In my latest for the Guardian, I take a look at Solicitor General Elena Kagan’s record — and conclude that President Obama’s decision to name her to the Supreme Court may prove to be one sellout too many for his progressive base.
Talking media reform with Free Press
I’ll be taking part in the online segment of the Free Press policy summit today starting at noon. I’ll probably stick around for an hour or so. There’s a live stream from Washington and a live chat. You can follow it here, and on Twitter at #fpsummit.
Elena Kagan and free speech
Does Solicitor General Elena Kagan have a problem with the First Amendment?
After President Obama announced Kagan as his choice to replacing retiring Supreme Court Justice John Paul Stevens, liberal and left-wing commentators zeroed in on her unflagging support for broad executive authority.
But there are reasons to be concerned about her commitment to freedom of expression as well.
In 2002, I singled out Harvard University for a Dishonorable Mention in the Phoenix Muzzle Awards for banning military recruiters from campus over its discriminatory policies against gay men and lesbians. Kagan did not become dean of Harvard Law School until 2003, but her support for that ban has quickly emerged as an issue in her confirmation.
(In 2004, for good measure, I gave then-secretary of defense Donald Rumsfeld a Muzzle for forcing the matter by threatening to cut off federal funds to colleges and universities that banned recruiters.)
More recently, Kagan appeared before the Supreme Court to defend a federal law prohibiting the depiction of animal cruelty. As solicitor general, she was merely doing her job. But University of Chicago law professor Geoffrey Stone, a former colleague of Kagan’s, recently told NPR’s “On the Media” that she went above and beyond the call of duty, proposing a case-by-case balancing test that could have posed a serious threat to freedom of speech. Stone said:
It really was a dangerous argument for the Solicitor General to make. It would have, if accepted, completely revolutionized a large part of First Amendment doctrine, losing the gains we’ve made throughout the 20th century…. Kagan would probably say she inherited this case; when she became solicitor general it was already in process. Nonetheless, I have to say that I was surprised that Elena didn’t take a red pen and scratch those parts of the brief out.
Kagan also argued vigorously against the notion that corporations should be allowed to spend freely on political speech, as stipulated in the recent Citizens United decision. And Obama cited that decision as one of his reasons for appointing her. I have mixed feelings about the ruling — like my Muzzle colleague Harvey Silverglate, I think it was directionally right, but I’m concerned about the consequences.
(By the way, Silverglate and Kyle Smeallie recently wrote an in-depth analysis for the Phoenix of Kagan’s record in anticipation of her appointment. Definitely a must-read.)
Nevertheless, Citizens United stands as yet another example of what appears to be Kagan’s approach to free speech: to cast it aside whenever it competes with her other goals and objectives.
Photo (cc) by Doc Searls via Wikimedia Commons. Some rights reserved.
Palmer’s method: Comment early and often
Former Boston Globe reporter Tom Palmer, who covered development for many years before switching sides and becoming a communications consultant, is urging his clients to bombard the Globe’s online-comments system.
Another former Globe reporter, CommonWealth Magazine editor Bruce Mohl, has obtained an e-mail from Palmer in which he urges residents of Harbor Towers to comment early and often in their opposition to plans by developer Don Chiofaro to build a skyscraper next to the Rose Fitzgerald Kennedy Greenway. Palmer writes:
[Newspapers] don’t like it, and some of them are even considering getting rid of the “comment” feature because it clearly weakens their power. But for now we may comment and comment and comment — just as Don’s supporters do.
Mohl posts the full text of Palmer’s e-mail (pdf), and it’s a hoot. Among other things, Palmer includes step-by-step instructions for how to register and post comments, writing, “It is COMPLETELY ANONYMOUS.”
Maybe Palmer doesn’t find this embarrassing, but it seems to me that he has forgotten both the Lomasney rule and the Spitzer corollary: “Never write if you can speak; never speak if you can nod; never nod if you can wink”; and “never put it in e-mail.”
Getting more than he’s betting on
Writing in the Boston Globe, Paul McMorrow raises an important point about Massachusetts House Speaker Robert DeLeo’s quest to build two casinos and install slot machines at four racetracks.
Right now, the Mashpee Wampanoag bid to build a casino in Middleborough is being stymied mainly because casino gambling is illegal in Massachusetts. Once it’s legalized, the door is open not just for the Middleborough location, but for other tribal casinos as well. McMorrow writes:
In DeLeo’s rush to appease the building trades and carve out some action for the two racetracks in his district, the speaker of the House is setting the table for a gambling expansion in Massachusetts that has the potential to be far broader than anything he’s pitching. He’s opening the door to new gambling halls on Martha’s Vineyard and the Cape, in Middleborough and Fall River. It’s also something neither he, nor anyone else on Beacon Hill, can control.
And though McMorrow doesn’t say it, you can be sure that officials in New Hampshire, Rhode Island and Connecticut won’t stand pat if casinos are built in Massachusetts.
It is sad that none of the major candidates for governor — not Gov. Deval Patrick, Republican Charlie Baker nor independent Tim Cahill — opposes this financial and social boondoggle-in-the-making.
What’s wrong with the Red Sox? The answer.
I think I’ve figured out what’s wrong with the Red Sox. Brace yourselves: They’re not very good.
Sure, they could theoretically overcome their slow start. But I only see three players who’ve performed below expectations: Josh Beckett; Adrian Beltre defensively; and Jacoby Ellsbury, simply because he’s been hurt as a result of Beltre’s worst play of the season, if not his career.
