -- who happen to post something online that might be considered by prosecutors to be "harmful to minors." It would potentially criminalize the posting of material that would be perfectly legal for an adult to view, whether we intended it to be read or seen by a minor or not.

The statute restricts "the dissemination on the Internet of any material which is 'harmful to minors'" -- a construction so broad that it criminalizes material posted on a website or sent out on a listserv that might possibly be read or seen by a minor -- not merely communications specifically directed at a minor.

Since there is no way you or I (or a bookseller or therapist) can either know or control who might visit our website or forward our listserv message, this law forces all of us to self-censor the information we post on topics like sexual health, adult literature, or art -- or else face up to five years in prison and a $10,000 fine.

Fortunately, some of these very same booksellers, art outlets and family therapists have stepped up to challenge this dangerously vague and overly broad law in federal court. Today I stopped by the federal courthouse to hear the arguments in the case, which confirmed my worst fears about this law.

The government lawyer argued that, despite what the statute says, prosecutors promise to prosecute only those cases involving "something more than posting to an audience that may or may not include a minor."

"'Just trust us' is not an appropriate response to an overly broad statute," said Michael Bamberger, lawyer for the booksellers.

Hmm – the government wants this broad power set forth in the statute, but they won't use it? Yeah, right.

Prosecutors insist that the law is necessary to stop bad guys, and point to a case involving a man who used the internet to solicit sex with an undercover police officer posing as a 13-year-old.

What prosecutors don't mention is that we already have criminal laws against solicitation of a minor; they don't need this extra power to get the bad guys. In particular, they don't need a law that isn't even limited to person-to-person communications but, rather, sweeps in all matter on the internet that might be construed as harmful to minors.

We can take some comfort from the fact that the U.S. Supreme Court recently struck down a federal law that similarly attempted to criminalize Internet speech, as did courts in nine states that tried to impose comparable content-based restrictions on Internet speech.

This case is a good reminder that we need to remain ever-vigilant in the defense of basic civil liberties against overzealous lawmakers who try to capitalize on specific cases involving children -- or cops posing as children -- to expand government power in ways that could be used to silence booksellers, artists, healthcare providers, and the rest of us.

ICE scheme undermines community safety

There is no greater right than the ability to be safe and secure in our neighborhood and in our own lives. So it pains me when officials use words like "secure" to describe programs that do just the opposite.

Take, for example, the latest anti-immigrant ploy by Immigration and Customs Enforcement -- ICE -- to strong-arm local police chiefs and politicians to cooperate in deportations by automatically linking criminal justice system fingerprint databases with the ICE database.

They call the program "Secure Communities" or S-Comm, but it threatens to do more harm than good.

Under S-Comm, anyone arrested -- even wrongfully arrested or picked up for minor stuff like disturbing the peace -- has their fingerprints sent to ICE. Even if there is no basis for a criminal charge, or the charges are later dropped, ICE gets notice of the arrest and canhold the person in local jails for months or even years -- often without adequate medical care or access to counsel -- pending deportation proceedings. All at taxpayer expense, of course.

Local police chiefs from San Francisco, the District of Columbia, and Arlington County, Va., all have opposed S-Comm -- and some Massachusetts Chiefs agree that the program will undermine their ability to keep our communities safe.

Chelsea Police Chief Brian Kyes told the Globe that S-Comm is "something the Chelsea police would not want to be a part of. It’s my belief that it would be counterproductive to the relationships we’ve formed and the trust and confidence between the police and the community in the past few years.’’

Similarly, Chris Burbank, the Chief of the Salt Lake City Police Department, warned that the program would make it harder for local police officers to do their job. “Individuals become officers out of a desire to assist others and make a difference in society," said Burbank. "That is why it is so discouraging for officers to show up to work knowing that the community they serve suspects them of racism. It is even more disheartening to realize that by doing their jobs, they are compromising the civil rights of community members.”

The only city in Massachusetts participating in S-Comm is Boston, and Commissioner Edward F. Davis has wisely made it clear that the department will abandon the pilot program if "ICE begins to deport people who are simply being picked up for traffic violations and overstaying their visas."

