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Is It Legal for Human Rights Watch to Suspend an Analyst for Collecting Nazi Paraphernelia?

The underlying story is linked to here; but what struck me is that New York -- the place where Human Rights Watch is headquartered, and where I take it Marc Garlasco is working -- has a statute that generally prohibits employers from discriminating against employees based on their lawful recreational activities:

[1.]b. "Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material; ...

2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: ...

c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property; ....

3. The provisions of subdivision two of this section shall not be deemed to protect activity which:

a. creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest; ....

4. ... [A]n employer shall not be in violation of this section where the employer takes action based on the belief ... that: ... (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

5. Nothing in this section shall apply to persons who, on an individual basis, have a professional service contract with an employer and the unique nature of the services provided is such that the employer shall be permitted, as part of such professional service contract, to limit the off-duty activities which may be engaged in by such individual....

So while Garlasco's collecting Nazi memorabilia might well cause serious public relations problems for Human Rights Watch, the organization may not suspend him (suspension surely qualifies as discrimination in terms, conditions, and privileges of employment) based on such collecting -- assuming Garlasco "received no compensation" for the collecting -- unless one of the exceptions applies. What are the possible exceptions?

Provision 5: Maybe Garlasco's contract qualifies as a "professional service contract" based on "the unique nature of [his] services," and the contract specifically provides that the employer may limit off-duty activities; I'm not sure, though, whether his services are "unique" enough that this would apply even if the contract has such a clause. If anyone knows more about this provision, or about the normal New York law or employment law definitions of "professional service contract" or "unique nature," I'd love to hear about it.

Provision 4.iii: I doubt that one would conclude that Garlasco's collecting would reasonably qualify as being "incompetency or misconduct," though of course the terms are quite vague, and one could argue that any employee action that could lead to the public's devaluing the employee's work for his employer is "incompeten[t]."

Provision 3.a: One could argue that Garlasco's conduct "creates a material conflict of interest related to the employer's ... business interest." In my experience, "conflict of interest" generally refers to some way in which an employee's activity potentially undermines his loyalty to the employer. But one case, Berg v. German National Tourist Office, 248 A.D.2d 297, 297 (1998), seemed to read the provision broadly enough to also cover actions that undermine the employee's utility to the employer, by exposing the employer to hostility stemming from public hostility to the employee's views. In Berg, the court found that the German National Tourist Office acted permissibly in firing an employee for becoming publicly known as the translator of some Holocaust revisionist articles. But is Berg, which is a single decision of the New York intermediate appellate court, not the state high court, correct? And would it also apply to the less incendiary -- though obviously still unpopular -- behavior of collecting Nazi memorabilia?

The First Amendment: Finally, it's possible that Human Rights Watch's First Amendment rights -- here, the rights to choose who writes and comments on its behalf -- might trump the New York statute in some situations. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (holding, by a 5-4 vote, that the First Amendment trumped such a statute when a newspaper demands that its reporters not engage in politics; that specific scenario is exempted from the New York statute, but the Washington court's logic may apply to other situations as well) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies").

I'm inclined to say that employers should indeed have broad rights in such situations, and in most states they would. It's also possible that under Berg, Human Rights Watch may indeed fire employees for doing anything that might make them or Human Rights Watch seem less credible. Still, the matter is not as clear in New York as it would be in most states, because of the statute I quoted above.

Jon Rowe (mail) (www):
I think this is different from cigarette smoking.

I'd imagine Boy Scouts v. Dale might speak to this circumstance.
9.16.2009 5:52pm
Cynic01 (mail):
They should fire him for bad research, but since noone really evaluates the research, the credibility of the group ends up depending on the public's impression of his personal integrity. Yes I know that's not a legalistic argument.

Next time the Israelis should do a James O Keefe and plant a bunch of agents in Gaza posing as civilians and militants, and have them make ridiculous and easily disproved claims to the HRW researcher which he/she will then quote as "eyewitness" proof against the results of an internal IDF investigation.
9.16.2009 5:54pm
George Weiss (mail) (www):
very interesting! thanks.

what a dumb statute
9.16.2009 5:56pm
Soronel Haetir (mail):
Even without the case reading it even more expansively than required for HRW's needs I would have expected the conflict of interest provision to provide HRW an out here. What is more in conflict with business interest than something that dimenishes the credibility of such an organization?

