Alito and his Oligarchical Ethics

I need to return briefly to a theme touched on the post immediately preceding this one. The profound dishonesty of the entire conservative movement is embodied by Justice Samuel Alito and encapsulated by something that happened just last year.

For years, it has been conservative dogma – wholly false – that the Supreme Court should be made up of jurists who “call balls and strikes” and do not allow their policy preferences or ideological beliefs to color how they rule on matters of great import for the citizens of this country. That the court should not “legislate from the bench” and merely interpret the Constitution as its drafters intended.

We can call bullshit on this sort of rhetoric by looking at the Court’s conscience-shocking reversal of the Roe v. Wade decision. It is not “conservative” to ignore stare decisis or to literally use the power of the court to strip women in this country of what had been between 1973 – 2022 a Constitutional right to personal privacy.

The author of the majority’s decision was Samuel Alito, who is also the most likely suspect with respect to the early leaking of that shameful screed, unique in that it shrunk rights for women in this country, rather than expanding them. Alito’s decision was released on June 24, 2022.

Literally a month or so later, Alito gave a speech in Rome, Italy wherein he mocked foreign criticism of the Dobbs decision. That speech was given at an event organized by Notre Dame University Law School’s “Religious Liberty Summit”. I’m sure it was all about religious liberty for Muslims and Jews and Hindus and Buddhists, what with it being a speech by a Catholic justice hosted by a Catholic school in Rome.

It also seems hypocritical for a jurist-for-life who is supposed to be somehow above politics – at least in the fairy tales they told us in school – to opine on matters of current political events. Or to whine so shrilly about criticism leveled at him.

The part that is fundamentally corrupt has to do with the fact that Notre Dame’s Religious Liberty Initiative invited Alito and paid for his and his wife’s travel to – and lodging in – Rome. Imagine that! An all-expenses paid trip to the Eternal City! Now, consider that Notre Dame’s Religious Liberty Initiative filed an amicus brief in the Dobbs case, arguing for the outcome that Alito delivered.

This wasn’t a scholarly invite. It was a payoff. It was a transaction.

The Leonard Leo Coup

The Leonard Leo coup has seen its first major success. Gutting affirmative action in college admissions – that’s low-hanging fruit. For decades, movement conservatives have focused their efforts on manufacturing an artifically biased right-wing Supreme Court in order to reach the goals they cannot accomplish through electoral politics.

The movement conservative right-wing Supreme Court – completely out-of-touch (by design) with the people of this country, have today gutted our entire civil rights infrastructure. It is no surprise or accident that at least two of the Court’s right-wing members maintain a level of ethics and good government one might expect from a Russian oligarch. Alito and Thomas – Leonard Leo’s pets.

It was not too long ago – 60 years – that the Jim Crow South still had legal, institutionalized segregation in public accommodations. Whites-only water fountains, waiting rooms, means of egress, etc.

The pain and anguish and hard work of the ensuing six decades do not matter one whit to a movement hell-bent on ensuring that white elites maintain their slipping grip on power and institutionalizing one specific subset of Christianist ideology on the entire population.

It’s why today’s Republicans are so busily gutting and weakening voting access and rights in a way that is specifically designed to most adversely affect voters whom they perceive to be friendliest to centrism and Democrats. They are a fundamentally anti-democratic coterie of liars, hypocrites, and charlatans.

It is only thus that a contrived, fake “controversy” over a website for a gay couple that never existed could reach the highest court, and that court would rule that it is ok for places of public accommodation to discriminate against a protected class, so long as the discrimination is arguably based on moral or religious beliefs.

Just think! Soon we may have the benefit of living actual history with storefronts in East Aurora or Williamsville peppered with “no gays” (certainly any such establishment would use a stronger, more offensive epithet), or “trans not allowed” or “interracial couples need not apply.” Perhaps we can usher in a return of the Green Book – digitized for our “modern” era – so that LGBTQ couples and people of color can find which places of nominally public accommodation are welcoming to them.

Run a public opinion poll on that and find out whether normal Americans agree with a return to institutionalized segregation and bigotry.

