Van Hollen starts shaking his head and says (paraphrasing) “”Obamacare” was really patterned on *Romney*care; Obama’s going to be able to look at Romney in a debate and say “this is your plan.” Yes, what a stirring moment that will be for Democrats.

Then he added “*Democrats* wanted Medicare for all.”  Golly!  If only they’d had the White House and both houses of Congress, they could… have… never mind.

WHEREAS, the Takoma Park City Council supports efforts to see the ruling overturned or a Constitutional Amendment proposed that would reaffirm fair opportunity in the electoral process for individual people.
NOW, THEREFORE, BE IT RESOLVED THAT the Council of the City of Takoma Park supports efforts to reverse the decision in Citizens United v. Federal Election Commission and supports efforts to open the electoral process to the broad group of citizens who wish to participate effectively in the affairs of their country.

2/6/12 Takoma Park City Council: session on
legislative updates and gas tax/Citizens United resolutions
(may require installing Microsoft Silverlight video software).
The first 4 minutes can be skipped for this discussion.

I was surprised to learn my own councilmember, Seth Grimes, was against it; I was even more surprised to learn why he and Councilmember Tim Male voted “nay.”  From the “GranolaPark” (which is as reliably dismissive of such causes as the name implies) account in the Takoma/Silver Spring Voice:

Tim Male … firmly rejected two proposed resolutions, one calling for the reverse of the Citizens United Supreme Court decision  [...]  Male said there was “no value” in the city passing the resolutions. In the first place the Citizens United case was not a city issue. Secondly, Takoma Park supporting a liberal cause would not be a surprise, nor would it carry any weight  with the legislature, he said [...]  If the city is to make a progressive stand, he said, let it be for something “hard to do.” The city’s rent control policy, for instance, comes at a price that residents are willing to pay for the sake of principle.

Seth Grimes also failed to [vote] for the resolution against the Citizens United decision. He didn’t see it as a city issue, either, and said constituent concerns should be brought up with elected officials in the appropriate jurisdiction.

One reason I found this surprising was that not too long ago, Seth Grimes had quite a different view.  In 2007 he was videotaped supporting an impeachment resolution; he uploaded a copy of the video himself in November 2008, and I recall seeing it or another one like it on his campaign web site* during his uncontested run for office last November.  All that notwithstanding, Grimes had signaled his “no” vote a few days before the council session in his blog, writing:

I have misgivings about the other item. The Citizens United decision is bad news — corporations are not people, and heavy corporate spending in electoral campaigns is pernicious — but Citizens United isn’t a city issue. Should the city devote time and resources to this question? Again, please share your thoughts.

On February 28th, I responded:

I wish I’d seen this sooner. I’ll share my thoughts per your request, even if it’s too late for the Citizens United vote.

I think you’re making a mistake if you remain committed to avoiding national political issues and resolutions of this kind purely on principle.

It won’t surprise you to hear me say it’s important for its own sake: sometimes national leaders fall down on the job, so sometimes they need to hear from local politicians. And when you and city council say something, you have a particular kind of recognition and respect that I don’t. Don’t let people tell you your statements would be discounted just because it’s a Takoma Park resolution. You’ve taken the trouble to run for office, and you’ve been elected. That matters.

I also don’t think this resolution or others like it need to take significant resources on the part of the city. The resolutions are generally written for you, you’ll have to listen to people advocate for it regardless, you’ll take as much or as little time to discuss it as you like.

But I think it’s also particularly important even when one is focused, by preference, on a purely Takoma Park agenda and goals.

That’s because part of what sets Takoma Park apart is precisely its reputation for not shying away from national issues when a reasonable, timely, cogent statement can be made. I think both current and prospective residents really value that. And I don’t mean in just a vague, “that’s nice” way, I mean in a way that makes people want to live here.  Therefore, that reputation is indirectly a part of what helps maintain the unique population and unique political climate that are so important to accomplishing your local political and policy goals.

We’re proud of the Nuclear Free Zone, of the impeachment resolution, of the sanctuary city status, of votes condemning the Iraq war or the PATRIOT Act. So whatever your feelings about any particular “national issue” resolution per se — whether Citizens United or anything else — I hope you’ll reconsider ruling out supporting any such resolution in the future. I think you’d be upholding a proud Takoma Park tradition. And I think that, too, is a part of your job.
(links added)

I’ve had no real answer to my comment or an emailed version of it I sent. When I told Councilmember Grimes during a conversation that I was surprised because of his former support for the impeachment resolution, he basically simply acknowledged that he was for that then but wouldn’t be for it now– which isn’t an explanation, more just a restatement of the situation.

In watching the city council discussion of all this, the only other thing I saw was that he noted the results of an extremely sparse canvassing of our Ward, in which the handful of opinions he got were split — 7 for, 7 against, 2 hard to interpret — on the value of resolutions about non-city or indirectly city-related issues. It’s hard to believe this could have tipped Mr. Grimes’s opinions one way or the other, though he seemed at pains to suggest they had a bearing. Mr. Male’s opinions were oddly formulated, too, as if city council decisions only have value if they are surprising or difficult to make. That’s a measure of *newsworthiness* perhaps — but that shouldn’t be the yardstick a representative measures his success with, representativeness and faithfulness to one’s principles should.

At any rate, my goal here isn’t to be hostile or to embarrass. Rather, I hope Mr. Grimes, at least, reads this supporter’s comment again, takes a look at that video, recalls how he felt and what it meant for those of us supporting that impeachment resolution — and changes his mind. He was right in July, 2007. There’s no reason he can’t be right again.

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* UPDATE, EDIT, 3/11: The link leads to a post on Seth’s Facebook page, posted in August on the day of his announcement there that he was running for City Council.

I don’t disagree in the cases Turley describes — I think the judge got the case he leads with wrong.  (Well, for lack of legal training I guess I should rephrase: I hope the judge got this case wrong.)  An assault is an assault, it can’t be excused by claims (far-fetched ones at that) that the assault was a response to hate speech.  Likewise, I don’t support criminalizing Holocaust or genocide denial, as happens in Europe.

