Sterling and the Shrinking Scope of the Purely “Private” Sphere

“These days, the only way you can have a private conversation is to talk to yourself.”

-- “Susan_Gale” (Board of Wisdom)

Last month, BSB covered the saga of Mozilla CEO Brandon Eich, who resigned after amid a torrent of criticism for his $1000 donation in support of California’s Proposition 8, a ballot measure that sought to ban same-sex marriage. At the time, there was considerable discussion about whether public pressure should be directed at an individual like Eich purely on account of his political beliefs.

More recently, a similar firestorm erupted in the National Basketball Association, as Donald Sterling, the octogenarian owner of the Los Angeles Clippers, was recorded making deeply racist comments. The recording was captured by one of Sterling’s associates, V. Stiviano, who later gave it to a third party for “safe keeping” only to have the contents leaked to TMZ.

Recent reports indicate that the recording was made with consent from both Sterling and Stiviano (California is a “all-party” (or “two party”) consent state, whereas New York is a “one-party” state requiring only one individual to have consented to a recording).

While some have hailed Stiviano as a “hero”, others have questioned whether the real story—aside from the vile commentary unleashed by Sterling—is the nature of private communication in modern life.

NBA great Kareem Abdul-Jabbar even went so far as to say, “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?”

ESPN columnist Jason Whitlock added:

If TMZ plans to make “pillow talk” public and the standard is set that “pillow talk” is actionable, it won't be long before a parade of athletes joins Sterling on Ignorance Island.

A right to privacy is at the very foundation of American freedoms. It's a core value. It's a mistake to undermine a core value because we don't like the way a billionaire exercises it. What happens when a disgruntled lover gives TMZ a tape of a millionaire athlete expressing a homophobic or anti-Semitic or anti-white perspective?

Lastly, Globe columnist Jeff Jacoby issued a cautionary warning, “[I]t isn’t only other people’s dirty laundry that the whole world can get a good look at. It is yours and mine, too. Once our privacy is gone, don’t count on getting it back.”

So what are we to make of this? At the outset, we need to define whether the decline in privacy is a problem in the first place. Presumably, we believe that a shrinking private sphere will lead to self-censorship and the decline in discourse that may at the time seem abhorrent but later becomes not only accepted, but embraced (countless ideas in history follow this trajectory, from Copernican heliocentrism to marriage equality).

At the same time, each of us as “public citizens” must be prepared to shoulder the consequences of our views. But which views? Perhaps those that we affirmatively choose to share with others. For instance, Brandon Eich contributed to a public campaign and was held to account in the marketplace. Donald Sterling did not make such an affirmative choice, though as most others have noted, given Sterling’s history of behavior, he garners little sympathy.

Beyond whether a communication was intended to be public or private, are there important lines to be drawn between politicians and public figures—who we expect to uphold a certain type of consistency across audiences—and private “everyday” Americans? The law already differentiates between these classes of persons in libel law, where public figures must prove “actual malice” to recover. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Of course, this only begs the question of who constitutes a public figure. It’s easy to say that a billionaire NBA owner is a public figure—but what of the small business owner on the corner or the superintendent of a small regional school district?

None of these questions are easy to answer, but the Sterling story should generate conversation about the nature of privacy in the modern age—an issue that we’ve done little to address, other than using technology to provide a quick fix (here’s looking at you, Snapchat).

Furthermore, it acts as a reminder that each of us is aware that people say things they don’t mean (we’ve all done it) and that attaching permanent pariah status on another individual for thoughts shared with intimates behind closed doors is often unfair and short-sighted. A society built on open dialogue and second (and third) chances cannot function if there is no safe space to discuss controversial subjects in a constructive manner (again, Sterling’s do not remotely fit this description, but other controversial comments do).

Now I better log off and put pen to physical paper. After all, privacy isn’t dead yet.

This Land is Whose Land? From NYCHA Housing to Nevada’s Ranches

Was a high wall there that tried to stop me

A sign was painted said: Private Property,

But on the back side it didn't say nothing —

This land was made for you and me.

-- Woody Guthrie, “This Land is Your Land,” 1940

In the summer of 2000, our family rent-a-car emerged from the Grand Tetons and traveled down National Highway 26 into the town of Jackson, Wyoming. As we sped along (the urgent need for pancakes and flat, clear terrain propelling us forward at speeds that would be reckless at best on the I-95 corridor), I stared out the window and watched the cows chewing their weight in grass on federal property (about half of Wyoming is owned by the U.S. Government—see map, below).

Curious about the agreements that allowed for such private use of public property, I asked our waiter at the local diner who owned the cows and how much he/she paid to have them grave on “federal property.” The waiter, already put off perhaps by a New Englander wearing his ever-present Sox jacket, set his pen and paper on the table, looked at me, and declared simply, “That’s our land.”

