Category: Feminism and Gender

0

FAN 200 (First Amendment News) Special 200th Issue: 15 Women & Their Views on Free Speech

To commemorate the 200th issue of First Amendment News, I invited women from various professions (lawyers, law professors, and a journalism professor) to draft original essays on any aspect of free speech law. Why only women? Fair question. My answer has to do with the fact, as I perceive it, that by-and-large those who receive the most attention in the First Amendment arena are men. I leave it to others to explain if and why that might be so — some of the contributors to this symposium do just that. However that may be, of this I can say with a good measure of certainty: the essays that follow are diverse, thoughtful, somtimes provocative, original, and often mind-opening.  I extend my thanks to the 15 contributors for their sympsoium essays and to Kellye Testy for kindly agreeing to write the Foreword.  

→ Related: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018 (Aug. 7, 2018)      

→ With this issue First Amendment News ends its long and rewarding affiliation with Concurring Opinions. I want to thank my colleagues here for their valuable and generous support. I especially want to thank Professor Dan Solove who years ago dared to invite me to be a part of his team. Happily, Dan and his colleagues have agreed to allow me to continue to contribute to Concurring Opinions.

Starting sometime in October, FAN’s new host will be the Foundation for Individual Rights in Education (FIRE). Among other things, you can expect more news along with a variety of digital improvements. From time to time, FAN will also host or co-host live and online symposia and may even conduct a study or two. One thing will, however, remain constant: my commitment to being a fair broker of content. So stay tuned — some of the best is yet to come. — RKLC    

_______Symposium_______

Foreword

Kellye Testy, “Prior Restraint: Women’s Voices and the First Amendment

15 Contributors  

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder

Mary Anne Franks, “The Free Speech Fraternity

Sarah C. Haan, “Facebook and the Identity Business

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra

Ruthann Robson, “The Cyber Company Town

Kelli Sager& Selina MacLaren, First Amendment Rights of Access

Sonja West, “President Trump and the Press Clause: A Cautionary Tale

0

FAN 200 (First Amendment News) Mary Anne Franks, “The Free Speech Fraternity”

Mary Anne Franks is a professor at the University of Miami School of Law. She is  the President and Legislative and Tech Policy Director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. Professor Franks authored the first model criminal statute on a practice often referred to as “revenge porn,” the unauthorized disclosure of private, sexually explicit images.

_______________________________

“…who will stand against Tyranny and who will stand for free speech?  We’re all Alex Jones now.” – Alex Jones

If there is one case widely considered to illustrate the American commitment to free speech, it is that of the neo-Nazis in Skokie. In 1978, a federal appellate court ruled that the First Amendment required the town of Skokie, where one in six residents was either a Holocaust survivor or related to one, to allow members of the National Socialist Party of America (NSPA) to march through its streets. Most people familiar with the story know that the neo-Nazi marchers planned to wear Nazi-style uniforms and display swastikas during their demonstration. A lesser-known detail is that they also planned to carry placards bearing various slogans, including “Free Speech for the White Man.”

The sign was a crude provocation, but it was also an apt description of the state of free speech in the United States, and not only in 1976. Since the First Amendment was enacted in 1791 and continuing into the present day, the theory and practice of free speech has been dominated by white men.

The First Amendment, like the rest of the Constitution and the Bill of Rights, was written and enacted by a group of white men who deliberately excluded all women and people of color from participation in the political process. The body tasked with its ultimate interpretation, the Supreme Court, was composed entirely of men until 1981 (exclusively of white men until 1967). To put that in perspective, of the 113 Supreme Court Justices that have served in its 228-year history, all but six have been white men. Of the 500 or so cases that the Supreme Court has heard involving the First Amendment and free speech, all but about 60 were brought by men and all but 38 were litigated by men.

From the Catholic Church to Hollywood, from Silicon Valley to the White House, it has become painfully clear that male-dominated institutions and industries are rife with bias, abuse, exploitation, and corruption. White men’s outsized influence over the creation, interpretation, and application of First Amendment doctrine and practice calls for its own reckoning: an accounting of the harms it has inflicted and a reorientation of free speech priorities.

The free speech questions of our time should focus on how traditional interpretations of the First Amendment have served to silence vulnerable populations and undermine democracy. Among those questions should be how more than two centuries of professed commitment to freedom of speech have co-existed with the systematic censorship of half of the American population — women. At the time the First Amendment was written, the doctrine of “coverture” provided that married women had no independent legal existence apart from their husbands, including no independent right of free speech. Women were formally prevented from exercising the most basic form of political expression – the vote – for more than a century. Long after the 19thAmendment was passed in 1920, women continued to be barred from the political, employment and educational opportunities available to men, resulting in the exclusion of their voices from public spaces, workplaces and schools.

A society committed to free speech should dedicate itself to closing the free speech gender gap.It would acknowledge how multiple forces, including domestic violence, sexual assault, stalking, sexual harassment, rape threats, and “revenge porn,” silence women in multiple places, including workplaces, schools, public streets, online and offline spaces. It would prioritize ongoing threats to speech by and for women, including nondisclosure agreements that prevent women from speaking about sexual assault and harassment, defamation lawsuits used to intimidate rape victims, and gag rules prohibiting women from receiving information about abortion. A true free speech society would take seriously how the threat of male violence has a chilling effect on women’s speech, deterring their full participation in political, economic, and cultural life.

Alex Jones (credit: Political Dig)

Instead, free speech theory and practice continues to be dominated by white men’s interests. Far from being condemned, denying women’s free speech is often praised, in Orwellian fashion, as the exercise of free speech. White men who attack women, minorities, and other vulnerable groups are made into free speech martyrs.

