News and Features
The nation's largest media corporations are now poised to gain dramatically greater control over what Americans watch, listen to and read. A February 19 decision by the US Court of Appeals for the District of Columbia Circuit nullified two longstanding government regulations limiting the scope and size of media companies that use the public airwaves. If the decision stands, there will no longer be limits on the same company owning television stations and cable franchises in the same market. The court also ordered the Federal Communications Commission to reconsider a rule barring a TV network from owning stations that reach more than 35 percent of the national audience.
The end result of this latest deregulation wave could be, in the words of Gene Kimmelman of Consumers Union, "the most massive consolidation in media this nation has ever seen." The only good news in the appeals court's ruling was its rejection of a claim by media company lawyers that regulation of media monopolies is itself unconstitutional. This means that even as FCC chairman Michael Powell seeks to repeal the remaining regulatory limits on media monopoly, Congress could reassert its authority over communications law. Some powerful legislators, including Senator Ernest Hollings and Representative John Conyers Jr., want to do just that. But they are going to need public pressure from a real media reform movement if they are to have any hope of converting their fellow members to a fight for Americans' right to a diverse media.
With the looming prospect of one or two giant media conglomerates controlling almost all our news and entertainment, the survival of alternative, noncommercial media outlets becomes more important than ever. One of them--Pacifica radio--has famously been rocked by internal problems and requires support from all who care about independent media. The Nation is deeply committed to the Pacifica ideal of independent broadcasting (at both the national and local levels) and has many friends and longtime contributors involved in the network in various capacities. Now that an Alameda County Superior Court judge has replaced the old board with an interim body charged with restoring harmony and solvency to the battered network, it's vital that those of us in the penumbra of the Pacifica community do what we can to help the new cast of characters be true to the Pacifica ideal.
Recent events--including the axing of Pacifica Network News, the firing of KPFK station manager Mark Schubb, the suspension of Marc Cooper and the cancellation of his daily show on KPFK (Cooper is a contributing editor of this magazine and also the host of RadioNation)--suggest that all is not pacified at Pacifica. Further, the network is saddled with a debt of $4.8 million, partly as a result of litigation during the recent troubles.
We'll have a report in an upcoming issue on the latest developments. Meanwhile, Pacifica remains a beacon of independent thinking and progressive values in a sea of conglomeratized and homogenized media. Readers who have strong views on Pacifica's future course should convey them to their local station. For those of you who wish to send contributions to offset the alarming deficit: Make out checks to Pacifica Foundation and mail them to Pacifica Radio, Attention: Accounts, 2390 Champlain St. NW, Washington, DC 20009.
One of the pitfalls of publishing a weekly journal of critical opinion at a moment when the political culture has drifted to the right is that there is so much of which to be critical that we often don't take time out to count our blessings, hail our heroes and salute our comrades in arms. Add to that the liberal left's propensity for internecine warfare (see our editorial on page 3) and the temptation to pass over those guilty of committing good works is often too great to resist. So, let us take a moment to cheer two local heroes whose good works, not incidentally, have benefited Nation writers, among many others, over the years.
First, Bill Moyers. For years, his documentaries, speeches and articles have illuminated such subjects as the way money distorts politics, how secrecy perverts liberty and how, under the flag of free trade, NAFTA has permitted multinationals to undermine democracy. As Moyers (quoting John Dewey) wrote in our pages, it's not easy to interest the public in the public interest. In recent weeks Moyers has been the target of a Weekly Standard demolition job and a misguided assault by the Washington Post's Sebastian Mallaby. He must be doing something right.
Second, Jeff Chester, one-man monitor of concentration among the communications conglomerates, reminds us how we were almost deprived of the good works of Norman Lear. Citing a Writer's Guild of America statement on harmful vertical and horizontal integration in television, he notes that Norman Lear (and his colleague Bud Yorkin) made two pilots for ABC of the controversial series All in the Family. ABC kept asking him to water it down, soften it, blur the edges. Lear refused and took the series to CBS, where he was allowed to follow his vision and create one of the groundbreaking shows of all time. As the WGA notes, "He could do that only because he owned it. Today, the network would have an ownership position and would be able simply to fire Lear and replace him with a writer and producer who would do what they wanted." As a result Lear made his fortune and has used it, among other things, to purchase one of the few surviving original versions of the Declaration of Independence and to found People for the American Way, which fights to put the principles of the Declaration and the Bill of Rights into practice. A recent example: turning the national spotlight on a Bush court nominee with an abominable civil rights record, as described by John Nichols in this week's issue.