But I think my friend’s statement still begs many questions of what all counts as “suppression” of free speech.  Who is actually capable of it?  Are we talking about legislation and enforcement, or citizens’ and political groups own choices to condemn speech and boycott its supporters?  Does the word “suppression” encompass “discouragement” or “regulation”?  To cut to a couple of chases: “don’t be telling us not to ask people to boycott Rush Limbaugh or oppose Citizens United!  You’re suppressing our speech!”

I’m trying to make a friendly but serious point.   It needn’t be all we consider, but as a starting point, our First Amendment is in this respect strictly and (I think) rightly about government abridgment of free speech — “Congress shall make no law… abridging the freedom of speech.“ It’s not about the rest of us penalizing bad speech, or agitating that others do so; that’s arguably a great deal of the point of free speech.

Moreover, “freedom of speech” and “guaranteed, unregulated, unopposed amplification of speech” are not the same thing; that’s why the former is guaranteed, and the latter is not.  For example, Rush Limbaugh will always be free to say disgusting things about people he disagrees with, even if his radio program dies for lack of advertising — he’ll just be saying them to his drinking buddies at the Lowlife Saloon, not to a nationwide audience.  Likewise — and to recall an example where *my* ox was gored — the Dixie Chicks remain free to make new music and seek new audiences when their fan base got upset about Natalie Maines’s “ashamed of Bush” remark.  I think what happened to the Dixie Chicks was unjustified and even a demonstration of a “fascist impulse.” But I’m for free speech — not consequence-free speech; while a law against criticizing the president would not be fair game, the conservative listeners boycott of their music was.*

Turning to another example of often-offensive free speech, corporations and groups should be able to advertise on behalf of favored candidates — but it’s not “suppressive” to insist on spending limits or transparency.  By contrast, the Citizens United ruling is the very apotheosis of “more speech” — indeed, it’s “all but unlimited speech which no one has a prayer of adequately rebutting in the same volume” – as a supposed cure for the other guy’s speech.  But this particular “more speech cure” is a new and worse disease; true, I can write a blog post or upload a video rebutting some Super PAC lie — yet “more speech” rebutting “bad speech” — but the fifty people who see those rebuttals are a drop in the democratic bucket compared to the millions who see the TV ad or radio spot I’d be responding to.

This kind of issue — how to oppose offensive and/or  free speech — can be fraught even in relatively small-scale, local settings. For example, last fall a letter was circulated to Montgomery County, Maryland politicians asking them to sign a statement condemning an Islamophobic presentation at a local Republican women’s group.  Later on, a second letter requested that an Annapolis hotel not host a conference scheduling a number of Islamophobic speakers.

The first letter — elected officials signing a letter criticizing an event — arguably verged on government abridgement of free speech. But “verging on” and “being” are different things; since the letter merely found the Islamophobic event “inappropriate” and saying rhetoric of the kind “had no place in” the county.  This wasn’t attempted abridgement of free speech so much as free speech of their own.  The second letter was actually an easier case from my perspective: one group of private citizens asks another to reconsider a course of action.  Given the (insultingly overblown) fears this raised for the conference organizers, though, the letter resulted in a small police presence at the conference.  While not arguing against the right to draft and send the letter, a simple counterdemonstration or request to speak as well might have been a better choice of tactics.

In both cases, the group I was a part of took slightly different approaches to those of the lead organizers.  We worked with the circulator of the letter to stage an informational forum about the “Creeping Sharia” myth, and we joined in a counterdemonstration at the Annapolis hotel without signing the letter asking for the hotel to disinvite the convention.  I think those were good choices — but I don’t think drafting or signing either letter would have been beyond the pale, either.  Far from being suppressive of free speech, they were most properly understood as examples of precisely the “more free speech” — nothing more, nothing less — that my friend supports.

As do I.  What I’m saying is that we make it much too easy for ourselves by claiming a “free speech absolutist” mantle when it can’t possibly be true.  I don’t know where my friend stands on the Rush boycott or Citizens United, but the point is that sometimes whichever side one is on, someone’s speech is diminished — Limbaugh’s, or those encouraging a boycott; an Islamophobe’s, or those seeking to mobilize public opinion against him; corporations wanting to engage in unlimited, unregulated advertising, or people rightly feeling their own citizenship is rendered inconsequential by comparison.  In such cases, we must decide what we believe free speech is for, and whether that value is compelling enough for us to intervene.

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* There are other distinctions and issues to to be made in the two cases, e.g., a public figure trying to humiliate a private figure vs. a public renouncing a group who had sought the limelight; the possibility of monopolistic radio station collusion in the Dixie Chicks boycott; etcetera.  But for the purposes of discussing the right to object to their speech by penalizing their businesses, the broad similarities outweigh them.

It’s an even numbered year, so it’s time again for leftish pundits of every shade — from Democratic blue to radical red — to warn their angrier, more fed-up friends that we must choose the lesser evil within this political system, or bear the blame for the results. Thus we have digby writing in her blog “Hullabaloo”:

Unless you believe, as some do, that we must get on with our impending dystopian nightmare so that we can rebuild from the rubble (sometimes known as destroying the village in order to save it) this is probably a useful group of articles.

The articles are from a Washington Monthly issue on the topic “What if Obama Loses?”, and they complete the arc of the argument: you just don’t get how really bad a Republican win would be.  Either that or, to paraphrase digby’s charge, you must be some kind of irresponsible nihilist itching to zippo-raid the hooches of the American political system — probably just because you like to see stuff burn.

Now it is undoubtedly true that Republican candidates up and down the 2012 ballot will generally be a bunch of pinch-souled corporate lick-spittles, pious frauds, and incoherent cranks.  In a sane world — and judging mainly by their presidential candidates — they’d be fit at most to write daily letters to the editor or mutter about the slow service at McDonald’s.  In our world, however, their political prospects are good, “thanks” in part to the diarrheal eruption of campaign cash unleashed by the Citizens United ruling.

The life cycle of the Democratic base

But “thanks” — regrets really — are also in order about the quality of their opposition.  And what’s remarkable is that if you read some of the “What if Obama Loses?” articles, that comes through just about as clearly as the intended “barbarians at the gates” message.