These men include Alex Jones, the head of a powerful media empire who has harassed the parents of dead children, claimed that Hillary Clinton ran a child sex trafficking ring out of a pizzeria, and stands accused of domestic violence and sexual harassment, as well as Milo Yiannopoulos, Richard Spencer, and Andrew Anglin – a rightwing rogues’ gallery of white men whose free speech primarily consists of attacks on women, racial minorities, and the LGBT community. They also include the white male supremacists who, unlike the neo-Nazis who ultimately called off their march in Skokie (likely out of fear of physical retaliation by the Jewish community), carried out their plans to demonstrate in Charlottesville, Virginia in 2017, leading to the death of a peaceful female protester named Heather Heyer.

These men have many powerful allies, including the ACLU, which calls itself the “largest and oldest civil liberties organization” in the U.S. It was the ACLU that won the NSPA’s right to march in Skokie in 1978, and it was the ACLU that ensured that the “Unite the Right” organizers were allowed to hold their demonstration in a location Charlottesville  officials feared would be a public safety hazard. The ACLU also represented Milo Yiannopoulos in a 2015 lawsuit attempting to force the Washington Metropolitan Area Transit Authority to post advertisements for Yiannopoulos’s self-published book.

In a 1989 essay titled The Real ACLU, two ACLU leaders, Mary Ellen Gale and Nadine Strossen, offered this explanation for the organization’s solicitude for angry white men: “Ensuring the free speech rights of anyone, including a racist or misogynist, secures the same rights for everyone else, including an intended victim.” According to the ACLU, to defend white men’s speech is to defend the speech of women and nonwhite men, even or especially when that speech attacks and silences women and nonwhite men. Call it “trickle-down free speech,” or perhaps “all speech matters,” or “we’re all Alex Jones now.”

The ACLU’s view is often expressed as “freedom of speech for the thought we hate.” The principle is derived from Justice Oliver Wendell Holmes’s dissenting opinion in the 1929 case United States v Schwimmer: “if there is any principle of the Constitution that more imperatively calls for attachment than any other,  it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.’

But what exactly is “the thought we hate”? The civil libertarian view seems to assume that this means sexist, racist, and other speech expressing contempt and hatred for certain groups. But a closer look at the case that birthed the principle of “freedom for the thought we hate” complicates the picture.

Rosika Schwimmer

Schwimmer is, as Ronald Collins notes, the first Supreme Court free speech case argued by a woman. It is also one of the few free speech cases that was brought by a woman, Rosika Schwimmer. Technically, the case is not about the First Amendment at all, but about statutory interpretation. Schwimmer was a Hungarian-born pacifist whose citizenship application was denied due to her stated refusal to take up arms to defend the country. The majority felt that this refusal indicated that Schwimmer was “not well bound or held by the ties of affection to any nation or government” and thus “liable to be incapable of the attachment for and devotion to the principles of our Constitution that are required of aliens seeking naturalization.” In dissent, Justice Holmes wrote that while Schwimmer’s position “might excite popular prejudice,” it should not be punished on that basis. “The thought we hate” that Holmes sought to defend was a woman’s refusal to comply with the demands of power against her conscience.

Such speech has very little in common with speech supporting white male supremacy. The former challenges power; the latter seeks to entrench it. “Free speech for white men” is not some daring aspiration– it is a description of the status quo. Donald Trump’s sexist and racist speech helped him win the presidency in 2016. A 2017 poll found that more than a third of Americans feel that “America must protect and preserve its White European heritage,” while nearly 40% believe that white people “are currently under attack in this country.” One in ten Americans believes that the country has “gone too far” to achieve gender equality and 40 percent believe that women should be forced to carry pregnancies to term against their will. Racist and sexist views are openly and routinely articulated by political officials, widely broadcast by both traditional and social media outlets, and reflected in outbreaks of physical violence against women and minorities.

In the free speech fraternity, we are indeed all Alex Jones. In a true free speech community, we could all be Rosika Schwimmer.

 

0

FAN 200 (First Amendment News) Kellye Testy, Foreword: Prior Restraint: Women’s Voices and the First Amendment

Kellye Testy was the first woman to lead the University of Washington School of Law, serving as dean from 2009-17. From 2004-09 she was the dean of Seattle University School of Law (and its first female dean as well). In 2016, Dean Testy was president of the Association of American Law Schools (AALS). She now serves as the president and CEO of the Law School Admission Council (LSAC).

_______________________________

Kelly Testy

Like other terms in law, the meaning of the First Amendment springs from many sources – the intent and language of the drafters, those originally called upon to interpret it, and then others who have explained it since. Drafters, lawmakers, lawyers, judges, scholars, and activists, too, have all, in one way or another, added to the bounty that has produced the jurisprudence of the First Amendment.

While Mr. Madison’s constitutional handiwork gave rise to an enormous number of cases, controversies, and critiques, substantially all of those came to be seen as largely, if not exclusively, the work of men. Just consult any list of First Amendment greats, or any summary of First Amendment history (even wiki), and what are you likely to find?  Lists and pictures of (typically white) men.

Why is this so? Is it because women were excluded from the interpretive mix? To a large extent, yes. After all, Mr. Madison did not share the drafting table or parlor room debates with women. So much for women and originalism. Much the same holds true for judges from the time of Holmes and Brandeis through that of Black and Brennan. Women were admitted to law schools in very small numbers until the mid-1970s, which limited (and continues to limit) women’s influence in law.

Professor Catharine MacKinnon 
(credit: Charlie Rose)

And what of First Amendment scholars? Here, too, sex discrimination has restrained women’s voices in many ways, from hiring practices to course assignments, to what “counts” as First Amendment scholarship. To take one example, consider Catharine MacKinnon’s significant critique of protecting pornography as speech under the First Amendment. Whether we agree with her viewpoint or not, her argument about the First Amendment was influential and creative. Yet, her work is more likely to be seen as about “pornography” or “sex discrimination” than about the First Amendment.