But this post is the principal reason why the Leo Christianist right are having such a lovely time and a field day – they’re making the right people (namely, “libs”) angry. Owning the libs is the central ideological feature of modern conservatism, and nothing makes these snowflakes happier than making sure that any historically marginalized group from black folks to gay folks are spat upon and treated as dirt. They are fighting the war against “woke!” They are battling something they call the “woke mind virus!”

I am not a Christian of any ilk, so perhaps one of you who is can explain to me – reconcile for me – Christian religious doctrine with a political ideology grounded in hatred and cruelty?

Just wait until someone with a business open to the general public decides that their morality dictates that they not serve white heterosexual couples, or conservatives, or people with tattoos or facial hair.

Certainly religious doctrines deserve to be protected by the Constitution, which is why the Court did not – and cannot – force churches or other places of worship to solemnize same-sex unions, and cannot force a religion to recognize or perform such marriages. That is fine. What this right-wing ideology is doing, however, is giving a place of public accommodation the same treatment as a religious organization or facility.

I guess they were right about the arc of the moral universe and its length. Rest assured that history will view this coup-Court as a national embarrassment and disgrace. Someday.

Welcome to the tyranny of the unelected Christianist dictatorship-for-life.

The Majestic Plural

There was a small handful of local lawyers who tried to make a name – and some coin – for themselves by challenging the government’s ability and right to impose quarantines and restrictions during a pandemic emergency. The Covid-19 pandemic killed well over a million Americans, and counting. Covid antibodies helped end the pandemic emergency – whether through infection or injection. Or both.

One of the lawyers in question is the person who penned the thing I reproduce below. It is important to remember that the pro-Covid argument he and others propounded was that the government did not have the right to, e.g., tell kids in school to wear masks, to keep school populations down to enable distancing, or restaurants to require patrons and staff to wear masks when not eating or drinking.

Below is a document that noted local emailer Carl Paladino sent to his broader campaign list. It is a shocking compendium of nonsense masquerading as legal analysis. In order for it to be valid, it would have to ignore and negate literally the entire text of the United States Constitution as adopted in 1789, and its various and sundry Amendments.

This is a Nixonian view of Presidential power – “Well, when the president does it, that means that it is not illegal.”

The fundament of the American Constitution is that the people are sovereign; not any one individual. The entire point of the Declaration of Independence and the American Revolution was to overthrow a corrupt and unfair system whereby the people of the thirteen colonies had little or no say in their own affairs. The Declaration is most remembered for the clause that begins “[w]e hold these Truths to be self-evident…” but the remainder of the document is a list of grievances specifically directed against the King. The Declaration demands that a government be “instituted among Men, deriving their just powers from the consent of the governed.”

The Constitution sets up the framework for the institution of this government. The preamble to the Constitution ironically turns the royal “We” – the majestic plural – on its head with “We, the People.” If you look carefully at George III’s 1763 Proclamation, partially reproduced above, his preferred pronoun was “we.” The same is true of many monarchs.

And so, the entire point of the creation of this republic was to eliminate monarchical rule and to replace it with representative democracy. It was a radically progressive notion at the time, one that Europe took seventy-or-so years to begin to duplicate in earnest.

There is, in the United States, a “presidential sovereign immunity.” In fact, many elected officials and public servants at every governmental level enjoy some level of immunity from legal action. (We prefer to call it governmental immunity because – you guessed it – the people are sovereign). The qualified immunity that an average police officer enjoys is currently a source of debate. Whilenot expressly mentioned in the Constitution, it is agreed that a President enjoys absolute immunity from civil liability – that is lawsuits for money or injunctive relief – for decisions taken while in office. A President is not immune from such liability for pre-office wrongdoing, however.