In what seems the most widely linked (hence presumably most persuasive) of the Washington Monthly articles, Dahlia Lithwick (whose coverage of the Supreme Court and civil liberties issues I truly admire) warns that Justice Ginsburg is 79 years old, ergo it had better be Obama who nominates her successor and not Romney.  So far, so unremarkable — but then she starts to discuss who’s manning the castle walls, as it were:

Imagine a Democratic presidential nominee running on promises to reshape, remake, make over, hog-tie, or even just refinish the federal bench. It doesn’t happen. And so, even though the most conservative Supreme Court in decades sits poised to decide cases ranging from the constitutionality of President Obama’s health care legislation to the future of affirmative action in schools, the rights to gay marriage, and the fate of the voting rights act, Republicans portray both the Supreme Court and the lower courts as a collective of lefty hippies. And Democrats mainly just look at their fingernails. If you care about the future of abortion rights, stem cell research, worker protections, the death penalty, environmental regulation, torture, presidential power, warrantless surveillance, or any number of other issues, it’s worth recalling that the last stop on the answer to each of those matters will probably be before someone in a black robe. Republicans have understood that for decades now, and that’s why the federal bench—including the Supreme Court—is almost unrecognizable to Democrats today. (emphases added)

So there you have it: our choice will be between evil Republicans and stupid, apathetic Democrats who don’t actually seem to care about the “last stop” in our political process.  And while court reporter Lithwick is somewhat imprecise about what she means by “Democrats”, the construction is such that it means “powerful Democrats” with similar potential to influence the judicial selection process.  I.e., this is about the political pros, not the base, which in my experience has been saying “The Supreme Court” as the number one reason to hold their nose and vote “Empty Suit for President” for decades now.

And yet not only do Democrats not fight the Roberts and Alito nominations, they also anoint a president who nominates milquetoast, centrist justices like Sotomayor and Kagan to murmur in quiet opposition to bombthrowers like Scalia and Thomas. More importantly, they and/or the president who leads them…

• passed the FISA Amendment Act
• passed — and have since reauthorized, at Obama’s request — the PATRIOT Act
• have continued indefinite detention practices overseas pre-NDAA
• have ratified and extended the reach of those practices with the NDAA’s indefinite detention provisions
• failed to hold torturers and more importantly torture policymakers accountable
• criminalized speech as ‘material support’ of terrorism
• conducted drone missile assassinations without trial of Americans abroad
• continued wars in Iraq and Afghanistan that should have ended sooner
• increased military spending even as plausible threats diminished
• continue to appoint financial industry foxes to guard the national interest henhouse

…and the list could go on — often (pace Jonathan Bernstein in a companion Washington Monthly article) in direct contradiction to the campaign rhetoric they ran on.  If the difference between Republicans and Democrats is that one side truthfully promises evil, and the other deceitfully promises good, surely it’s OK — perhaps even the right thing to do — to judge the difference too small to be worth calculating, and walk away from that Hobson’s choice?

So in reply to the handwringing pleas to hold your nose and vote Obama, I suggest that scenes like those Grand Central Terminal arrests in the video — and laws like the one these good people were protesting — are the fruits of accepting that kind of “lesser evil” advice, over and over and over and over again. It’s counsel that in my experience is usually given sincerely, and sometimes given angrily. But at long last, I think it is always given wrongly.  We don’t have to work, vote, and apologize for a mere lesser evil.  We need to finally work, vote, and advocate for a greater good.

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IMAGE CREDIT (”Most Important Election Ever”): Jason Zanon for Democracy In Action, 2007 (link no longer works); I first used it here.
NOTE:  In my experience, critiquing “lesser evil” politics reliably deteriorates into a reliably stupid discussion of Nader, Gore and the 2000 election.  In such discussions, there seem to two kinds of people — those who think Nader cost Gore the election, and a remarkable few who think that perhaps it was Gore who cost Gore the election. I have discovered a truly marvelous proof of the latter proposition, which this blog post is already too long to contain.

Instead, I want to just observe Benjamin Wittes’ post “In Praise of the Signing Statement” in his “Lawfare” blog, in which he pats Obama on the head for his signing statement — and after a failing grade last year:

…this year’s signing statement, which Steve posted the other day, seems to me a far more creditable effort. [...]  Maybe it’s just that I’m feeling mellow following a week in Maui, but I’m not inclined to criticize the administration over its handling of this one.

This kind of condescending approval might seem like sheer arrogance to most, but Wittes’ writings and opinions unfortunately command wide attention.  The “Lawfare” blog he maintains with former Bush OLC chief Jack Goldsmith and others more or less serves as the blog of the Bush/Obama legal consensus legal policies with respect to counterterrorism (occasional forays by guest bloggers notwithstanding) — the negative pole to positive ones like Glenn Greenwald.

In Lawfare’s first blog entry, Wittes attempts to put his own spin on what I think is the discreditable concept of “lawfare”:

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others.

The first option is the common one, the second is Wittes’ admittedly editorial comment — no one but him thinks of ‘lawfare’ this way, but as in much else, Wittes may succeed in blurring the meaning of a word to his advantage.

And that’s the project in a nutshell.  To me, a key secondary attribute of ‘lawfare’ is embodied in NDAA’s detention provisions.  That attribute is purposeful confusion and vagueness — plausible deniability — about what the laws are and how they will be enforced.  Learned folk can debate whether the new law threatens indefinite detention of Americans despite — or because of — passages unctuously proclaiming “no requirement” to do so with respect to Section X, yet not for Section W.  They can argue whether language asserting that ‘nothing in any of this changes existing US law’ is a reassuring affirmation of the Bill of Rights, or an ominous reference to the past decade’s steadily growing power of the executive branch and supine legislative and judicial branches.

They miss the point; the vagueness is the point.  What a President O nobly forswears (or claims to),  a President R or G will gladly seize, and both will point to the NDAA’s language in support.  Instead of law — bright lines protecting our liberties — we get lawfare: blurry lines keeping all of President X’s options open… and abrogating habeas corpus by misdirection.