I am hard pressed to come up with an example of a more extreme CoI that wouldn't run afoul of one of the other provisions of the exception.
9.16.2009 5:57pm
Xanthippas (mail) (www):
I think this is as close as Volokh will get to calling out Bernstein. I'll take it.
9.16.2009 5:59pm
Badness (mail):
So HRW: damned if they do, and damned if they don't, boot him?

How about firing him after giving a really negative performance review? If his advocacy is rendered ineffective by his hobby (by bringing himself and his employer into disrepute), he's not doing his job well. It's quite obviously pretextual, but it's not exactly a lie.
9.16.2009 6:02pm
comment reviewer:
Xanthippas:

Make sense much?
9.16.2009 6:16pm
neurodoc:
Not so many years ago, wasn't there a case headed for the Supreme Court that was causing great consternation on the part of some civil rights groups because they thought it wasn't the best set of facts for their purposes and might lose, hurting their cause. And wishing to wait for a strong case to come along, didn't donors buy off the appellant so they would let it drop rather than press on? I think the Garlasco matter will go away in that fashion, with some HRW supporter(s) paying Garlasco to go away quietly rather than pursue any claims he might have against HRW for suspending him. Anyone want to bet on it?

Maybe Garlasco will use some of he is paid to agree to a confidential settlement with his employer and use it to build up his collection of WWII USAF memorabilia which supposedly complements his collection of Nazi war memorabilia. No one doubts, do they, that he is, as he and HRW claim on his behalf, a collector of both rather than just the Nazi, and he should be seen as a serious military history type, not someone with a Nazi fetish.
9.16.2009 6:22pm
troll_dc2 (mail):

what a dumb statute


It's the sort of legislation that the cigarette companies were pushing to protect smokers from being fired or not hired. But to make the statute enactable, it had to be written more broadly.

There is New York case law on whether having a non-marital sexual relationship is a legal recreational activity. See this treatise.

New York is not the only state with such a statute.
9.16.2009 6:31pm
Today's Tom Sawyer:
I would agree with the first poster, since Boy Scouts v. Dale upholds the freedom of association interests of the organization as long as they are clearly stated and a part of the organization's mission, so these are the lines of argument that would have to be determined in this case.
9.16.2009 6:36pm
David Schwartz (mail):
Simple solution - don't fire him for collecting Nazi memorabilia, fire him for the various harm he did to HRW's reputation in the way he handled it.
9.16.2009 6:45pm
eyesay:
If this New York statute were thought to be violated, would this be a civil case or a criminal case?

If a criminal case, is there any prospect of the DA taking the case?

If a civil case, wouldn't HRW have in its defense the argument something like, "We didn't refuse to hire. We didn't fire. We didn't reduce salary or benefits. We simply asked him not to show up at the office while we studied the situation. Plaintiff has no damages because he was paid to work for us while having his working time available to him to perform other work other activities of his choice"?
9.16.2009 6:48pm
Guesto12:
Contrast Volokh's approach here (thoughful analysis of the legal issues involved), with Bernstein's (a purely political attack on an individual and an NGO).

Perhaps Bernstein could learn a little bit about keeping his hackneyed politics away from this site?
9.16.2009 6:56pm
Seamus (mail):

I think this is as close as Volokh will get to calling out Bernstein. I'll take it.



Not really. Berg v. German National Tourist Office seems to support the legality of booting this guy for being radioactive (which he clearly is).


I'd imagine Boy Scouts v. Dale might speak to this circumstance.



Dale wasn't an employment case.
9.16.2009 7:04pm
Eugene Volokh (www):
A note about the First Amendment issue: The idea that the First Amendment might give an organization a right to choose those who speak for it, and those who write on its behalf, is certainly plausible, and Dale v. Boy Scouts helps support such a position. Nor is Dale necessarily limited to volunteers as opposed to employees. It doesn't clearly speak to the employee question, but its reasoning could be applied to employee cases.