I was firmly committed to putting pancakes over politics, so I demurred further argument, certain that whoever the “our” was didn’t include me.

This month, a dispute over federal grazing fees charged to Western ranchers once again erupted, with armed civilians taking up positions against Bureau of Land Management rangers who, pursuant to a court order, attempted to confiscate 500 cattle owned by Cliven Bundy, who has been illegally grazing his herd on public land since 1993.

Senate Majority Leader Harry Reid (D-NV) responded by calling the armed vigilantes “domestic terrorists”, while Nevada’s junior Senator, Dean Heller (R), called Bundy’s supporters “patriots.”

Not only is there no agreement on what taking up arms against the federal enforcement of a court order should be called, there isn’t even consensus on the facts underlying the case. Washington Post columnist Marc Theissen decried Reid’s “domestic terrorist” comment, stating that “defending your property against a paramilitary force of armed federal agents is not the equivalent of blowing up a federal building or sending letter bombs” (emphasis added).

Indeed, while Bundy’s abhorrent comments on race and his unwillingness to pay below-market grazing fees to the Federal Government have given him 15 minutes in the national spotlight, what his case and the story of the diner in Jackson are really about is the very nature of property rights—not just in the American West, but across the country.

Indeed, I’ve spent the last week pondering Theissen’s remark, trying to come up with an East Coast equivalent to understand the “ownership” Bundy and people like him feel over land whose title is in our collective name. As it turns out, we have a pretty good analog right here in New York City in how we try to grapple with the difficult concept of “home” as it relates to scarce and precious public housing resources.

This month, NYCHA General Manager Cecil House testified before the New York City Council about the Housing Authority’s “rightsizing” plan. As the wait list for public housing continues to grow (in 2012, NYCHA projected that nearly one in three units (55,000) were “underoccuiped”, while the wait list swelled to 160,000 families), NYCHA has sought to optimize apartment usage by “transitioning families to apartments appropriate for their needs.”

As House stated, “Rightsizing does not only improve the quality of life of current NYCHA residents but also provides housing to more New Yorkers on our waiting list.”

The rightsizing issue has been extremely controversial, largely because its very nature necessitates removing people from their homes and placing them in smaller apartments (particularly older residents whose children have moved out). NYCHA is, after all, a public resource and rightsizing is absolutely needed to ensure that new families can take advantage of the opportunities it provides.

However, if our homes are indeed our castles, it is also understandable as to why ranchers or public housing tenants would feel ownership, the deed notwithstanding.

In situations like these, where emotions run hot and mistrust lurks around every corner, there are few good choices. However, our system of government is rooted in the consistent application of the rule of law, rather than the fallible whims of officials.

Indeed, just as the BLM didn’t attack Bundy for who he was, but for what he did (violate the law by refusing to pay a standard fee), so NYCHA’s rightsizing is not directed at individual residents as punishment, but is instead enforced as part of a contractual agreement entered into by tenants with the Housing Authority.

As long as the system itself is fair and people have the opportunity to argue their case before a neutral arbiter, that’s all we can ask in a Republic. Taking up arms against that effort is an affront to a government of laws itself—a government that is fallible, but far better than the alternative.

The Accident(s) of Birth: Opportunity Knocks

“You’ve got the world by the strings, kid. Just don’t blow it.”

-- Advice from a Caddy, Myopia Hunt Club, c. 2000

Last week, Boston Globe columnist Shirley Leung wrote a terrific column on the need to engage white men in ongoing efforts to make a more inclusive, more opportunistic society—in Boston and across the country. Leung quotes Colette Phillips, President and CEO of Colette Phillips Communications, Inc. (a Boston-based public relations and marketing communications firm), who stated, “In Boston, we need to create a new normal — white men at the table. You can’t talk about inclusion and exclude.”

Phillips’ incisive and earnest sentiment is all-too-often absent from discussions about a wide variety of issues—from reproductive justice (viewed as a “woman’s” concern, rather than a central element of public health for all) to corrections/policing policy (where elected officials often seek to curry favor in communities of color, but do little to engage white voters on the same issues).

This absence is particularly notable since political parties often speak about the need to embrace a “big tent” theory of coalition politics that bridges the divide between many segments to achieve a governing consensus. Neither party has done a particularly good job at this in recent years—as both Republican Tea Partiers and Democratic purists have imposed strict litmus tests on candidates, hollowing out the middle of the American political spectrum in the process.

There is plenty more to say on that subject in later posts. However, today I want to focus on a central idea raised by Leung’s column: how people privileged by the accident of birth should approach (and use) that privilege.