    Olive Rabe (credit: Marty Caivano)

A final point about the possible reasons for the relative lack of women’s visibility in First Amendment jurisprudence bears note. We may often be more eager to protect freedoms and rights that we feel we have and enjoy using. Put simply, men who have had “free speech” want to keep speaking. But women’s speech has been restrained, both as a matter of formal law and of social practices, including violence. Much of women’s energy has had to be directed to gaining the right to speak and, then, to finding one’s voice. To again reference Professor MacKinnon’s work:  “Take your foot off our necks, then we will hear in what tongue women speak.”

More and more, we do hear women speak – at least some women. Women’s access to speech (and being heard) is differentially distributed based on intersectional identities, including race and class. What will be interesting to monitor as that voice continues to expand (consider, e.g., #metoo), is how greater diversity in who holds the microphone will, in turn, influence the meaning of the First Amendment.

The future meaning of the First Amendment will be all the richer if we also do more to recognize the historical contributions women have already made. I was thus delighted to see that in FAN 199.

Patrica Millett (now judge / credit:
Illinois Alumni Association)

Ron Collins, my friend and colleague, compiled the names of women and the First Amendment free expression cases they argued in the Supreme Court. I, for one, had no idea that Olive H. Rabe, a labor lawyer, represented the respondent in United States v. Schwimmer (1929), another one of the cases remembered because of a Holmes dissent. I was also surprised to learn that Patricia Millett (now a federal D.C. Circuit Judge Millett) argued two First Amendment cases in the Supreme Court – first as a government lawyer and then as private counsel.

Moreover, and thanks again to Professor Collins, it is exciting to see 15 women join in this 200th issue of FAN to express a wide range of views – liberal, libertarian, feminist, and practitioner focused as well. My point is not ideology but inclusion, which requires opportunity and encouragement. Only then will women be able to add their own ideas, values, and judgments to the meaning of the First Amendment. Moreover, only then will our understanding of the First Amendment be deepened. Inclusion is the right strategy not only because it is honorable, but also because it generates a better result.

It is against that backdrop that I am grateful to have been asked to write the Foreword to this welcome and exciting symposium. I encourage others to help bring greater visibility to women’s contributions to all areas of law and to also encourage and inspire women to work in this and other areas of law and policy. Only through radical and persistent inclusion will we build a system of law and justice under which we all may thrive. Onward!

0

Nation’s only History Book Festival returns to Lewes, DE — Sept. 28th & 29th

I had the great privilege of presenting at the 2017 History Book Festival. It was an absolute delight. The organizers and hosts were extraordinarily hospitable, the events were well attended and lively, the audience was bubbling over with questions. Overall, it was a terrific and memorable experience. Great start! And, to top it off, the town of Lewes is lovely.

Geoffrey StoneSex & the Constitution: Sex, Religion, & Law from America’s Origins to the Twenty-First Century (2017)

___________________________________________

The nation’s only History Book Festival returns to Lewes, DE., for its second year.

History Book Festival Speakers

Friday Sept. 28th & Saturday Sept. 29th

KEYNOTE (Friday Evening Sept. 28th / tickets here) 

— Blanche Wiesen Cook

  •  Eleanor Roosevet: The War Years & After, 1939-1962 (vol. 3)

 Interviewed by Paul Sparrow, Director of the FDR Library

 Musical accompaniment by David Cieri, composer for the Ken Burns documentary on FDR

_________________Saturday Sept. 29th_________________

 Lighting the Fires of Freedom: African American Women in the Civil Rights Movement by Janet Dewart Bell 

 Young Benjamin Franklin: The Birth of Ingenuity by Nick Bunker

The Comeback: Greg LeMond, the True King of American Cycling, and a Legendary Tour de France by Daniel de Visé

Valley Forge by Bob Drury and Tom Clavin,

Dinner in Camelot: The Night America’s Greatest Scientists, Writers, and Scholars Partied at the Kennedy White House by Joseph A. Esposito

Tinderbox: The Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation by Robert W. Fieseler,

The Royal Art of Poison: Filthy Palaces, Fatal Cosmetic, Deadly Medicine, and Murder Most Foul by Eleanor Herman

— The Lost Locket of Lewes (children’s historical fiction) by Ilona E. Holland, Ed.D

Damnation Island: Poor, Sick, Mad, and Criminal in 19th-Century New York by Stacy Horn

Kosher USA: How Coke Became Kosher and Other Tales of Modern Food by Roger Horowitz

The Hunger (historical fiction), by Alma Katsu

The Kennedy Debutante (historical fiction) by Kerri Maher 

The Widows of Malabar Hill (historical fiction) by Sujata Massey 

Five for Freedom: The African American Soldiers in John Brown’s Army by Eugene L. Meyer

The Rise of Yeast: How the Sugar Fungus Shaped Civilization by Nicholas P. Money

Inspector Oldfield and the Black Hand Society: America’s Original Gangsters and the U.S. Postal Detective Service Who Brought Them to Justice by William Oldfield and Victoria Bruce

Delaware’s John Dickinson: The Constant Watchman of Liberty 

— Chesapeake Requiem: A Year with the Watermen of Vanishing Tangier Island by Earl Swift

Miles and Me by Quincy Troupe

Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock by Amy Werbel 

Not Our Kind (historical fiction) by Kitty Zeldis

0

FAN 199 (First Amendment News) SPECIAL ISSUE: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

Olive H. Rabe (credit: Boulder Daily Camera)

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor.

Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first woman lawyer being Belva Ann Lockwood. (A couple of pro se women preceded her.)

