Jessica Valenti Calls For Jailing of Critics Of War And The Draft

Jessica Valenti of The Guardian thinks that, just as we jailed people who protested and criticized the draft during World War I, we should be able to jail people who release unflattering videos about Planned Parenthood. Both, she believes, are justifiable.

Well, she doesn't say that explicitly. But that's the necessary implication of column today in The Guardian, in which she says that releasing undercover videos about Planned Parenthood should not be protected as free speech.

Freedom of speech is one of America’s most cherished rights, but we’ve always had limits on what’s acceptable: in 1919, the US supreme court ruled that the right doesn’t apply to speech that incites action that would harm other people.

At the time, the example presented by the court was that falsely yelling “Fire!” in a crowded theater doesn’t count as protected speech.

Like many people who favor censorship but have a cookie-sheet-shallow grasp of its history, Valenti is misquoting Oliver Wendell Holmes dropping a rhetorical aside in Schenck v. United States. Holmes invoked that image to justify the prosecution and imprisonment of a man who criticized and questioned the draft during World War I. Of course, in the century since, American courts have abandoned Holmes' sloppy and unprincipled stand, narrowing the "incitement" exception to intended to and likely to cause imminent lawless action. But Valenti speaks approvingly of the original ruling because, in her mind, it justifies censoring speech she doesn't like.

Just as she misleads her readers about history, Valenti misrepresents the present. She suggests that a federal judge in the Northern District of California prohibited the distribution of the Planned Parenthood videos because they posed a risk of danger to clinics. "Now, in the wake of the release of secretly taped and deceptively edited videos of abortion providers, a judge has issued a temporary restraining order because of the very real threat of violence that the videos pose." Valenti either doesn't understand the legal issues or is lying about them. In the Northern District case, the National Abortion Federation learned from the mistakes of Stem Express and explicitly couched their lawsuit and injunction request against the defendants in terms of breach of confidentiality agreements and fraud, not wrongful content. As Eugene Volokh explained, such content-neutral grounds may support prior restraint on speech, because they aren't about the content of your speech, they're about enforcing your promise not to reveal the information you're revealing.

To secure an injunction, a plaintiff must show — among other things — that they are likely to prevail on the merits of the suit and that the "balance of hardships" weighs in their favor. The NAF did not invoke the threat of violence as evidence that they would prevail. Instead, they argued that they would prevail because the defendants fraudulently obtained access to NAF events and violated confidentiality agreements. Only then did they argue that the balance of hardships was in their favor because of the atmosphere of threats and violence against abortion providers. The judge's temporary restraining order did not say that NAF was entitled to prior restraint because the risk of violence allows prior restraint. Rather, the court said that NAF had shown it would prevail on its substantive claims of fraud and breach of confidentiality agreements, and that the threats of violence went to the balance of hardships. Valenti is misleading her readers.

Valenti asserts that the Planned Parenthood undercover videos have caused violence against Planned Parenthood clinics. The only evidence she cites are the statements of the crazed and evil Colorado shooter. Valenti asserts that the videos are "secret" and "deceptively edited," but she does not explain how we know that the "deceptive" parts are what (allegedly) incited threats and violence, as opposed to the parts of the videos that are admittedly true.

Valenti's goal is clear: a broad, unprincipled rule that would punish rhetoric she doesn't like:

The frenzied language surrounding the video’s release – including out-and-out lies on national television by Republican presidential hopeful Carly Fiorina – has stoked harassment and violence. And though preventing the release of more footage may not stop lies and violent speech, it could help curb it and would send the message that anti-choice activists will not be allowed to spread lies without consequence.

Some social controversies do lead to death threats and violence. Both are utterly unacceptable; I wish that more political death threats were investigated and punished. But note that Valenti's eager advocacy for censorship is not tethered to illegally recorded videos or misleading videos or even videos with explicit lies: it's an explicit call to censor political speech that makes people mad, whether or not it's intended or likely to cause imminent violence. It's an vague call for someone in the government — perhaps people who agree with Valenti? — to decide what bits of political rhetoric and hyperbole are "lies" and suppress political speech accordingly.

Everyone who reads Jessica Valenti's column and believes it is now stupider about First Amendment law. Remember: free speech has enemies. Fight them.

Lisa McElroy On Books and Thankfulness

Popehat is pleased to welcome a guest post from Lisa McElroy, an associate professor of law at the Drexel University Thomas R. Kline School of Law. Her first novel, Called On, was just published by Quid Pro Books.