We take our hat off to Bill Moyers and Norman Lear.
What the Islamic fascists do, and what they believe, and what they intend, are three aspects of the same one-dimensional thing. It is ludicrous to accuse them of being untrue to themselves or their cause. The usual rush to "understand" Pervez Musharraf's difficulties seems to supply a partial explanation for this moral feebleness.
How to Honor Pearl
Ever since the 1954 Brown decision outlawing "separate but equal" schools, various popular movements have upheld a vision of public schools as essential to democracy and have demanded legal protections for those previously marginalized--from Title IX prohibitions against gender-based discrimination, to the right to a bilingual education, to the inclusion of students with disabilities in public school classrooms, to the demand that public schools respect the rights of gay and lesbian students. On February 20 the Supreme Court took up a case that could lead to an about-face on this half-century of struggle.
The Justices heard oral arguments on the constitutionality of a school voucher program in Cleveland in which tax dollars pay for tuition at private schools. Roughly 4,300 Cleveland students currently receive vouchers, and 99.4 percent of them attend religious schools. The case's significance goes beyond vouchers to whether public education will be replaced by a marketplace system in which the role of the public is limited to making an individual "choice" to attend a particular school. The case also holds enormous potential to further George W. Bush's "faith based" initiatives promoting religious groups in the redefinition and privatization of the public sector.
The legal heart of the Cleveland case is whether the voucher program violates the establishment clause of the First Amendment, which prohibits government endorsement of religion. The Justices are sharply divided, and many observers expect the Court to issue a narrow ruling on the specifics of the Cleveland case. But even a narrow holding would have broad ramifications.
Vouchers have been a bedrock of the conservative agenda to privatize education and provide public dollars for private religious education. The ability to move that agenda forward, however, has been hampered by the legal cloud over vouchers. To gain support, voucher supporters have fostered the image that vouchers are merely a way to provide options to low-income minority parents whose children are trapped in failing urban schools. But if the Court accepts the pro-voucher argument that there is no government endorsement of religion because the voucher goes to parents, that reasoning can extend to all parents regardless of income. It can also extend to social services other than education.
Should the Cleveland case pass constitutional muster, one of the immediate issues facing the voucher movement is how to make the move to universal vouchers without jeopardizing the political capital it's gained by seeming to befriend low-income minorities. The perception is that the Cleveland voucher program is aimed at African-Americans, but that's wrong. African-Americans constitute 71 percent of the students in the Cleveland public schools, yet they account for only 53 percent of voucher students. Whites, meanwhile, make up 19 percent of Cleveland's public school students but 29 percent of voucher students.
For voucher opponents, a Supreme Court decision upholding the Cleveland program will move the battle from the courts to the policy arena. Two issues will immediately come to the fore--money and accountability. The money issue is simple. Taxpayer support for education is limited, particularly during recessionary times, and the money that goes to private schools will reduce taxpayer willingness to fund public schools. This will undercut the movement for funding equity for urban public schools and diminish funds for such important reforms as smaller classes, improved teacher quality and reducing the achievement gap between whites and African-Americans and Latinos. Vouchers also undermine the calls for greater accountability. If the government tries to impose the same accountability on voucher schools as on public schools, it runs the risk of excessive "entanglement" in religion, violating church/state separation.
As voucher attorney Clint Bolick has argued, regulation of voucher schools "should be limited. It should not include any state oversight of curriculum, personnel or administration. Any program that creates extensive involvement by the state in the schools' internal affairs is likely to be found an unconstitutional excessive entanglement." In Milwaukee, home to the country's oldest and largest voucher program, accountability is so lax that no academic data have been collected from voucher schools for more than six years. As a result, no one knows how students in voucher schools are performing academically. Furthermore, the voucher schools don't have to provide the same level of services for special education students or students who don't speak English. Because constitutional rights like due process are not applicable in private schools, voucher schools can suspend or expel students at will.