There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history. — Ronald Collins & David Hudson (May 26, 2008)

* * * *

Eleanor Holmes Norton

When it comes to the First Amendment, relatively little is known about the roles women played in the development of that body of law. While many may know of Justice Holmes’s oft-quoted free-speech dissent in U.S. v. Schwimmer (1929), how many are aware that Olive H. Rabe, a labor lawyer, represented the respondent in that case?  Schwimmer, however, was a free speech statutory interpretation case but not, strictly speaking, a First Amendment case. It would take another 24 years before a woman  (Florence Perlow Shientag) would argue a First Amendment free expression case —  Superior Films v. Dep’t of Education of Ohio (1953) (for respondent). Thereafter, it took  15 years before another woman would do likewise. That woman was Eleanor Holmes Norton, who successfully argued on behalf of the petitioner in Carroll v. President and Commissioners of Princess Ann (1968). Four years later Sophia H. Hall successfully argued on behalf of the appellant in Grayned v. City of Rockford (1972) (oral argument transcript here). The world was starting to change, but not fast or often enough.  

Barbara Underwood (credit: NY Daily News)

The list below consists of 38 women who  argued 43 First Amendment freedom of expression (speech, press and assembly) cases before the Supreme Court between 1880 and 2018.  Since the data bases I consulted started in 1880, my list begins there and continues through the 2018 line of Supreme Court cases.

The woman who argued the most such cases was Barbara D. Underwood (3 cases) followed by Patricia Millett (2 cases), Ann E. Beeson (2 cases), and Elena Kagan (2 cases). Pamela Karlan was the last woamn to argue a First Amendment free expression case — Lozman v. City of Riviera Beach, Florida  (2018).

To the best of my knowledge, the list below is complete though given the difficulty of identifying the lawyers and cases, it might be that I overlooked someone — if so, please inform me and I’ll update the list.

Related

_____________The 38 Women________________ Read More

1

New Op-ed by Donna Lenhoff: Major reforms needed to make the “Me Too Movement” viable

Over the past few months, the #MeToo movement has exposed an epidemic of sexual harassment and retaliation in the workplace. But without substantial reforms to our legal system, that movement may be all for naught.

So begins an important new op-ed in today’s Washington Post.  The piece is titled: The #MeToo movement will be in vain if we don’t make these changes.

Donna Lenhoff

The author is Donna Lenhoff (more about her in a moment). This op-ed brings to the forefront legal issues central to the success of the “Me Too Movement.”

“What has become all too clear,” writes Lenhoff, “is that [Title VII and the mechanisms for enforcing it] — designed decades ago to redress and deter harassment and retaliation — are woefully inadequate, for four significant reasons.”

  1. First, while the threat of large damages can be effective in getting management to take preventive action, under Title VII, pain-and-suffering and punitive damages combined are capped. . . “
  2. “Second, many companies insist that harassment settlements be confidential. . . .”
  3. “Third, the agencies that enforce Title VII have never had the necessary resources . .  .”
  4. “Fourth, private litigation is quite rare considering the prevalence of workplace harassment. . . .”

There is more, much more, but you’ll have to read the entire op-ed. Suffice it to say that Lenhoff’s no-nonsense brand of progressive thinking is needed if real change is to occur.

Meanwhile, here is some info about Donna Lenhoff:

Lenhoff has worked for strong enforcement of laws against workplace discrimination from both inside and outside the federal government.  She served as Senior Civil Rights Advisor in the U.S. Labor Department’s Office of Federal Contract Compliance Programs during the Obama Administration, where she was responsible for updating 35+-year-old sex-discrimination regulations. 

As a staff attorney at the then-Women’s Legal Defense Fund, she was the first person to testify in Congress about sexual harassment. 

She lobbied for EEOC Guidelines on harassment and oversaw women’s groups’ amicus briefs in every major Supreme Court case involving harassment from 1978 to 2000. 

Lenhoff also lobbied for legislative changes to strengthen civil-rights and labor laws that help workers, including the 1991 Civil Rights Act, and led the coalition that advocated for the Family and Medical Leave Act of 1993. 

4

Stanley v. Illinois: Terminating A Rapist’s Paternal “Rights” in Maryland

In my first two posts on the mixed legacy of Stanley v. Illinois, I discussed my preferred relationship approach, some background about the family, why I think some justices may have seen the case as involving racial as well as gender equality, and how I think that could have made a difference.  In this last post, I address one aspect of the negative legacy of Stanley:  the continuing vitality in state legislatures of the idea that paternal rights should be recognized in every man, including a man whose rape of the mother resulted in the child’s conception.

Let me give you a modern example to chew on.  This year, the Maryland legislature considered and refused to pass for the ninth time a bill to remove paternal rights of men when the child’s conception occurred as the result of a rape. Remember that this is 2017, and Stanley was decided 45 years ago.  During much of the intervening 45 years, usually as the result of legislation enacted by state legislatures after Stanley, marital and non-marital fathers have had the same rights as marital and non-marital mothers to the custody and guardianship of their children and to decide about a child’s adoption, regardless of whether the parent exhibited any commitment to care.  A number of states have limited those rights where the conception occurred as the result of a rape, but not all.  Even where the rights have been limited, however, the negative legacy of Stanley lingers.  I’ll demonstrate that point by a close examination of Maryland’s most recent failed attempt.

Maryland’s legislation would have created a process to address the paternal rights of a man to a child whose conception was the result of the man’s rape of the mother.  Under the proposed legislation, the paternal rights of some of these men could be terminated.  If the rights were terminated, the man would be denied the opportunity to make claims of custody and guardianship of or access to his biological child.

Bill with the same goal have been introduced and failed in each of the prior eight sessions of the legislature.  The bill failed this time after a conference committee did not resolve the differences between the bill passed by the Senate with the bill passed by the House.  The House bill went further in terms of allowing the termination of paternal rights.  It is the better example for my analysis since, in my view, even the House bill protects paternal rights in ways that disempower women without enhancing the care and well-being of children.  I think the bill may protect only a small number of mothers who want to protect themselves and their children from an ongoing relationship with the rapist.

Under the House bill, a man’s paternal rights to a child conceived without the consent of the mother can be terminated if he is convicted of nonconsensual sexual conduct, which includes sexual assault on the mother in the first or second degree and incestuous intercourse with the mother.  In the absence of a conviction, the man’s paternal rights can be terminated if the woman proves by clear and convincing evidence that nonconsensual sexual occurred.  Even though Maryland has no marital rape exemption, the House bill also provides that a husband’s paternal rights can be terminated only if he has been convicted of nonconsensual sexual conduct.

