Conservative Victimology Goes To The Supreme Court

by: Paul Rosenberg

Sun Jan 17, 2010 at 08:30


Last week, I wrote a diary, "Rick Warren and the martyr mythology of the religious right" about the popular conservative fantasy that Christian martyrdom today is a widespread phenomenon.  In a bizarre statement disavowing support for the proposed Ugandan law making homosexuality a capital offense, Warren interjected the claim that "last year, 146,000 Christians around the world were killed because of their faith," which I went to demonstrate is a completely fantasy.  Even a reputable website devoted to monitoring Christian martyrs couldn't fill its five-slot featured martyr page with people who had been killed in the last year.  Conclusion: Warren is almost certainly off by a factor of 10,000 or more.

But conservative victimology is impervious to facts, and we've just gotten another reminder of that. Yesterday evening, Adam B posted a front-page diary at DKos, "SCOTUS To Hear Case On Right To Know Anti-Gay Signers", about the Supreme Court agreeing to hear a case from Washington State, in which anti-gay activists are seeking to keep private the names of people who signed a anti-gay ballot proposition:

Friday afternoon, the Supreme Court granted a writ of certiorari to hear the case, on the following questions presented:
    1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.

    2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.

Adam goes on to say:

As a First Amendment/election law geek, I find this case disproportionately fascinating on the merits, but there's a deeply troubling aspect to all this.

Because today's order comes right on the heels of Wednesday's order preventing the Northern District of California from controlling broadcast of the Prop 8 trial, which itself was premised in part on this same notion that innocent pro-hetero-marriage folks are being oppressed and harassed by all the evil gays out there, and that these evil gays are so capable of lawlessly intimidating these good people that subsequent legal action against them isn't sufficient.  And, so, in both cases, conservatives seek to trample upon the public's right to know in order to shield from scrutiny those who seek to do gays harm.

Y'know, when I first wrote about this case, I was deliberately cagey about who was on which side of it because I wanted folks to focus on the transparency v. privacy issues and not the underlying merits.  But we're clearly in the midst of a growing trend of anti-gay activists using legal proceedings to try to paint themselves as poor victims trembling in fear of some nebulous lavender menace, and these pernicious efforts can't be ignored.  What they hope to gain from these efforts, I'm not sure.  But something's going on here, and it ain't right.

If you really strip it down to it's core, I think this is very simple: Conservatives believe that they have a God-given right to slander, harass, intimidate, and discriminate anyone they damn well please. And they believe that anyone else who objects to what they do is trying to slander, harass, intimidate, and discriminate against them--and therefore must be stopped by the full force of law.  What's more, that's what they "understand" the First Amendment is all about.  See, for example, Keith Olbermann's volumnuous documentation of the blatherings of Clueless Carrie Prejean, amature porn star.

Paul Rosenberg :: Conservative Victimology Goes To The Supreme Court
There's absolutely nothing new to this.  American slaveholders fought for their freedom in the Revolutionary War, and were utterly shocked! shocked! when the British offered to free any slaves who escaped and made it to the British lines.  They were even more shocked when thousands of slaves did just that... even though there were also black Americans, both free and slave, who also died fighting the British.

Fast forward 180-190 years or so, to 1964, when I was teenager growing up in Northern California, thousands of miles away from the heat of the Southern Civil Rights struggle, when lo and behold, Proposition 14, overturning California's Fair Housing Act, is passed by 2-to-1 margin.  It was, in fact, the landslide passage of Prop 14 as much as anything else that convinced the backers of Ronald Reagan that he could win the governor's race in 1966.  Prop 14 was based on the simple notion that homeowners had the right to discriminate in selling their house, same as slaveholders had a right to their property.  It was struck down by the California Supreme Court two years later--a perfectly predictable result, but one that none-the-less infuriated conservatives as an example of activist liberal judges.

But the thing is, a majority of Americans continued to think that way as late as 1983--the year that the law was passed establishing Martin Luther King Day as a national holiday:

General Social Survey.  Question wording: 128. Suppose there is a community-wide vote on the general housing issue. There are two possible laws to vote on: a. One law says that a homeowner can decide for himself whom to sell his house to, even if he prefers not to sell to (negroes/blacks/African-Americans). b. The second law says that a homeowner cannot refuse to sell to someone because of their race or color. Which law would you vote for?

As you can see, even today, 1 in 4 Americans thinks that they should have the "right" to discriminate in selling their home.  And woe unto you if you should call them a bigot for it!

With this level of perceived entitlement for racial discrimination today, it's truly remarkable how much progress has been made for gay rights.  The conservative "right" to double standards lies at the very core of their belief system--which is why they are so fundamentally hostile to the very idea of America.

"Liberty and justice for all"?

That was written by a socialist, don't forget.

A Baptist minister socialist.