As to the question of whether a President can be prosecuted for criminality, he cannot, for so long as he holds the office. The method to deal with Presidential illegality is supposed to be impeachment, and after the President reverts to private citizen, he can then be subject to prosecution. The notion of impeachment is seemingly now an anachronism, as it requires elected officials to treat government and their offices seriously. We know now that the Republican Party has devolved into a personality cult that will literally tolerate and uphold any type of illegality from Donald Trump, including an insurrection. While the Parliament of the United Kingdom – including almost all Conservative MPs – take their duties to their government seriously, Republicans do not. Donald Trump was impeached on two occasions – once for threatening to withhold aid to Ukraine if its President did not help him smear Joe Biden, and once for fomenting insurrection. Republicans simply let him get away with it.

The criminality of the Trump Administration is unprecedented in American history and one which the Founders could not reasonably have foreseen. How could a person in the 18th century have envisioned that executive power would be wielded so clumsily and with such malign intent by someone doing, in turn, a bad imitation of late-1980s era John Gotti or Howard Stern.

The federal criminal charges against Donald Trump are set forth here. Aldinger recounts two recent cases, Bruen and Dobbs (both written by Supreme Court Justices who have in recent months been exposed as billionaires’ playthings ). Bruen overturned New York’s handgun registration laws while Dobbs overturned Roe v. Wade, presumably allowing states to ban all abortion in all cases, if they choose. Dobbs in particular has the dubious distinction of being the first Supreme Court decision to take away from one class of people a Constitutional right, which a prior Court had declared to exist.

Everyone knows that allowing any freak to waltz down Madison Avenue in possession of a concealed handgun is exactly what the Framers intended, what with that pesky “well-regulated militia” language being effectively ignored by successive Courts. Similarly, the idea of a right to privacy is very important when, for instance, it works with the First Amendment to prevent disclosure of million-dollar SuperPAC donors, but not at all important when it comes to a woman maintaining control over her own reproductive system.

Aldinger seemingly argues that the President of the United States should enjoy the same sovereign rights and privileges as the “King of England, the King of France, or the Holy Roman Emperor” as they existed in 1789. Aldinger argues that these three monarchs – hereditary heads of state – were “all above the law” and so, too, should the President of the United States, even though he is elected. Aldinger argues that even today, Charles III – the UK’s head of state – enjoys sovereign immunity. But that is because Charles III is, and Louis XVI, and Leopold II were, sovereign monarchs. In the United States, the people are sovereign, and in order to buy into Aldinger’s argument, you have to reject that idea entirely. We in the United States do not have a monarchy or a dictatorship, nor were Presidential powers set up in the Constitution to create a pseudo-monarch to wield supreme executive power by decree. Alexander Hamilton agreed with Aldinger that the President should be a quasi-kingly figure, and the Constitutional Convention rejected this in the 1780s, so why on Earth are we discussing it in 2023?

Aldinger argues that the example of European autocratic monarchies was the norm in 1789, so we must have somehow magically intended to adopt that model ourselves, despite all evidence to the contrary. Although Charles III is the head of state, he is not head of government. In the US, the President is both. France has no king and the Holy Roman Empire no longer exists. Extending Aldinger’s “place yourself in 1789” logic, women cannot enter into contracts or own property. Although women’s right to vote was guaranteed via Constitutional amendment, the Equal Rights Amendment has yet to be ratified.

Aldinger, however, misapprehends the idea of impeachment; he supposes that the sole and exclusive remedy afforded to our democratic republic to deal with a criminal and corrupt President is to impeach, convict, and expel him from office. He argues that impeachment is the sine qua non of any subsequent criminal prosecution – a substantive and procedural prerequisite, “…but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

I do not read that passage as a prerequisite because it is not drafted as such. There is no clear language setting forth that conviction on impeachment is a prerequisite to criminal prosecution; instead, they are separate and distinct processes. Impeachment is not a criminal sanction, but a political one – it removes the President from office. There is no fine or imprisonment that accompanies conviction on impeachment. Indeed, there is nothing in the Constitution that immunizes a former President from criminal exposure, whether impeached and convicted by Congress or not.

While Mr. Aldinger deems it necessary to repeat that Charles III has extraordinary rights as King, the Constitution does not “allow the President to give state secrets to anyone with impunity – including to themselves in their capacity of being a private citizen.”

