Moms Get Mad (and Get Lawyers)

Back in February, I wrote a piece about publishers cleaning up writers who’d fallen out of fashion, or more to the point, whose work would sound offensive to the contemporary ear – specific examples being Roald Dahl, Ian Fleming, and Agatha Christie.  This is a practice commonly known as bowdlerization, after Dr. Thomas Bowdler, who published a 19^th-century edition of Shakespeare with the naughty bits eliminated.  Aside from the insult to the authors, my chief complaint is that it irons out context.

Mencken once remarked that a Puritan is someone who’s afraid that somebody, somewhere, is having fun.

The latest iteration of book-banning has dragged in Satan worship and the predatory sexual grooming of children, so plainly, calmer heads haven’t prevailed.  It’s belaboring the obvious to say that the fight against Woke is consciously a fight to marginalize the ‘other,’ and personally, I think the rest of us would be better off if these mouth-breathers were out of the gene pool, but far be it from me.

Which brings us to Ron DeSantis.

  DeSantis is fighting above his weight class, going after the Mouse.  Disney is going to wipe the canvas with him.  And instead of being a savvy, calculating political animal, triangulating his every advantage, he’s advertising himself as a vindictive little shit, who simply isn’t ready for prime time.  Are we meant to take any of it seriously?

Here’s the next wrinkle.

  A group of Florida moms have taken aim at book-banning by filing a lawsuit in federal court.  This is a direct response to a national right-wing organization known as Moms for Liberty, which spearheads the effort to remove titles from school curricula and public libraries.  (565 books were targeted in Florida, during the 2021-2022 school year.)  This lawsuit has been joined by PEN America, by some of the writers whose work has been censored, and by Penguin Random House – Penguin of course a division of Bertelsmann, the biggest publisher in the world.  Stop and think about that for a minute.  Does the state of Florida really want to take on Bertelsmann, in the wake of the Disney mess?

Bertelsmann has a dog in this fight.  The way to wrap your head around it is to realize the big money isn’t in James Paterson or Diana Gabaldon, no disrespect.  The big money’s in textbooks.  And a state like Texas, or Florida, has an oversize influence, because they buy a lot of schoolbooks.  In practice, this means that what passes muster in Texas or Florida, then winds up in Massachusetts and California.  The tail wags the dog.  You can’t produce different editions of a schoolbook for different states and political persuasions.  It defeats any economy of scale.  What just might be happening in this case, though, is that a major publisher is putting Florida on notice.  You may recall the DeSantis administration, or more specifically, the Florida department of education, recently rejected a very large percentage of textbooks, complaining they were tainted with Critical Race Theory, among other transgressions.

The most interesting thing about this new lawsuit is that it doesn’t challenge Florida statute, head-on. We might acknowledge that school boards or library trustees have the authority to pull books, under established process.  But the suit considers First Amendment issues.  The official – governmental – suppression of disfavored ideas is clearly a violation.  This could have legs.

See you in court.

The Murder of a Magazine

Shocker: Kim’s tush attends Malibu College while the rest of her hits the beach Sources claim the butt of celeb jokes was seen… Caitlyn’s not mother of her own child!! Astrobiologists, bewildered by DNA results… First Spouse debate replaces VP event Melania and Bill broadcast live Nation glued to heated husband & wife debate…		Kanye, Kim, Kloé klaim KKK konnection! Initial indications, according to cunning linguists… DNA proves maternity of Hilton hotel heiress! (not who you think!) Parisian plastic surgeon Dr. Myanne Dowment says… Billionaire found in bed with Hulk Hogan (not who you think!) Infamous billionaire moves to crush media…

One of these headlines is true… Well, maybe two, and as much as we’d love to see the potential first spouses debate, it’s the final item I draw your attention to. Before Peter Thiel and Terrance Gene Bollea sue me, this is an opinion piece and the ‘in bed’ part is, to my uncertain knowledge, figurative.

The mystique of celebrities eludes me, but other people love ’em. In the spirit of full disclosure, an acquaintance is still furious with me after I said one of the celebs above was a waste of protoplasm. But I use the headlines to make a crucial point.

A multi-billionaire is using his bundles of money not just to influence the media, but to destroy a major news outlet he disagrees with.

No, I’m not talking about a certain presidential candidate, but a thin-skinned, foreign-born entrepreneur, Peter Thiel, co-founder of PayPal and Palantir, a company involved in that ugly Bank of America, HB Gary, WikiLeaks case.

Nick Denton, muck-raker © Gawker

Peter Thiel, muck-maker © Gawker

Internet news magazine Gawker, founded by entrepreneur Nick Denton, is a cross between People Magazine and the delightfully unsavory National Enquirer that we love to hate. Gawker published an article about Thiel that read, “Peter Thiel, the smartest VC in the world, is gay. More power to him.”

To my eye, it was complimentary, but not his. Even though the statement was factual and Thiel had already come out, he was offended.