This having been said, the First Amendment matter is far from clear; I cited two state court cases -- Nelson and Ali going both ways on the subject in my original post.
9.16.2009 7:14pm
gullyborg (mail) (www):
So... if I am working in NY I couldn't get fired for a hobby that included making obscenity-laden posts about my employer and posts filled with photos of binge drinking and sexually suggestive material on my blog?

Didn't Delta Airlines fire a flight attendant for doing that? Of course, not in NY...
9.16.2009 7:21pm
troll_dc2 (mail):

Contrast Volokh's approach here (thoughful analysis of the legal issues involved), with Bernstein's (a purely political attack on an individual and an NGO).

Perhaps Bernstein could learn a little bit about keeping his hackneyed politics away from this site?


I notice that different bloggers post for different reasons and that, because it is their site, they are free to write whatever they want. We in turn are free to read or not and to comment or not.

Bernstein seems to be the classic blogger; he writes about what he is interested in, and he is more concerned about articulating his views than in getting our comments so that he can develop them further.

Volokh, as well as Kerr, seems to be using this site to work on legal issues that they may develop into articles or other more finished pieces. In fact, both of them seem to invite our comments just so they can get a feel for the nuances of an issue and a sense of what issues ought to be addressed. They both seem interested in dialogue with their readers. Needless to say, I read a high percentage of their blogs, even if I am not sure at the start whether I would be interested in what they are writing about.
9.16.2009 7:21pm
Nathan_M (mail):
On a related note, is there anyway to get an RSS feed of the Volokh Consipiracy which excludes certain contributors' posts?
9.16.2009 7:27pm
Bob from Ohio (mail):
Maybe Mr. Garlasco can help me with that German word for the situation "Human Rights" Watch finds itself in. "Schenfraude" or something.
9.16.2009 7:54pm
Gonzer Maven (mail):
As I recall, and correct me if I'm wrong, the paraphernalia collecting is not the whole thing. I seem to recall reading that at one point he put on an SS jacket and bragged about how cool that was. Also, there is the business of walking around with a sweatshirt with the Iron Cross on it. So maybe in another context he may have an argument though pace Eugene, not a very good one. Given the this context of a guy who thinks dressing up as an SS trooper is "cool," to put him in charge of passing judgment on Jews' didputed activities, is another story.

Oh, and Bob, it's Schadenfreude.
9.16.2009 8:04pm
Leo Marvin (mail):
For what it's worth, I know Jews who collect Nazi memorabilia as historical artifacts, not unlike how some African-Americans collect slave documents and other artifacts of their historical oppression. It wouldn't surprise me if some people also collect this stuff out of a more general macabre fascination, which still doesn't necessarily imply any affection for Nazis or what they stood for. I think both of those pursuits can be perfectly innocent, and if they can be innocent for Jews, they should no less so for gentiles.

That said, Garlasco seems to have dissembled in ways that calls everything he says about this into question. If it was the only issue bearing on HRW's objectivity on mideast issues, I could imagine them standing behind him. Given the actual controversies, I think they're well-advised to cut him loose.
9.16.2009 8:11pm
Dennis Nicholls (mail):
When I worked at Dalmo Victor (part of Bell Aerospace) in Belmont CA back in the late 1970's, one of the Jewish software engineers owned a classic WWII-vintage staff-car Mercedes, which he had painstakingly restored to full Nazi regalia with swastika flags on the fenders. When it was pointed out how sick it was to own such a thing, his response was simply along the lines "well, it shows WE WON."

For that matter I own a lot of "Nazi regalia" by some people's standard. I have a WWII vintage Mauser whose proof marks down the receiver are swastikas. But it also has a crossed-rifle Red Army capture mark - it was captured at Stalingrad.
9.16.2009 8:50pm
Ariel:
This is one of those cases where I really hope both sides lawyer up and fight it all the way to the Supreme Court. If they can fight until they both run out of money, even better.

In terms of the outcome, I also like the Boy Scouts case for the freedom of association. It's reasonable to say that HRW is an expressive association and that association with Nazi fetishists is not really part of their mission. I think that would be a good argument for HRW. I don't think the speech argument is as strong, because the question isn't really about speech but about association between a speaker and his employer.