To me, that’s the opposite of what “the law” should do — or what a government charged with upholding the Constitution should do. But — unlike Mr. Wittes’ views, I’m afraid — my views don’t matter much.  The usual way this kind of ‘lawfare’ manifests is in secrecy about the very nature of laws or their enforcement, but it occasionally becomes plainer (in a manner of speaking, like a visible smokescreen instead of simple cover of darkness) when statutes like NDAA’s detention provisions are debated and passed.

Wittes to the contrary, the things that are actually depressing about civil liberties debates are that he’s depressed about them - and that he’s winning them all the same.  And that he and his allies are winning them with the kind of ‘angels dancing on the head of a pin’ arguments designed to charm yet another arrogant man, working in an oval office across town. Perhaps his ‘praise’ was a misstep in that respect; one can only hope, though it’s too late to do any good with the NDAA.

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* For my part, I’ve protested  against the NDAA a couple of times at an Obama campaign office in Maryland, and have appended a “further reading” list to the end of one account.

On the evening of Tuesday, November 15, I joined seven other people testifying before the Montgomery County Public Safety Committee about the proposed loitering/”prowling” bill 35-11, introduced by Councilman Phil Andrews.  As I’ve explained in a post on the “Montgomery County Civil Rights Coalition” blog, I think this is no better than the youth curfew I wrote about in the prior post.

My testimony is below; I’ve added a few links where appropriate. I’ll describe the hearing and the testimony of others in a separate post.

I’d like to thank Professor Andrew Taslitz of Howard University for connecting me with Howard Law students Maryam Mujahid (editor of the Howard Law Journal), Marc Watkins, and Michelle Mills. I’m very grateful to each of them for their generous help on very short notice. Their research and review work was invaluable; any errors are mine alone. It was also great to meet Marc, Michelle, and fellow law student Darien Jones at the hearing.

= = =

Thanks for this chance to speak against the loitering/”prowling” bill 35-11. I question its constitutionality, necessity, and likely results.

The October 25 memo about this bill cites cases seeming to show laws based on the same Model Penal Code ordinance have withstood scrutiny around the country.

But in two of those cases — BJ v. State (of Florida) and O’Hara v. State (of Georgia)* — the court didn’t really rule on the law’s validity, it just decided that the facts of the case fit the charge. Similarly, Watts v. State merely found that a potentially important precedent (Kolender v. Lawson) was inappropriate for the case.

Bell v. State does uphold a Georgia law like 35-11, and so do cases from Florida (State v. Ecker) and Wisconsin (City of Milwaukee v. Nelson). None of these decisions were unanimous; moreover, in the Florida and Wisconsin cases, very strong dissents were lodged on grounds I’ll echo below. More importantly, laws based on the same loitering/”prowling” law were found unconstitutional in Idaho (State v. Bitt), Oregon (Portland v. White), and Washington (Bellevue v. Miller).

The fact that judicial opinions on the matter are about evenly divided – with Southern states finding loitering laws constitutional, and Western states not – is itself instructive. One of the main standards for loitering laws is whether they’re “void for vagueness” – sometimes defined as “so obscure that men of common intelligence must necessarily guess at its meaning.”

And 35-11 is full of language to guess about: “in a manner not usual”, “justifiable and reasonable alarm or immediate concern”, “dispel alarm,” “explain his or her conduct”. In the real world, a dozen officers will interpret these words in a dozen different ways.

My point is that if justices of uncommon intelligence have trouble agreeing whether this law is vague, how much more puzzled the rest of us will be what to expect.

The sponsor’s failure to show a need for this bill in his October 19 memo — which points to declining crime and youth crime rates in the county, and success in Downtown Silver Spring by assigning additional police – only increases my questions about this bill.

The vagueness objection I’ve talked about touches on a concern I’ve shared before — that this law gives too much scope to overzealous or otherwise mistaken police to stop citizens.

Another major objection to this bill is that it smuggles “stop and identify” procedure into our county and state. At least the regrettable 2004 Hiibel ruling by the Rehnquist Court — that a person could be compelled to identify themselves to a policeman — was based on reasonable suspicion of involvement in a crime. But this law compels it for mere concern about future wrongdoing. Even under Henry VIII, Thomas More had the right to “stand on his silence”; it’s strange and sad to give that up 600 years later because of isolated incidents.

An August story in the Post told of 15 young, mostly black men who were stopped and searched in Silver Spring, with some having their tattoos photographed — on nothing but a hunch. They turned out to be doing nothing wrong. It was an unjustified humiliation that just happened to be reported; I think we can expect even more like it with this vague law encouraging stops for highly subjective reasons.

Americans expect our legislators to only craft unambiguous, absolutely necessary laws that don’t infringe on our rights. So I hope you won’t pass this one.

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* I’ve prepared a table of important loitering cases , showing laws like 35-11, cases overturning or upholding those laws, and selected cases overturning/upholding other loitering laws. The table provides links to online copies of the court decisions or statutory language involved, and supplies key quotes from the opinions.

Reflecting the growing hysteria, County Executive Ike Leggett had already proposed a youth curfew in mid-July that was initially drafted as a quite draconian curfew.  An amended bill was submitted in late August that eliminated criminal penalties and provided a variety of “affirmative defenses” for daring to be OWY — outside while young — after 11pm on weekdays and after midnight on weekends.

A “witch hunt”?
Calling this “hysteria” and the curfew highly questionable policing and crime-fighting seems fair in light of a number of salient facts:

• As Councilmember Phil Andrews has repeatedly pointed out, gang-related crime is actually down by nearly 50% over the last two years.
• Less than seven percent of youth arrests under 22 in Montgomery County occur during the proposed curfew hours.
• Montgomery County police rank and file oppose the idea, warning “Enforcement of a curfew misdirects scarce police resources,” and noting “Banning lawful activities of residents of our County based upon their age is not a solution to problems of real crime.”
  
• Even current advocates of the measure like “Safe Silver Spring” — supposedly tasked with advising county leaders on crime prevention — didn’t so much as mention a curfew in an extensive list of recommendations at the beginning of the year.  And no wonder…
• …most curfew studies conclude they have no statistical effect on youth crime.