It bears mentioning at this point that Aldinger’s argument about impeachment and sovereign immunity must fail because Donald Trump has not been Emperor-King President since late January 2021. The crimes alleged in the federal indictment all occurred after his departure from office. The allegation is that he illegally retained public documents – many of them classified and secret – without right or authority to do so.

Aldinger goes on to suggest that Trump – as the “sovereign equivalent of a monarch” has the full right to give any state secret to anyone, at any time. This would be true were we not a democratic republic with a system in place of checks and balances. In reality, the Presidential power to declassify is not absolute, is subject to limitation, and can typically only be done via Executive Order, as Trump himself was well aware. An Executive Order from 2009 sets forth the current guidelines for Presidential declassification, and this set of regulations from NARA further sets forth how the process of declassification must be administered. When Presidents declassify documents, some information contained therein may continue to be classified, as seen in these redactions. This is what it looks like when a President declassifies secret information, and it is not done lightly and the idea of a standing order of declassification does not exist in our country.

So, we know that Trump is not a king, and does not possess monarchical, absolute powers. We also know that Donald Trump, as a private citizen, was in possession of numerous materials that should properly have been left with the National Archives or otherwise protected due to their classification, and that Trump repeatedly failed and refused to cooperate with efforts to do that. Aldinger’s proposed scheme would enable the office of President to be a license to commit any crime under the sun, with impunity from criminal prosecution absent the precondition of impeachment, conviction, and removal from office. An outgoing President, he argues, could even pardon himself on his way out of the White House. How little Aldinger thinks about the office of President and our institutions of popular government.

In his text, Aldinger differentiates President Trump from “citizen Trump”, but that’s the whole point of this democratic exercise we’ve endeavored to perfect since the 18th century – the President is just another citizen. He has temporary powers and privileges lent to him through the Constitution – and laws and regulations promulgated thereunder – but he is not above the law.

If, as alleged, Trump retained classified materials that had not properly been declassified, then as a private citizen he had no right to possess them and had a duty immediately to return them. The indictment itself is damning. Others have improperly retained classified information inadvertently, and when discovered they have immediately rectified the breach – Clinton, Biden, Pence. But Trump refused to cooperate and knowingly kept some of America’s most sensitive secrets in his country club hotel/residence.

As mentioned above, Aldinger was big on suing the government for Covid restrictions – he simultaneously thinks the government possesses the powers of a king, but not enough power to take temporary emergency action to protect people from infectious disease. It is a good distillation of modern conservative thought – its “exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.” The law protects Trump and MAGA, but does not bind them. Trump can crime all day long with impunity. But were one to apply this reasoning to a Clinton, or even Joe Biden’s private citizen son, the law binds them but ought not protect them. The law binds governments and prevents them from requiring masks and distancing, and ought not protect them. As you would expect, the notion of government being powerless to act during pandemic is ahistorical nonsense.

We know that there is not a low low enough for Donald Trump, and that his depravity and illegality are limited only by his own imagination. That a lawyer would dream up and publish this piece of ahistorical, unsupported, un-American rubbish to justify it can only mean that we have found our next Sidney Powell.

Did a Liberal Jihadist Fabricate Paladino’s Emails?

carlrally

With respect to the headline, Betteridge’s Law applies.

The tea party held its “yay Carl” “rally” on the steps of City Hall Wednesday, and here is the transcript of Jul Thompson’s remarks. Allow me to highlight this section:

The legend goes, that among his many other colorblind activities like employing scores of African-Americans, Carl Paladino is the primary financial support to an inner-city black church that ministers to the homeless. I wanted his campaign for governor to share this information after a liberal jihadist fabricated some emails and charged Carl with racism. But I can’t provide details, because as a humble man, Carl didn’t really want this information public.

I am that “liberal jihadist”. This is the second recent occasion on which Ms. Thompson has directly accused me of “fabricating” the Paladino email cache that my colleagues from WNYMedia.net and I released in 2010. Since she has repeatedly made that false accusation, it is incumbent on me to rebut it.

First of all, let’s re-examine Paladino’s own words. He never denied sending and forwarding the emails.