Many people don't appreciate the threat vouchers pose. Who can disagree that public schools, particularly in urban areas, fail too many students? But it would be shortsighted to abandon public education and accept the myth that vouchers and privatization are the answer. Public education tries to fulfill our vision of a more democratic America, with public institutions responsible to, and controlled by, the public. The voucher movement betrays that vision. It treats education as a mere consumer item and asks us to settle for the "choice" to apply to a private school that itself does the choosing.
Mississippi Congressman Bennie Thompson says it's like this: If judicial nominee Charles Pickering is confirmed by a Democratic Senate, the Bush Administration will have a green light to pack the federal courts with judges openly hostile to basic principles of equal justice under the law. "It amazes me that in 2002 a man who has a questionable record of support for 'one man, one vote' is seriously considered for a federal appeals court judgeship--but that's what we've got with Charles Pickering," Thompson says of the Mississippi federal judge nominated by Bush to the Court of Appeals for the Fifth Circuit. "If he is confirmed, the message will be that there are no expectations left, no standards for selecting judges."
Harsh words, especially from a judicial nominee's home-state representative. But the Pickering nomination has inspired the sharpest debate yet regarding the President's judicial nominees. Republican Senator Arlen Specter says Pickering displays "a curious ambivalence" about using the court to protect voting rights, while NAACP board chair Julian Bond says "a vote for Pickering is a vote against civil rights." That's a particularly dramatic charge regarding a nominee to the Fifth Circuit, which oversees civil rights protections in Louisiana, Texas and Mississippi, and has the highest percentage of African-Americans of any circuit.
The Mississippi State Conference of the NAACP and the predominantly black Magnolia Bar Association are working to block Pickering's nomination. "We hope to God that he doesn't make it," explains L.A. Warren, chair of the state NAACP's Legal Redress Committee. "We know his past." As a law student, Pickering penned a 1959 law review article that showed legislators how to tighten Mississippi's ban on interracial marriage. In the 1960s Pickering established a law practice with one of the state's most outspoken segregationists. He joined white business elites in his hometown of Laurel in opposing the worst excesses of the local Ku Klux Klan, but he also signed an open letter declaring he was working along more genteel lines to maintain "our Southern way of life." As a state senator in the 1970s, Pickering repeatedly advocated election "reforms" that the Justice Department knocked down as assaults on African-American empowerment, and he supported funding the notorious Mississippi Sovereignty Commission's efforts to block desegregation. As a federal judge since 1990, Pickering has described the "one person, one vote" principle as "obtrusive," attacked moves to draw legislative districts that could be won by African-American candidates as "polarization" and repeatedly attempted to limit application of Voting Rights Act provisions in Mississippi. In lawsuits before him involving racial discrimination in the workplace, Pickering has griped that courts "are not super personnel managers charged with second-guessing every employment decision regarding minorities."
At least eleven of the two dozen Pickering decisions overturned by the Fifth Circuit were rejected for violating well-settled principles of law involving civil rights, civil liberties, criminal procedures and labor rights. In 1994 Pickering intervened with the Justice Department to try to get the government to soften charges against a man who had burned an eight-foot cross outside the home of an interracial couple, claiming the defendant had merely engaged in a "drunken prank."
After Pickering stumbled badly in Judiciary Committee hearings--which raised ethics concerns about his role in the cross-burning case, his solicitation of letters of recommendation from lawyers and groups that might face his court, and his deceitful testimony about his ties to the Sovereignty Commission--his nomination was in trouble. But it was revived by conservative groups, which recognize that confirmation of such a nominee would ease the way for later Bush picks, and by antiabortion activists who have championed Pickering since he led the fight at the 1976 Republican National Convention for a platform opposing reproductive freedom. Pickering has a powerful ally in Senate minority leader Trent Lott, who says conservative Southern Democrats will help him confirm Pickering if a full Senate vote is scheduled. Lott charges that Pickering is the victim of a "smear" campaign.
