Category Archives: guest post

Name a type of intellectual property that the owner can’t practice?… Continue reading →

In his 1995 Chicago Law Review article, The Regulation of Social Meaning, Larry Lessig discussed some of the rhetorical devices that can change a society’s shared understanding of the meaning conveyed by a given word or action. One of these, Lessig explained, was “ambiguation,” which gives “a particular act, the meaning of which is to be regulated, a second meaning as well, one that acts to undermine the negative effects of the first.” In Straightforward: How to Mobilize Heterosexual Support for Gay Rights, we argue that when heterosexuals tolerate ambiguity about their own sexual orientation, they use ambiguation to promote… Continue reading →

1. We’ll send a free book to the first person who gets a business with at least 10 employees to license the fair employment mark. 2. We’ll send a free book to the person who gets the largest number of employees covered by the license in the next month. 3. We’ll send a free book to anyone who gets a business with more than 100 employees to license the mark…. Continue reading →

Lots of the comments to Jennifer’s posts worried that managing information meant (a) lying or (b) burdening individuals’ rights of association. But here’s an informational proposal for dealing with the Boy Scouts’ discrimination that promotes both honesty and informed association…. Continue reading →

I really enjoyed reading the comments on my post from yesterday, and the many responses those comments engendered. Several people have already said much of what I would say to explain our references to privilege and the role it plays in mobilizing heterosexual allies. One point I should be up front about: Straightforward is unabashedly written for an audience that is already on board with the idea of equality for gay, lesbian, and bisexual people. The book does not attempt to marshal arguments against discrimination on the basis of sexual orientation. We’re assuming that our readers already agree with us… Continue reading →

The Fair Employment licenses and the Creative Comment licenses face similar kinds of resistence. We often hear people say that no employer in its right mind would volunteer for legal liability. But this sounds a lot like people who say that noone in their right mind would ever throw away potential copyright revenues. But it turns out that there are lots of parallel reasons why adopting these licenses make plenty of sense…. Continue reading →

Let me take a stab at mapping out what Ian and I are going to try to accomplish over the next week. As Larry mentioned, we’ve just published Straightforward – which makes the argument that mobilizing heterosexual support is crucial to making progress on securing equal rights for gay, lesbian, and bisexual citizens. The book is packed with advice about what people can do – on personal and public levels. But what we really want to stress here over the next week are a series of informational innovations that can promote equality in the military, in the boy scouts (and… Continue reading →

A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit not to discriminate on the basis of sexual orientation. With just a few clicks of the mouse, at www.fairemploymentmark.org any employer in the country can license the “Fair Employment Mark.” It is an innocuous symbol, an “FE” inside a circle: There are lots of parallels to the Creative Commons. Both are reinventions of traditional intellectual property licenses to make the world a better place. Employers that are committed to the idea of employment equality for gay and lesbian workers don’t have to wait… Continue reading →

Thanks, again, for all the terrific comments on the O’Reilly show. I’ve learned a lot from them. I may write an op-ed about the experience. But for now, a few words about Vietnam.
By the time we got to 1968, it was no longer possible to imagine a criminal prosecution of Gene McCarthy for opposing the war. Constitutional law and American culture had progressed to the point that it would have been unthinkable for the Johnson or Nixon administration to have treated antiwar leaders the way we once treated people like Matthew Lyon, Clement Vallandigham and Eugene Debs. But this doesn’t mean the government couldn’t find other ways to attack dissent. Prosecutions for draft-card burning, flag burning, and the public use of offensive language were frequently directed against antiwar protestors, not because the “crimes” were worth punishing, but because it was a way of “getting” those who offended government officials.
More important, the government initiated an aggressive series of undercover programs — COINTELPRO (“counterintelligence programs) designed to “expose, disrupt, and neutralize” the antiwar movement. FBI agents and confidential informants infiltrated antiwar organizations at every level to gather the names of those who opposed the nation’s policy. When all was said and done, the government had compiled dossiers on half-a-million Americans. But the goal was not just to create files. It was to act against those who had the temerity to challenge the government.
The Nixon administration launched IRS audits of those who contributed to antiwar organizations, the FBI sent letters to the landlords of antiwar activists informing them that their tenant was a “Communist,” it sent anonymous letters to colleges and universities accusing antiwar activists of drug violations, it encouraged local police agencies to arrest war opponents for traffic and other offenses, and so on. The FBI also sent anonymous letters to members of antiwar organizations accusing other members of embezzling the organization’s fund, sleeping with the partners of other members, and even being FBI agents. The goal was to confuse, demoralize, distract, and discredit those who opposed the war, without doing anything that could be seen. None of this was known to the public until 1972.
Finally, a word about the Supreme Court. As we saw, in World War I, the Court upheld the convictions of antiwar protestors under the Espionage and Sedition Act. During World War II, the Court upheld the Japanese internment in Korematsu v. United States. During the Cold War, the Court in Dennis v. United States, decided in 1951, upheld the convictions of the leaders of the Communist Party of the United States on a charge that they had “conspired to advocate” the violent overthrow of government. As Justice Douglas put the point at the time, the Court had decided to “run with the wolves.”
This is not a very happy record. Indeed, the conventional wisdom is that the Supreme Court will never resist the executive branch in wartime. This is overstated. During World War II, the Court held unconstitutional the efforts of the Roosevelt administration to deport American fascists; during the second half of the Cold War the Court took a strong stand against McCarthyism; during the Vietnam War, the Court rejected the Nixon administration’s effort to enjoin the publication of the Pentagon Papers and rejected its claim that it had a constitutional power to engage in national security wiretaps without a warrant. Most recently, the Court rejected the extreme claims of the Bush administration with respect to the rights of the Guantanamo Bay detainees and the rights of American citizens held as “enemy combatants” by the United States military. We should not expect too little of the Supreme Court.
Ultimately, though, the protection of civil liberties depends on an informed, determined, and courageous public. As Louis Brandeis once observed, “courage is the secret of liberty.” May you all have the courage of your convictions.
As Larry said when he introduced me, this is my virgin blog. It was great fun for me, and I hope he’ll invite me back again sometime. I wish you all a happy and healthy New Year.
Geof Stone Continue reading →