It's already happening. ICE statistics show that some 80 percent of the people deported under S-Comm had no criminal record or had committed only minor offenses.

In Boston, the numbers are equally bad. From the inception of this program in 2008 until this past June, the Boston Police Department submitted the fingerprints of 28,970 people to ICE. This resulted in the removal of 40 people with serious criminal records. But it also led to the detention of 315 people who had no criminal record and posed no conceivable threat to their communities.

As for the rest of us whose fingerprints might be in the ICE database? There's no database privacy protection and no control over what federal government officials might do with the information.

So why should we sacrifice effective local policing simply to help ICE meet its artificial deportation quota?

Certainly not to keep us safe. Trust between police and local community members is critical for actual crime-solving. People who are victims of crime or witnesses to a crime will talk with police officers they trust. But they will avoid the police at all cost if they think the local police officer is doing ICE's dirty-work.

It would be a shame to let S-Comm undermine the hard work done by local leaders, folks like Rev. Eugene Rivers, Rev. Jeffrey Brown, Rev. William E. Dickerson, Rev. Ray Hammond -- and Commissioner Davis himself -- to encourage all members of our communities to build relationships of trust with community-based police officers and to work with police to prevent and solve crimes.

S-Comm doesn't have to happen. Homeland Security Secretary Janet Napolitano already proved that when she suggested last month that local law enforcement can opt out of S-Comm, before abruptly shifting gears this week and announcing that the program is not optional and, in fact, must be adopted in all jurisdictions by 2013.

All this flip-flopping is giving big government a bad name!

In reality: According to one ICE official, S-Comm involves data-sharing between two federal agencies, so unless the databases are delinked at the top, the only way local jurisdictions can avoid participating is by refusing to send fingerprints to the federal criminal-justice system in the first place. In some instances, that's precisely what will happen -- hardly an incentive system designed to keep us safe!

But there's no reason it has to work that way. Homeland Security doesn't have to support the automatic sharing function between the ICE database and the criminal-system databases. Instead, Secretary Napolitano could focus her energies on developing better ways to fix our nation's flawed immigration system -- starting with the obvious fact that we encourage the free flow of capital across borders and criminalize the labor flows that chase it.

To help her do the right thing, the rest of us should support local police chiefs who resist S-Comm and other ad hoc Federal government mandates that damage local law enforcement.Instead, let's support efforts to build truly safe and healthy communities of trust.

What "The Laramie Project" Says About Free Speech and Equality

The opening this weekend of "The Laramie Project: 10 Years Later" at Emerson College is an important opportunity to consider both equal rights and freedom of speech, and what often appears as tension between the two.

"The Laramie Project" is the acclaimed 2000 drama about the murder of Matthew Shepard, who was killed in Laramie, Wyoming in 1998 because he was gay. Based on interviews with residents of Laramie, the original play revealed the all-too-common bigotry that led to the brutal murder of a young man simply because of who he was. Since it first premiered in 1999, "The Laramie Project" has become one of the most often produced plays at high schools, colleges, and professional theaters across the nation.

"The Laramie Project: 10 Years Later," is a sequel to the first play, based on interviews with Laramie residents a decade later. It shows how some local residents -- and a "20/20" report on ABC news -- tried to rewrite history by suggesting that the murder was something other than a hate crime. The sequel includes an interview with one of the two confessed killers that puts to bed that myth, when he admits that he hates homosexuals and adds, "Matt Shepard needed killing." Hate reared its ugly head further when protesters showed up at a New York premier of the "10 Years Later" project with signs reading, "Hell is Real: Ask Matt."

So, why is one lesson of the Laramie Project that mere speech (in contrast to illegal conduct motivated by hate) -- even odious and hurtful speech -- ought not to be a crime?

The problem with criminalizing hate speech is that the same laws that can silence hate speech also can be used to silence speech that we need to hear. Case in point: schools that refuse to let students put on productions of "The Laramie Project" itself.

