Book review: “Freedom From Speech” by Greg Lukianoff

[originally posted at Canadian Lawyer]

It used to be that people waited until they were actually offended to take action against something that offended them, but Carleton University student Arun Smith has no time for such details. When a “free-speech wall” upon which anyone could write any opinion was erected at his school last year, Smith promptly tore it down. When the wall went back up, he did it again.
Smith was unapologetic about his actions, declaring on his Twitter feed that, “Not every opinion is valid, nor deserving of expression.” When CBC journalist Kady O’Malley argued that this isn’t his call to make, Smith responded, “just watch me.”

Greg Lukianoff’s Freedom From Speech, an entry in the “Broadside” series issued by the conservative publisher Encounter Books, shows how this attitude is depressingly common on American college campuses, with implications for the world outside of the university — including the legal system.  As the Smith case illustrates, this attitude is depressingly common in Canadian schools as well.

Lukianoff is a representative of the Foundation for Individual Rights in Education, which monitors and takes legal action against censorship and suppression of speech in American post-secondary institutions.

Unfortunately, his organization has been particularly busy in recent years, as restrictive “speech codes” proliferate and students mobilize against speakers whose views are apparently so repugnant that no one should be allowed to hear them.

Conservative personalities initially made up most “disinvitation season” targets, but as these things are wont to do, before long more liberal (but insufficiently liberal) speakers were hounded off campus, assuming they weren’t disinvited beforehand. Off campus, meanwhile, the likes of celebrity chef Paula Deen, MSNBC host Martin Bashir, and Mozilla Firefox designer Brendan Eich saw their careers torpedoed by the outrage patrol, sometimes for incidents or comments made years beforehand.

As Lukianoff acknowledges, where governmental agencies or institutions aren’t involved, these aren’t constitutional violations as defined by the First Amendment. People do, of course, have every right to express their distaste with someone’s remarks or actions, and refuse to patronize businesses which employ that person.

But the attitude implicit in these campaigns — that people have a “right” to be protected from material that may offend them — seems to be spreading and it has serious implications for the legal system and our system of government.

In some European jurisdictions, for example, a “right to be forgotten”  — mandating the removal of information about certain people from the Internet — is being awkwardly implemented. And much of the world is seeing a revival of laws against anti-religious “blasphemy,” with potentially disastrous consequences.

Lukianoff convincingly argues that the “right” to be free from offence is a pernicious concept that universities — institutions supposedly dedicated to the pursuit of truth, freewheeling debate, and challenging of old assumptions —- should be fighting against. Instead, they’re the incubators.

Interestingly, Lukianoff also points to a “problem of comfort” largely brought about, paradoxically, by the abundance of media outlets available on the Internet and cable television. If you’re a political conservative, you can get all your news from right-leaning outlets like Fox or the Daily Caller, rarely having their fundamental beliefs challenged. (For left-wingers, replace Fox or the Daily Caller with MSNBC and And when you get most of your news from one perspective, you’ll have that much harder a time handling news from another, opposed point of view.

How much of this is applicable to Canada? Well, with a handful of exceptions like the little-watched Sun News channel, our homegrown media outlets aren’t as politically polarized as those in the U.S.; on the other hand, in Canada, freedom of expression is culturally and constitutionally less sacrosanct. Either way, Arun Smith isn’t alone.

Film Review: “The Hunt”

[originally posted, with a few editorial changes, at Canadian Lawyer]
A curious anomaly in our justice system; the offence with the most severe penalty under law is not the crime toward which most people feel the most personal revulsion.
Maybe most of us will concede a situation, however remote the possibility, where we would take the life of another person. Taking away the innocence of a child, however, seems uniquely evil and incomprehensible. One who sexually abuses a child may not spend the rest of his life in prison, but the stigma that accompanies the offence is unparalleled.

Now, imagine being falsely accused of this unspeakable crime, especially when your livelihood depends on working with children.  That’s what happens to the main character in the Danish film Jagten (The Hunt), a nominee for Best Foreign Language Film at the most recent Academy Awards.

