I didn't know that Deval Patrick was running for governor of Massachusetts, or I would have posted this sooner. Patrick makes a brief cameo in my book You Can't Say That!, and this cameo suggests that he has, or at least had, little understanding of, or sympathy for, freedom of speech.
The background is that during the Clinton Administration, HUD filed a series of civil rights lawsuits against community groups that opposed the placement of halfway houses in their neighborhoods. The only illegal activities the groups allegedly engaged in were such clearly protected activities as holding meetings, organizing petitions, publishing newsletters and the like. The underlying theory, however, was that, for example, by opposing a rehabilitation facility for drug addicts, the groups were violating the Fair Housing Act by making it more difficult for the handicapped (which by statutory definition includes recovering drug addicts) from getting housing.
Following truly awful publicity, HUD backed down, announcing that it would no longer investigate "any complaint . . . that involves public activities directed toward achieving action by a governmental entity or official; and do not involve force, physical harm, or a clear threat of force or physical harm to one or more individuals." More generally, HUD would no longer prosecute behavior protected by the First Amendment.
This was not good enough for then-assistant AG Patrick:
[T]he new policy was opposed by Assistant Attorney General Deval Patrick of the Justice Department, which prosecutes lawsuits under the Fair Housing Act. Patrick ignored HUD's new guidelines and ordered the Justice Department to bring new lawsuits against community activists. He contended that "Congress intended the [Fair Housing Act] to proscribe any speech if it leads to discrimination prohibited by the FHA." Two years after HUD acknowledged that prosecuting neighborhood activists for expressing their political viewpoints was unconstitutional and unwise, Patrick continued to defend the Justice Department’s attempted squelching of free speech in a Fair Housing Act case in Fort Worth, Texas. In doing so, he analogized political leaflets to baseball bats, remarking that bats “are perfectly legal too. But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws.” ....Luckily, the federal judge overseeing the Ft. Worth case had a better grasp of the First Amendment than did Patrick and rejected the latter’s theory. The judge held that "leafleting, petitioning, and soliciting against the placement of a group home in one’s neighborhood are actions protected by the First Amendment.
Patrick's baseball bat analogy is one of the dumbest, and scariest, interpretations of freedom of speech I've ever seen from a person in a position of federal authority. I hope Patrick's respect for freedom of speech has evolved in the meantime.
UPDATE: Of course, it's possible that Patrick didn't actually believe that any court was going to buy his argument, but instead just wanted to keep the litigation going to intimidate the homeowners. Even if the homeowners eventually emerged victorious in litigation, as they did, they still had to face the threat of prosecution and enormous legal fees. Ironically, it was Patrick who was using the metaphorical baseball bat, the threat of (state) violence, to violate the homeowners' rights.
If wishes were horses, beggars would ride.
By the way, I don't it would be improper to use activities protected by the First Amendment as evidence of unlawful intent, as opposed to as the predicate acts themselves.
Constantly obsessing on these minority issues (FHA litigation, AA, etc.) makes you seem like a hack. It gets tiring. Mix it up a little bit, ok?
Get ready for this garbage times about a million, folks, if Obama runs for president.
what i find ironic is that the speech is discriminatory by Patrick believes that speech that "convinces a city govt." to change policy/actions is a crime.
so, in other words, one of the tests for whether speech is constitutional or not is if it is PERSUASIVE. this is beyond ironic, alanis. the whole point of allowing dissenting, offensive, hateful, controversial, etc. ideas to be expressed is that (the theory is) in the long run, the CORRECT ideas win in the marketplace of ideas. iow, we don't need govt. to be the guardian of what is true and what isn't.
some countries,like canada and the UK, that do criminalize ideas (like canada's criminalization of public holocaust denial), don't even claim that the CONVINCINGness of speech is a test for legality.
so, i guess in patrick's eyes, one can criticize HUD, as long as one does not do so convincingly?
i also take issue with thomas' post about quakers. what is special about quakers such that they could not be plotting terrorist acts? before you answer that, let me say that I went to a quaker school, and have spent literally hundreds of hours in quaker meetings. sure, quakers are SUPPOSED to be pacifists, but if richard nixon can be a 'war monger' (he was a quaker) quakers can also be terrorists.
the idea that quakers can't be terrorists is like the idea that priests can't be pedophiles. i mean the catholic code prohibits priests from having sex at ALL, and definitely not with children. so, clearly no priest could commit pedophilia any more than a quaker could plan, assist, or commit a terrorist act (rolls eyes)
Opposing him/her will cause automatic arrest for racism, sexism, and everything else the prosecution can think of. Denying those charges of course will be admission of guilt, as contradicting a black, lesbian, female, socialist is proof positive of your racist, sexist, attitudes and therefore quite condemning.