Several years ago, my father forwarded me an email he thought seemed suspicious. “Do you think this is a scam?” he asked. The email was from an elderly woman in Miami Beach, Florida, who had retired from teaching and was moving into an assisted living situation. She was clearing out her belongings, and she had come across some books she’d almost forgotten.

Fifty years before, this teacher had taken over her classroom from a young woman who was leaving to be married. On her first day, she had looked in the room’s supply closet, where she found a pile of books, most of them inscribed from a father to his daughter. Thinking they seemed special and that the departed teacher might want them someday, she took them home.

As these things go, the books lay forgotten, and by the time she found the young bride, it was through her obituary. My grandmother had died at the age of 87, leaving her son and several grandchildren. The retired teacher, a new internet aficionado, sent my father an email. “Would you like these books?” she asked. And my father, having lived 65 or so years himself in a world that had become more and more suspect and unreliable and scary, was worried that he was being taken for a ride.

As we head into the holiday season, we’re often asked what we’re grateful for, what would be a true gift. As my father recognized when he worried about scammers, the world, while more advanced, is also scarier and sadder in many ways than it was back when my grandmother and her successor were teaching school. I’ve been searching the internet, just as the retired teacher did, but for something different. As I sit around the Thanksgiving table next week with my parents (now in their 70s) and my husband and my teen daughters, I know I’m going to need to smile and tell them all just what makes me feel thankful. But in a year that has been about anything but peace, I’ve been looking for something concrete to hang my “thankful” hat on.

And so I began thinking about my grandmother, and books, and that retired teacher in Miami Beach.
My grandmother was a woman of style, a dedicated learner, and a lifelong reader (and crossword puzzle cheater, but don’t get me started on that). My most vivid childhood memories of her are of sitting in her living room, sometimes on the parquet floor, sometimes on the piano bench, sometimes on her brocade couch, reading some new book we’d checked out from the library. Although I lived a six-hour drive from my grandmother, she knew the librarians at her local branch well enough to talk her way into getting a borrower’s card for me; after an ice cream sundae or a trip to see the giant dolls at the department store, we’d always end up back at the same circulation desk in the same brick building, watching the librarian stamp in ink the due date for some new adventure bound up as a book.

The best part about reading with my grandmother was reading together. I don’t mean that she read aloud to me – from the age of four or so, I was determined to read on my own (I didn’t learn to ride a bike until I was about eight, but that reading thing was way more necessary in my book). But we’d read together, there in her living room, my grandmother with her new mystery thriller, me with my children’s classic on which she insisted. And looking back, what I’m most grateful for in my relationship with my grandmother was that true gift she gave me: a love of books.

There was one book in particular that we both loved: Betty Smith’s A Tree Grows in Brooklyn. Although Francie, the protagonist, lived an underprivileged Brooklyn life, and I lived in a well-to-do Texas town, there was just something about Francie that resonated for me. I wanted to be gritty, like she was, determined to do something with my life. I wanted her powers of observation, to notice the smells of baking bread and the splashes of puddles on the sidewalk. And more than anything, I wanted Francie to be understood for her love of books, even in a family that wasn’t very readerly, the way I wanted to be understood and my passion nurtured – as it was by my grandmother.

Thirty-five years later, one night, when my husband was away for work, I found myself lying in my king-sized bed, reading a book. There’s nothing remarkable about that – my children know that, if they can’t find mom, check the bedroom and see if she’s absorbed in her reading so she can’t hear you call out. But what was special about this winter evening was that my two daughters, ages 6 and 8, were lying next to me, each with her own book. We were mostly quiet, absorbed in our own stories, but every so often, one of us would say, “Listen to this!” and we’d read out a description or a joke or a pithy line. And then we’d quiet again. Eventually, they fell asleep, there in the big bed, their books in hand.

These days, as teenagers, my girls have lots of interests, and I can’t remember the last time we all piled into the big bed and read books together. My older daughter now looks at the stars and imagines flying among them, but my younger daughter still looks down, at books in her lap, at the pages she turns. She reads because she cares about words, loves how they come together into sentences and paragraphs and entire chapters of plot and character and nuance. Last week, she asked me for a suggestion for a book to read. I thought of my grandmother, and I said, “How about A Tree Grows in Brooklyn?”

A few days later, a package arrived from a used book seller. My daughter disappeared into her room, tattered book in hand. For the next few days, she didn’t talk much. She’d get her backpack ready for school or look up if I told her it was time for dinner, but, mostly, she kept her eyes focused down, on paperback pages that told a story of a poor girl in Brooklyn in the 1910s and 20s.
Yesterday, she came downstairs. “I finished it!” she said. I smiled. “Yeah?” I answered. “It has always been one of my favorites.” “Well,” she said, “It’s my absolute favorite. Every sentence is a delicious treat.” A delicious treat. Exactly. A treat that we can devour again and again, from different perspectives and at different times in life, with different people who are important in our lives. Those varied possibilities are so absolutely delicious.