I re-sent emails that were sent to me by others… that’s all

The day the emails were released, Paladino’s own campaign released this statement:

Carl Paladino has forwarded close friends hundreds of email messages he received. Many of these emails he received were off color, some were politically incorrect, few represented his own opinion, and almost none of them were worth remembering.

We’re not surprised the political establishment feels threatened by Carl’s drive the take Albany back for taxpayers. Our campaign won’t be wading through the details of what is just another liberal Democrat blog smear.

No one said the emails weren’t his. No one said he didn’t send them. No one accused anyone of “fabricating” them.

Finally, if Paladino didn’t send these – if I ‘fabricated” them, why did he apologize for it in 2010?

REPORTER: Do you think it was appropriate to send out some of these emails

THOMPSON: I just said that, didn’t I? No it wasn’t. Was it appropriate for him to forward these things on? No.

Paladino said he did not create the emails, but merely forwarded them to friends before he became a candidate.

Paladino tried to explain himself during a brief appearance on the Fred Dicker Show on 1300 AM in Albany Tuesday Morning.

DICKER: Why did you pass this stuff along. Why didn’t you send it back and say, ‘return to sender? It’s too ugly.’ We only have about 40 seconds.

PALADINO: Well, you know, over the years, when your friends are sending you emails, ok, that are funny at the time, okay, that are not intended to be anything other than a humor amongst friends, that you re-send stuff. And I did that.

DICKER: You find…

PALADINO: … And I acknowledge that.

DICKER: … use of the word n****r humorous? I mean, that’s a pretty horrifying word these days. And understandably so, you know.

PALADINO: Well, they… well…. at the time and moment, okay when you see Ronald Reagan dressed in drag or you see a, uh (RADIO BREAK MUSIC PLAYS), uh, Obama, okay, picture…

DICKER: Yeah, the, uh, pimp’s outfit.

PALADINO: Whatever. That kind of stuff is going to happen, but that has nothing to do with the campaign.

and

“I regret having been somewhat careless in the way I re-sent e-mails that I received. I didn’t originate any of these e-mails. Whenever I received an e-mail that was political, off color, politically incorrect , whatever, …I sent it to a very specific bunch of friends who somewhat enjoy that sort of humor. “

Certainly someone innocent – someone who is a victim of a vicious fabrication – would never, ever apologize for something he never did and by which he was being victimized. Jul Thompson is, simply put, a liar.

Finally, if you doubt their authenticity, here is one of the emails that Paladino forwarded, and it specifically sent this video around: purporting to be footage of the “Rehearsal for the Obama Inauguration”, it depicts African tribesmen dancing in the jungle. To call this racist and vile would be an understatement.

Here is how that email was forwarded to Paladino (click to enlarge images):

Here is Paladino forwarding it out to his friends and colleagues:

Here is the reply from one of the recipients:

And Paladino’s defense:

Want to verify the authenticity of these emails? Why not contact one of the people who received it. In 2010, I redacted that information.  Now that an ally of Paladino’s has twice accused me of fabricating them, I must defend against such falsehoods.

Here’s another. It’s making fun of motivational posters, and I omitted the pornographic ones, but kept in the ones that use the word “fag”, denigrate black people, and mock those “damn Asians”.

When these were first released, part of the Paladino campaign’s strategy was to attack us, the people who published these emails for being liberal bloggers. It was true, after all – we were liberal bloggers. However, we never would have deliberately manufactured something out of whole cloth just to attack Carl Paladino. We have strong opinions, sometimes aggressively expressed, but would never fabricate some grand, international fraud.

Why would some tea party activist from some far-flung exurb be so invested in the travails of the Buffalo school district, with which she has no true interest and in which she has no genuine stake? On the one hand, this is sheer cultism at its core, protecting her Carl against the mean people; as if Carl couldn’t do it himself and needs her help. On the other hand, she agrees with the underlying goal, which is creating havoc in the public school to bring about political control and/or privatization. The target is the public school system in America, writ large.

New York City’s Fallen

Via Facebook

The assassination of two New York City Police officers Saturday is abhorrent and shocking.

