Free the Mouse!

This article appeared in the Virgin Islands Daily News in November of 2002.

In 1998, a cartoon mouse and a Republican congressman made history of sorts.

The mouse, Mickey, had been created by Walt Disney in 1928 and was under a copyright that was about to expire, and the heirs of Walt Disney were nervous.

Sonny Bono, the congressman from California, was serving his last term in the House of Representatives. Bono, formerly part of a pop duet with his first wife Cher, entered the House in 1995 and quickly claimed the place at the intellectual vanguard of the Republican Party previously held by former Iowa Congressman Fred Grandy, who, prior to entering Congress played the role of "Gopher" on the television series Love Boat.

The combination of an animated rodent and a congressman who had regularly appeared in public in sequined jumpsuits, resulted in landmark legislation. The heirs of Walt Disney turned to Bono for help with the expiring copyright on the mouse, and he (Bono, not the mouse) introduced a bill that ultimately became the Sonny Bono Copyright Term Extension Act of 1998, which extended the duration of new copyrights and retroactively increased the duration of existing copyrights, by 20 years. It was perhaps Bono's greatest feat since his vocals on "I Got You, Babe."

Article I, Section 8, Clause 8 of the United States Constitution, the Copy-right Clause, permits Congress, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The first copyright statute provided for a term of 14 years. Since then, Congress has repeatedly passed legislation extending copyrights, 11 times in the last 40 years. The Sonny Bono Act extended copyright terms to, in some cases, as much as 95 to 120 years.

But all of this has not gone unchallenged. Several individuals, with the support of public interest groups, brought suit against then-Attorney General Janet Reno to ask the court to block enforcement of the Sonny Bono Act. The plaintiffs included Eric Eldred, who maintains a library of free public domain electronic books on his website; Dover Books, a publisher of inexpensive paperbacks which was forced to cancel editions of works by Kahlil Gibran and Edna St. Vincent Millay because the Sonny Bono Act prevented the works from entering the public domain; a non-profit group dedicated to the preservation of films in the public domain; a company that publishes works on the history of golf; a sheet music publisher; and the choir director of an Episcopal church.

The plaintiffs have adopted the battle cry, "Free the Mouse!" which appears on pins and bumper stickers available from their website.

Although the plaintiffs lost in both the trial court and the Court of Appeals, the United States Supreme Court, surprisingly, agreed to hear their appeal. The case, now called Eldred v. Ashcroft, was argued on Oct. 9. The plaintiffs made essentially two arguments: first, that granting extended copyrights to existing works is not within the authority given to Congress by the Copyright Clause because it does not "promote the progress of science and useful arts" by encouraging the creation of new works and, second, that Congress' repeated extensions of copyrights violate the "limited times" requirement of The Copyright Clause.

The plaintiffs further argued that the public has a First Amendment interest in the passage of works into the public domain. The government argued that an extension of copyright for all works is more equitable than extending copyrights for only new works and that it encourages the owners of extended copyrights to invest in the restoration and dissemination of the works over which they hold copyrights. The government further argued that the public has no First Amendment interest in seeing works enter the public domain.

At the oral argument, many of the judges expressed the view that the Sonny Bono Act was simply a bad law. "It is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that," said Justice Sandra Day O'Connor. "One wonders what was in the minds of the Congress." But they also expressed skepticism about their ability to do anything about it. The Supreme Court may strike down congressional legislation in only a very limited number of circumstances, most often because the legislation offends some portion of the Constitution.

The Supreme Court cannot hold the Sonny Bono Act unconstitutional simply because it is an ill-conceived piece of pure special interest legislation passed without concern for its wider consequences. If it could, there wouldn't be much legislation left. Preservation of the Mickey Mouse copyright is by no means the most trivial exercise in which Congress has ever engaged, but by way of perspective, specific constitutional grants of power have been used by Congress to do such things as end slavery, annex Alaska, declare war on Nazi Germany, and create The New Deal.

Sonny Bono has passed on, dying in a fatal 1998 skiing accident, but his legislative legacy remains. The decision of the Supreme Court is expected in the next few months. Until then Mickey, still in copyright bondage, wipes away a tear as he greets visitors at Disney World, dressed in his signature bow tie, waiting for the court or, perhaps, a Million Mouse March to free him.

(Unfortunately, the Supreme Court held against the Plaintiffs and upheld the Bono Act. Cher offered no comment)

Tucker Carlson

This letter appeared in the Virgin Islands Daily News:

I recently purchased and read the book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, by avowedly liberal humorist Al Franken. One anecdote related in the book is about Franken’s telephone conference with Conservative pundit Tucker Carlson after the memorial service for Senator Paul Wellstone of Minnesota, who died in a plane crash in 2002. Franken attended the service. Though Franken relates that most of the speakers at the service made appropriate and tasteful speeches, one speaker made remarks that some in attendance considered overly partisan, and that the Conservative press subsequently reported as the functional equivalent of the composition of the “Horst Wessel Song,” a Nazi anthem celebrating the glorious death of a brown shirt in a street brawl.