No trial needed, automatic death sentence without appeal (see above as to why an appeal would only make matters worse).
It's 1984, coming to a community near you soon.
Yeah, Deval Patrick, and then Joe McCarthy, and then the Alien and Sedition Acts....that sounds about right
Remember there are young pups on this board, who may not remember. I, on the other hand, was happy to vote to throw the beggars out in the '00 elections, and send Adams back to the People's Republic of Massachusetts.
For what it is worth, I found Patrick to be one of the more energizing candidates in a long time. A good speaker, and positive campaign (generally), and a energizing personality. In all events, Healey was DOA.
Bernstein is getting all bent out of shape because Civil rights lawsuits were filed against groups that tried to block half-way houses. He seems to think these were serious violations of the groups' first amendment rights, "one of the dumbest, and scariest, interpretations of freedom of speech I've ever seen from a person in a position of federal authority" in fact. I was merely saying that the current administration has been spying on peaceful groups and denying detainees the right to speak with their lawyers. I think both are much more scary infringements on the freedom of speech.
How could that be? Karl Marx wasn't even born yet. It's all a blur now, but I remember that much.
This is the kind of public servant you can expect next time you elect a Democrat president.
That was all I was asking for- a complete version of whatever Patrick said. I think those that read it will agree that the full text of what Patrick actually said is very different than how the post construes it.
Bernstein: I could care less about MCRI. I was just using that post as an example of how your posts can be construed as hack jobs. You selectively used comments made by Coleman to make a point on one of your repeat topics, the premise of your post was eventually debunked by a comment, you were asked to amend, and you haven't.
It'll be interesting to see what he does as Governor of MA. We've had not but Republicans in the Governor's office for damn near 16 years now. Weld, Cellucci, Swift, Romney. (I felt bad for Swift, she was put through the wringer.)
Uh, no. Here's the full quote from Governor-elect Deval Patrick:
The second paragraph was reprinted in full in Bernstein's post above. The first paragraph of the quote makes it clear beyond any doubt that Deval Patrick actually believes (or, at least, believed, before his legal theory was blown to bits by courts) that the Fair Housing Act trumps the First Amendment to the U.S. Constitution, which is exactly what Bernstein stated.
And how disturbing it is that he equated trying to change government policy through free speech to the use of physical violence even after the Clinton Administration had stood up for the First Amendment? He's not going to have Bill Clinton to rein him in any longer.
Sorry, BU06, but Deval isn't a knight in shining armor. Like all of us, he has his warts ... and distorting his record to defend him doesn't do him any favors. Some of us in Massachusetts hope that he's learned from his blunders.
Scarier because the opposing interest does not involve national security in any way. When fighting a war we sometimes make compromises. In the matter of The Berkeley Three there was no need whatsoever to compromise free speech.
first of all, if u are surveilling ANY group, as long as you are in a place the public has a right to be blah blah blah, there are no search and seizure, or constitutional issues.
furthermore, the issue was - WERE they peaceful groups. i constantly see on leftie blogs that it is just absurd that we could be spying (or surveilling) QUAKERS?!?!?!?!
there's almost a sort of soft bigotry here. clearly, ALL quakers are such pacifist ninnies that they all MUST be peaceful and incapable of aiding, assisting, or committing terrorism.
clearly, that is NOT true. if the surveillance turned out to reveal this group WAS peaceful, then groovy. and LEO's move on. you really can't win with this mindset. if you are not proactive (like we WEREN"T prior to 911), then you are to blame for not stopping it before it happened. if you ARE proactive, then every lead that turns out to be negative (as MOST leads in law enforcement do), you were wrong to look into it in the first place.
the only way to prevent terrorist acts (or any inchoate offense) is to investigate, often based on slim leads, etc. and in many cases the leads turn out to be nothing.
that's how law enforcement and investigation works.
but just because somebody is a quaker, or CLAIMS to be a quaker does not make them structurally incapable of violent acts.
so, this is the logic . LEO gets a tip regarding a quaker group. agent in charge tells them "don't investigate quakers. they cannot be terorrists. its impossible". group does turn out to be terrorists, and blow up a building or whatever.
would you blame Law enforcement in that case? i would. better to investigate and CLEAR a possible lead, then discount it.
i worked undercover for years. TONS of leads turned out to be bogus. welcome to the real world.