Lucas, played by Mads Mikkelsen, is a kindergarten teacher accused of molestation by one of his students. In reality, the little girl — who had latched onto her trusted teacher while her parents constantly fought — was upset about a perceived slight by Lucas, but in reality had been briefly shown a pornographic picture from the Internet by her older brother and his friend. But in a moment of anger, she told her principal that Lucas had shown her what she saw in the photo.

Little Klara (portrayed by then-seven-year-old Annika Wedderkopp, who had never acted before but proved to be a natural) subsequently admits she made it up, but the damage is done. School officials ask her leading questions about what “really” happened, and soon the allegations spread throughout this small Danish community. Then other children, perhaps pushed by hysterical parents and officials, come up with their own horror stories.

Lucas is forced from his job, ostracized by his community, and hauled into court. I had hoped that The Hunt would show us more about how the Danish justice system works, but the film is really about the effect these allegations can have upon a trusting community, and how a false allegation can destroy a life.

I presume you’re innocent until proven guilty in Denmark, but that’s certainly not how Lucas’ colleagues and neighbours feel.  Without giving too much away, I will say that the The Hunt’s startling final scene shows how the accused is forever guilty to the general public, even if the authorities say otherwise.

Directed by Thomas Vinterberg (who made another brilliant drama centering on allegations of sexual abuse, 1998’s The Celebration), The Hunt is a somewhat low-key, deliberately paced film that fans of Lifetime network movies about this subject may find dull. But Mikkelson’s performance as a man trying to keep it together while subjected to a Kafkaesque witch-hunt is a revelation — so much so NBC subsequently hired him to play the title role of the most famous serial killer in all of fiction in its series Hannibal.

The thing is, far more often than we like to admit, for this kind of thing there really are witches out there. Americans and Britons are still reeling from the revelations about beloved football coach Jerry Sandusky and entertainer Jimmy Savile, respectively. I grew up in Newfoundland when the unspeakable horrors at Mount Cashel Orphanage came to light, and I’ve never forgotten what these poor kids went through.

Child sexual abuse must be taken seriously, but that must be balanced with ensuring that those accused of such offences receive every legal protection to which they are entitled.  (In New Zealand, the conservative government and Labour opposition are falling over themselves to stack the deck in favour of prosecutors in sexual assault cases. Maybe they should be forced to watch The Hunt.)

Of course, as the film shows, legal protections are one thing. Social stigma is another. How does the wrongly accused defendant get his reputation back? That’s a question The Hunt can’t answer, and I’m not sure anyone can.

Book review: “Rise of the Warrior Cop” by Radley Balko

[originally posted at Canadian Lawyer]

The next thing [Cheye] Calvo remembers is the sound of his mother-in- law screaming. He ran to the window and saw heavily armed men clad in black rushing his front door. Next came the explosion. He’d later learn that this was when the police blew open his front door. Then there was gunfire. Then boots stomping the floor. Then more gunfire. Calvo, still in his boxers, screamed, “I’m upstairs, please don’t shoot!” He was instructed to walk downstairs with his hands in the air, the muzzles of two guns pointed directly at him. He still didn’t know it was the police. He described what happened next at a Cato Institute forum six weeks later. “At the bottom of the stairs, they bound my hands, pulled me across the living room, and forced me to kneel on the floor in front of my broken door. I thought it was a home invasion. I was fearful that I was about to be executed.” I later asked Calvo what might have happened if he’d had a gun in his home for self-defense. His answer: “I’d be dead.” In another interview, he would add, “The worst thing I could have done was defend my home.”

Calvo’s mother-in-law was face-down on the kitchen floor, the tomato-artichoke sauce she was preparing still sitting on the stove. Her first scream came when one of the SWAT officers pointed his gun at her from the other side of the window. The police department would later argue that her scream gave them the authority to enter the home without knocking, announcing themselves, and waiting for someone to let them in.