In addition to proof of nonconsensual sexual conduct, termination of paternal rights requires a finding, based on clear and convincing evidence, that termination is in the best interest of the child.

A finding of termination eliminates the man’s right to custody, guardianship, access to and visitation with the child.  It also terminates the man’s child support obligation.  If the man is indigent, he is entitled to have counsel provided for him.

In terms of Stanley, many things are interesting about the proposed bill in addition to the fact that it followed eight previous failed attempts.

First, the bill assumes that all biological fathers are the same, just as the Stanley court assumed, and that all of them have the same rights as mothers to be recognized as parents.  In fact, after Stanley, the Court came to a more nuanced place about the rights of biological fathers to be recognized as legal fathers.  Biology, according to the Court in Lehr v. Robertson , offers a man an opportunity to develop a relationship with a child that is shared by no other man, but biology is not enough.  If a man does not seize the opportunity, the Constitution does not require a state to recognize the man’s claim to legal fatherhood.  A rapist who had no further contact with mother and child (or failed to file postcard with a state registry, as provided by New York law at the time of Lehr), therefore, could be constitutionally denied all rights to parenthood.

Second, the bill prohibits termination unless the court finds by clear and convincing evidence that termination is in the best interest of the child.  If the bill also denied paternal rights to men who fail the Lehr test, this provision would apply only to men who had some relationship with the child or who, at the very least, had admitted paternity prior to an action for termination.  But the bill doesn’t do that.  Instead, it follows the Stanley path and treats all men alike.  As a result, the bill allows for a scenario where a man who has never seen or done anything for the child may get to keep his paternal rights because the mother does not have the resources to mount a convincing case against him about the child’s best interest.

But it gets worse.  Because the bill follows Stanley’s lead of treating all men alike, regardless of prior involvement with the child, it puts impoverished women in a particularly bad position.  Take, for example, the case of a mother who needs public benefits such as cash assistance or Medicaid in order to support her child.  Recipients of these and some other public benefits are required to assign their rights to child support to the state and to cooperate in the establishment of paternity and the order of support.  If the mother persuades the state that the child is the result of a rape, she may get a waiver, but waivers are hard to come by.

Once the paternity and child support suit is brought by the state under the assignment, the father can counterclaim for custody and visitation.  No lawyer represents the mother in such a case; the lawyer who brings the original suit represents the state under the assignment, not the mother.  If the mother tries to defend against the custody and visitation claim on the basis that the child is the result of a rape, the father, if indigent, would be entitled to a lawyer paid for by the state under the House bill.  No lawyer would be provided for the mother.

Third, the bill relieves the man whose rights are terminated of the duty to pay child support.  The bill says, in effect, that child support is a quid pro quo for rights with respect to the child.  That is contrary to the usual understanding that child support is an obligation owed by people who participate in the creation of a child.  In theory, at least, child support is about the child’s well-being, not the father’s sense of entitlement or grievance.

Stanley provides something of an explanation for the anomaly.  Remember that the Stanley court requires the state to respect paternal rights to the same extent that it respects maternal rights.  In the 1970s, when feminist claims were only beginning to be heard, maternal roles and paternal roles were openly recognized as distinct.  Fathers were responsible for financial support of their children, and mothers were responsible for physical and emotional support.  Many states, including Maryland, did not place an equivalent duty of child support on mothers and fathers until five years after Stanley in a decision based in the state’s equal rights amendment.

Fathers “earned” their right to a place in a family by satisfying the financial duty.  If a father satisfied his duty, he “should” be empowered to do what fathers do in families.  The tradition makes sense of a decision to relieve a man who is deprived of the usual power to make decisions about his child from the usual duty of the father to provide financial support.  It makes no sense, however, once one rejects the traditional approach of differentiated male and female family roles or if one puts the needs of the child over a parent’s sense of entitlement.  Including this provision today, 45 years after Stanley and long after gendered roles in the provision of financial support have been rejected as a form of sex discrimination, is indefensible.

The House bill differs from Stanley in one key respect.  It provides greater protection for the married father to keep his paternal rights than it provides for the unmarried father.  The married father’s rights can be terminated only if he is convicted of nonconsensual sexual conduct; the unmarried father’s rights can be terminated upon conviction or upon clear and convincing evidence that he committed nonconsensual sexual conduct.  Of course, if Peter Stanley had been married to Joan Stanley, the state could have terminated his parental rights only upon a showing of neglect or abuse, so the case would never have gone to the Supreme Court.  The Court’s decision placed the unmarried father, Peter Stanley, in the same position he would have enjoyed had he been married to Joan Stanley.

Why is marriage a privileged status in the House bill, even though Stanley points to the opposite path?  Perhaps the answer is that the legislators want to encourage marriage.  If that’s the case, the consequence is likely to be to also privilege European-American fathers, because marriage rates, while lower now than in the 1970s, still tend to be higher among European-Americans than among African-Americans.  An equally likely motivation is a lingering allegiance among legislators to the traditional claim that a husband can’t rape his wife, no matter what the criminal law now says.

The bill is, at best, a crabbed approach to the interests of a woman who was raped, gave birth to the child and wants to raise the child.  Nonetheless, many of the bill’s features are predictable, given what the Court did in Stanley 45 years ago.  If all men and women are the same, regardless of their engagement in caring for a child, then a child should rarely be deprived of an opportunity to have a “father,” even if the “father” raped the child’s mother.  And if mothers need to be under the control of a man, a rapist might be as good as any other man.

What would a better bill look like?  A better bill would respect and valorize all parents who commit to caring for a child and avoid empowering people who assert rights without entering into relationships.  A better bill would focus on and seek better outcomes for parents who lack privilege.  A better bill would not tread on the autonomy of a committed parent because the parent is female.