The fact that the murderer used the death of Eric Garner as an idiotic excuse to is appalling and sick. He committed suicide. will likely be tried and convicted of 1st degree murder.

That George Pataki, likewise, is a sick asshole.

Here’s what De Blasio had to say:

Here’s what Eric Holder had to say:

“I condemn this afternoon’s senseless shooting of two New York City police officers in the strongest possible terms. This was an unspeakable act of barbarism, and I was deeply saddened to hear of the loss of these two brave officers in the line of duty.

“On behalf of all those who serve in the United States Department of Justice, I want to express my heartfelt condolences to the officers’ loved ones and colleagues. I will make available all of the resources of the Department to aid the NYPD in investigating this tragedy.

“This cowardly attack underscores the dangers that are routinely faced by those who protect and serve their fellow citizens.  As a nation we must not forget this as we discuss the events of the recent past. These courageous men and women routinely incur tremendous personal risks, and place their lives on the line each and every day, in order to preserve public safety.  We are forever in their debt.

“Our nation must always honor the valor — and the sacrifices — of all law enforcement officers with a steadfast commitment to keeping them safe.  This means forging closer bonds between officers and the communities they serve, so that public safety is not a cause that is served by a courageous few, but a promise that’s fulfilled by police officials and citizens working side by side.”

And President Obama:

I unconditionally condemn today’s murder of two police officers in New York City. Two brave men won’t be going home to their loved ones tonight, and for that, there is no justification. The officers who serve and protect our communities risk their own safety for ours every single day – and they deserve our respect and gratitude every single day. Tonight, I ask people to reject violence and words that harm, and turn to words that heal – prayer, patient dialogue, and sympathy for the friends and family of the fallen.

And the head of one of New York City’s police unions:

There’s blood on many hands tonight. Those that incited violence on this street under the guise of protest, that tried to tear down what New York City police officers did everyday. We tried to warn it must not go on, it cannot be tolerated. That blood on the hands starts on the steps of city hall in the office of the mayor.

So, some people see this as the despicable criminal act that it is, and others are making political hay from it.  It’s not so much a tragedy for them as it is an opportunity.

The idea that people protesting excessive police force have “blood on their hands” would be laughable if it wasn’t so emetically disgusting.

We should be respectful of the police, who put themselves in harm’s way day after day.  We depend on them to keep order, to protect us, to protect our things, and to catch criminals. Our laws and society convey upon police special privileges that you and I don’t share. By the same token, the police must not abuse those privileges. Saying these things doesn’t mean you condone violence against them.

Here’s the bottom line: you can simultaneously believe that cops shouldn’t be choking people to death for selling loosies on a sidewalk, and that people shouldn’t assassinate cops. Violence is wrong, period. Justifying either type one is absolutely sick.

Mike Madigan’s Defamation Per Se

An open letter to Mike Madigan, tea party activist and former candidate for Congress.

Dear Mr. Madigan:

On November 26th, you published two items to your Twitter account, reproduced and linked-to below:

Please be advised that these Tweets are patently false, misleading, and defamatory.

Specifically:

1. I am not “obsesed w” [sic] or “stalking” Kathy Weppner or any member of her family. “Stalking” is a crime in New York, and in accusing me of committing this crime, your defamation is actionable per se.

2. I did not take “her name”; i.e., I am not the person behind the @kathyweppner4ny Twitter account, nor have I started or maintained any Twitter account to parody or otherwise comment on Kathy Weppner or her campaign. More to the point, there is not a single syllable that I wrote or spoke about Kathy Weppner that was not done under my own name.

3. “Bullying”: Weppner was a candidate in an adversarial election, and under no circumstances did I “bully” her. Unless you believe that using Weppner’s own words and beliefs against her within an electoral context is “bullying”, in which case we might have a fun time examining your past pronouncements.

Furthermore, like stalking, harassment is a crime in the State of New York, and accusing me of same is also libel per se. I have not gone after Weppner’s family in any meaningful way, and I was not the person who captured images from her childrens’ apparently open Facebook accounts in order to criticize them.