And so I found it, my list of things to be grateful for, the gift I need above all. I am grateful for my grandmother, who took me to the library every visit; I am grateful for my daughter, whose enthusiasm about books fills every room; I am grateful to the retired teacher in Miami Beach, who somehow knew that my grandmother and her family would treasure those books.

And I am grateful for books. During this difficult year, they’ve given me a place to escape. They’ve given me a place to belong. And they’ve helped me see that, whether in the dirty streets of 1920s Brooklyn or the suburbs of 2015 Philadelphia, a tree will always grow.

The Fire and the Fall

Over the last couple of days, several Facebook friends posted links to a story about a young woman from our church community who had gone missing. Her friends and family were deeply worried. The police were involved, and the media. It was clear from the outpouring of support and concern that many people loved her, many people wanted to support her.

I read the news story about the search for her with a hard, cold clenched fist in my stomach, looking for the words I was afraid would be there. I found them. She "suffered from depression." I took some deep breaths, and went for a walk.

The worst fears of her parents, her friends, her community were bound up in those three words and what they implied. Those worst fears were realized, tragically, when police found her. She had taken her own life. She was 22. The story describing her mentioned that she had John 3:16 tattooed on her back: "For God so loved the world, that He gave His only begotten Son, that whoever believes in Him shall not perish, but have eternal life." It's a verse full of indescribable hope.

Suicide cuts a wide gulf across our society. It's a gulf between people who cannot conceive of why a bright, pretty young woman surrounded by supportive family and friends could kill herself, and those who can. The people who don't understand try, but fail, to think of circumstances so terrible that they'd kill themselves rather than face them. They don't grasp the way depression kills you — not by heaping burdens upon you, but by making you incapable of thinking rationally about the ones you already have, by making you certain you can never survive them and don't deserve to. People who don't understand often regard suicide as a hateful, selfish, unfeeling act. Perhaps it would be if they did it, because they are capable of believing that the world is better with them in it. They're able to believe that the people who love them will be better off if they stick around.

David Foster Wallace — a moody, wordy man — understood it, though not enough to save himself. In Infinite Jest he described it. It's not clear how many people knew then that he was talking about something he had felt:

The so-called ‘psychotically depressed’ person who tries to kill herself doesn’t do so out of quote ‘hopelessness’ or any abstract conviction that life’s assets and debits do not square. And surely not because death seems suddenly appealing. The person in whom Its invisible agony reaches a certain unendurable level will kill herself the same way a trapped person will eventually jump from the window of a burning high-rise. Make no mistake about people who leap from burning windows. Their terror of falling from a great height is still just as great as it would be for you or me standing speculatively at the same window just checking out the view; i.e. the fear of falling remains a constant. The variable here is the other terror, the fire’s flames: when the flames get close enough, falling to death becomes the slightly less terrible of two terrors. It’s not desiring the fall; it’s terror of the flames. And yet nobody down on the sidewalk, looking up and yelling ‘Don’t!’ and ‘Hang on!’, can understand the jump. Not really. You’d have to have personally been trapped and felt flames to really understand a terror way beyond falling.

An acquaintance commented on this passage to explain why the love and support of friends and family isn't always enough to save someone. Friends and family, she said, are on the other side of the flames. They may shout encouragement and promise rescue and yell at you to hang on. But the flames keep you apart. And the flames keep coming, higher and closer. And so you jump anyway.

When I wrote about severe depression earlier this year, I mentioned the mindset that saved me. It wasn't a belief that I could get better. I didn't believe, and couldn't hope. I couldn't think straight. The only thing that worked was surrendering and putting myself in the hands of others. I didn't believe in myself, but I knew that the people who cared would take care of me. And so they did, until I could hope and believe again.

I think people don't get help in crisis because they can't believe, can't hope. Going to a parent or a friend, calling a hotline, making an appointment with a doctor can feel futile if you can't believe that it will make things any better, if you can't see how things could possibly improve. But that's not what you have to believe. You only have to believe that there are people who care for you, whether they are loved ones or strangers dedicated to helping people like you. Depression lies. The leap of faith required is that the people who care about you know the truth. The leap of faith is that if you lay down your burden they will pick it up. They will.

If you're ever in crisis, call the National Suicide Prevention Lifeline. Just say "I need help." And say it to a loved one. You may not be able to imagine it now, but they will lead you out.