A Road to Opportunity
Myopia Hunt Club, Bay Road, South Hamilton, Mass.

I’m one of those privileged souls—a paradigmatic example of a beneficiary of centuries of prejudice. Some of the factors are immediately obvious to anyone who sees me. I’m White. I’m male. I’m rich. I’m healthy.

Other factors secured to no credit of my own aren’t apparent on the surface, but also form a basis for my privileged position. I’m an American Citizen. I’m heterosexual. I grew up in a two-parent/two-income household. I had a network of people who looked out for me as I was growing up (teachers, Little League coaches, fellow congregants at the First Church of Wenham, the parents of close friends, etc.).

The caddy who offered me advice at the age of 16 was not so blessed. He grew up poor, in a single-parent home in Peabody. His mature approach to offering counsel to his naive co-caddy was evident, both from his willingness to cop to mistakes he made along the way and his steadfast effort to make sure that I didn’t let the riches that I had inherited go to my head. More importantly, by characterizing my position as one in which I had “the world by the strings,” he made it abundantly clear that the world would judge me less by the opportunities provided by Grace, and more by what I chose to do with those opportunities.

Taking advantage of opportunities is, to some degree, a straightforward proposition. Work hard. Pay attention and adhere steadfastly to First Principles. Devote your professional life to your most cherished values.

The harder part is resisting the urge to judge others by the opportunities they have/don’t have. It is telling that the Ten Commandments include a directive not to covet what others have, but do not include a similar, more affirmative edict to do your best with what you’ve been given. Whether it’s “real estate envy” in New York or jealously about the personal or professional lives of friends or colleagues that always seem one step ahead of ours, the human inclination to worry about what we lack, rather than revel in what we have, threatens our ability to seize on opportunities as they arise and undermines our capacity to work with people to solve collective problems.

In the end, no matter what your race, class, sex, or creed, we all bear the burden of not “blowing it”—of seizing on the opportunities that come our way to better the lives of our fellow citizens.

SCOTUSWatch: Popular Sovereignty and Affirmative Action

As we enter the final three months of the Supreme Court’s term, Bay State Brahmin will focus on a number of big cases on the current docket and will look ahead to the Supreme Court’s 2014-2015 term.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

-- Chief Justice John G. Roberts, Jr.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)

In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court of the United States is considering the following question: “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.”

At issue in Schuette is the constitutionality of Michigan’s “Proposal 2”—an amendment to the state constitution, passed in November 2006 with the approval of 58 percent of Michigan voters, banning public universities and schools from using race as a factor in admissions decisions.

In an October 2013 editorial, the New York Times argued that because the Supreme Court has found that “race-conscious admissions policies may further a compelling governmental interest in educational diversity,” that efforts by citizens to limit the use of those policies is unconstitutional. However, the very use of the word may by the Times, rather than shall (or must), highlights the inherent weakness in its argument and a fundamental mischaracterization of what Schuette is really all about.

Schuette is not—despite its name—about whether affirmative action programs are unconstitutional. Rather, the case concerns whether a State may amend its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. This is no small distinction; for while many Americans (including yours truly) believe that affirmative action programs are both constitutional as a matter of law and beneficial as a matter of public policy, few would argue that they are constitutionally required.

Nevertheless, the Times’ mischaracterization of the case continues to be repeated. Just this weekend, Julianne Hing, a reporter for Colorlines, wrote an op-ed in the Boston Globe titled, “The Supreme Court Gives License to Discriminate,” as if it were the Supreme Court, and not the People of the State of Michigan, who decided to limit race-conscious admissions by constitutional amendment.

The American Civil Liberties Union (disclosure: I was a staff attorney at the New York Civil Liberties Union, the New York State affiliate of the ACLU, from 2009-2011) and the NAACP Legal Defense and Education Fund (LDF) took the mischaracterization a step further in an amicus brief filed on behalf of the challengers, asserting that Proposal 2, "cannot be explained on grounds other than race.” This blanket assertion suggests that opponents of affirmative action in higher education—including a majority of Hispanic Americans and a nearly majority of Black Americans, according to a 2013 Gallup poll—are motivated by animus directed at minorities.

However, the decision of voters to remove a preferential use of race in college admissions is a far cry from the decision of voters to impose unique barriers on a discrete and insular minority—as Colorado voters did in 1992 when they passed Amendment 2 banning municipalities from taking steps to protect the rights of LGBT people (the Amendment was later struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996)).

Regardless of whether you agree with the argument above, it seems clear that a "win" by the challengers of Proposal 2 may well be Pyrrhic, since it will dissuade states from promoting policies that seek to rectify the effects of past and present discrimination out of the fear that, once enacted, said policies can never be repealed.

