My Thoughts About Today

My heart goes out to security guard, Stephen Tyrone Johns, who died as a result of his wounds today.

First things first, let's get the easy stuff out of the way.

Will there be an intensified focus on hate crimes, hate speech, extremist activities, etc. as a result of today's shooting at the US Holocaust Memorial Museum?  YES.

Will there be calls for increased gun control legislation?  YES.

Will this be an issue about free speech and First Amendment protections?  YES (The shooter, James von Brunn, maintained an active website, published hate-writings, and had a prior criminal history).

Will your speech be threatened?  Only if you incite imminent violence (Brandenburg v. Ohio 1969), or make threats to the President (Watts v. United States 1969), and other "speech-acts" that cross the line of criminal activity and violence.

Will your speech be threatened?  Dude, shut up now.

Will federal agencies enact new measures, adopt new tactics, and pass new legislation regarding hate and extremist violence as domestic terrorism?  YES.

Will Democrats play a key role in sponsoring this kind of legislation?  YES.

Will it pass?  YES (at least, some new version now).

Will this event be used to criticize and undermine Republicans?  YES.

Will conservative talk show hosts like Rush Limbaugh, Glenn Beck, Bill O'Reilly, and Michelle Malkin shut the hell up now?  God I only wish.

Will there be sanctimonious calls for tolerance and an appreciation of diversity and other "touchy-feely" nonsense?  Yes.  Look, don't get me wrong.  I think they are essential so long as it includes an analysis about economic inequality, poverty, institutional critiques, and so on.  

Is this a new form of violent activity?  NO.  This is the first point that I want to focus on in terms on today's discussion about hate violence, extremist activities, and governmental responses.  Today's shooting, and last week's assassination of Dr. George Tiller in Kansas, is not new.  In fact, the US Holocaust Memorial Museum and others across the US, synagogues, mosques, and abortion clinics, and many others, have safety and emergency protocols because they know they are often high profile targets for extremist activities.  One can look to the history of these institutions to know the history of domestic terrorism.  

Second, what I will be mindful of in the coming months is the federal response, and much of it is dependent upon how they frame today's shooting and last week's assassination.  There will be the usual questions but most will be centering on how much is too much federal power if it decides to combat extremism?  Again, one can look to history to answer that question in this country's first "war on terrorism."  In 1871, President Ulysses Grant requested and was granted by Congress expanded executive powers to suppress the violent activities perpetrated by the Ku Klux Klan during Reconstruction.  The Civil Rights Act of 1871, aka the Ku Klux Klan Act, was passed and used to deploy federal troops to southern states to enforce the law, suspend habeas corpus, arrest and prosecute known Klansmen to which untold numbers of members were fined and/or imprisoned.  South Carolina saw the most action by federal intervention.  By the end of Reconstruction in 1877, the first manifestation of the Klan no longer existed, that is, until 1905 ( by the way, the parts of the Act were ruled unconstitutional by the US Supreme Court in 1882 ).  If you want to combat the rising tide of extremism, this historical case study is a clear example on what it actually takes to accomplish that goal -- unleash federal power.  This of course will make me sound like a totalitarian dictator, but if you look at the history of equality and civil rights, it has always depended upon the federal government to intervene with force either by law or by police/military action ( even if the federal government perpetrates that inequality ).

Final point, the unclassified Department of Homeland Security report on extremist recruitment and activity is by far the most prescient report ever developed since the inception of this federal institution.  Why?  Because it reflected the recent and best scholarship on hate violence and extremist activity in the most clearest language possible.  I don't know who exactly authored the report or what methodology was used, but what they concluded is what agencies such as the Southern Poverty Law Center and scholars such as Jack Levin, Jack McDevitt, and Barbara Perry have long contended: extremism is on the rise because of this specific confluence of terrorism, anti-immigrant sentiment, unstable economy, high unemployment, right-wing rhetoric as mainstream news, and, of course, the ascendancy of Barack Obama.  The DHS report simply stated within reasonable guidelines what to expect and prepare for law enforcement agencies.  

Judge: Iowa Gay Marriage Ban Unconstitutional

"DES MOINES n Gay rights advocates won a major victory Thursday when a Polk County District Judge ruled that the state's ban on gay marriage violates the Iowa Constitution."