At a mid-October “Youth Town Hall” with county council members, high school student and leading curfew opponent Leah Muskin-Pierret aptly compared the curfew proposal to a “witch hunt” — based on paranoia, targeting a largely innocent, powerless group, and not really solving the alleged problem.

The “Sundown Town” comparison
But there’s another, perhaps equally apt parallel from more recent — even current — American history: “sundown towns.” In his classic 2005 book “Sundown Towns,” James Loewen defined them as “any organized jurisdiction that for decades kept African Americans or other groups from living in it and was thus ‘all white’ on purpose.”

These jurisdictions ranged from those where black people were intimidated into leaving at gunpoint or by a lynching, through ones that posted signs saying “N*****, don’t let the sun set on you in this town,“ to those that enacted and executed their exclusions via only slightly more genteel city ordinances or development practices.  Hollywood generalizations notwithstanding, sundown towns per se were (and too many still are) not so much a deep South phenomenon as one of the border South, North, and Midwest.*

In Maryland, concentrations of “sundown towns” appear to be in Western Maryland, but also in Prince George’s County near DC and also a couple in Montgomery County — most notably Chevy Chase, one of the more or less “white glove”, development-based variety of sundown town.**

The “curfew” nature of many sundown towns was most plain, of course, when black people faced a night-time curfew.  This restriction on movement is itself an echo of the antebellum slave era, when slave patrols could and would demand papers of blacks found away from their enslavement sites.  As Howard law professor Andrew Taslitz points out in his book “Reconstructing the Fourth Amendment” (and at an April UDC forum about Metro bag searches), the framers of the Fourteenth Amendment explicitly sought to restore and strengthen Fourth Amendment rights against precisely this kind of restriction on movement.***  Curfews against blacks were as unjustified and hysterical then as youth curfews are now, and were often justified with a similarly unpersuasive combination of paternalism and paranoia: “it’s for their own good,” “they can’t handle freedom anyway,” “they’re dangerous.”

Worst of all, they’re bad for business
The most often reported information about the July Silver Spring incident– the event that seems to be of greatest concern to curfew advocates — was that that many of the protagonists were from the District or Prince George’s County, and that at least some said they came to Silver Spring because unlike in those jurisdictions, there was no curfew in Montgomery County.

That sounds bad, but it should be noted that immediate, independent accounts of the brawl are lacking.  The earliest I’ve found came about week later, and simply reported police accounts more or less unquestioningly.  Now clearly, something bad happened — but what?  Was Downtown Silver Spring in fact “flash mobbed” (as implied later on by Councilman Marc Elrich)? Was there always an intent to fight?  How many of those fighting were indeed gang members — not just “suspected” of that?  Was the absence of a curfew really a factor in planning a fight, or just one in heading to a popular nighttime attraction?  Did the fight happen by intent or by accident?  Does it seem likely to happen again, or was this a one-off event?  If they contributed to the problem, might eliminating PG and DC curfews make just as much sense as starting one in Montgomery County?  Thanks to a fairly lethargic journalistic tradition in the DC area, we may never know the answers to those questions; to my knowledge, I’m the only one asking.

And no wonder — those questions clearly hardly matter to curfew advocates among the county’s political and business leadership.  Capital-D capital-S capital-S Downtown Silver Spring is the urban development jewel in East Montgomery County’s crown, and nothing must be allowed to tarnish its reputation.  This, too, is a familiar story, writes Loewen in “Sundown Towns”:

Suburban city officials also know that shopping malls often desegregate first, leading to white uneasiness that can fuel white residential flight.  Today some suburbs do what they can to discourage African Americans from visiting their malls: persuading public transportation agencies not to service the malls with bus routes from black neighborhoods, surveiling African American shoppers and making them uneasy, and having police follow black motorists.”  (p.237)

Or, perhaps, enacting youth curfews and selectively enforcing them against… you know.  Politicians, bureaucrats, and police alike are remarkably candid when weighing business against civil liberties:

• Council member Nancy Floreen, commenting at the Youth Town Hall in response to one teen’s claim that business would suffer: “Frankly, teens seventeen and younger are not known as big spenders after 11 o’clock at night…  There’s a perception out there in the business world… that a big crowd of kids hanging out some place does not encourage the big spenders.  …You need a better argument.”
• The County “FAQ” page about the curfew — developed before the curfew was even approved! — states that “Montgomery County has revitalized or developed urban centers in Bethesda, Clarksburg, Germantown, Rockville, Silver Spring, and Wheaton, so it would make sense to have a county-wide curfew.” (emphasis added).
• Peter Franchot, Comptroller of Maryland, also could find no higher values to espouse than “an obligation to offer my perspective on issues that substantially affect our state’s economic vitality and our ability to sustain good-paying jobs, public revenues and private sector investment. It is with each of those roles in mind that I offer my strong and resounding support of the curfew legislation as it is currently proposed.”
• MCPD’s Robert Carter, in an op-ed to the Washington Post, wrote that “We are able to tell the bad kids based on their behavior. It’s the kids who come to hang out but never spend a dime at area businesses.”

…to say nothing of the baldly sneering op-ed by Blair Lee, CEO of the Blair Development Group, who wrote of “good” teen skeptics, in a screed titled “Send us your hoodlums” (all emphases added):

They know they won’t really be curfew targets, but they don’t want to be technical lawbreakers, although underage drinking, exceeding the speed limit, smoking pot and illegally downloading music doesn’t seem to bother them.

… and of those despicable “guilty white liberal” skeptics:

They have a thousand excuses for inaction. But, by far, their deepest concern is racial profiling. Won’t the curfew affect a disparate number of blacks and Latinos? Damn right, that’s who’s in the gangs! But for Montgomery liberals this could cause the apocalypse — Al Sharpton calling them racists.

Nixonland has risen again, if it ever went away.  The wrinkle — as ever in post-liberal, post-Democratic America — is that the charge for curtailing minority civil liberties is now being led by black politicians and allegedly progressive, green, and/or liberal white ones.  I have no doubt some of them tut-tutted about Lee’s piece, but so far they’re nearly all still jumping exactly the way Mr. Lee and (so the scuttlebutt has it) the powerful development company Foulger-Pratt and their ally Doug Duncan would like them to.