One other point that I think Prof. Volokh must have meant to bring up, based on his excerpts from the statute, is s. 2c - if Garlasco used the computer at his work or his Blackberry as part of his hobby, the company could fire him for doing so, under this statute.

While I see the (potential) case as being pretty clearly for HRW, I hope I'm wrong and that it's 50/50 balanced all the way.
9.16.2009 9:18pm
EMG:
The piling on to DB in this instance is a bit much, I think - and I say that as someone who falls to the far left of the Jewish loyalty Israel-politics spectrum (the use of which as a metric speaks volumes) and who usually finds his "boo hoo! double standards!" Jewish victimology quite tiresome. But the present instance vindicates him so thoroughly it's almost too good to be true.

Several weeks ago, he started harping on some obscure little fundraising event, and many of us just rolled our eyes because it just seemed obsessive/excessive/annoying.

But then it turned out that the org in question is ACTUALLY STAFFED BY NAZI ENTHUSIASTS. Credit where credit is due, folks. Maybe he actually has a nose for this sort of thing.

Unfortunately the way this site is going lately, it won't be long before we're stuck debating whether it's fair to call someone a Nazi if they're into shtupping dead horses.
9.16.2009 11:04pm
Garth:
"is ACTUALLY STAFFED BY NAZI ENTHUSIASTS"

actually, not quite.

one person with an unusual habit of collecting nazi and other war memorabilia.

from the responses here and elsewhere it seems as if this type of hobby is quite common.

how exactly does this detract from actual, documented war crimes? it's not like HRW reports are outliers.
9.16.2009 11:38pm
Leo Marvin (mail):
Garth:

"is ACTUALLY STAFFED BY NAZI ENTHUSIASTS"

actually, not quite.

one person with an unusual habit of collecting nazi and other war memorabilia.

I agree there isn't enough evidence to say he's Nazi enthusiast, so "not quite" seems right. But there's more than enough unsettling information to question whether he's really just "one person with an unusual habit of collecting nazi and other war memorabilia."
9.17.2009 12:27am
zywotkowitz (mail):
how exactly does this detract from actual, documented war crimes?

Depends whether you think:

a) HRW is a liberal icon, so they have a halo and only firm proof that the guy is a Nazi would raise suspicion about his work

b) HRW is a bunch of anti-Israel and anti-US hacks trading on their rep from years past

c) neither, in which case Garlasco's online activities (showing him as a unserious transgressive personality who glowingly admires the Wehrmacht and non-chalantly chats with guys who quote Mein Kampf in their signature) will certainly push you to b).
9.17.2009 5:48am
Aultimer:
In this case, the Nazi-fan wrote a for-profit book. The statute might protect the collecting activities but not the authoring activities.
9.17.2009 9:09am
Anderson (mail):
But there's more than enough unsettling information to question whether he's really just "one person with an unusual habit of collecting nazi and other war memorabilia."

Like what? I confess that the Garlasco posts finally pushed me to the "exclude=db" option, so perhaps I'm behind the loop.

Nazi uniforms, etc. were designed to be cool-looking. The aesthetic appeal was very deliberate. Now, given what they stood for, one would like to think that this aesthetic appeal can and should be resisted, but different people evidently have different feelings on that score.

Susan Sontag's remarks towards the end of her evisceration of Leni Riefenstahl, "Fascinating Fascism," are worth a look, to anyone curious about Nazi aesthetics.

(Also, as a Southerner, I'm familiar with people who collect Confederate memorabilia, associated with a cause only marginally superior to that of the Nazis. We generally don't regard them as social outcasts, though perhaps if one of them worked for the Southern Poverty Law Center, that hobby might be better kept quiet.)
9.17.2009 9:49am
Mike G (mail):
Only one staff member is a Nazi enthusiast. The rest are just anti-Semites. There's a difference... I guess.
9.17.2009 10:02am
Uh_Clem (mail):
Dear Professor Volokh,


I own the Wagner's Ring Cycle and several books by Martin Heidegger. Should I be worried about losing my job?