"Patrick's baseball bat analogy is one of the dumbest, and scariest, interpretations of freedom of speech"
DB didn't claim he was dumb. He said it was a dumb analogy. Totally different. I can say that your argument is stupid (misleading would probably be more appropriate) and that certainly doesn't mean I am claiming that you are stupid.
(Though I gotta ask, didn't Healy have any oppo researchers who had heard of Google?)
Undoubtedly, you would never call President Bush dumb. Ever.
Just to remind you, elected and unelected officials report to us, not the other way around. If they can't take the heat, they should get out of the kitchen.
Uh, no. Here's the full quote from Governor-elect Deval Patrick:
The problem wasn’t the repugnant views expressed in leaflets and court filings; they were mere instrumentalities in a concerted effort to coerce and intimidate the seller in violation of the Fair Housing Act and Texas law.
Baseball bats are perfectly legal too. But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws.
Uh, yes. The first paragraph (the one that DB left out) clearly (to me, anyway) shows that Patrick was not making the argument that the leaflets, in and of themselves, were a problem. Patrick seems to have been making an argument that the leaflets were one example of a larger pattern of intimidation. Now, as with all fact specific arguments, it is difficult to make a decision on the merits unless one actually has the facts. Maybe there was a larger pattern of intimidation, maybe there wasn't. That was for a judge to figure out.
DB, it seems, never bothered to present the facts. Instead, in this particular example, he took a partial quote out of context to serve as an example for his polemic. I'd have to say that is an example of "dumb" and "scary[]" legal analysis. (And before anyone criticize me for that last sentence, please note that 1) DB uses the same terms for Patrick's writings, so they are fair game and 2) as RSF points out in the comment above by analogy, I'm not saying DB is dumb and scary, just his legal analysis. So, no cries of ad hominem please).
How do you figure? He talks about the leaflets being "instrumentalities" in what he calls a campaign of coercion and intimidation (I'm not familiar, so let's just take his word for that) and then says that baseball bats are "also" a dual-use item that becomes a weapon when used in a similar context. It seems to me that the hair he's splitting is the language in the leaflets, versus the act of distributing the leaflets. Which is even worse because he's separating out the _act of speaking_ and calling it criminal. I might have used a word like "ignorant" instead of "dumb", because nobody who understands the Bill of Rights could possibly make such an argument in a US court. If he actually believes that argument, then he is objectively opposed to free speech and DB's analysis is right on.
And again, this really reminds me of the Noerr-Pennington issue. For those who aren't familiar with it, the Noerr-Pennington doctrine basically says that because of the First Amendment, the federal antitrust laws do not apply to petitioning activities, even when the motive of the activity is anti-competitive. So, for example, you can petition the government to give you an exclusive franchise even though that would create a monopoly. And this basic idea has been applied to other sorts of federal laws.
But there are exceptions to Noerr-Pennington, usually lumped together under the general label "the sham exeception". The basic idea is that the First Amendment will not shield petitioning activites where the goal is to use the petitioning process itself--as opposed to succeeding on the merits of your petition--to create an anti-competitive effect (or a similar unlawful effect in other contexts). So, for example, although Noerr-Pennington covers lawsuits as a form of petitioning actitivity, you cannot repeatedly bring baseless lawsuits against a potential competitor in an attempt to deter them from competing. And as an aside, once you have established predicate acts that fall within the sham exception, you can use other acts which would not themselves be unlawful to help prove anti-competitive intent.
Anyway, it seems to me that Bernstein's description of this statement has not yet been justified, because depending on the circumstances there could have been an applicable exception to the First Amendment, and in any event protected acts can be used as evidence of intent as long as there was some other unprotected predicate act. Further, even if it turns out there were no applicable exceptions in this case according to the court, if Patrick thought one the recognized exception did apply, then his position may merely have been wrong, as opposed to being "dumb" and "scary".
In general, I see this all too often. When it comes to legal matters, people can sometimes just be wrong. They don't always have to be something worse.