Yet even if protecting the pristine grandeur that is Ellsworth Avenue were the greatest imaginable good, just establishing a police substation nearby would probably be far more effective.  Lee’s rant and similar “get offa my lawn” commentary by others gives the game away — they just want kids punished, and want to bully an easily bullied Council into doing that.  It doesn’t have to make sense.  And they may get their way.

So what should I do about it?
Anyone opposed to the curfew should write their County Council members right away; for more information, visit the excellent site put together by high school opponents, http://stopthecurfew.net, where a mass email address to County Council is provided: testimony@stopthecurfew.net.  For up-to-the-minute action requests, visit their “Take Action” page.  Urge Council not to pass this bill, and if they do, to sunset it within a year.

As I said at a Citizen’s Advisory Board hearing, I’d be against this even if it were shown to be completely race-neutral — applied to whites, blacks and Hispanic kids in numbers matching those of the local population.  Equal enforcement of an unjust measure is just evenly applied injustice.

But at least it’s better than injustice unequally applied.  If our region becomes a “midnight county,” I’m very concerned about this curfew leading to racial profiling — especially when I’m repeatedly told police will “exercise discretion” in applying curfew regulations and that it’s “just another tool.”  If there is a youth curfew, the Montgomery County Police Department leadership — who want a curfew their rank and file do not — should have to prove there’s no racial profiling going on every day, by…

• requiring police to record, on serially numbered encounter forms issued to them, the perceived race, age, sex, and similar data about persons stopped for a curfew violation
• reporting twice a year to the County Council on these statistics
• training officers to avoid racial profiling, and providing for civil declaratory or injunctive relief if it happens

These are simple, common sense provisions that should actually apply to any police encounters in the United States.  They’re written up in greater detail in the model “Local Civil Rights Restoration Act” developed by the Bill of Rights Defense Committee (BORDC); I encourage everyone to have a look.

Yes, that would mean a little extra paperwork for police.  But if “young people have to give up a little — though, really, not much,” as Councilman Hans Riemer would have us believe, it seems to me we’re all entitled to a little proof that our rights to equal treatment under the law are being respected, too.

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UPDATE, 10/24: A competing bill, 35-11, has been introduced by Councilmembers Andrews and Leventhal; it is framed as an anti-loitering bill rather than a youth curfew one.  More at “Just Up the Pike“; links to the different curfew- or loitering-related bills are provided here.

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* To be clear: the deep South practiced even more brutal racial terrorism during the long Jim Crow era, both with spectacle lynchings and a convict labor system which essentially “disappeared” unfortunate black men into a slave labor gulag of mines, brickyards, timber camps, and plantations many never escaped.
** Built as a magnet for upper middle class flight from Washington in the late 19th and early 20th century, Chevy Chase nearly integrated in 1903 — but by mistake: a subdivision named “Belmont” was sold to developers rumored to want to build low income housing for blacks.  Developer Francis Newlands hastily bought back the current Saks Fifth Avenue locale to prevent that — and then persuaded the U.S. government to set aside Rock Creek Park as a buffer against black neighborhoods from the ‘the wrong side of the park’  (Loewen pp.124-125). Even today, Chevy Chase remains just under 5% black today (up from 3.7 percent in 2000), with about the same percentage of Hispanic Americans.  A dozen miles to the east in neighboring Prince George’s County, the pastorally named Greenbelt was also a whites only enclave — purposely created as such by the federal government in 1937 — for the first decades of its existence. Maryland also “boasted” a number of other certain or probable “sundown” towns; in the DC area, these included University City, Berwyn, Mount Rainier, and Brentwood, while census figures are at least suggestive for Washington Grove, near Gaithersburg in Montgomery County. It’s a guess, but I think there were probably many on the Eastern Shore as well. Our family knows that restrictive covenants were also in effect in the Cleveland Park neighborhood of Northwest DC as late as the 1950s.
*** Sadly, the passage of the Fourteenth Amendment failed to make curfews in particular or unequal protection under the law in general actionable in U.S. law as actually practiced.  But this was due more to execrable Supreme Court decisions like U.S. v. Cruikshank than to any fault in the clear language of the amendment.

As the resolution lays out — that is, laid out — it’s not just appropriate for a county council to express an opinion about this issue, it’s high time:

“4. While military spending has been extraordinary during the past decade, huge cuts have been made at the federal, state, and local levels to domestic spending, including appropriations for Maryland and Montgomery County.
5. The economic and financial situation in the state of Maryland has led to reductions in revenues from the state to Montgomery County. These reductions impact funding for education, environmental programs, health care, safety net services, public safety, and transportation projects.”

Cramped school budgets, fights with the police force over benefits, looming state and local health care and services cutbacks and more: they can all be attributed in no small part to this country’s misplaced budget priorities.

But if you need it, there will be another daily reminder of our county council’s embarrassing retreat — the empty storefront at the former Border’s Books location in Downtown Silver Spring.  That’s because Andy Shallal — owner of the thriving Busboys and Poets bookstore/cafe empire in the DC area — has ruled out expanding to that location (or any other in Montgomery County) because of the County Council’s action. CityPaper’s Lydia DePillis reports:

Having already planted flags in Arlington and Prince George’s counties, Montgomery was a clear next step for Shallal. And indeed, he tells me he’s been looking at the now-closed Borders Books & Music space in Silver Spring, and has been approached by developers to open in Bethesda. But Shallal, whose outlets have lately been sporting banners encouraging passersby to “IMAGINE A WORLD WITHOUT WAR,” says MoCo has lost its chance. “County residents pay about $2.5 billion in defense spending,” he emails. “Money that is desperately needed for other services.”

Sure: realistically, Busboys and Poets is no economic match for Lockheed Martin, which turns out to be the largest employer in the county.  But Mr. Shallal’s penalty to the county, while perhaps small in the scheme of things, is a concrete example of the trade-offs we’re making every day with our outlandish defense budget and our seemingly endless warfare.  Lockheed was either bluffing or insane: our county — with its still-excellent schools, its services, and above all its work force — either was a good place to work and live, or it wasn’t. Passing this resolution wasn’t going to change that.