This is a major development and I need to read the decision but it sounds like the ban on marriage was a form of sex discrimination. Of course, I am sure the decision will be appealed. We'll just have to wait and see for the next round.

read more | digg story

Back To Work

Kinda' back to work. Reading two anthologies at the moment. The first, Law in the Domains of Culture, edited by Austin Sarat and Thomas R. Kearns, and Cultural Analysis, Cultural Studies, and the Law: Moving Beyond Legal Realism, edited by Austin Sarat and Jonathan Simon. Austin Sarat, by the way, the main guy on law, culture, and legal studies, and was the past president of the Law and Society Association. A pretty good discussion thus far on the nature and impact of interdisciplinary work in a rigid discipline like legal studies, but there are moments that made my eyebrow furl. The obvious one is their definition of interdisciplinarity, at least some parts of it is contradictory. On the one hand, it is clear that they are talking about the limits of legal methodology and the problem with defining "culture" as a legal concept. Hence, the use of literary, sociological, anthropological methods that have traditionally dealt with "culture" can be enormously useful as a legal method. On the other hand, there are moments when "culture" is used as a pedagogical tool in legal studies. For example, how I would use various episodes of The Wire to talk about practices of surveillance, containment, and policing. I'm just using these episodes as examples to illustrate theoretical concepts, but, as my partner often tells me, a media studies professor would talk about them in a totally different manner which, of course, furls her eyebrow whenever she reads how other disciplines use film and tv media as teaching tools as opposed to proper objects of analysis. So it's somewhat problematic, yet predictable, on how people think of interdisciplinary work in their respective fields. What I think thus far is that legal studies ought to write against the law, in similar ways that cultural studies write against culture.

More on this when I read further.

Chungs Update

I came across another good article by Marc Fisher, columnist for The Washington Post, a video link of a press conference, and a discussion also led by Marc Fisher.

UPDATE: I like this Marc Fisher and I'd forgotten that he was among the few, if not the only one, who covered the recent appointment of Michelle Rhee to the top position of the D.C. school system of simmering Black-Korean tensions with the recent laundry pants case. Here's his article and check out the subsequent reactions to his post. It's very predictable.

D.C.'s Black-Koren Dynamic: A Simmering Tension
by Marc Fisher, Metro Columnist

What do the $54 million pants man, Roy Pearson, and the new D.C. schools superintendent, Michelle Rhee, have in common?

Their moments in the news in recent days have lifted the lid off a cauldron of black-Korean tensions. This relationship has a volatile history in Washington, running back to 1986, when Rev. Willie Wilson of Union Temple Baptist Church famously led a boycott of an Asian-American grocer in Southeast who had supposedly disrespected a black customer. The episode culminated in Wilson saying, after being asked if his demands were inflaming racial tensions, that if he and his followers hadn't forgiven the Asian shopkeeper, "we would have cut his head off and rolled it down the street."

Interestingly, until the start of last week's trial, the mail on the Pants Man was focused almost entirely on issues of abusing the legal system, the eternal battle over tort reform, and how the District could possibly have such a fellow serving as an administrative law judge. But once the trial started--and most importantly, once the first news photos of Pearson started appearing online, on TV and in the paper--the tenor of reader reaction changed dramatically. I still heard plenty of outrage about how Pearson was tormenting the owners of the dry cleaners and wasting the court's resources, but now that it was widely known that Pearson is black, a good chunk of the mail shifted to matters of ethnic rivalry.

Similarly, the surprise announcement that Rhee, a Korean-American woman, would become the first non-black chief of the D.C. school system in nearly half a century immediately engendered all manner of comment about supposed antipathy toward blacks by Koreans--all this from people who know nothing of Rhee's background, approach or personality.

I'll spare you the comments that consist solely of racist vitriol, but I think there's value in looking at the texture of the incidents and complaints that readers report about encounters with Korean merchants. I doubt that these incidents are much different from those that could be catalogued about any dry cleaner, no matter the owner's ethnicity, but here's one of the more thoughtful comments I've received from readers who believe the pants case is more about black-Korean tensions than anything else:

"The main thing here is the strained relationship between Korean businesses and Blacks with regard to customer service or lack thereof," wrote Keith Jones, a legal assistant at a major Washington company. He told of an Asian-owned grocery in his D.C. neighborhood where he says the owner routinely sells coffee creamer that has passed its sell-by date, as well as a dry cleaner that he says charges exorbitant rates.