- Concerned in Academia
9.17.2009 10:07am
Uh_Clem (mail):
And now a more serious post:

Many collectors not only buy the artifacts they collect, but also sell them from time to time. My experience with collectors is that they usually justify their collection as an investment (although most "collectable" things don't appreciate in value - e.g. Elvis commemorative plates, comic books, baseball cards, etc. - some can't be sold at all on the secondary market.)

My take is that if it can be shown that he is trading in Nazi memorabilia instead of just accumulating it for his own personal enjoyment it would not fall under the definition of "recreational activities" above. There's precedent in the tax laws differentiating "business" activity from "hobby" activity, but I'm not sure how relevant it would be to this statute.
9.17.2009 10:17am
neurodoc:
garth: one person with an unusual habit of collecting nazi and other war memorabilia
Yes, that's part of the cover story HRW put out on Garlasco's behalf (and their own). Supposedly, Garlasco's interest in WWII medals and other memorabilia owes to a grandfather who served in the Wehrmacht and to a great uncle who served in the US military (USAF?). And supposedly, Garlasco collects the memorabilia of both sides.

We know that Garlasco is a most avid collector of the Nazi memorabilia; has authored a 430-page tome on the subject; participates in groups who share this hobby (fetish?); wears a sweatshirt with an Iron Cross on it; has as his license plate "FLEK88 which either alludes to Hitler or a German antiaircraft gun of the sort his grandfather might have manned; etc. Anything to confirm that Garlasco is 1/10, 1/100, or at all as involved with US military memorabilia? Garlasco wouldn't lie to his employer HRW about this, and HRW wouldn't in turn retail his without confirming it, would they? (Garlasco's claim to be surprised at the reaction to his hobby/fetish has been proven a lie, since he had expressed concern to others previously that it would cause him problems if discovered.)
commenter: A post about DB's views on which we are allowed to comment? I... well... I've waited for this moment for so long but now I don't know what to say.
How about something like, "Gee, DB was right, there really is reason to question tne credibility of an organization that employs such people (Sarah Whitson, Joe Garlasco, Joe Storch, etc.).
9.17.2009 10:31am
Anderson (mail):
has as his license plate "FLEK88 which either alludes to Hitler or a German antiaircraft gun of the sort his grandfather might have manned

Surely it's "Flak 88"? The 88-mm AA gun, which Rommel's troops figured out worked very well against tanks too, is commonly regarded as one of the finest weapons of the war. See Max Hastings, Overlord:
The 88-mm dual-uprose gun was the decisive force in the German destruction of many Allied tank attacks in Normandy, above all in the open country on the British flank, where its long reach could be exploited to best effect. It was, quite simply, the best gun produced by any combatant nation in the war, with a formidable killing power against all Allied tanks.
(Emphasis added.) If you're a WW2 nerd, that's the kind of thing you get excited about.
9.17.2009 11:10am
Anderson (mail):
("Dual-purpose" of course; sorry to imply Hastings is illiterate.)
9.17.2009 11:13am
SeaDrive:
I'm still wondering how you tell the difference between something that is "Nazi" and something that is "German of the Nazi era."
9.17.2009 12:26pm
Suzy (mail):
I would think that HRW can fire Garlasco according to any of the three points Prof. Volokh outlines above. 3a describes a conflict of interest related to employer's business interests. If HRW suffers negative publicity, loses credibility, and loses financial support because of his actions or public statements about his actions, wouldn't that qualify under 3a?
Similarly, if under part 4 a person is responsible for issuing reports about a highly sensitive subject, and maintaining objectivity is absolutely crucial to the success of the enterprise, then perhaps he is performing his job poorly or incompetently. I don't think the mere act of collection is the problem here; it's the comments he made, and the subsequent attempts to conceal and minimize what he was doing.
Would the applicability of part 5 depend on the terms of his employment? I.e. what kind of agreement he might have signed with HRW.