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It's even simpler than that (4.00 / 3)
It's another case of false equivalencies:  

1.) My right to take away your rights and/or deny you the same civil rights that I have, is governed by the constitution and subject to the same legal and moral tests used to determine the outcome of key civil rights movements and cases over the years.  

2.) Any denial or infringement of my right to take away your rights is a gross violation of both our constitutional order and our civil society.  


Sociopathy (4.00 / 3)
This is a slightly more sophisticated version of a sociopath's logic described by Robert Kegan in In Over Our Heads (paraphrase): "Stealing from other people is good, because I need what they have.  Stealing from me is bad, because I need what I have."

It's consistent, just not in the way that normal people define consistency.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Afaik that has been supported by recent studies. (4.00 / 1)
There were rports recently that scientists have found conservatives both quciker to point fingers at othrs and at the same time to excuse their own failures. So, this is in accordance with the reethuglican behaviour we can witness day after day after day.

[ Parent ]
This case ISN'T about marriage equality. (4.00 / 1)
Disclosure of petition signers can cut both ways. the folks gearing up for a marijuana legalization initiative in Washington State will have a much easier time if signers don't have to fear their employers will use signing to single them out for pee tasting.



This is a Test of the Emergency Free Speech System. This is only a Test. In an actual Free Speech Emergency, I'll be locked up.


I agree (0.00 / 0)
On the legal end of it, I don't think there is any reason to make this information public - I believe in an extremely robust right to know, but petition signatures don't fit within that. That right to know is about knowing about the government - not the public.

That legal conclusion doesn't depend for me on conservative beliefs one way or the other.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


[ Parent ]
But, wait a minute, of course this has to be public! (0.00 / 0)
How else to check the validity of the signatures? If this is secret information, and not open to public scrutiny, the law may as well be changed so that the sponsors only have to add "Micky Mouse, Duckburg, Mainstreet 1234" some thousand times to their list!

[ Parent ]
Wholesale v retail (0.00 / 0)
In WI, you can examine the originals, but they're not posted to the web, nor available for photocapy.



This is a Test of the Emergency Free Speech System. This is only a Test. In an actual Free Speech Emergency, I'll be locked up.


[ Parent ]
And how to check the validity this way? (0.00 / 0)
By applying thousands of volunteers to the task, every one of them having to check a sinbgle page that he/she emorized? D'oh!

This will inevitably reesult in more fraud, imho.


[ Parent ]
The point is, this isn't a real safeguard. (0.00 / 0)
A million doillar organsation can pay some hundred people to see that list at the reigster and to copy it entry by entry. This isn't really keeping wealthy parties from being able to get the conmplte list, for possible retaliations. But it severely reduces the ability of ordinary citizen to conduct  scrutiny. So, once again, in practice this well help the rethuglicans more than the progressives.

[ Parent ]
But aren't they government documents? (4.00 / 2)
That right to know is about knowing about the government - not the public.

...isn't this about the right to see petitions submitted to the government? Once submitted, aren't they government documents?

It's a slippery slope when you start to suppress transparency of applications (particularly those that would have third party impact) to the government, including the critical information about who is making the application. Would this extend to businesses/corporations making application for government action? Is it enough to know what is requested without knowing who is requesting it?

Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans


[ Parent ]
This Is Really The Crux of the Legal Matter, IMHO (0.00 / 0)
And I don't see how they're not.

No one forces you to sign a petition.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
No one forces you to vote either (0.00 / 0)
but it's not public knowledge.  

As for the larger argument, either petitions should always as a matter of statute be public, or they should not. It certainly shouldn't be on a case basis. It's not to my mind a matter of the public right to know.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


[ Parent ]
You Respond To Obiter Dicta (0.00 / 0)
Not my substantive point.

By their very nature, petition signatures can't be verified independent of identifying who signed the petition.  This is fundamentally different than voting after the introduction of the Australian ballot in the 19th Century.  In order to safeguard the integrity of the process, signatures have to be matters of public record.  The only legitimate question there can be concerns restrictions on how that information is disclosed, and what restrictions can be placed on it.

Now, the argument is being advanced here that such information should not be subject to dissemination for purposes of mounting moral sanctions against those who sign petitions.   It's my contention that this is not a general problem, but rather a very specific one.  It's no accident that we've had vigorous use of the initiative process for close to 100 years in the West Coast states, and this issue has never come up before.

And so there's a very legitimate question to be asked if it's not perhaps the nature of the initiatives--seeking to impose stigmatic second-class citizenship onto a class of people--that has called forth this response that would without the force of law engage in a modest form of fighting fire with fire by seeking to stigmatize the would-be-stigmatizers.

This, IMHO, is a very legitimate political principle: If you want to use state power to stigmatize a group of people, should you not be willing to endure a taste of your own medicine to see how much you really believe in doing that?