"It is clear that the Korean merchants have a lot of businesses in urban America and that they are unified," Jones writes. "Blacks in these urban settings, for the most part, rely solely on Korean establishments in their neighborhoods. This is due to access and ultimately, their socio-economic status. I am certainly not saying that this justifies the Pearson case, especially not the amount. From the examples I gave from my own experience, however, one can only imagine what a Black person experiences daily dealing with the Koreans."

And here's an account from Rosemary Reed Miller, the longtime owner of Toast & Strawberries, which was one of the city's best-regarded boutiques, talking about her experience with a Korean dry cleaner:

"I had brought in a pair of pants which had a small spot. They cleaned that area, but left a larger spot on another area of the pant. When I pointed that out (unfortunately, I didn't see the spot until after I had paid), they told me that the large spot was on the pant when I brought the pants in. They wouldn't give me my money back, and implied that it would be another fee to get out the second spot. I decided to walk.

"When you're in business--and I had a small shop, Toast and Strawberries for over 20 years--I know you can't be perfect with everyone, but this I thought was unreasonable. I've lived long enough to share [Pearson's] pain. I am African American, but didn't sue. However, I feel as though I should have sued that cleaner even though my silk pants had a modest price tag. I've fought for the civil rights of all people all of my life. People need their rights to be addressed, and the people who 'wrong' them should be educated not to do something like that again to another person.

"I appreciate his suing on my behalf. Obviously $60+ million is 'over the top.' And I understand that
Korean-Americans have made efforts to be 'nicer' to their Afro-American clientele, but I think these cases are examples of their needing to be more sensitive. If they had listened with more understanding in the beginning,
and paid him for his 'lost' pants, I would hope that Mr. Pearson wouldn't have had such a strong sense of outrage."

Why do the kinds of poor customer service that might otherwise result in a grumble or a decision to shop elsewhere morph into ethnic tension in the black-Korean dynamic? This has been the subject of considerable study since the 1992 Los Angeles riots, in which some Korean grocers took up arms against black rioters, and the years that followed, when some rappers took after Korean merchants in their lyrics? (Warning: That link goes to a song with R-rated language.)

In part, this divide is a continuation of black-Jewish tensions that developed when many shops in American ghetto neighborhoods were run by immigrant Jews. But there's an additional element that many of the academics end up focusing on: It's a culture clash between two groups with very different behavioral mores.

Contrast a Korean social manner in which merchants may put change down on a counter rather than touch a customer's hand, or an infelicitous command of English that can make a shopkeeper seem distant and even disrespectful, against an African-American culture in which strangers are expected to make eye contact and acknowledge one another in a respectful exchange. Here's a black writer's perspective on this, and here's a Korean writer's view of a similar situation.

Did Roy Pearson sue the Chung family, owners of Custom Cleaners, because they are Korean immigrants? There's no evidence of that. Will the rank and file of the D.C. school system refuse to give Michelle Rhee a chance to succeed because she is Korean-American? Certainly most people are better than that. But in both cases, the noise around the black-Korean tension is loud enough to make hard situations much harder, and that's worth keeping a close eye on.

NOTHING!!!

That's what a D.C. Superior Court judge ruled against Roy Pearson in his $54 million dollar suit against the Chung family. The Washington Post has a great article that includes a link to the court opinion. Apparently, Pearson called forth several witnesses to testify and one of them described the Chungs as "Nazis." Pretty strong words to use against your local laundry, and definitely not a comedic description like, for example, "The Soup Nazi" in Seinfeld. Judge Judith Bartnoff adeptly rebuked each of the witnesses and their testimonies, but I check it out in full because they can be read as narratives to be deconstructed. Aside from the dramatic use and intent of the witness, I want to know what would compel someone to describe the Chungs as "Nazis."

It's such a bizarre case when I first heard about it months ago, but unfortunately, there's the distinct possibility that Pearson will file an appeal. The Chung family will have a donation drive to support their legal expenses because their savings have been depleted as a result of this idiot.

Plaintiff Gets Nothing in $54M Case of Missing Pants
by Henri E. Cauvin and Debbi Wilgoren

The D.C. administrative law judge who sued his neighborhood dry cleaner for $54 million over a pair of lost pants found out this morning what he's going to get for all his troubles.

Nothing.