Most of us would have issued a take-down notice or written a letter to the editor, “Dear Sir…” But not the 1% of the 1%. This billionaire wields his money like a weapon. He set out to destroy Gawker Media in no uncertain terms. He didn’t merely target the Gawker web site, but the entire parent company, which included gossip mag Gawker.com, tech site Gizmodo, gaming blog Kotaku, car enthusiasts’ Jalopnik, sports fans’ Deadspin, Lifehacker, the feminist blog Jezebel, and the former Valleywag, which dished the dirt on the dark side of Silicon Valley.

A federal agent once told me that litigation isn’t resolved by who’s right and who’s wrong but by who has the most money, the deepest pockets. That’s what Thiel chose to do, hammer Gawker by secretly funding third party lawsuits against them to the tune of millions of dollars. In doing so, Thiel proved more reprehensible than any stretch of Gawker.

While I might agree that one’s sexuality should be one’s personal business, I vehemently oppose censorship. Thiel has pretended that he supports freedom of the press in other ways, but he reserves the right of billionaires to control media outlets. Apparently the German-born billionaire doesn’t appreciate the importance of our First Amendment rights… especially if he can buy them out from under us.

How he chose to go about it beggars belief.

Among the litigants Thiel clandestinely funded was Terry Gene Bollea, a.k.a pseudo-wrestler Hulk Hogan. While married, Hogan supposedly engaged in affairs with his daughter’s friend and with the wife of his best friend. Unsurprisingly, a sex tape was recorded and forwarded to Gawker, which aired parts of it on-line. Who forwarded the video I leave to your imagination. In any case, Hogan– privately funded by Thiel– sued.

It’s less accurate to say Thiel and Hogan won $140-million, than to realize that First Amendment's Freedom of the Press lost. Thiel deliberately chose to exercise litigation with chilling effect on the American press. Nick Denton left Britain thinking he'd enjoy greater journalistic freedom where the rich and famous couldn't so easily hide their deeds. Ordinary citizens in the US have more rights to privacy than public figures. Thiel turned that concept on its head.

Univision has bought parts of Gawker and this week, the rest shuts down. While no one can compare the gossip rag to the grand newspapers that have shuttered their doors, it will be a loss, if not to the community, to the concept of freedom to publish.

Cross Talk

Justice Oliver Wendell Holmes, Jr.

“Hard cases make bad law.”

                  Justice Oliver Wendell Holmes, Jr.
                  Northern Securities Co. v. United States
                 193 U.S. 197 (Supreme Court, 1904)

“Have you never —” said Sherlock Holmes, bending forward and sinking his voice —“have you never heard of the Ku Klux Klan?”

“I never have.”

Holmes turned over the leaves of the book upon his knee. “Here it is,” said he presently:

“Ku Klux Klan. A name derived from the fanciful resemblance to the sound produced by cocking a rifle. This terrible secret society was formed by some ex-Confederate soldiers in the Southern states after the Civil War, and it rapidly formed local branches in different parts of the country, notably in Tennessee, Louisiana, the Carolinas, Georgia, and Florida. Its power was used for political purposes, principally for the terrorizing of the negro voters and the murdering and driving from the country of those who were opposed to its views. Its outrages were usually preceded by a warning sent to the marked man in some fantastic but generally recognized shape — a sprig of oak-leaves in some parts, melon seeds or orange pips in others. On receiving this the victim might either openly abjure his former ways, or might fly from the country. If he braved the matter out, death would unfailingly come upon him, and usually in some strange and unforeseen manner. So perfect was the organization of the society, and so systematic its methods, that there is hardly a case upon record where any man succeeded in braving it with impunity, or in which any of its outrages were traced home to the perpetrators. For some years the organization flourished in spite of the efforts of the United States government and of the better classes of the community in the South. Eventually, in the year 1869, the movement rather suddenly collapsed, although there have been sporadic outbreaks of the same sort since that date.”

                                                                           The Five Orange Pips
                                                                           Arthur Conan Doyle

    An Associated Press article caught my eye last week and propelled me back to the days, pre-retirement, when I was Deputy Assistant General Counsel for Litigation at the United States Department of Transportation.  The story involved the State of Georgia’s ruminations concerning what to do about an application filed by the Ku Klux Klan to participate in the Georgia adopt-a-highway program. 

    “Wait,” I hear you asking.  “What has this to do with mysteries, or with writing?”  At least tangentially the answer might be “quite a bit.”  This request by the Klan to participate in State-run programs that clean the nation’s highways through voluntary participation by local groups is not the first.  Over the past fifteen years  the Klan has repeatedly sought entry into the adopt-a-highway programs arguing that it has a right to participate  In a nutshell, the Klan’s argument is that they have a Constitutional right to participate in the program, and to have the State erect a road-side sign proclaiming that participation, under the First Amendment, which provides that the State shall enact no law abridging a party’s right to free expression.  The Klan argues that it is entitled to show and communicate to all that it is a “good citizen,” that it deserves to participate in the program on an equal footing with other organizations and that it is entitled to have its participation communicated to the general public on a road side sign erected by the State.   

    The adage quoted above from Justice Holmes got it completely correct.  This issue is a tough one, and its solution could spark unforeseen consequences.  Putting my cards on the table, I am a liberal.  And I think, as a liberal writer, that the First Amendment should be given the widest coverage possible.  The protection of the freely-written word is the hallmark of an open,  thinking and questioning society.  And the antithesis?  Well, we know from history what to expect of societies that burn books.  Oliver Wendell Holmes also wrote the following:  “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate.”