More often than not, limits on speech are used to silence those with minority or dissenting views, such as defenders of LGBT rights or racial equality. In the early 1990s, for example, the ACLU of Massachusetts defended the right of LGBT equality groups, along with the Reproductive Rights Network, to hold a meeting at U.Mass-Boston after school officials shut them down because they didn't like the content of the meeting or views of the organizers.

Similarly, Harvard University Professor Henry Louis "Skip" Gates, Jr., makes a persuasive argument that restrictions on speech have more often been used to silence people of color than to protect them.

Hate speech, however, is not the same as hate crimes, which is what happened to Matthew Shepard: he was selected as a victim for discriminatory reasons. As such, laws that include enhanced penalties for hate crimes, notably the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, do not violate the principle of free speech.

Where, as in the murders of both Matthew Shepard and James Byrd, Jr., criminals select a victim for discriminatory reasons, it is no more protected by the Constitution than the act of intentionally refusing to rent to a person or dismissing an employee for discriminatory reasons. Such laws, if properly drawn, do not punish protected speech or association. Rather, they reflect the heightened seriousness with which our society treats criminal acts that also constitute invidious discrimination and thus deprive people of the right to fully participation in their community's political or social life simply because of their group characteristics.

The good news is that free speech can be used to open our minds and our hearts, particularly when deployed through the transformational medium of theater.

Our nation has made great strides in the last decade in the fight for full LGBT equality, both in places like Massachusetts and even in places like Wyoming and Florida (the latter is where a judge ruled this week that a gay foster family could adopt two children who had been living with them for years).

"The Laramie Project: 10 Years Later" shows us not only how far we've come, but how far we have still to go in the fight for true equality. It also illustrates the important role that freedom of speech plays in helping us to get there.

When the FBI spies on First Amendment activity

ACLU of Massachusetts Education Director Nancy Murray wrote the following guest blog.

For the past few years, the ACLU of Massachusetts has been trying to map the contours of the post 9/11 domestic spying apparatus that has been erected in the shadows within the Commonwealth and across the nation. For reasons we described in a report produced earlier in the year, it has not been easy to untangle the surveillance web.

But we now know a little more about the FBI’s investigation of First Amendment activity, thanks to a 200-page report that has just made public by the Inspector General of the US Department of Justice.

A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups examines the surveillance of four of the dozens of anti-war and social justice groups that have been listed as “potential terrorist threats” in documents leaked from some of the country’s 72 fusion centers or obtained by the ACLU through Freedom of Information Act lawsuits.

The four groups are the Thomas Merton Center in Pittsburgh, People for the Ethical Treatment of Animals (PETA), Greenpeace and The Catholic Worker. The report also looks at the FBI’s treatment of Glen Milner, a Quaker peace activist.

So what do we learn from this partially-redacted internal investigation? There are five important lessons here for anyone who cares about our fundamental freedoms.

First, truth-telling does not appear to be a core FBI value. In the course of examining why Special Agent Mark Berry took pictures of an anti-war event sponsored by the Thomas Merton Center in November 2002, Inspector General Glenn Fine discovered that the explanation given in an FBI press release after the monitoring became public in 2006 was simply made up. There was no “person of interest” at the 2002 event. The Inspector General went on to discover that the FBI had manufactured not one, but two false stories to explain Berry’s presence, and then fed false information to FBI head Mueller, which featured in his May 2006 Congressional testimony.

Second, racial and religious profiling appears to be a reflex action at the FBI. Special Agent Berry, a new trainee who was anxious to please his superiors, chose to photograph an (unknown) female “he perceived to be of Middle Eastern descent.” He then, after the fact, beefed up his surveillance report by doing some Internet research and including information that “Muslims and people of Middle Eastern descent” often attend meetings at the Center. In 2006, the FBI scoured various databases to manufacture a bogus paper trail identifying a local Muslim who did interfaith work as the person of interest they were photographing at the 2002 event.

Third, the FBI needs no suspicion of wrongdoing to open a preliminary investigation and deposit information in a “domestic terrorism file,” and full investigations can drag on for years, even when there is no evidence of actual or potential criminal activity. For instance, a six-year investigation was carried out into a PETA member even though the Bureau “never identified any federal crime he had committed, was committing, or might commit in the future.” The standards for keeping people and groups under surveillance have become so degraded that instances of monitoring that the Inspector General finds “factually weak” are still legal.