Nearly a decade ago—50 years to the day after the Supreme Court’s momentous decision in Brown v. Board of Education helped to launch the civil rights movement—I joined thousands on the steps of Cambridge City Hall to celebrate the first applications for marriage licenses from gay couples. I wrote at the time that while it was a “triumphant moment” there was also a sense that the battles were just beginning and that we could not rely on judges to make progress for us. Instead, “lasting victory [can] only be achieved if the fight [is] taken to the streets, churches, universities, barber shops, lunch counters, and workplaces of America.”

Rather than fight this battle in court, affirmative action proponents should engage the public in the marketplace of ideas to convince their fellow citizens that affirmative action is a tool that can and should be embraced as a means toward a more perfect Union.

P.S. For those interested in reading more arguments about Schuette and the critical issues raised by the case, check out SCOTUSBlog’s exceptional symposium.

Sharing Society’s Burdens: From Appomattox to Westchester

“The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts.”

-- John Rawls, A Theory of Justice, 1971

Shortly after the Emancipation Proclamation took effect, on January 1, 1863, Congress passed a new conscription law which placed all male citizens aged 20-35 and all unmarried men between 35-45 into a lottery. However, in addition to not including Blacks (who were exempt on account of their lack of citizenship—though many would fight with honor throughout the war, including the famed Massachusetts 54^th Regiment), the draft law allowed those who could afford to hire a substitute or pay the government $300 to avoid enlistment.

Less than 24 hours after the first lottery took place, New York City erupted into five days of violence that would later be termed the “New York City Draft Riots.” These riots—fueled by deep-seeded racism of working-class white immigrants toward free blacks—not only targeted black New Yorkers, but also directed their destructive ire on property of the wealthy. Over five days, the riots claimed over 100 lives.

The Draft Riots were about a very simple principle—justice. Recent discoveries in evolutionary biology and psychology have shown that humans are born with an inherent sense of fairness. We feel injustice in our core and rebel against it as an affront to our dignity as equal persons.

In the Draft Riots, the idea that mere wealth could exempt a man from doing his part to combat common scourges—slavery and the dissolution of the Union—was too much to bear in silence. Certainly the working class of 1863 knew, as we know now, that wealth “buys” all sorts of advantages in life. However, when that advantage is made manifest in such a brazen manner (you cut a check and you are free to go), it is a recipe for unrest.

150 years after the Civil War, America continues to struggle with how to share common burdens. Some advocates and legislators, including Rep. Charles B. Rangel (D-NY), believe that the draft needs to be reinstated for fairness purposes, since a disproportionate number of low-income Americans choose to enlist in our now all-volunteer armed forces. As Rangel stated, “Reinstating the draft and requiring women to register for the Selective Service would compel the American public to have a stake in the wars we fight as a nation. We must question why and how we go to war, and who decides to send our men and women into harm's way.”

The sharing of society’s burdens goes well beyond the battlefield. It includes contentious questions about how we deal with trash pickup, such as the fight over the 91^st Street waste transfer station down the street from my apartment on Manhattan’s Upper East Side. It includes racially charged disputes about the siting of affordable housing developments, which often are populated by low-income people of color, in wealthier, whiter communities, such as Chappaqua, N.Y. or Wellesley, Mass. And it includes how to ensure that all people can afford quality health care—in part by requiring healthy people to purchase insurance to broaden risk pools and avoid adverse selection problems that would drive up costs for all.

There is immense political pressure at the local level to embrace NIMBY reasoning and foist our fair share of a particular burden onto other neighborhoods/communities. As a result, courts have been forced to step in to establish “fair share” principles. As the New jersey Supreme Court stated in the famed affordable housing case of Mount Laurel, “Almost every [municipality] acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing.” Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 171 (1975).

The Court went on to declare, in its second Mount Laurel decision, that “municipalities, at the very least, must remove all municipally created barriers to the construction of their fair share of lower income housing.” Southern Burlington County NAACP v. Township of Mount Laurel 92 N.J. 158, 258 (1983) (emphasis added); see also Berenson v. New Castle, 38 N.Y.2d 102, 110 (1975) (“There must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met”).

Similarly, in Philadelphia v. New Jersey, 437 U.S. 617 (1978), the Supreme Court of the United States struck down a New Jersey law which prohibited the importing of any solid or liquid waste which originated or was collected outside the State. The Court declared that a State may not, “isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.” Id. at 628.

Ultimately, in order to determine what is right, what is good, what is just, John Rawls’ seminal “veil of ignorance” approach provides ample guidance. Recognizing, as Rawls does, that so much of where we are in life is on account of accident of birth—i.e. luck—we must not only accept that we need to do our part to solve society’s most pressing problems, but we must affirmatively celebrate that effort as a means of building strong social bonds between communities.