Can you identify a commenter fairly characterized as one who "protest[s] any time one criticizes an elected official who happens to be black"? Aren't the comments above more fairly described as criticizing a perceived (rightly or wrongly) proclivity for singling out black leaders for criticism? Or were you just giving us an example of your prior statement about smart people making dumb arguments?
america (pretty much the only country left) draws a clear distinction between expressing OPINION and things such as threats, etc.
clearly, this HUD example is one of expressing an opinion and trying to persuade. In canada, the UK, etc. that can be often illegal (since they don't have a 1st amendment and criminalize all sorts of opinions) but here in the US it is not. Even defamation, which is not a crime, but is civilly actionable, it has to be proven that what you said is false, and you should have basically known so.
So, i really don't see the analogy between the above examples, and the HUD example, which basically comes down to criminalizing people's expression of their OPINION, which is the exact kind of speech that the first amendment was designed for and which deserves the highest protection. we are the last nation that still believes that.
if i make a threat, i think it is clear that this is not merely an expression of an opinion, etc.
if i say HUD should be abolished, or this proposal is bad, or whatever, that is not at all relevant to threats, conspiracies, etc. imo.
i think the line becomes the most blurred when strong opinion is mixed with perceived threats, like the Nuremberg files case (that was originally prosecuted under RICO iirc).
america (pretty much the only country left) draws a clear distinction between expressing OPINION and things such as threats, etc.
clearly, this HUD example is one of expressing an opinion and trying to persuade. In canada, the UK, etc. that can be often illegal (since they don't have a 1st amendment and criminalize all sorts of opinions) but here in the US it is not. Even defamation, which is not a crime, but is civilly actionable, it has to be proven that what you said is false, and you should have basically known so.
So, i really don't see the analogy between the above examples, and the HUD example, which basically comes down to criminalizing people's expression of their OPINION, which is the exact kind of speech that the first amendment was designed for and which deserves the highest protection. we are the last nation that still believes that.
if i make a threat, i think it is clear that this is not merely an expression of an opinion, etc.
if i say HUD should be abolished, or this proposal is bad, or whatever, that is not at all relevant to threats, conspiracies, etc. imo.
i think the line becomes the most blurred when strong opinion is mixed with perceived threats, like the Nuremberg files case (that was originally prosecuted under RICO iirc).
Your post and the working paper (Oct 2000) left me a bit confused; would appreciate clarification.
You start by hammering HUD, perhaps deservedly. But your post is about Deval Patrick, mainly based on his 1996 letter to the Washington Post defending the Justice Department's actions in Fort Worth.
Patrick's letter asserts that there was a "concerted effort to coerce and intimidate the seller [of property for the Fort Worth halfway house] in violation of the Fair Housing Act and Texas law."
Based on some cursory research, I believe the alleged coercion took the form of an allegedly "frivolous" and "discriminatory" lawsuit brought against the property's seller by neighborhood protestors. DoJ then brought a civil action against the protestors for the "coercive" lawsuit, not for the protestors' public utterances [leaflets, etc.]; but wanted to use the utterances as evidence of purpose and design.
If this is substantially accurate then is it your view:
(1) That Patrick got his facts wrong ...there was no coercion, solely a political protest protected by the First Amendment?
(2) Or that an (allegedly) frivolous lawsuit is itself protected by the First Amendment. as a form of political protest or as a petition to the government or both?
(3) Or that DoJ should not have used the protestors' public utterances as evidence, because those were uttered as part of a protest protected by the First Amendment?
(4) Or perhaps that I've mis-stated the fact situation?
Patrick's letter to the Post suggested that the leaflets were not simply evidence of a conspiracy to violate civil rights, they were themselves an instrument of the conspiracy, just like a baseball bat can be the instrument of a conpiracy to violate housing rights (it would be very difficult to argue that the baseball bat would only be evidence that court filings are intended to violate rights!). It's been a long time since I looked at the case, but the DOJ must have kept arguing this, or the judge wouldn't have had to shoot the argument down. This is also suggested by his claim contended that "Congress intended the [Fair Housing Act] to proscribe any speech if it leads to discrimination prohibited by the FHA."
Congress is not supposed to go around proscribing speech. There might be some room for limited exceptions, but to extend those to landlord-tenant disputes is absurd.
It was an interesting election. Race was surprisingly never brought up, except to note that if Healey had won she'd have been the first woman elected to the position and Patrick is the first black elected to the position. (Mihos would have been the first independent elected, and Ross would have been the first independent fat lesbian elected.) I was pleasantly surprised, because there is still a lot of northern racism below the surface here.
The Herald noted that Jesse Jackson, a long-time Patrick supporter, was absent from this election, strategically.