Fourth, it is a good deal easier to open an investigation than to close one, given the proliferation of databases in which information is deposited and agencies that are doing the depositing. People who get placed on watch lists such as the "no fly" list or VOTOF (Violent Gang and Terrorist Offender File) are continually delayed and questioned at airports, even after the FBI field office investigating them requests they be removed from a particular list.

Finally, we learn how important it is to have effective oversight of the growing surveillance complex. To understand the implications of “war on terrorism” spying for our First Amendment and privacy rights, we need more than a report into how the FBI handled a handful of cases. After all, we now have the NSA, the Defense Department, the CIA and an array of other federal, state, and local agencies and private contractors engaged in the domestic spying business in secrecy and with virtual impunity. Who is watching them?

Here in Massachusetts we will have the opportunity to push for a surveillance oversight and privacy protection bill in the new legislative session. Stay tuned for more information.

The right to dream

ACLU of Massachusetts staff attorney Laura RĂ³tolo wrote the following guest blog.

Imagine this: your parents bring you to the United States as a small child, you grow up with American schoolmates, speaking English and attending American schools. You graduate high school at the top of your class. You dream about being a doctor, a journalist or an educator, and giving back to your community. But when you go to apply for college, you realize that your dream will never come true because you don't have legal immigration status in the United States.

This is the scenario for about 65,000 young, talented students who have made the U.S. their home. They've done everything that is asked of children: study hard, work hard, be good, and your dreams will come true. Yet, when it is time for them to seek higher education, they are smeared with an inherited title--illegal immigrant--and doors shut in their faces.

On Tuesday morning, the U.S. Senate will vote on a defense appropriations bill. Attached to that bill as an amendment will be the Development, Relief, and Education for Alien Minors (DREAM) Act (S. 729), something that has been bouncing around in Congress for about 10 years, and which is desperately needed by students in Massachusetts and around the country.

The DREAM Act is a bipartisan bill that would give hard-working undocumented immigrant students who moved to the United States before the age of 16 the opportunity to enroll in an institution of higher education or enlist in the U.S. military. It would also provide a conditional path to citizenship if students meet strict requirements, such as graduating from a U.S. high school and obeying the law. And the bill would get rid of penalties for states that grant in-state tuition to their students.

Undocumented students who stand to benefit from DREAM are, by and large, talented high achievers. They grew up in the U.S. and overcame the odds to graduate from high school and secure admission to a public university. However, for most of these high school graduates, the door to higher education remains closed.

Here at home, lawmakers have proposed a bill to address this problem for many years. It would allow undocumented students who reside in Massachusetts to pay the same in-state tuition rates as their classmates at Massachusetts public colleges. The Massachusetts Taxpayers Foundation says that the bill would generate $2.5 million in new revenue for the Commonwealth--an amount that is sorely needed in these times of budgetary crisis.

And beyond the issue of revenue, why wouldn't we want to keep these young people and their talents in our commonwealth, or at least our country? Denying them the right to continue their schooling only ensures that their education will end before they have a chance to learn valuable skills, or that they will simply leave and some other country will benefit from those teachers, innovators, doctors, etc.

Senator John Kerry has been a strong supporter of the DREAM Act since its original introduction in the Senate. Senator Scott Brown has not taken an official public stance on it.

As with most immigration-related bills, advocacy groups are reporting that anti-immigration calls to senators are drowning out support by 10 calls to 1.

This is why I am urging everybody to pick up the phone and call Sen. Brown now to urge him to support the DREAM Act. His number is (617) 565-3170. Tell him that it doesn't make sense to punish the children of undocumented immigrants--and it doesn't make sense to deny our country and commonwealth the benefits that come from allowing these students to maximize their potential.

It's the right thing to do for our students and it's the right thing to do for our state. Kids who came to the U.S. illegally because of a choice their parents made should not be punished. Students who want to study hard and contribute to our society should be welcomed, not excluded.