    But, not unsurprisingly, I (like Sherlock Holmes in The Five Orange Pips where one of the first references to the Klan appears) am no fan of the Ku Klux Klan.  I certainly do not welcome the Klan's participation in any State program.  And yet I recognize that this puts me on the wrong side of the second Holmes quote – my gut reaction is to bar them “for the thought that [I] hate.” 

Unite States' Brief to the Supreme Court

    So should Georgia simply grant the Klan’s application?  On further analysis the issue becomes even more complicated.  While in the government I had the opportunity to work on all of the prior adopt-a-highway cases involving Klan petitions.  I was the Deputy in the Department of Transportation’s litigation office, and that got me a ticket to the adopt-a-highway ball.  In my current status, that of “recovering attorney,” I am not privy to the particular stretch of Georgia highway that has now attracted the Klan’s attention.  But I know the stretches that they have tried to adopt in the past.

    In 1995 the Klan decided it would like to “police” a stretch of highway in front of a public housing project in Houston, Texas that was the subject of a desegregation order.  The Klan had already spearheaded a series of violent confrontations at the complex and had been enjoined by court order from being anywhere near the complex.  The petition to “police” the Texas highway was for the same stretch that the Klan was otherwise barred from.  The next mile that the Klan wanted to adopt was in downtown St. Louis Missouri – right in front of one of the oldest predominantly Black churches in the city.  Then they asked for a second mile in down-state Missouri – right in front of the home of a family that had adopted an oriental child (quite the “no-no” from the Klan’s perspective).   One can easily come away with the conclusion that these applications are not just about the Klan showing that it wants to be a good citizen.

    So the issue is the quintessential “hard case.”  On the one hand, a State government is understandably loath to turn these miles over to the Klan to patrol while gathering litter, and then also erect a State sign, for all to see, proclaiming the Klan’s participation in the State program.  On the other hand, denying these applications risks cutting back on the wide breadth of free expression guaranteed to all under the First Amendment, and does so on the basis (come on, let’s admit it) that we “hate” (there’s Justice Holmes’ word again) the whole reason for the existence of the Klan.

    In prior litigation raising these issues the United States was not a direct party – the adopt-a-highway programs are not Federal programs, they are administered by States.  The participation by the United States, therefore, was as amicus curiae – “friend of the court.”  In each case the United States attempted to walk a fine line – arguing that the Klan could be barred from the program while still protecting the breadth of the First Amendment.  The approach was successful in Texas, where the State's denial of the Klan’s petition to participate in the program was upheld, but unsuccessful in Missouri, where the United States Court of Appeals for the Eighth Circuit held that the State’s denial abridged the Klan’s First Amendment rights to free speech and free expression.   While the Associate Press article referenced above states that the Supreme Court agreed with that proposition, this was not in fact correct.  Rather, and despite the United States’ arguments to the contrary, the Supreme Court refused to hear the case at all, thereby leaving the Eighth Circuit decision in place and unreviewed.

    What is the best way to untie this Gordian knot?  I don’t know.  This is going to be one of those mysteries that presently remains unsolved and is therefore something for each of us to ponder.

     One possible solution (and my own view on the issue) is a little “out of the box.”  When I was involved in these cases I used to argue (without a lot of success) that what is called for here is a slightly new approach to the First Amendment.  What speech are we talking about here, really?  We are talking about a sign, erected by the State, proclaiming that an organization has undertaken to police a stretch of State road in order to control litter.  Who is speaking here?  I would argue that the speaker is the State, not the organization.  It is, after all, the State that erects the sign and the State that decides what the message on the sign will be.  A limited number of cases have recognized that States, as well as individuals, have freedom of speech rights.  Can the State be compelled to erect a sign on behalf of the Klan? Doesn't this deprive the State of its own freedom of speech, it's own authority to not participate in the activities of the Klan?

    And what does that compelled State action do to other affected parties?  If you were driving down a highway and saw a sign that said “McDonalds Restaurants ahead:  1 mile, 12 miles” and then you saw a sign that said that the next mile of highway had been adopted by the Ku Klux Klan, at  which of those two McDonalds restaurants would you be inclined to stop for lunch?  I don’t know about you, but I would drive the extra 11 miles.  Is this fair to the McDonalds that happens to be located on the mile allowed by the State to be patrolled by the Klan?

    The particular mile that the Klan adopted in St. Louis, in addition to its proximity to that historic Black church, also is in front of the Anheuser Busch Brewery.  Should the brewery bear the commercial costs that might be associated with a picture showing both that State erected sign and the entrance to the brewery’s corporate headquarters, all in the same shot? 

    It seems to me that it is one thing for the Klan to have a right to express its views, even if (using Justice Holmes’ word) we “hate” those views.  But it is another thing entirely to say that the Klan has the ability to compel a State to participate, through the erection of a State-funded sign, in the dissemination of those views.  On this one, I am with Sherlock.  We know with what we are dealing.

    Just sayin.