In a verdict that surprised no one, except perhaps the plaintiff himself, a D.C. Superior Court judge denied Roy Pearson the big payday he claimed was his due.

Delivering her decision in writing, Judge Judith Bartnoff wrote 23 pages dissecting and dismissing Pearson's claim that he was defrauded by the owners of Custom Cleaners and their "Satisfaction Guaranteed" sign.

"A reasonable consumer would not interpret 'Satisfaction Guaranteed' to mean that a merchant is required to satisfy a customer's unreasonable demands or to accede to demands that the merchant has reasonable grounds to dispute," the ruling said. " . . . The plaintiff is not entitled to any relief whatsoever."

It was a pointed rebuke of Pearson's claim, and came with an order to pay the cleaners' court costs. But even bigger troubles may loom for Pearson.

Financially, he could soon be on the hook for tens of thousands of dollars in legal fees incurred by the owners of Customer Cleaners. Attorneys for the Chungs have said they will seek such payments, as well as sanctions against Pearson for bringing the lawsuit. Bartnoff said in her ruling that she would decide those issues after both sides have filed their motions, counter-motions and legal briefs.

Professionally, Pearson could find himself out of his $96,000-a-year job as an administrative law judge for the District government.

All that is certain right now is that he won't be getting the multi-million dollar payout he demanded when he filed suit in 2005 against Soo Chung and her husband, the owners of Custom Cleaners.

No one, not even Pearson argued that his pants were actually worth $54 million. The whole suit had cost just over a thousands dollars, and letting out the waist, as Pearson had asked the cleaners to do, was only going to cost him $10.50.

But this case -- decried by both trial lawyers and the defense bar -- was, to Pearson, about far more than the pair of pants.

It was about safeguarding the rights of every consumer in the District who, Pearson argued, might fall prey to signs like those once posted in Custom Cleaners. Satisfaction was in fact not guaranteed, Pearson argued, and his own experience put the lie to the supposed promise.

For years, Pearson had been a customer of Custom Cleaners, the only dry cleaners in easy walking distance of his home in the Northeast Washington neighborhood of Fort Lincoln. Even after a squabble several years ago over another pair of lost pants, Pearson continued to patronize the Bladensburg Road NE business.

So when Pearson was hired in April 2005 to be an administrative law judge and needed to have all of his suit trousers altered, he went to Custom Cleaners to have the work done.

Until he landed the judgeship, Pearson had been out of work. Strapped for cash and running up close to his limit on his credit cards, he brought his pants in one or two at a time to avoid maxing out his credit.

On May 3, he brought in the pants he planned to wear three days later. But on May 5, the pants were not ready, and the next day, May 6, they were nowhere to be found.

A week later Soo Chung found what she said were the missing pants. But Pearson said they were not the pants he had left to be altered. Not only was the pattern different, but the pants proffered as his had of all things, cuffs. Only once in his adult life, he said, had he worn cuffed pants, and never, he suggested, would he have so defiled his treasured Hickey Freeman suits.

Pearson demanded $1,150 to buy a new suit. When that didn't fly with the Chungs, Pearson swung into action, filing a lawsuit that would eventually make him the talk of the town and fodder for late-night comedy.

Along the way, he rejected offers to settle, first for $3,000 , then for $4,600 and finally for $12,000. A judge headed off Pearson's efforts to turn the case into a sort of sweeping class-action suit and tried to rein in his "excessive" demands for documents. But the judge found he could not simply dismiss the claim, and that meant Roy L. Pearson Jr. vs. Soo Chung et al. was going to trial.

By the time it did, on June 12, it was in the hands, a new judge, Bartnoff, and it lived up to its billing. Media hordes descended, including television crews from Korea, where the Chungs were born. CNN updated its viewers frequently.

A dozen witnesses testified. One, called on behalf of the plaintiff, compared the dry cleaners to the Nazis.

When Pearson testified, he lost his composure and began to cry.

When she took the witness stand, Soo Chung did the same.

Dissertating

So I was reading another law review yesterday about Virginia v. Black (2003). Of the several dozen or so articles there were only one or two that moderately favored the decision. The rest simply attacked the decision as an attack on First Amendment protections. I don't know why. Maybe I just happened to pick up the negative ones, but there's very little praise for this decision.