Note that I would not have a very strong argument here if this problem were truly a generic one lacking any relationship to the substance of the initiatives in questions.  But as an inescapable matter of fact, there is a very direct relationship that simply cannot be ignored.

They can dish it out, but they can't take it.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
No - just because you submit your information to government (0.00 / 0)
that doesn't make it public information. That would be a terrible blow to privacy.

Lobbying by businesses is not private info.  These things are wholly separate.  

A petition for a ballot proposition is more akin to voting than anything else.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


[ Parent ]
Two points in reply (4.00 / 2)
Of course, not all information submitted to the government is "public record." The best (but by no means only) example of this are tax returns, which are compelled and private. However, applications requesting government action that has potential impact on third parties should not be entitled to secrecy. Those potentially impacted should be entitled to know who is making the request.

Voting is a decision-making action and the secrecy attached to that is a public good -- to avoid coercion in the decision-making process. Petitioning is an entirely different action. It is a request that the government do something. The consequences of the government doing so will likely impact others, potentially everyone. Before (and certainly by the time) the request for action reaches a decision-making moment, those deciding should have all available information, including who is requesting the action.

Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans


[ Parent ]
"those deciding should have all available information" (4.00 / 1)
And the public, too! Or else the door is open for phony petitions, organized by powers close to the government, with the intent to provide a convenient alibi for not really popular measures and legislations. Relying on the government to check those petitions if they're valid is not good enough. Since Nixon, and Bush, we know that there are unscrupulous WH officials who would do everything to make government, their party, and rich donors look good. Rigorous transparency is the only antidote against the desease.

[ Parent ]
Lobbying by businesses - Two examples (4.00 / 1)
Suppose a state Department of Real Estate, saying it had received lobbying requests, institutes a prohibition on "for sale by owner" property transactions. Are those written requests entitled to privacy?

Suppose enough real estate agents sign petitions to place the same prohibition on the ballot. Are they entitled to the privacy of their signatures?

What's the difference?


Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans


[ Parent ]
I'm Concerned With Motive And Rationale Here (0.00 / 0)
I completely agree that one can make a legitimate argument for keeping petition signatures private.  But one can't ignore that this case comes up in the context of attempted gaybashing by ballot, and all of the pernicious psychology and ideology that comes along with that.

Nor can one ignore that the same folks arguing to protect privacy in this instance have a pathological obsession with violating the privacy rights of others in most other situations.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Motive's beside the point, (0.00 / 0)
when you're looking at the long term.  Future cases will not be decided on the motive of those who brought this one.



This is a Test of the Emergency Free Speech System. This is only a Test. In an actual Free Speech Emergency, I'll be locked up.


[ Parent ]
Wrong On Two Counts (0.00 / 0)
First off, motive absolutely matters.  It's why the case was brought in the first place.  And it will almost certainly figure in the ways that future cases are brought to further develop the case law.

If we haven't learned that from Bush v. Gore (which extended "equal protection" to ballots--but not people--by keeping them all equally from being counted), then we really haven't learned anything at tall.

Second, where is it written that I have to write about court cases from a lawyer's POV, rather than that of a culture critic?

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Hmm, but at court, the motive doesn't make much difference. (0.00 / 0)
What matters in the first place is if the crime has been proven. A motive has to be proven, too, but it's exact nature is only important for weighing mitigating circumstances.

What I want to say is, let's not fall into the trap of letting our subjectively better motives excuse falling into the very same behavour as the rethuglicans. No double standards, one law for everybody! Didn't we discuss this here recently?


[ Parent ]
But I thought signing a petition (4.00 / 3)
was a PUBLIC act. Isn't that the whole point of a petition, to tell the powers-that-be that you feel so strongly about something you are willing to put your name to it, and damn the consequences?

Montani semper liberi

[ Parent ]
Exactly, my understanding, too! (0.00 / 0)
How else to check the validity of the signatures? If this isn't open to the public, everybody can simply copy some thousand names from the telephone book and add them to his list. The victims of that stolen ID fraud would never know about the crime!  

[ Parent ]
Post your real name and address here. (0.00 / 0)
Ben Masel
1214 E. Mifflin
Madison, WI



This is a Test of the Emergency Free Speech System. This is only a Test. In an actual Free Speech Emergency, I'll be locked up.


[ Parent ]
Like this? (4.00 / 1)
Gray Slicky Matter
Blackstreet 711
Whiteburg

Now, it shouldn't be too difficult for you to check that there probably is something wrong with this statement. But what if this information was secret?


[ Parent ]
Damn, I always forget... (0.00 / 0)
...that in the US you put the numbers before the name of the street, and add the acronym of the state after the city. That's a strange habit...

Gray Slicky Matter
7711 Black Street
Whiteburg, MD


[ Parent ]
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