I am not @kathyweppner4NY, and I have committed no crime. Although I am arguably a public person, you accused me of “taking” Weppner’s “name” via that Twitter account with no proof whatsoever of that fact.  You didn’t even bother to ask. Under the law, you made your false statement of fact on that point with actual malice; i.e., with reckless disregard to its truth or falsity.

I tried to respond on Twitter, first with anger, then with humor, but you have chosen repeatedly to ignore me, so I find myself forced to make this demand.

As such, demand is hereby made that you immediately delete the aforementioned Tweets, and issue a retraction to your followers. If not removed before December 16th, I reserve the right to take any further action I deem necessary, including, but not limited to, seeking compensatory and punitive damages.

Should you have any questions or concerns, please contact me directly.

(The foregoing was sent to Mr. Madigan yesterday by email and via Facebook message. I have not heard back, but he promptly blocked me on Facebook, indicating receipt.)

Michael Brown Didn’t Deserve to Be Shot 6 Times

The grand jury in Ferguson did not indict Darren Wilson for any crime in connection with the homicide of Michael Brown.

Darren Wilson wasn’t on trial; the grand jury was not charged to find him guilty or not guilty.

Their only authority was to determine whether probable cause exists to hold him over for trial on any of a number of crimes. For the life of me I can’t fathom why the altercation with Michael Brown – as described – necessitated emptying a clip into him, and asking a law enforcement officer to answer for that to a jury seems to me to be a reasonable thing.

A kid who stole some cigars doesn’t deserve to die like a dog in the street. A kid who was rude to a cop, or walking in the middle of the street doesn’t deserve to be shot to death. The list of non-lethal ways to deal with any of those situations boggles the mind. Perhaps Officer Wilson could have just waited for backup before confronting two suspects by himself. If we take Wilson’s account at face value – right down to the description of Michael Brown’s face as “demonic” – Brown deserved to be arrested and prosecuted; not shot and killed.  Unfortunately, Brown’s side of the story will never be told. From the New York Times,

Some witnesses said Mr. Brown never moved toward Officer Wilson when he was shot and killed. Most of the witnesses said the shots were fired as he moved toward Officer Wilson. The St. Louis County prosecutor said the most credible witnesses reported that Mr. Brown charged toward the officer.

Some witnesses said that Mr. Brown had his hands in the air. Several others said that he did not raise his hands at all or that he raised them briefly, then dropped them and turned toward the officer. Others described the position of his arms as out to the side, in front of him, by his shoulders or in a running position.

Those differences in witness testimony is why you have a trial. Jaywalking and petty larceny don’t justify 12 – TWELVE – bullets being fired at an unarmed man. Read this summary of the account of Dorian Johnson, who was walking with Brown at the time.

The prosecutors control the grand jury process and the old adage that a prosecutor could get a grand jury to indict a ham sandwich is not unearned. Indeed, it is exceedingly rare for a grand jury to not indict someone. Although this grand jury had more leeway to conduct its own investigation, because it’s a law enforcement production, there will forever be a taint on a process where all of a sudden a cop is not indicted for what many perceive to have been an unreasonably excessive use of force under the circumstances.

It would have been nice for the family and the community for that question to be tried to a jury, rather than aborted at the indictment stage.

Finally, although I don’t see any reason to believe that Darren Wilson shot Michael Brown because he was black, I see a lot of palpable racism being directed at Brown and his family online. Any way you slice this, the homicide of Michael Brown was an unnecessary tragedy.

The Ferguson police department and the actions of Officer Wilson are under federal investigation, and Brown’s family will have recourse through the civil legal process.

Hamburg and the Constitution

The right to blog anonymously is a right. The Hamburg School District is trampling all over that right, and sends a poor message to the students it purports to represent

I have never read the “Hamburg Educational Ethics” blog, which is written by the “Concerned Hamburger” anonym, but whoever writes it is a WNY blogger and, as far as I’m concerned, a colleague. 