Thanks for the amazingly thoughtful and interesting comments on the O’Reilly show. I want to answer one questions about that because several people raised it: Why would any sensible person agree to be a guest on that show? Truth be told, I’ve always in the past declined to be on the Factor and other shows like it. I agreed this time because the issue “Is dissent disloyal?” is important, I’ve thought a lot about it, and I thought I might be able to contribute something useful. And I would have, had he not changed the issue! But, since the main thrust of my guest stint on this blog is learning lessons from past mistakes, I won’t do it again! (The reason, by the way, is not because it’s unpleasant, but because no one should allow himself to be used by a demagogue.)
Speaking of which, let’s return to our history. We left off with the Japanese internment. As several comments noted, the Supreme Court in 1944 upheld the internment in the case of Korematsu v. United States. In effect, the Court held that, in wartime, we all have to make sacrifices, and it couldn’t say that the decision to internment these people was not a rational military decision at the time it was made. Korematsu has gone down as one of the most profoundly embarrassing decisions in the history of the Supreme Court, and the nation has in many ways confessed the unconstitutionality of the internment in the sixty years since the decision. (As an interesting aside, by the way, I sumbitted a friend of the Court brief on behalf of Fred Korematsu –he is still alive and flourishing — in the Guanatamo Bay, Hamdi, and Padilla cases in the Supreme Court last spring.)
At the end of World War II, Americans were optimistic. We had the strongest military in the world, we had just won a “great” war and we had clearly been on the side of the angels. The world was at peace. Within a short time, however, everything changed. Although the Soviet Union had been our ally during the war, relations collapsed beween the U.S. and the Soviet Union as the need for that alliance disappeared. Within a stunningly short period of time, the American economy took a nosedive, there were revelations of Soviet espionage, the Soviet Union exploded its first atomic bomb, China fell to the Communists, Americans began to build bomb shelters as they prepared by nuclear bombs to rain down upon our cities, and the Korean War burst upon the scene.
Who was to blame? How did the Soviets get the bomb? Why had China fallen to the Communists? A group of anti-New Deal Republicans and conservative Southern Democrats had the answer — it was American Communists who had sold us out and were working to further the Soviet cause. Men like Richard Nixon in California and Joseph McCarthy in Wisconsin began to play the Red Card in order to get elected, and they did. In the 1946 elections, the Republicans, who now portrayed the choice as one between Communism and Republicanism, picked up 54 seats in the House. After being out of power for 16 long years, the Republicans had found a strategy that could propel them back into power.
Democrats, who were overwhelmed by the growing anti-Communist hysteria, jumped on the bandwagon, afraid to resist. Within a few short years the United States had a new federal loyalty program for over four million government employees, the House Un-American Activities Committee investigated thousands of individuals to determine if they were secret Communists, state and federal governments adopted their own loyalty programs, investigations, blacklists, and anti-Communist laws. Tens of thousands of people were threatened, intimidated, fired, humiliated, and even prosecuted.
Who were these people? Were they spies and sabotuers? No doubt, there were Soviet agents in the United States. But they were almost never the target of these actions. They were too well-hidden for that. Rather, these actions were cynical efforts to make political hay by taking advantage of, and exacerbating, the fear that was already upon the land. So, who were these people?
After the Depression, many Americans began to search for answers to what had happened to the nation. Many toyed with communism. At this time, the Communist Part of the United States was a lawful political party that ran candidates for public office throughout the nation. It stood for such causes as women’s rights, the rights of labor, and public housing; it opposed the rise of fascism in Europe and racism at home. As many as 250,000 Americans joined the CPUSA in this period. Moreover, many millions more participated in CPUSA events or joined other organization that shared some of the goals and programs of the CPUSA. During World War II, we fought side-by-side with the Soviet Union, and FDR encouraged Americans to see the Soviets as our allies and friends.
After the war, though, all this fell apart. And suddenly the most dangerous question in America was: “Are you now or have you ever been a member of the Communist Party or a member of any organization that is or was affiliated with the Commnist Party or have you ever attended an event sponored by the Communist Party, or signed a Communist Party petition, or attended a Communist Party rally, or read a Communist book?” An affirmative answer to any of these questions would immediately cast doubt on the patriotism and loyalty of the individual. After all, how do we know you’re not still a Commie who is secretly working to subvert the government of the United States.
This was the heart of McCarthyism. Continue reading →