According to Franken, the day after the service, he heard Conservative pundit Tucker Carlson report on CNN’s “Crossfire” that Republicans who had tried to eulogize Wellstone had been shouted down by the crowd. Franken then called Carlson, who had not attended the service, and informed him that this was false. According to Franken, Carlson acknowledged that it might have been incorrect, but said that he had not deliberately lied, because, “If you lie, you can get caught.” Franken concluded that Carlson had not only not attended the service, but had not even seen a videotape of the service before making his report.

Initially I regarded this story with a grain of salt, since I had only been exposed to Franken’s version. However, on Monday night I had the opportunity to watch Franken and Carlson discuss this very situation on CNBC. It was truly remarkable.

Carlson admitted that he had made an error when he reported that would-be Republican speakers had been shouted down, and professed that he “could not remember” what led him to report this. Carlson said that he thought he had done the “honorable” thing by admitting his error to Franken, though he was not sufficiently honorable to make an on-air retraction of the story. Instead, he admitted that he had subsequently gone on television again to express his disgust at the speakers at the Wellstone memorial service, despite not having attended the service and despite having already demonstrated that he had no more personal knowledge about the Wellstone memorial service than he did about the coronation of Ramses II as Pharaoh of Egypt in 1304 B.C. Carlson then suggested that Franken was somehow acting unreasonably because Franken kept calling Carlson to task for his false reporting of the nonexistent heckling of imaginary Republican speakers.

By his own admission, Carlson, a journalist of national repute, reported something that did not occur. His explanation for this was, amazingly enough, that he could not recall why he reported false information. This is an explanation which ought to make a person wonder about the credibility of Carlson as a journalist. Though I am not a professional journalist, my understanding is that the ethical principals governing journalists do not as a rule encourage them to report imaginary events as though they were true.

There is a principal of logic called Occam’s Razor, which stands for the proposition that the simplest explanation for an event is usually the best one. Though Carlson claims not to remember why he might have reported something which, by his own later admission, did not happen, perhaps we can assist him. Let us consider some of the reasons why he may have done so, then let us apply the Razor.

Some explanations for why Carlson reported an event which did not occur

1. Carlson may have had an LSD flashback;
2. Carlson may have had false memories implanted in him while a prisoner of space aliens;
3. Carlson may have been brainwashed by the North Koreans, as happened in the movie “The Manchurian Candidate”;
4. Carlson may have had transitory psychotic experience; or
5. Carlson may have simply been lying.

Applying the Razor, I suggest that choice 5 looks pretty good.

Whatever the reason, it is clear that there is no need for anyone to trust Carlson’s reporting ever again, since he is either insincere or prone to fantasy. I suggest, however, that a fine career awaits him as a writer for “The National Enquirer,” available now on your supermarket newsstand. And yes, Tucker, when you lie, sometimes people do catch you.

Speech and Offense

This appeared in the Virgin Islands Daily News and the St. Croix Avis:

This week an Iranian newspaper was shut down by the government because the paper published a cartoon which mocked Iran’s Azeri minority, leading to riots in several cities. In India last week, Muslim clerics pledged to aid Christian groups by demonstrating to force the government to ban The Da Vinci Code. From February to May of this year, at least 962 people were killed or injured during riots sparked by the publication of cartoons in a Danish newspaper with satirical images of the prophet Muhammad.

It couldn’t happen in America, where the First Amendment to the United States Constitution guarantees freedom of speech. Yet something similar did happen in April; a Federal Circuit Court recognized the legitimacy of the rationale behind the Azeri riots in Iran, the efforts in India to ban a motion picture, and the violent protests over the Danish cartoons.

The case is Harper v. Poway, handed down by the Ninth Circuit Court of Appeals on April 20th. The Ninth Circuit hears appeals from Federal District Courts in several western states, including California. The issue in Harper was this: may a public high school prohibit students from wearing T-shirts with messages that condemn and denigrate other students on the basis of their sexual orientation? The court held that it could, but their logic presents major problems for free speech advocates.

The facts were as follows: in 2003 Poway High School permitted a student group, the Gay-Straight Alliance, to hold a Day of Silence intended to advocate tolerance of others, particularly those of a different sexual orientation. In that year incidents and altercations occurred on campus as a result of anti-homosexual comments made by various students. A week later a group of heterosexual students informally organized a Straight Pride Day, during which they wore t-shirts displaying derogatory comments about homosexuals. In 2004, the school permitted a second Day of Silence to be observed. A student named Tyler Harper, wore a t-shirt to school on that day on which the words “I will not accept what God has condemned” were handwritten on the front, and the words “Homosexuality is Shameful, Romans 1:27” were handwritten on the back. The following day he wore the same shirt with a slightly modified message.

The administration asked Harper to remove the shirt. He refused, and had to remain in the front office for the rest of the day. He was not suspended and no disciplinary record was placed in his file. There was no evidence of violence resulting from Harper’s shirt. Harper filed suit in the Federal District Court in California alleging infringement of various Constitutional rights, and asked for an injunction. The District Court dismissed some of his claims, and preserved others, and denied his request for an injunction. Harper filed an appeal with the Ninth Circuit.