I agree that Prof. Bernstein is one of the bloggers here who makes more partisan comments. During the campaign I was really put off by it--I mean, it was getting to be absurd. However, in his defense on this issue, his posts about HRW are directed at a much broader audience than just the blog's readers, and the bulk of the serious discussion is not going to take place here. I would also acknowledge that Bernstein takes an active role in moderating and responding to comments, so if he can't do that on this issue (which might inspire a lot of comments and require more serious attention from him), it's not a good idea. It's not really fair to attack him for not having comments on this issue, when the people with whom he's debating this often have their own blogs and outlets, and he's participating in that exchange openly.
9.17.2009 1:42pm
ChrisTS (mail):
For a long time, I was fascinated by Nazi 'culture;'
- their creation of an aesthetic, their relentless promotion of it, the architecture [in particular], and so on. I saw it, as do many, as an important element in fascist movements. (I did not collect the memorabilia, partly because I have other collecting fetishes and partly because I'm not in to military stuff of any sort.) I suppose someone could have accused me of being a 'Nazi ethusiast' or 'sympathizer' because of that interest. And, yet, as logic might caution us, my interest was not grounded in any such symapthy.

My spouse had a period of collecting Civil War artifacts, while reading everything he could about the War and its figures. Not surprisingly, he thought the really 'cool' stuff was Conderate (does anyone ever fantasize about finding 'lost Union gold'?). He is not, however, a fan of the Confederacy or the Slave Power. When I told him about DB's series regarding Garlasco, he said, "Well, of course the coolest stuff is the Nazi stuff; it's harder to come by and it's from the bad guys."

I have no idea what Mr. Garlasco's inner life is like. I objected, and continue to object, to what I see as the sort of irrational and unjust character assassination that DB's posts undertook.

By the way, my kids used to collect 'dinosaur stuff.' Their favorites were always the nasty predators - velociraptors especially. I don't think it meant they were velociraptor sympathizers. Like many humans, they were most intrigued by what was scariest and most evil.
9.17.2009 2:27pm
Suzy (mail):
Chris, it's not his fascination with what was scariest and most evil that's in question; it's the fact that his self-representation and his public statements about his interests did not square with the demand that he maintain objectivity and integrity as a human rights reporter. When you see someone on the internet who goes by the moniker Flak88, a reasonable first impression might be that you're dealing with a neo-Nazi. If you were talking to someone who sells insurance or fixes cars for a living, it might be enough for him to simply reassure you, no, I'm talking about this gun only because I have a detailed interest in military history, and am horrified by the atrocities of WWII. When you're talking to someone whose work relates to the volatile conflicts in the Middle East, this explanation simply does not cut it. His dismissive statements about why people shouldn't be interested in his hobby show that he just doesn't "get it"; he has no sense of how his actions might impair his objectivity. That's not acceptable.
9.17.2009 3:42pm
Anderson (mail):
What was Garlasco's first response when this story broke?

I would think that "I work for HRW and avidly collect Nazi Germany memorabilia" would've clicked in his mind some time back, to the effect that he really ought to have some prepared response for the inevitable interview or cocktail party where that juxtaposition came up.
9.17.2009 3:47pm
ChrisTS (mail):
Suzy and Anderson:

I agree with you in that I think it is bizarre that it did not occur to him (actually, it seems it might have when he was about to publish his book) that his hobby might not look good for his employer.

I think HRW could reasonably dimiss him on grounds that he has become ineffective, in some respects (presumably, no one is going to try to discredit his analyses of Sadam Hussein's HR abuses).

I just dislike and reject the implication that he is pro-Nazi. That the purpose of that implication is to get at HRW's criticism's of some Israeli policies and actions just stretches the entire line of fallacious reasoning to the breaking point.
9.17.2009 4:47pm
Anderson (mail):
I just dislike and reject the implication that he is pro-Nazi.

Me too.
9.17.2009 4:59pm
Leo Marvin (mail):
Chris and Anderson,

As I've said before, I agree it's unfair to assume Garlasco has Nazi sympathies. But for the reasons Neurodoc and Suzy explained, he invites legitimate concern that his interests aren't sufficiently innocuous for someone in his position. The online ID, the contradictory statements, the sweatshirt -- any one of these might be overlooked, but taken together, they're troubling.