I think a better bill would differ from the failed House bill in at least six ways.  Here’s my list:

  1. Paternal rights are recognized only where the biological, adoptive or marital father demonstrates a history of care for and connection with the child or otherwise satisfies the Lehr Mere biological or marital connection is not enough.  Therefore, no termination is required where the man who committed the nonconsensual sexual conduct has not satisfied Lehr, because no paternal relationship is recognized in the first place.
  2. Where a man demonstrates his entitlement to recognition as a father because he has satisfied Lehr, termination is allowed where the mother demonstrates that the child is the result of nonconsensual sexual conduct, either through evidence of the man’s conviction or through clear and convincing evidence of the conduct. No discretion is allowed for a court to deny termination, because the mother should not be forced to have a continuing relationship with a man who committed a violent act against her as extreme as first or second degree rape or incest.  If the mother decides to allow the man to have a relationship with the child, the mother’s decision provides no basis for a court to order the mother to continue the relationship.
  3. The termination proceeding follows the same procedures as are used in other termination of parental rights cases.
  4. The termination of parental rights which is ordered because of rape does not relieve the biological father of the duty to provide child support.
  5. Married and non-married fathers are accorded the same protections from termination.
  6. The duty to assign child support and to cooperate in the establishment of paternity and support is eliminated from public benefits law unless the state proves in a judicial proceeding that a mother’s claim of rape is not sustainable. The mother is entitled to have counsel provided in such a proceeding.

A bill that incorporates at least these six features, it seems to me, starts to address the negative legacy of Stanley.  Such a bill would provide sufficient procedural protections to men who are wrongfully accused of nonconsensual sexual conduct so long as they have also demonstrated a commitment to caring for a child.  At the same time, if conception occurred without the mother’s consent, the man’s claim of parenthood could be challenged with a greater likelihood of success, particularly if he has never made a commitment to the child’s care.  The mother’s opportunity to care for the child is better protected against unwarranted attacks by a man using judicial proceedings without good cause.  Most importantly, a woman who has made the commitment to care and raise a child regardless of the pain she suffered from the assault will have greater autonomy.  The law will not indulge in an assumption that a man with a biological or a marital tie to a child is entitled to the same or even greater authority than the mother has in terms of deciding what is best for the child.  Further, the mother will not have to make a choice between her parental autonomy and financial security for the child, if that security depends in any way on support from the biological father or from the state.

I’m hoping that year ten will prove to be the magic year for Maryland to come to terms with Stanley’s negative legacy and to treat rapists as they deserve when it comes to fatherhood.  I look forward to hearing from readers of Concurring Opinions about my views.

 

0

Stanley v. Illinois, Race and Gender

In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision.

If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists.

When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however.

Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did.

As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man.

How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley.

First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties.  Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children.

Claims about family ties were amplified during the Civil War, when innumerable slaves freed themselves. Many self-emancipated people took refuge in Federal military encampments, where they confronted camp commanders with demands for marriage ceremonies and other indicia of legal and inviolable rights to parenthood of their children. They believed that legal recognition of marriage and parenthood was one of the best ways to defeat the law and practice of slave states to empower masters to separate partners from one another and to sell children away from their parents.

That’s the positive side of the story. There’s also a negative side. Some of the camp commanders looked at the thousands of self-emancipated people in the camps and wondered how to keep them under control. Some concluded that the best way was to require cohabiting people to get married regardless of whether they wanted to. Commanders appear to have been acting out of the view, largely uncontested in the middle of the nineteenth century, that the family was a place of mini-government. That mini-government was not led by an equally-empowered pair of adults. Instead, it was led by the male head of household, the husband and father. Once a woman was married, she would be subject to the authority of her husband, and the camp commander would have fewer people to worry about.

You can see Stanley as reflecting both the positive and the negative sides of the story. Stanley gets recognition as a legal father and protection from unwarranted interference in that relationship, something that slaves never had. At the same time, men in Stanley’s position also get to exercise authority over those possibly-unruly women who bear their children, even in situations where only the mother is taking responsibility for caring for the children.

The second clue to framing possibilities is the Moynihan Report, which was published only a few years before the Stanley decision.  The positive side of the Moynihan Report is that President Lyndon Johnson commissioned it because he wanted to know how to improve the lives of African-Americans. When it was published, however, it shook many people with its claim that the prevalence of female-headed households in the African-American community precluded much of the progress toward civil rights that the Johnson administration wanted to see. The “matriarchy” of the black family was described as pathological. Many people seem to have interpreted the Moynihan report as advocating policies capable of enlarging the power of men in African-American families.

Given the apparent blessing of Daniel Patrick Moynihan, a highly visible and respected public intellectual, it’s plausible that justices who wanted to advance racial equality could have thought it wise to expand the authority of fathers with respect to their children, especially when the father is African-American. At the same time, if the court understood the decision as reducing the independence of mothers with respect to their children, that result could be justified as an appropriate way to restrict some of the power of the black matriarchy. Remember that, prior to Stanley, an unmarried woman who gave birth to a child could place the child for adoption without consulting the child’s biological father. She was also the sole legal guardian of the child. In many states, a paternity finding could result in an order for child support without empowering the unmarried father to seek custody or visitation.  After Stanley, the single father could not be deprived of the rights previously exercised solely by single mothers.

If the Court had understood the Stanleys to be European-American, I wonder if it would have heard the case. After all, if Stanley were a lower-class white man, a ruling in his favor would not be viewed as advancing a racial justice agenda. Enhancing his authority as a father relative to the power of mothers has no obvious advantage in a group where marriage before childbearing is the dominant practice, because the married father already had at least equal power with the married mother in the law. All that ruling for Stanley would do, therefore, would be to enhance legal rights affecting non-marital childbearing in a group that generally avoided the practice at the time.