Yes, Mike Cameron’s been out, too. But Darnell McDonald has probably been a more productive hitter.
Ortiz? Dice-K? Clay Buchholz? Ramon Ramirez? Were you really expecting more than they’ve given? If so, then you were expecting way too much.
The Sox have already shown they can be entertaining against mediocre teams. I think that’s the best we can hope for this season.
Keeping public records public
In 1989, Justice John Paul Stevens, writing for a unanimous Supreme Court, ruled that public records can cease to be public once they’ve been compiled into a computerized, easy-to-access database.
Now the Court is hearing a case with some eerie similarities involving the names of people who sign petitions to place public-policy questions on the ballot. In the Guardian this week, I compare the two cases — and hope that Stevens, as one of his final acts before retiring this summer, will help keep public records public.
A social compact on the verge of breakdown
Public employees are our friends, our neighbors and our family members. Police officers, firefighters and teachers are a necessary part of a well-ordered civil society. But in Massachusetts, the social compact is on the verge of breaking down because of paychecks and benefits for public employees that are grotesquely out of whack with what folks in the private sector earn.
Here are four quick examples — three from the Boston Globe:
- Boston police officers are getting as much as $250,000 in salary and overtime — some of it legitimately, some of it for staying a few minutes past their shift to finish paperwork. “The salaries are excessive,” Police Commissioner Edward Davis told the Globe. “Clearly the average person on the street does not make this kind of money.”
- In Framingham, town employees and retirees are at loggerheads with the taxpayers who fund their health benefits, which in most cases amount to 87 percent of premiums — a far better deal than anyone in the private sector can hope to get.
- An arbitrator recently awarded Boston firefighters a 19 percent raise over four years in return for agreeing to drug and alcohol tests and some limits on sick time. The Globe has called on the city council to reject the $74 million cost of the agreement, but there are no signs that the members will find the requisite backbone to do so.
- There’s a new reform administration in charge of the Essex Regional Retirement Board, and it seems that every day it finds something gross crawling out from under a rock. The latest, according to the ever-vigilant Salem News: the previous board spent more than $200,000 in legal fees to advance a sleazy scheme to put 39 workers on a housing authority payroll for one day so they would be eligible for higher benefits and Social Security.
How this will play out in the fall election is anyone’s guess. You’d think it would have a significant effect on the governor’s race. But Gov. Deval Patrick has pushed harder (though not hard enough) against such abuses than his predecessors, and neither Republican candidate Charlie Baker nor Treasurer Tim Cahill, the independent, has advanced a credible case for being the change agent voters are looking for.
At the very least, though, Republicans ought to be able to make their first significant gains in the legislature since 1990.
Meet the new Big Three weekly news magazines
With the Washington Post Co. having put money-losing Newsweek up for sale, you’re going to hear a lot about how we’ve gone from three weekly news magazines to one (Time) if Newsweek isn’t rescued. (U.S. News & World Report lives, but it hasn’t been a weekly for years.) Cue the dirge.
Except that it’s not true. If Newsweek goes down, we’ll simply have a new Big Three: Time, The Economist and The Week. And unlike the Time/Newsweek/U.S. News trio, which at their peak were all more or less clones of each other, the three survivors have distinctly different missions. The Economist offers a smart, analytical take on the news. The Week is a digest. And Time is — well, who knows these days? Politics, pop culture and lists of stuff, I guess.
You’ll often hear people say that Newsweek and U.S. News were the victims of larger forces, and that the weekly news-magazine genre is no longer relevant. But if that were true, why were they overtaken by competitors within that genre?
And yes, I recognize that The Economist and especially The Week are bare-bones operations compared to the American news magazines in their prime. The fact is, they’re here — and they’re thriving. Newsweek and U.S. News were not done in by cable TV and blogs. They were done in by leaner, smarter competitors who had a better idea of what a weekly news magazine should be.
After all, their various owners never figured out how to overtake Time, either.
The Globe’s opinion pages beef up
A year ago, the biggest question at the Boston Globe was whether the New York Times Co. was serious about shutting it down if it couldn’t squeeze out $20 million in union concessions.
These days, the story is considerably more pleasant. Though no one thinks the Globe is entirely out of the woods (there is, after all, a revolution under way), the paper keeps expanding in modest but useful ways.
The latest initiative is coming tomorrow: a weekly column on the op-ed page by the Atlantic’s fine political writer, Joshua Green, who, according to Globe editorial-page editor Peter Canellos, will offer a Washington perspective from a non-ideological perspective.
“He’s a pure reporter and analyst,” Canellos says. “And I think that for somebody looking at the changing landscape of Washington these days, this is a happy meeting of a writer and subject, because it’s a fascinating time.”
This coming Sunday will mark a significant expansion of the opinion pages. For years, the Globe has published a third opinion page, reserved for letters, every other week. Now the paper will publish three and four pages on an alternating schedule.
Newish op-ed columnists Joanna Weiss and Lawrence Harmon will join standbys Joan Vennochi and Jeff Jacoby. Harmon, the Globe’s chief editorial writer on city issues, will continue to write his column once a week. Weiss will now write twice weekly, picking up Harmon’s Tuesday slot.
On weeks when there are four opinion pages, Canellos says, the extra space will be used for features such as “visual op-eds” by cartoonist Dan Wasserman and longer essays by columnist James Carroll and other writers.
Finally, Canellos says that a somewhat nebulous new online feature called “The Angle” will be beefed up with some definition and some original content as the result of a new partnership with “Radio Boston,” which WBUR (90.9 FM) is expanding from a weekly to a daily program next week.