With respect, I think Councilmember George Leventhal was mistaken to say the resolution amounted to unwise “federal legislating.” It was no such thing.  It simply urged Congress to make major reductions in the Pentagon budget, and reinvest the savings in state and local needs.

Councilmember Leventhal got it right the first time when he endorsed this bill.  I hope he gets it right again — and soon — to vote for it.

Now, the results are in, and they’re mixed — which is to say, they’re not good enough: two senators were recalled, but that fell one short of what was needed to wrest control of the state Senate from the GOP.

Before going on, let me emphasize: my hat is absolutely off to the many good volunteers who worked in these campaigns.  What they achieved was remarkable.

Having said that, though, the more I read about these elections after the fact, the more I wonder about the strategic wisdom of the whole thing.  The elections the GOP re-won were all in what were more or less GOP strongholds to begin with.  A whole lot of time, money, and effort later, they pretty much still are.  Under these circumstances, to emphasize how much of an uphill struggle it was always going to be (see, e.g., Howie Klein, digby, or the John Nichols interview on Democracy Now!) is not even cold comfort, it’s cause for concern: were frontal assaults on well held positions like these really the best plan?

Of the losing challengers, Clark came closest (lost 52-48%), but that’s still a pretty definite loss, and no one else came close at all. As far as I can tell, the thinking seemed to be (1) everyone who was really mad in February and March would stay mad for 5 months, (2) the GOP would be asleep on Election Day and not turn out their voters, too, all (3) in GOP-leaning districts.  The strategy amounted to absolutely needing three tough away game wins out of six.  Getting two was great, but the overall result was not a win. So it was a loss.

There was an alternative, discussed at the time both by labor leaders in Wisconsin (both AFL-CIO and IWW) and in the national media: a general strike, i.e., a “a strike involving workers across multiple trades or industries that involves enough workers to cause serious economic disruption.”

Yes, that might have lost some kind of ‘high ground’ among independents, conservatives, and even some “liberals” — but nearly anything runs that risk.  Yes, it’s technically illegal (under the Taft-Hartley Act — passed over Harry Truman’s veto in 1947)  — but technically so are other forms of civil disobedience.  When there’s a full-blown emergency, it’s appropriate to take emergency measures — and do so smartly.  One could imagine calling general strike for two days; then quit; then do it again; then quit again. Etc.

A general strike (or two, or three) would have been a way to immediately parlay the huge enthusiasm in Madison into ongoing action, instead of a momentum-draining 5 month wait.  It’s a labor and left wing tactic of long standing, as opposed to a “historic” (read: untried, roll of the dice) tactic like multiple recall elections.  The target?  Scott Walker’s financial base.  He wasn’t listening to protesters — but you can bet he’d have listened to Republican campaign contributors being hit where it hurts: in their pocketbooks.

There’s another way of looking at it, of course, and Howard Dean is its best-known advocate.  Dean, now leader of “Democracy for America” says the recalls were a kind of “50 state strategy” writ small:

Democrats standing up for their core values and running to win in every district of every state, even so-called “Republican” districts — [t]hat is what a 50 state strategy looks like and this is proof that we can win with one. Yes, we came up short in taking back the Wisconsin Senate last night, but we went up against everything the right wing had to offer and proved that people power can beat big corporate money, even in “red America.”

I was a big “50 state strategy” advocate when Dean  — whom I continue to admire and value — pushed it as chair of the Democratic National Committee.  But I think it’s not necessarily always the right kind of strategy.  A “50 state” type of strategy is a long term and party-building strategy, it’s one designed to identify candidates and supporters, and it’s one that presupposes that electoral success is the primary goal.  That’s true for Democrats (or Greens, or whatever other party needs to build itself up), but it may be less true for unions and/or civil society campaigns like this one.

In Wisconsin this winter and early spring, mass power was roused in defense of a human right under attack; most sympathetic observers agree it was the most stirring mobilization this country has seen in ages.  That momentum needed to be harnessed and spent in a way that maximized its effect on that issue, and that took advantage of its lightning-like effect on the Wisconsin and national landscape.

Instead, it was arguably used up on behalf of the Democratic Party — to little apparent benefit of either that party or the issue — first in a judicial recall race and now in state Senate recall races. The Democratic Party per se may have identified new supporters in those Wisconsin Senate districts, but the cause of collective bargaining wasn’t materially advanced, despite being the issue that galvanized so many supporters.

None of this is to say that the recall effort against Governor Scott Walker should be abandoned, or that the Wisconsin judicial and Senate recall efforts were entirely in vain.  But the return on investment looks pretty slim so far, and the prospects aren’t necessarily better going forward.  These choices may arise again as misguided “austerity” and and a prideful upper class continue to reign in Washington and in state houses around the country.  If (hopefully when) lightning strikes again as it did in Madison, we may want to bottle it differently next time.

Still, sometimes I think if I had a dollar for every time I’ve heard or read “I’m a supporter of the ACLU, but…” I could afford the richer, more refined lifestyle I truly deserve.

And sure enough, when push came to shove at a February 10 discussion of the bag search issue, Mr. Benjamin delivered what may be the new low standard in that genre. Beginning with the heart-sinking words “I am a long term member of the American Civil Liberties Union. Many of my friends consider me a civil liberties nut,” Benjamin was giving the lie to those words within roughly twenty seconds. Even though asserting that the rights we have as citizens are “why we are the great country that we are” and personally believing that “bag checks are a violation of those rights, and …the beginning of a process that moves towards us having fewer and fewer and fewer of those rights,” Mr. Benjamin continued:

And if this decision were only for me, and only about me, I would say I personally am willing to take the risk of potentially having somebody get into the system and blow something up and I would be one of the victims, and I would balance that against my rights and say my rights are much more important. [...]

However, I’m also a member of this board, and I was sworn to protect the safety and the security of the people who ride our system. And I don’t know how I as an individual with good conscience could allow somebody to get into our system and cause an explosion and know that somehow or another I contributed to that by overruling the best judgments of our chief executive officer and the professionals who understand this process. [...]