The Ninth Circuit affirmed the District Court’s denial of the injunction. While the facts of the case are simple, the substantive and procedural issues were relatively complex; this gave the Ninth Circuit several options for its decision. The Ninth Circuit could have affirmed on purely procedural grounds, but instead ruled in a way that should disturb any informed advocate of democracy and free speech.

The Circuit Court held that Harper’s right to free speech could be limited because the content of his speech collided with the right of other students to be free from injury by “verbal assaults on the basis of a core of identifying characteristics such as race, religion, or sexual orientation.” The Court held that this “right” could be violated even if the speaker of the alleged verbal assaults “does not directly accost individual students with his remarks.” The Court further stated that:

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subject to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn.

The “right” identified by the Ninth Circuit is not found in the Constitution; in fact, it is antithetical to the First Amendment. It is in fact the same right claimed by the Azeris in Iran, the Indians trying to ban The Da Vinci Code, and the Muslims rioting because of Danish cartoons. That “right” is the Right Not To Be Offended.

The Ninth Circuit held that Harper’s right to express himself was trumped by the “right” of gay students to be shielded from offensive remarks. This “right” directly conflicts with the First Amendment. I don’t agree with Harper or his t-shirt. But freedom of speech is worth letting people like Harper wear t-shirts that say foolish things to school.

In fact, offending people is not only a right in a democratic society, but an obligation. The British were offended by the Declaration of Independence. Slave owners were offended by the Emancipation Proclamation. Polite society was offended by the Suffragettes. Segregationists were offended when Eisenhower sent troops to integrate Central High School in Little Rock. Jewish residents of Skokie, Illinois, were offended when Jewish lawyers from the ACLU defended the right of American Nazis to march through their suburb. But the ACLU lawyers recognized that free speech is important enough so that it has to be defended even when the speakers’ messages are odious. There has never been a time or place when human liberty was advanced without offending someone.

Voltaire urged people to, “Think for yourselves and let others enjoy the privilege to do so too.” This is the mantra of a free society. The Ninth Circuit failed to heed it, and we can only continue to do so at our peril.

Review of "Cape of Arrows" by Patricia Gill

Budding writers are often advised to “write about what you know.” Patricia Gill’s new novel Cape of Arrows demonstrates that this is eminently sound advice for an author with a comprehensive knowledge in a variety of interesting areas. Ms. Gill is a writer, sociologist, educator, and long-time resident of St. Croix, who earned a Ph. D. in the Philosophy of Education form the University of Connecticut and a Masters Degree in the Sociology of Education from Harvard University. Her novel skillfully combines her insights into matters as diverse as the role of women in academia, the history of St. Croix, and Taino archaeology.

The novel is about the adventures of Ruth Dyer, a teaching assistant accompanying a renowned archaeologist on an expedition to St Croix, U. S. Virgin Islands. The dig is at the Cape of Arrows, now called Salt River, site of an ancient Taino settlement and of an encounter between Christopher Columbus and its inhabitants. But not all of the skeletons found by the expedition are of ancient vintage, and not all of the people of St. Croix welcome the expedition with open arms.

The novel has many of the elements of a mystery, but ultimately transcends the genre. Ms. Gill deals with serious issues of race and genre in a variety of ways: as they effect our perceptions of ancient peoples, as they influence the relationship of residents of the U. S. territories with the mainland, and as they affect the life of a woman in academia. Ms. Gill pulls off the amazing feat of making these issues real and immediate to the reader; this cannot be done unless the writer is genuinely passionate about the issues herself.

Ms. Gill is uniquely suited to addressing these concerns. She is a pioneer among women in academia, having taught sociology at Vassar College, Latin American and Caribbean History and Spanish at the University of Connecticut and the University of the Virgin Islands, and Educational Problems of Developing Areas at Fairfield University Graduate School of Education. She has written scholar works about Taino archaeology. Her love of St. Croix is evident in her writing, and still more evident to those who have had the chance to speak with her. Ms. Gill is also skilled in fictional narrative. She came to the Virgin Islands from Hollywood, where she had been working as a historical researcher and script writer for Wayne-Fellows, Inc. Her literary credits include a play, "Murder in the Embassy", which won an award in the Canadian Drama Festival, "Sabotaje en la Selva", the first full-length feature film produced in color in Latin America, and "The Liberators", a historical account of the Wars of Independence in Latin America, written for John Wayne. A historical novel, Buddhoe, based on the events leading up to emancipation of the “unfree” in the Danish West Indies in 1848, was originally published in 1977 and is now in its third edition.

Cape of Arrows is ultimately a Bildungsroman about Ruth Dyer, who progresses from a comfortable place in academia and a comfortable relationship with her fiancée to a world which is less secure, but which offers a wider variety of choices. The novel is spiced with interesting characters, and those familiar with St. Croix will enjoy speculating about the real-life island residents, living and dead, who inspired them. The novel presents a much more accurate and engaging picture of life on St. Croix than anything else I have ever read, and should supplant such old saws as Herman Wouk’s Don’t Stop the Carnival as required reading for those new to the Territory. It is a work both serious and entertaining, and I recommend it highly.