I don’t know the first thing about what goes on in the Hamburg schools, but I know that the district doesn’t have to like what the author of that blog writes – in fact, they can hate it. But that doesn’t give them the right to serve a subpoena to “out” its author. 

Criticism of a school district is, after all, political speech – in 1st Amendment jurisprudence, political speech is afforded the very highest protection from government intervention or harassment. It is unconscionable that the district – which is a government entity – is so blatantly violating the 1st Amendment in an attempt to silence a critic. This is the stuff dictatorships do. It is absolutely unacceptable in this country. 

One of the blog’s anonymous commenters, who is also subject to the district’s subpoena, wrote this

Dear Readers….

Recently Concerned Hamburger received an email notification from Google indicating that the Hamburg School District, through their attorney Dick Sullivan of Harris Beach~ a commercial real estate attorney moonlighting in education and constitutional law~issued a subpoena to Google demanding the identities of Concerned Hamburger, Super and Klozman.  Immediately, Concerned, Super and Klozman, remaining anonymous,  hired a constitutional attorney to quash the subpoena.  You see readers~ we have the right in this country to voice our opinions and state the facts as we see them.  For almost three years and approximately 300K page hits, Concerned Hamburger has been operating as a citizen journalist reporting on the antics of the public faces of the Hamburg School District. Concerned is dedicated to reporting, and will continue to write on the school district despite their efforts to silence me and others.  It has been reported to Concerned Hamburger by many sources, that Dr. Joan Calkins has a vindictive and demonic alter ego.  Joan’s “other self ” has reported thoughout the Hamburg Community that she will unmask Concerned Hamburger, and she will cause financial harm to the victims of frivolous and baseless lawsuits she and Steve concocted.  Fortunately, turn around is fair play, and it seems that the plans of the District, the Bored of Education, Mr. Abramovitch and others will have unintended consequence never deemed fathomable on the onset of their witch hunt.  

Frankly, if the behavior of the the Bored of Education and Mr. Achramovitch was not so egregiously corrupt, there would be no material to report.  Instead, you the reader~of which there are many~ have been give factual, and sometimes humorous, accounts of the insidious behavior. 

Concerned Hamburger has already spent thousands of dollars attempting to protect their rights, and it is likely the the district has spent tens of thousands on this witch hunt.   This latest stunt by Steve and Joan et. al. should shock the conscience of any reader.  Taxpayer dollars intended to go to children to support a fair and balanced education in accordance with NYS Constitutional Law instead is being used to strip  Federal and State Constitutional rights from private citizens- who are taxpayers. Steven Achramovitch ought to be fired immediately, and charges should be filed against each and every board member individually and collectively. A groundswell of anti-Joan and Steve support it growing across this community, and it appears this is only the beginning. 

Sincerely,

Concerned Hamburger 

That’s the nice thing about the 1st Amendment’s protection of political speech – if you don’t blatantly libel someone (that is, knowingly or negligently publishing a false statement of fact, depending on whether the subject is a public figure or not), you can write whatever you want. For instance, the author above refers to people as  “corrupt”, “frivolous”, “vindictive” and “demonic”. Those are statements of opinion, not fact, and opinion cannot be false or true – it is protected speech. 

A quick scan of the front page of the blog reveals recitations of facts dealing with school policy and budgeting, and opinion about those facts. Nothing appears to be defamatory or otherwise actionable. The fact that the district took action against the bloggers and not individual members who feel insulted helps enhance the Constitutional issue.

Bloggers have rights with their foundation in the 1st Amendment.  Anonymity is sometimes used by bloggers to shield them from repercussions at work. In 1995, the Supreme Court held that anonymous speech is protected speech

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

The Federalist Papers were written by anonyms. The Hamburg school blog may be no Federalist Papers, but it is still important to protect anonymous political speech, and the district’s efforts to use the courts to chill speech critical of it is reprehensible. 

While a minority of western New Yorkers expresses weeks’ worth of righteous Constitutional outrage over a gun law that only slightly tightens what were already the most restrictive gun laws in the country, this – this infringement on protected political speech deserves at least the same reaction.  

Perhaps the district’s social studies teachers can add this to their curriculum.