Any assumptions that justices may have made about seeing the Stanleys as an African-Americans were not revealed in the decision. If some justices believed, however, that a decision in favor of Stanley advanced both racial equality and gender equality, a little more explicit attention to intersecting issues would have been a good idea, particularly when it comes to issues of power. Instead, the Court ends up, I think, embedding into the law of parenthood claims about African-American families and the need for men to control the mothers of their children.

Stanley’s legacy has been that non-marital fathers have gained power and some of that gain has come at the expense of non-marital mothers. The change is positive in the many cases where both parents are actively-engaged and committed to their children. It is also positive when the father, like Stanley, demonstrates his commitment to care for the child and the mother is unavailable or uncommitted. But where the mother is committed and the father is not, the outcome gives him a chance for control over her for the sake of a child who gains no benefit.

The negative legacy of Stanley continues to support legal claims of uninvolved fathers because the Court elevated the individual rights of Peter Stanley over considerations of the relationship that Stanley had with the children. The Court might have had reason to do so if it could not otherwise advance an agenda of racial justice, but it’s hard to make that case without buying into Moynihan’s claims that black mothers are in need of male supervision. What the Court could have done instead was to explicitly recognize the intersection of race and gender and try to deal with both in fair ways. In my view, a relationship-based approach does that by respecting and valorizing the roles that men and women play in the lives of children when they commit to caring for those children.

In my next post, I’ll discuss the negative legacy of Stanley in the context of this year’s failed attempt in Maryland to restrict the paternal rights of men when the child is born as the result of the man raping the mother.

2

Stanley v. Illinois and Rapist-“Fathers”

I am delighted to return to Concurring Opinions as a guest contributor.  Many thanks to Solangel for her kind invitation.

My posts this week are about the continuing influence of Stanley v. Illinois, 45 years after it was decided.  Stanley’s legacy is positive in terms of encouraging legal recognition of men as fathers to children for whom they provide care and commitment.  The legacy also includes, however, legal recognition of men as fathers in the absence of any involvement, much less care and commitment.  This part of the legacy contributes to the empowerment of men as parents at the expense, in some cases, of the empowerment of women as parents, an ironic result given the gender equality rhetoric of the decision.

One example of the negative legacy is the ongoing controversy about whether a man should enjoy legal fatherhood when his rape of the mother resulted in her pregnancy.  Later, I’ll address that controversy in the context of the recent failure of corrective legislation in Maryland.

In my view, the negative legacy of Stanley reflects unexamined and intersecting stereotypes not only about gender but also about race.  I argue that the Justices may have assumed, without evidence and without express acknowledgement, that the Stanley family was African-American.  If that speculation is correct, the court may have been pursuing what some justices saw as a racial justice agenda along with gender equality claims.  I will address in my next post where the agenda may have led the court.

First, some background.  In 1972, the Supreme Court decided that Illinois was required to recognize Peter Stanley as a parent, even though he was not married to the mother of his children when she died.  Because Stanley, as an unmarried father, was the surviving parent, the state declared the younger Stanley children parent-less and wanted to take them into care.  According to the Court, the failure of the parents to marry was not equivalent to the evidence of neglect or abuse that would be required if the state wanted to take into care the children of a mother or a married father.  The Court concluded that unmarried fathers were entitled to recognition as parents and the same level of process accorded to all mothers and to married fathers before the state could take their children.

In a concurring opinion that I wrote for Feminist Judgments a few years ago, I agree that Peter Stanley was entitled to parental recognition.  I argued that recognition should not arise solely from Stanley’s biological connection to the children, however.  Instead, Stanley’s entitlement should be based in the level of care and commitment he had demonstrated for his children.

My concurrence reflects two strands of feminist thought.  First, many feminists emphasize that caring relationships should count for more in the law.  Second, many feminists agree that law needs to take stories into account to provide context and support reality-based law-making.  In particular, courts do a better job deciding cases when they see people’s relationships to one another as meaningful, particularly relationships of support and care.  Understanding law in the context of people’s lives, their “stories,” is equally essential.  The Stanley Court did little of either.  Instead, the Court came to a broad, abstract conclusion that all people who claim parenthood through a blood relationship, marriage or adoption are the same, regardless of what any of those people have demonstrated in terms of connection with the child.

I am not arguing that a feminist Justice would have dissented; I agree with the outcome of the case.  The record, as I will discuss, demonstrates that Peter Stanley was involved with his children, shared a household with them, and was concerned for their future.  His marital status should not be cause for depriving him of parental status; only a finding of unfitness should justify that deprivation.

Where the Court and I part company is on the question of why.  The Court justifies its rule on the basis that the father has a right to be treated the same as a mother.  In my view, the parental rights of any person, whether father or mother, should turn on whether the person has a relationship with the child that demonstrates a level of commitment to the child’s care.  Where a person with a formal claim to parenthood, whether through birth, marriage or adoption, has never exercised any commitment to the child’s care, the state should be allowed to disregard that person’s claim to parenthood.

The Court’s focus on equality strikes me as not coincidental, but I’m not sure it was solely gender equality that the justices were thinking about.  In my view, at least some of the justices saw Stanley as part of the Court’s racial justice jurisprudence.  In light of this possibility, it also seems important that members of the Court probably thought Peter Stanley and his family were African-American, as I’ll discuss later.

The case is a good example of how claims about racial justice and claims about gender justice may lead to confounding results if not understood and examined contextually.  Empowering Peter Stanley to resist state intervention into his family because of his biological attachment to the children has been interpreted over the years since as empowering all unmarried fathers to be recognized as parents.  Once recognized as a parent, these men have the opportunity to restrict the autonomy of the mothers of their children in parenting decisions such as adoption and custody.  That outcome is inconsistent with preferring involved, committed and caring parents, whether male or female, over others whose connection to a child is solely formal or biological. Ironically, that outcome is hostile, in many cases, to respecting women’s equality.  The risks may be greatest for women of color.