As mentioned, Healey had a series of attack ads, one for Patrick's support of a convicted rapist who had asked for a DNA test, apparently even after the test proved him guilty, and another for his sentencing appeal on behalf of a cop-killer, suggesting that defense attorneys ought not be elected, which as MAresidnent said led to the Lawyer's Weekly endorsing him.
The Boston Herald's November Surpise was that Patrick was a big part of the group that decided not to prosecute Lon Horiuchi for the murder of Vicki Weaver.
I liked Healey for her better-then-the-others 2nd Amendment views, but I really had to hold my nose when voting for her (and almost went for Mihos) on the 6th Amendment. Lt. Gov. Healey was hurt by national anti-Republican feelings, and local anti-Romney feelings.
As it is, Patrick is extremely charismatic and intelligent and competent, but is a classic tax-and-spend liberal Democrat. This is going to be an interesting 4 years here.
Now that the election is over, race has become a much bigger deal. Some folks are hoping that this puts to bed the notion of Bostonians as rascists that has been a stain since the 1974 school busings protests, and His Excellency-elect, who has promised that he will serve out his term rather than going for higher office (unlike Mitt Romney and Bill Weld) is being treated like a black Barack Obama.
You say, "[C]learly, this HUD example is one of expressing an opinion and trying to persuade."
So far, that is not at all clear to me, particularly in light of what pireader conveyed. Do you have another source for the facts of this case?
pireader,
That sounds like a classic Noerr-Pennington/sham-exception issue, and so far it doesn't seem like the DOJ was arguing anything outside the scope of accepted doctrine.
Professor Bernstein,
It seems to me you are overlooking what Patrick actually said about the metaphorical "bat". What he actually said is "we are going to use the bat as evidence of your intent to violate the civil rights laws." Now, you may think that doesn't make much sense as a metaphor. But his import is clear: he is talking about proving intent, for which purpose acts protected by the First Amendment can be used.
Moreover, the "bat" apparently refers both to leaflets and "court filings", as you note. And as we have been discussing, court filings CAN be used as predicate acts for federal law violations when they fall within the "sham exception". And I believe that the case law actually supports pleading other activities as part of a pattern of unlawful activity, even if on their own they would be afforded First Amendment protection.
So, I sincerely think that once you know about how the First Amendment has been applied to similar cases, this statement no longer looks so "dumb" and "scary", although perhaps Patrick may fairly be accused of using a pretty poor metaphor.
Once again, professor, not a single commenter was arguing anything of the kind based on "one criticism." It's the cumulative effect, professor, as the comments made clear.
The relevance of the "clever bit of street theater" remark was that the university claimed it could constitutionally close down the bake sale because it was "discriminatory." But it wasn't a true bake sale, it was "a clever bit of street theater," which it was, even if you disagree with it.
Anyway, an apology from you to me is in order, but I won't hold my breath.
As an aside, I take it that if the bake sale was "corrosive" you must think that AA is much MORE corrosive, because instead of a one-day bake sale, university officials are engaging in racial distinctions all year round with much more drastic consequences. No? Well, then what you are doing is trying to put AA opponents in the following bind: we'll engage in preferences, but if you point out the preferences, you are attacking minority students, and engaging in "corrosive" rhetoric.
Take the last word on everything else. (you will anyway) It's really not worth the trouble.
As an aside, as we discussed above, at least the court filings to which Patrick referred might be viable predicate acts under the sham exception to Noerr-Pennington, and the leaflets might be included as part of a pattern allegation even if they could not be predicate acts on their own.
Anyway, I don't see what is so absurd or unprincipled about using speech protected by the First Amendment as evidence of unlawful intent. Indeed, presumably this happens all the time. For example, if you say to a friend, "That bastard Chumund deserves to die!", your statement is protected by the First Amendment. But if the next day, you narrowly miss running me down with your car, the government could surely use your statement as evidence of criminal intent in a prosecution for attempted murder.
So, I guess I don't understand why you think this notion would only make sense to a lawyer. Rather, it seems to me that everyone understands that the things one says are often relevant to proving intent.
So to take your analogy a step further, if I oppose your petition to build a halfway house for some reason and my view wins the day at the zoning board, I don't think it's reasonable to compare that to inciting a criminal act unless--maybe--both my stated reasons and the zoning board's cited reasons were based on prejudice and thus constituted illegal discrimination (but in that case the municipal government should be liable, not private citizens).