Actually, I take that back. It's hard to claim the sweatshirt, even taken by itself, shouldn't raise eyebrows. I realize that some Confederacy enthusiasts who ardently defend parts of the old South's culture aren't bigots. But do you think one of them who took to wearing a Stars and Bars sweatshirt in public would or should be accepted as a credibly unbiased monitor of race relations?

Garlasco deserves the benefit of the doubt as to his actual sympathies, but I don't see how HRW could reasonably expect him to be assumed impartial by a country that was born from the remnants of Nazi atrocities.
9.17.2009 5:38pm
Anderson (mail):
It's hard to claim the sweatshirt, even taken by itself, shouldn't raise eyebrows.

Really? The Iron Cross is a medal founded during the Napoleonic Wars. It was awarded for bravery in combat. It's the present-day symbol of the German armed forces. For that matter, it was egalitarian in being available to enlisted men as well as officers; the highest decoration for valor was the Pour le Merite, which only officers could win.

So it's not comparable to the Stars &Bars, which was identifiable solely w/ the CSA, and is parallel to the swastika, not to the Iron Cross.

I don't know about the contradictory statements, but the Iron Cross bit seems like a canard, and "Flak88" is geeky but exactly what I would expect from a wargamer or collector.

I'm reluctant to defend Garlasco, having no emotional investment in him or HRW (however annoying I find DB), and not knowing god knows what might turn up about him (starring in Nazi-themed porn flicks?). But what I mostly am hearing is ill-informed shock.
9.17.2009 6:16pm
ChrisTS (mail):
Anderson:
I'm reluctant to defend Garlasco, having no emotional investment in him or HRW (however annoying I find DB), and not knowing god knows what might turn up about him (starring in Nazi-themed porn flicks?)

Aside from the yuck factor, I wonder if showing up in a Nazi themed porno film, itself, would be much evidence of Nazi sympathy. For reasons that some have explored, the Nazi aesthetic and the threat of cold brutality seem to have a creepy but enduring appeal.

Leo:

how HRW could reasonably expect him to be assumed impartial by a country that was born from the remnants of Nazi atrocities.

I think this is a good point, with the caveat that HRW did not, it seems, know of his hobby. He seems to have assumed that, troubling or not, no one would come after him for it, or that he could make it ok by pointing out his work history and general good guy-ness.
9.17.2009 6:35pm
ChrisTS (mail):
I feel I should do a bit of self-explaining, here.

I have been increasingly disturbed by DB's comment-less posts on this man (and HRW). I have no personal investment in Garlasco or HRW. I'm just sick of this stuff.

I know it may have always been a feature of our national discourse, or that it is all the worse only because of the internet, or whatever. But, in my own experience, the current degradation of public discourse is unparallel. In particular, the vicious demonizing of others through really bad reasoning, distortion, and smear campaigns drives me, as someone committed to justice and rationality, crazy. As a citizen who loves her country, it is a source of deep shame.

Please note that I do not believe or pretend to perfectly meet my own commitments. Not at all. But concerted efforts to discredit another person, with no sense of intellectual honesty or fairness, register with me as beyond normal expectations of human frailty.

No doubt all of this is made more personal for me as an academic. The extent to which not only my students, but also my colleagues engage in similarly irrational and malicious demonization of anyone who disagrees with them or crosses their path is profoundly discouraging to me.

That this kind of conduct is now par for the course in our public life is just too dispiriting to accept without resistance.
9.17.2009 6:51pm
Leo Marvin (mail):
Chris, I agree.

Anderson, you're talking facts, I'm talking perception. Specifically, the reasonable perception Garlasco should have anticipated to wearing something so widely associated with Nazism. If Garlasco was trying to be some kind of gadfly, intentionally baiting people's misplaced associations to Nazism, it would be one thing. But part of his job is to credibly present himself about as opposite to that as possible.

Here's DB's post with the contradictory statements.
9.17.2009 7:51pm
Anderson (mail):
But part of his job is to credibly present himself about as opposite to that as possible.

Well, that's the issue behind the law Prof. Volokh's post addresses -- how much can our employment impact on how we're able to express ourselves personally?
9.17.2009 7:59pm
Anderson (mail):
Ah, so Garlasco *was* aware that his hobby might cost him his job. Not a total maroon, then.