Rather than obeying the SWAT team demands to “get down” as they rushed in, Georgia Porter simply froze with fear. They pried the spoon from her hand, put a gun to her head, and shoved her to the floor. They asked, “Where are they? Where are they?” She had no idea what they were talking about. She told them to look in the basement. She would later tell the Washington Post, “If somebody puts a gun to your head and asks you a question, you better come up with an answer. Then I shut my eyes. Oh, God, I thought they were going to shoot me next.”

Calvo’s dogs Payton and Chase were dead by the time Calvo was escorted to the kitchen. Payton had been shot in the face almost as soon as the police entered the home. One bullet went all the way through him and lodged in a radiator, missing Porter by only a couple of feet. Chase ran. The cops shot him once, from the back, then chased him into the living room and shot him again.

Even after they realized they had just mistakenly raided the mayor’s house, the officers didn’t apologize to Calvo or Porter. Instead, they told Calvo that they were both “parties of interest” and that they should consider themselves lucky they weren’t arrested. Calvo in particular, they said, was still under suspicion because when armed men blew open his door, killed his dogs, and pointed their guns at him and his-mother-in-law, he hadn’t responded “in a typical manner.”

Such stories are far too common, unfortunately, and no one does a better job keeping track of them than libertarian journalist Radley Balko.  Writing for the Huffington Post after several years at Reason, Balko has chronicled dozens of nightmarish stories about prosecutorial abuse and dangerous – and often deadly – overreaction by police forces.  And now he has written what might be the most important book of the year.

The American Bill of Rights contains a provision against the quartering of military personnel in civilian households – a reaction to the stationing of British soldiers in American cities, a grievance which led to the American revolution.  But you’d hardly know it today, when you see the equipment, gear and tactics used by SWAT teams even in medium-sized American communities.

Indeed, SWAT teams have become so ubiquitous it’s hard to believe they’re a relatively recent invention.  Following the Watts riots in 1965, soon-to-be Los Angeles police chief Darryl Gates created the country’s first Special Weapons and Tactics force, quickly using it high-profile confrontations against radical groups like the Black Panthers and Symbionese Liberation Army – with the media in tow.

Gates figures heavily in Balko’s narrative – he was ahead of his time in acquiring surplus armored personnel carriers (disingenuously marked “Rescue Vehicle”) for the LAPD.  But even he refrained from many of the tactics commonly used today.

Meanwhile, the Supreme Court of the United States (under Chief Justice Earl Warren) was issuing consistently liberal decisions – most notably Miranda – which extended the rights of the accused.  With crime becoming a more important issue for voters during that turbulent era, the Nixon Administration seized an opportunity to crack down against perhaps the most easily demonized class then and now – illicit drug users.  The age of paramilitary-style assaults in the service of civilian law enforcement had begun.

The “War on Drugs” escalated in the eighties, and police tactics became increasingly aggressive – not just against gangs and drug traffickers, but against people keeping small skins of marijuana for their own use.  On paper,  “no-knock” raids, in which police burst into a home without having to knock and announce their presence, were only allowed after strict scrutiny by a judge.  In practice, police requests for no-knock warrants were rubber-stamped by the courts.  SWAT teams, meanwhile, began showing up in smaller cities, then the suburbs, and even rural areas.

Crime in America has dramatically declined since the early 1990s, but police tactics have only gotten more aggressive, aided by a series of court decisons that have neutered the Fourth Amendment (which is supposed to guard against unreasonable search and seizure).  Some would argue a clear cause and effect, but Balko convincingly argues that the fall in violent crime has occurred despite the militarization of police, not because of it.

Indeed, aggressive police raids – where doors are kicked in, machine guns are held to civilians’ heads and houses are completely ransacked – create a backlash against the police and against the legal system in general – especially when these tactics are used against “crimes” as mundane as raiding poker games, checking high school students’ lockers for drugs, and even cracking down on unlicensed hairdressers.

Balko notes that a backlash against police militarization has been building in recent years, a promising development undermined by the fact that American politicians tend to be outraged by this kind of thing when the other party controls the White House.  His main proposal for reform is ending the costly, unworkable and devastating “War on Drugs”, but he acknowledges that this is extremely unlikely – though with a few states voting to legalize the weed entirely, who knows?