Edited to add: I'm doing well right now. Thanks for asking.

Happy To Be Here

The first thing you need to know about secure psychiatric facilities is that their bathrooms smell strongly of pee.

That may not seem remarkable to you. Many bathrooms smell of pee. But the facility in which I was a guest this time last year was notably immaculate in every other way. A lot of time and attention went towards making it clean and welcoming. Yet the private bathrooms — one to a two-person dorm room, no lock — always smelled of pee. That's because there's an elaborate metal cage built around the workings of the toilet, like one of those Hannibal Lecter masks. This makes the toilets very difficult to clean. Hence, the constant smell of pee.

The people who run the facility protect the toilets like that so that you won't disassemble them and use the pieces to hurt yourself. My wife would tell them that this concern dramatically overestimates my home improvement skills, but I guess they want to be careful. It seems to me that if you take the time and effort to disassemble a toilet with your bare hands, you're committed enough to be allowed to do to yourself as you see fit. To date my view has not prevailed in the psychiatric community.

[Read more…]

The Allure Of Unquestioned Premises: "The Internet's Own Boy: The Story of Aaron Swartz"

Smart people are a-dime-a-dozen. Very smart people are common. Though geniuses are statistically uncommon, humanity's surging tide produces tens of thousands of them in every generation.

But even geniuses are people, and people tend to play the hand that is dealt to them, or else discard just a few cards to draw new ones. Few question the rules of the game or why they should play it at all.

The Internet's Own Boy: The Story of Aaron Swartz depicts a rare genius who questioned the premise of the game. It's terrific and moving. I bought it, downloaded it, and watched it on my iPad on a plane trip, all of which seemed very appropriate. It was well worth the time and attention and money.

[Read more…]

A Story About Low-Key Policing and Corduroy

A couple of people have asked me to explain an odd corduroy reference I made on Twitter last night.

Yes, arguably corduroy references are inherently odd. But this one involved blood, and police officers, so it caused some inquiry.

The facts were these: one evening in the late 1980s I was at a friend's house in my home town. Were were on the low roof of his garage. Alcohol was present. We were singing. Neither of us had very good singing voices. That may be why I felt obligated to accompany us on my friend's mother's accordion. That is what we had back then, instead of autotune. If you want to be unpleasantly technical I am not familiar with how an accordion is operated, at least as narrowly defined by uncharitable social convention. However, I believe that unbridled enthusiasm can make up for lack of formal training in many pursuits. There is evidently a difference of popular opinion on this point as it pertains to playing the accordion on a roof at one in the morning.

Eventually a neighbor called the cops, and a police cruiser drove up the street. The officer directed his spotlight on us. We did not stop singing, and I did not stop playing the accordion. Wikipedia explains that intertia is the resistance of a physical object to a change in its state of motion; inertia applies to playing the accordion on a roof. I was committed to it is what I am trying to convey. I remember the officer stood there motionless for several moments, as if evaluating the course of his life that had brought him to this particular circumstance. Eventually he used his car-mounted loudspeaker to say, firmly and slowly,


I did: not because I had lost inertia or enthusiasm, but because this struck me as so very funny at the time that I doubled over in laughter, dropped the accordion, and rolled off the low, sloped roof into a patch of cacti in my friend's yard. My friend's mother was well before her time with respect to sustainable, drought-resistant landscaping.

The police offer turned off his spotlight, climbed slowly into his car, and drove away. He had accomplished his mission — the neighbors were no longer bothered by someone on a roof playing the accordion — and no further exercise of law enforcement power was warranted.

It took a while for my friend to find me; he was somewhat confused when I abruptly vanished from view on the roof, and for a brief moment he was not certain whether I had fled or possibly been arrested. Eventually, though, he helped me into his kitchen. I was wearing corduroy pants. The cactus needles had driven many durable corduroy threads into my leg, and we sat in the dim light of the kitchen, me in my underwear, picking threads out of my leg, each leaving a disappointing trickle of blood and a puff of corduroy fuzz. This sounds more traumatic that it was; bear in mind that it was the 1980s.

In the years since, I have thought about the police officer. I'm pretty sure he's the same one who used to ticket my late mother occasionally as she veered down Descanso Drive, engine racing in second gear, bringing home take-out to an impatient family. These days, I would likely be arrested, or at least put in the back of the police car for a while. There are formalities to respect and care to be taken and safety to be enforced and there might be an inquiry or a lawsuit if a police officer doesn't fully investigate in such circumstances. But back then, the officer was content to stop the noise, and having stopped it, drive away into a cool evening scented of skunk and honeysuckle.

I have not played the accordion again, although I am not ruling it out.