But I don’t know that I can be in a position of saying that I have got the ability, given the responsibility that is given to me as an individual and as a member of this board to protect our riders, to say that they should take the same risk that perhaps I would be willing to take. And as long as I have to carry out that responsibility, I think I need to defer to those who believe that they understand better this issue. It’s one that I do very reluctantly, but it’s one that I do after very, very careful thought. And I think that’s the balance that each of needs to make as we consider this issue.”

Anatomy of a betrayal
Now in point of fact, Mr. Benjamin was much more specifically sworn (even as a mere WMATA director) to protect the Constitution and the Bill of Rights he holds so cheaply, than to protecting the “safety and security of the people who ride our system.” Moreover, there’s no real tension between the two in this case: Metro’s bag search program is a deeply stupid one, much more clearly designed to pretend security than provide it — to serve as a “see we tried something” excuse if or when an attack happens someday.

But rather than dwell on the bag search issue any longer, I mean to consider Mr. Benjamin’s remarks and attitudes more closely as an object lesson in hypocrisy revealed and ostensible values betrayed. Fundamentally, the point is already made: Benjamin locates his duties completely in “safety” (however spurious), rather than in the values he professes personally, and that he is specifically sworn to uphold. Complete deference to the alleged professional expertise of others in defining “safety” plays a role as well; Benjamin’s conclusions follow inexorably from those errors. Note also, though, that the values professed are considered a kind of personal luxury (“if it were only about me”) rather than rights of significance and value to others as well — rights that Mr. Benjamin was in a unique position to defend. Finally, for now, note again the talismanic invocation of being a “long time supporter of the ACLU.” All those donations have finally served their purpose — a bona fide supposedly making the betrayal (or, if you agree with Benjamin, the contrarian epiphany) more remarkable and powerful.

Examples abound
Having seen this little set piece — Decorative Values Shed the Moment They Become Inconvenient — I started to notice similar episodes everywhere. An Exhibit B was provided (not surprisingly, perhaps) by the Washington Post’s Richard Cohen in a mid-February column about the public employee union problem newly identified by Republican governors. Spake Cohen:

I pause now to assert my bona fides. I got my first union card while still in college and remained a member of the Newspaper Guild throughout my career, paying dues even when I no longer had to. I can whistle union ditties and I swell with pride at the ancient picture of my grandfather, posed with his good friend, the union organizer. I know, too, what happens when unions are weak or nonexistent. Capitalism is cruel. Do not look for charity.

But enough is enough.

…before decrying duly negotiated pension plans for police and firefighters that, yes, appear to offset the low pay these public servants receive and the often incredibly dangerous duties they perform.

Exhibit C followed soon thereafter; one Sam Arora, elected to Maryland’s House of Delegates from Maryland’s 19th District, suddenly announced he was “praying hard” about how he would vote in committee on the gay marriage bill considered recently in Annapolis — after having accepted beaucoup donations from GLBT and other activists attracted to his pro-gay marriage stance during the 2010 election season.

Though he eventually voted for the bill, he also voted for an amendment weakening it; meanwhile, his wavering encouraged the same in others, and compelled actual grownups to spend time on him that could and should have been spent elsewhere. Arora “explained” eventually that “[w]hile I personally believe that Maryland should extend civil rights to same-sex couples through civil unions, I have come to the conclusion that this issue has such impact on the people of Maryland that they should have a direct say” – after trying to flush a tweet for same-sex marriage (not just civil unions) down the memory hole.

Exhibit O
But the main example — Exhibit O, as it were — is of course Barack Obama, the Democratic Party’s Disappointer in Chief. It’s hard to keep track of all of Obama’s promises and stances that have proven false or hollow, though I try in the video below and with an ongoing set of links in my delicious.com feed. Someone someone who ran as a skeptic of stupid wars and/or wars undeclared by Congress may have now mired us in a third one; someone who ran promising at least a public health insurance option delivered its near opposite, a mandate to buy private insurance without a competing public choice; someone who decried the Bush tax cuts as the budget- and nation-busting shortsightedness they are signed off on extending them; someone who who ran as an avowed skeptic of executive power has proven anything but once the Ring of Power was his to hold.

I liked Obama, voted for him, and even worked for him as I wondered about him — his FISA Amendment Act vote in 2007 was a warning I took seriously, but hoped (in vain) was not the shape of things to come. I’ve tried to understand Obama the man and Obama the politician. After reading David Remnick’s “The Bridge,” I’ve concluded his “improbable rise” was never all that improbable to him — and I continue to like him for that.

I think he’s supremely confident of his ability to weigh and balance competing interests — but to the detriment of recognizing when it’s time to draw bright lines, to take a side. One source of the urge to betray is a contrarian’s delight in considering oneself the smartest guy and the deepest thinker in the room; this might be Obama’s problem too.

But like Arora, there’s no stopping the waffling once it gets going. Like Cohen, there’s no reluctance to style himself as “in the corner” of or a “fierce advocate” of position X as needed, then do little or nothing to help when the chips are down. Like Benjamin, when push comes to shove liberties lose, while secrecy and security win. Every time.

…and Exhibit You
Luckily, there may be some apps for that. One is called a “primary”; another, a “third party.” But that brings me to Exhibit You, and Exhibit Me. If we, too, shrug our shoulders at betrayals, make excuses for broken promises, settle for the lesser of two evils, or simply give up and go fishing or watch TV, we’re as guilty as those we’ve rejected. Yes, Obama is just a politician. But he also promised to restore hope and bring change. Those words don’t mean what he seems to think they mean — he seems more a continuation of the forces I thought I was voting against than a victor over them. He should fear and reap the consequences of that, or democracy has no meaning.

The urge to betray values and principles for safety, expediency, or the false pride of joining an elite isn’t just an affliction of the powerful; it’s a siren call for all of us. We give up on ourselves and democracy by doing so. In the months and years ahead, let’s try to do better; let’s look for champions who hold the powerful accountable, who keep their promises, and who earn not just our votes but our lasting support.

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[crossposted at Obsidian Wings]