In the alternative, Balko suggests more community policing, having SWAT team members wear video cameras, and curtailing the practice of civil asset forfeiture (in which property is seized from people accused of drug-related offences, and which in practice has become a serious revenue stream for federal, state and municipal governments.)

But this is just an American phenomenon, right?  To a much greater extent than in Canada, yes.  But ask the family of Sammy Yatim how quickly our own police officers reach for their weapons.

Book Review: Charlie and the Angels: The Outlaws, the Hells Angels and the Sixty Years War

[originally posted at Canadian Lawyer]

A one-percenter is the one of a hundred of us who has given up on society and the politician’s one-way laws.
This is why we look repulsive.
We are saying we don’t want to be like you or look like you.
So stay out of our face.
God forgives, Outlaws don’t

– The “Outlaws’ Creed”
Pop quiz: name the world’s largest outlaw motorcycle gang.

I suspect most of you answered “Hells Angels,” the notorious California-based organization that more or less invented outlaw biker culture as we know it. But you would be wrong.

The Outlaws, founded in Illinois in the early 1950s, actually has more members around the world than their better-known rivals. But they’ve made a point of maintaining a lower profile than the Angels — to the extent tough-looking guys on Harley-Davidson bikes, wearing a skull-and-crossbones named “Charlie” on their backs, can keep any kind of lower profile — and maybe that’s part of the reason they’ve become so big.

That, and the fact they’ve proven they aren’t afraid to take on the Hells Angels, or other outlaw biker gangs, on their own turf. For decades, the Angels and the Outlaws have been locked in a brutal, worldwide battle for territory — win a city, state, or country and the gang controls the drug trade, prostitution, and other organized criminal activities.

The bloody rivalry is described, in riveting detail, in Charlie and the Angels: The Outlaws, the Hells Angels and the Sixty Years War by Alex Caine. Caine hasn’t just studied the one-percenter lifestyle — he claims to have lived it, as an undercover operative for police forces in Canada and around the world (“Alex Caine,” needless to say, is a pseudonym).

Legend has it the newly formed Outlaws sent messengers to the Hells Angels in the 1950s, proposing an alliance. The Angels allegedly beat the tar out of the Outlaw ambassadors and sent them back home with a two-word response I probably can’t repeat here. The rivalry got worse during the turbulent ’60s, and except for a short-lived truce brokered at the infamous Sturgis biker rally in 1984, it’s been total war ever since.

The most fascinating parts of Charlie and the Angels describe the network of support clubs and prospects set up to cultivate full-patch Outlaw members. The third-largest American biker gang, the Bandidos, is closely allied to the Outlaws (and often do much of their dirtiest work for them). Both the Outlaws and the Hells Angels sponsor smaller clubs, usually in cities that are just starting to open up to outlaw biker culture, which have different names but wear the same colors as their parent organizations — black-and-white for Outlaws, red-and-white for Angels.

In North America, police forces have infiltrated the Outlaws and rival gangs, often straddling the line between merely reporting on criminal activities and actually encouraging them. Interestingly, Caine notes in Germany and other European nations dealing with the biker threat, such undercover operations aren’t allowed — leaving the police with little to do until after the Angels or Outlaws do something illegal (the Dutch, in a move that even the most jaded satirist couldn’t dream up, actually built a clubhouse for the Hells Angels when they showed up in the 1970s).

Charlie and the Angels is a somewhat disjointed work that skips around the world, and back and forth in time, giving the impression that many of its chapters were initially written as stand-alone articles. But it is rare for someone to infiltrate this mysterious, often romanticized world, and live to tell about it. That alone makes the book well worth reading.

Caine admits to a kind of grudging respect for the Outlaws, for how the club has been able to survive and thrive for so long. “If drugs became legal tomorrow, that would be the end of the Hells Angels,” he writes, “but I’m convinced the Outlaws would survive. If the Outlaws lost everything, the houses, the cars, the money, they would get on their bikes and tear up a stretch of highway, looking to see what was over the hill.”