My conclusion is that a relationship-based approach to Stanley’s claims would not have led to a different result for Peter Stanley.  Because a relationship-based approach adds context to the question of who should be recognized as a parent, further, it would help to counter the empowerment of the uninvolved parent that has been the negative legacy of Stanley.

To understand Stanley, it helps to know something about the story of the Stanley family.  The record, however, is scanty.  Here’s what we know from the record and additional research.  Peter and Joan had a long-term relationship and may have believed they were married, although no documentation was ever uncovered.  All accounts show them living together during the last few years before Joan’s death.  For the 17 or so years before that, they lived together continuously or intermittently, depending on whose account is accepted.  Their oldest child was found to be neglected at some point before her mother died.  The two younger children were born in the last few years before Joan’s death, and they were living with Joan and Peter when she died.  We also know that Social Security survivor benefits were paid for the three children, which seems to mean that Joan Stanley earned a salary for some period of time.  Money was tight, at least after Joan’s death.

Here’s some of what the Court’s record does not reveal:  whether Joan or Peter would identify themselves as African-American or European-American, what they did for a living, whether both provided economically to the family, what led to Joan’s early demise, whether Peter cared for her during her illness, and what the oldest child experienced before or after her mother’s death.

In my next post, I’ll discuss why I think members of the Court may have regarded the Stanleys as African-American and what that may have meant to them.

 

1

The Meaning of Patriotism

Last fall, I began reading Hillbilly Elegy. I wanted to see how the author, J.D. Vance, would deal with the question of class. I was particularly interested to see if his experiences at Yale Law School were anything like mine. They were in one respect – we were both introduced to sparkling water at large law firms and couldn’t understand why anyone would drink the stuff.
I finished reading the book after the election. Vance’s memoir is more an effort to deal with his dysfunctional upbringing than an explanation of the white working class’s electoral preferences. There are no more than a half dozen political comments in the volume. Before the election, I quickly glossed over them. After the election, the asides, however brief, rankled. The one to which I kept returning was his declaration that his people were “patriotic.” Yet, he gave the idea of patriotism no content. It made me reflect on my own upbringing.
My working class family certainly thought of itself as patriotic. My father had fought in World War II and he identified strongly with that service. When we moved out to the suburbs, he bought a flagpole and mounted it in the center of our front yard, flying the flag every day the weather permitted.
Beyond the flag, however, my parents’ patriotism had content that they frequently repeated. Most of the litany was “this is a great country because” and the most important because was that the country embraced us. All four of my grandparents had come from Italy around the turn of the twentieth century. My parents kept telling us as children that we would be “American.” For my brother and me, with our blue eyes, blond hair, and inability to speak any language other than English, this was a source of amusement. But we also understood that our parents meant that we were to embrace American values.
The first of those values was the importance of education. Two of my four grandparents had been illiterate. My parents had been the first in their families to complete high school and they felt deprived of the opportunity to go further. They spent our childhood telling us that education was the American secret to success and that we must be prepared to seize the opportunities America offered.
In Catholic school, the nuns also taught us about what it meant to be American. They prepared us to do battle with our perceived enemies – the Protestants, who we were told would challenge our faith. But we were also taught that we could be loyal Americans and good Catholics because of the separation of church and state. The need to separate private devotion from public leadership was central to our understanding of citizenship. We saw tolerance as the great American virtue, and learned that it was something we owed others if we were to demand it for ourselves.
Next in my parents’ litany of “this is a great country” was their belief that the United States was strong and prosperous because, unlike Italy, it got things done. As a child, I read Mark Twain’s, A Connecticut Yankee in King Arthur’s Court, which captured the idea of the United States as a nation of tinkerers open to innovation. My father, who was a carpenter, liked the idea. He was proud that he had voted for every winning presidential candidate from Franklin Roosevelt to Jimmy Carter – irrespective of party. His winning streak ended with Ronald Reagan. He didn’t vote for Reagan for the same reason he didn’t vote for George McGovern: he saw both as radicals who put commitment to ideology over pragmatism, that is, ahead of doing what the nation needed at the time.
These notions of patriotism informed my family’s definition of effective leadership. My first cousin became the Republican Majority Leader of the New York State Senate when Mario Cuomo was the Democratic governor. He liked to say that he respected Cuomo and Cuomo respected him. The two of them had come from similar backgrounds and while they often differed politically, respect meant thinking of each other as intelligent, competent and willing, when the necessary time came, to cut the deals necessary to get the state’s business done.
These clear distinctions between public leadership and private commitments informed my own sense of professionalism. I remember my surprise in the eighties when I sat down with a new faculty member. She began the conversation by announcing, “I am a feminist.” I thought to myself: “If you were to look at the sum total of my beliefs, you could say I am a feminist, too. But what does it mean to tell somewhat that in your first extended discussion? Does it mean that you have made up your mind before you hear the facts? That you put loyalty to the cause ahead of loyalty to the institution that just hired you?”
My cousin the majority leader, who was substantially older than I, died a while ago. In 2005, I stopped by to see his widow who was dying of cancer. When I walked in the door, in the only political conversation we ever had, the first thing she said to me was, “Does anyone still support George W. Bush? We had his number in 2000. We can’t believe anyone still supports him.” My cousins, lifelong Republicans, felt betrayed by the direction their party had taken.
Is there anything left of the notions of patriotism that my working class family once held dear? It’s hard to find them in today’s politics. But the academy is changing. When I moved from California to the Midwest ten years ago, I was pleased to find a less ideologically divided faculty despite a range of political views. My new colleagues told me that the faculty had been more factionalized a few years earlier. But the most polarizing of the professors had left, and those who remained were determined not to rekindle the conflicts. They had recreated a leadership ideal that made commitment to the whole more important that uncompromising purity or partisan loyalties. Let us hope that there is a way to do so for the country as a whole.