The contradictory statement goes to covering up the hobby, not to any conflict in sympathies/antipathies re: the Nazis, so I'm not as impressed by it as DB. He was dishonest in the interest of trying to save his job, which is ethically culpable but not morally shocking.
9.17.2009 8:06pm
Leo Marvin (mail):
I don't have to be morally shocked (and I'm not) to believe he made himself unfit for his job. Whether HRW can legally fire him is another matter.
9.17.2009 8:25pm
Anderson (mail):
True.
9.17.2009 10:31pm
Suzy (mail):
Chris, I completely agree with you and I have the same despair about the state of public discourse. Normally I would say that taking some pot shots at someone and refusing to accept responses is poor form, but in this case I get the sense several people are talking about this in different forums, so there's a conversation "out there" about this issue already to which Prof. Bernstein is contributing.

It's going way too far to suggest that this guy has some kind of liking for the Nazis, as opposed to a fascination with the relics, which one could have for many reasons. I didn't mean to suggest that I thought he did with my comment about his Flak88 handle--rather, the point is that he should have thought more seriously about what kind of image that creates, and his public role at his employer.

For example, I have a relative who collects stamps and has some Nazi era stamps. However, he keeps them hidden away separately because he doesn't want kids to come across them without the proper background explanation, and he doesn't want any person to inadvertently encounter them without being prepared for it first. He takes very seriously the horror that such objects might arouse, and his first priority is concern and respect for others. You'd assume a person devoted to human rights would take a similar approach, recognizing the extremely sensitive nature of his hobby. You wouldn't think he's resentful at having to explain himself; you would think he'd be eager to do that, above board, as clearly as possible, from the start, because he takes it that seriously. That's what bothers me here.
9.18.2009 1:13am
neurodoc:
Leo Marvin: Chris, I agree.
What exactly is it that you and ChrisTS agree upon, this "ad hominem" nonsense?

If Mr. Garlasco were a physicist, his Nazi fetish (I think it fair to call it that) would be an irrelevancy in judging his work product or fitness to teach physics. He's not a physicist though, he is effectively in turns a fact witness and an expert witness. Both fact witnesses and expert witnesses are routinely subjected to questioning aimed at impeaching their credibility. A court probably wouldn't allow questions about how the witness treated their spouse and children, except in unusual cases, but they would certainly allow questions that go to possible bias. Indeed, if the court was very restrictive in what it allowed by way of impeachment of a witness, whether a fact or expert one, there is a good possibility that they would be reversed on appeal should the party denied the opportunity to question witnesses closely lose.

So, it is not a matter of "the politics of personal destruction," it is a matter of whether this Nazi memorabilia business should call into question Mr. Garlasco's credibity (I think it should), and it turn what it might all say about that of the organization he (and Sarah Whitson and Joe Storch and others) works for. "Ad hominem" is not always a "fallacy." It has it's place, and this is one.
9.18.2009 12:09pm
neurodoc:
BTW, I fully concur with what Suzy said in her second paragraph yesterday (1:42PM on 9/17/09) about David Bernstein's blogging and comments policy.
9.18.2009 12:13pm
ChrisatOffice (mail):
Suzy:
he should have thought more seriously about what kind of image that creates, and his public role at his employer.

I think this makes perfect sense. From what I have read, he seems to have been torn between 'sticking up for' himself as a person of good intentions with a potentially embarrassing, to his employer, hobby and giving up the hobby. He ended up in the worst of possible worlds.

Not a total 'maroon' as Anderson says, but not a deep thinker.
9.18.2009 1:01pm
smurfy (mail):
Nathan_M: If you read your email in outlook, you could set up a rule to 'move messages with specific words in the subject to a folder'. Poster's names are included in the subject line.
9.18.2009 3:09pm
Leo Marvin (mail):
neurodoc,

I also agree with virtually everything you just said. I don't see that as inconsistent with Chris' general frustration over the malicious tone of our public discourse, or her admission that even those of us who protest it most vociferously sometimes contribute to it ourselves.
9.18.2009 4:44pm
braipinna (mail) (www):
Here you have a very merry
9.21.2009 4:41pm

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