Most had their own reasons for it centered around the general anxiety of waning First Amendment protections, or circumventions of Brandenburg, etc. I read this particular one and it started off with the usual critiques of Justice Sandra Day O'Connor's opinion, the "puzzling" opinion by Justice Antonin Scalia in RAV which was revisited in Black.

On a side note, for some reason, and this one article was not the first, authors who wrote extensively about Black and RAV, talked about how the two statutes from Minnesota and Virginia were "nearly identical" or bore a "striking resemblance."

From St. Paul, MN, this is the city ordinance which was challenged in RAV v. St. Paul (1992):

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

And here is the Virginia statute:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.

Other than a cross burning as a common thread, and an effort to criminalize hate motivated expressive conduct, I don't see the "striking resemblance" or the "nearly identical" that I've been reading. If anything, there are substantial differences that sets the two apart in its content and application. I just couldn't help but think that these First Amendment purists were in a rush to substantiate their objections to Black and neglect the details. Anyways ...

So this one article was predictably arguing against Black and through it all I was trying to figure out where this author was going with her argument. Then it struck me near the very end about the "slippery slope" that the decision produced:

It is clear that the Nazi swastika is already the next form of symbolic expression on the chopping block. What about the use of confederate flags? What about shirts bearing only a picture of the confederate flag? Has the Court allowed states to restrict expression that society has come to regard with distaste?

Aha!

To answer the questions, I resoundingly say "Yes!" So start lining them up because it's clear minorities cannot always depend upon the good natures of people to know any better. If anything, state power has always been invoked to protect minorities and combat discrimination, and this is perfectly consonant with the history of civil rights.

The really sad irony is that oftentimes it was the state that had created these problems in the first place. And now the very instrument that perpetrated policies of segregation, colonization, race-based exclusion, and genocide, is also the same one that dismantles discrimination, and asserts justice and equality.

And on a final note, I'm getting sick and tired of reading so many First Amendment purists bemoaning the destruction of free speech, and therefore, the end of the so-called "free marketplace of ideas" and the vitality of democratic life and blah blah blah blah. Seriously, after reading the 16th article on the same theme and conclusion, but different method of course, it's like beating a dead horse ... like thousands of them!

*sighs*

Dissertating Daze

These past 3 days I was amazingly productive on my last chapter. I read 6 law review articles, 3 court cases, wrote 3 pages for my last chapter, and discovered a better argument to round out my second and third chapter. I'm not surprised considering teaching does take up so much time and energy by itself. As a matter of fact, it was a relief to be away from teaching and focusing on my immediate goal of just finishing my degree.

Oddly enough, at a moment when I am most productive, I'll be taking a short 4 day vacation to New York to visit some friends starting tomorrow. I'm quite excited to go considering I haven't been to New York since I was 4 years old and I barely remember anything. So I guess it'll be all brand new for me. But it feels like an interruption knowing that I'm on a roll and I should take advantage of it while it lasts even though I had planned the trip less than 2 months ago.

Don't get me wrong; I'm very excited to go and I will enjoy my time there. Nothing is easier than to forget about it writing a dissertation. As a matter of fact, there are hundreds of ways to avoid the drudgery of writing and researching. But there's still only one way to actually finish it which is to sit and write.

A Defining Principle ...

I came across this quotation when I was reading Texas v. Johnson (1989), the Supreme Court case that protected flag burning under the First Amendment. Actually, the quotation was originally from Justice Robert Jackson who gave the majority opinion in West Virginia State Board of Education v. Barnette (1943). Justice Jackson later became the chief prosecutor against Nazi war criminals after World War II. His words about free speech are simply elegant.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Sentence: Life in Prison

In my research, I come across numerous cases of hate violence from the physically violent to the emotionally traumatic. But I paid particular attention to this case from last year because of the sheer brutality of the attack. As prosecutor, Mike Trent, said, "this was torture." The perpetrator, who is one seriously screwed up kid, had, among other things, a history of violent behavior in particularly towards Latinos, fascination with Skinheads and neo-Nazis, fantasizes about necrophilia, and hears voices in his head. All of which provided the jury enough reason to sentence him to life in prison.

But what moved me, and it seems so rare in these cases, is how both mothers, both families, embraced and mourned together with the perpetrator's mother apologizing repeatedly for the actions of her son.

http://www.chron.com/disp/story.mpl/metropolitan/4344623.html