That spin was aided by a New York Times article asserting that the African-Americans who know Pickering best "admire his efforts at racial reconciliation" and "overwhelmingly" support his nomination. Based only on interviews with African-American residents of Laurel, the Times article claimed that a disconnect between national groups' opposition to Pickering and Mississippi blacks' support for him "reflects the distance between national liberal groups and many Southern blacks in small towns." Newspapers with a better sense of the South dismissed this view; the Atlanta Journal-Constitution editorialized, "US jurisprudence came too far in the late 20th century to allow it to lapse back into a time when Pickering's prejudices reigned." But the claim that critics have focused unfairly on Pickering's record on race was picked up by conservative newspapers. The Wall Street Journal highlighted a pro-Pickering column by Mississippi's most prominent black Republican, Charles Evers, and the Washington Times wrote, "Liberal organizations have tried to label Judge Pickering as a racist, but black leaders in Mississippi are vocally backing the nominee as a friend of their community."
In fact, it was Mississippi blacks who first raised the alarm about Pickering's nomination. "I wish the New York Times would ask people like me what we think of Charles Pickering," says Kathy Egland, who joined the 1960s civil rights movement in Hattiesburg at the age of 10. "I have been involved in civil rights in Mississippi for forty years, and I'll tell you this: No one in the Mississippi NAACP who knows this man's record is saying that he has ever been a supporter of civil rights."
On October 31 Governor Jane Swift of Massachusetts pardoned five women who had been convicted and executed in the Salem witch trials in 1692. Well, better late than never--what's a few centuries one way or another? Once you're dead you have all the time in the world. It's the living for whom justice delayed is justice denied, and on that score Governor Swift is not doing so well. On February 20 she rejected the recommendation of the state parole board, known for its sternness and strictness, and refused to commute the thirty-to-forty-year sentence of Gerald Amirault, who was convicted in the 1986 Fells Acre Day School child sex abuse case and who has already served sixteen years in prison. Violet Amirault and Cheryl Amirault LeFave, his mother and sister, who were convicted with him, served eight years before being released.
Since the l980s, when a wave of now notorious prosecutions of alleged ritual child sex abuse swept the country, many of the techniques used to elicit children's stories of abuse have been discredited: leading and coercive questions, multiple reinterviews, promises of rewards, suggestive use of anatomical dolls. It's no longer iron-clad doctrine that certain behaviors, like bed-wetting, masturbation and sexualized play, reliably indicate sex abuse. The slogan of the prosecution and the media was "believe the children"--but what that really meant was don't believe the children if they insist that nothing happened, if they like going to daycare and readily hug their alleged abusers; only believe the children when, after relentless questioning by interviewers, therapists and parents, they agree that something terrible happened and eventually come to believe it, as the Fells Acre children, now young adults, still do. As Dan Finneran, the Amiraults' lawyer until 2000, puts it, the case represents "a closed system of thought: denials, recantations and failure to remember are categorized as manifestations of repression and fear and thus stand as confirmations of actual abuse." If no means yes, and yes means yes, how do you say no?
All these issues featured in the Amirault case. The result was that a respected working-class family who had run a popular daycare center in Malden for twenty years--a place that parents were constantly popping in and out of--were convicted of a total of twenty-six counts of child abuse involving nine children in trials that included accusations of extravagant and flamboyant sadistic behavior: children being anally raped with butcher knives (which left no wounds), tied to trees on the front lawn while other teachers watched, forced to drink urine, thrown about by robots, tortured in a magic room by an evil clown. One child claimed sixteen children had been killed at the center. Obvious questions went unasked: How come no kids who went to Fells Acre in previous years had these alarming experiences? Why was an expert witness permitted to testify about a child-pornography ring when no pornographic photos of the Fells Acre kids were ever found?
Governor Swift made a big show of looking seriously and long at Gerald Amirault's case, but she failed to consider the central question, that of whether he was guilty of any crime. Indeed, Swift made Gerald's refusal to admit guilt and get treatment as a dangerous sexual predator a centerpiece of her decision--but why should an innocent man have to say he's guilty to get out of jail? Gerald has been a model prisoner: He's taken college courses, he has worked, he has a flawless record. He has the total support of his wife and children and a job lined up in anticipation of his release.
Swift claims that her main consideration was whether Amirault's sentence was in line with those of others convicted of similar crimes. She cited the case of Christopher Reardon, a lay Catholic church worker who pled guilty to seventy-five criminal counts of abusing twenty-nine boys last summer and received a forty-to-fifty-year sentence. But the case against Reardon was open and shut; he took photos and videos, and even kept spreadsheets detailing his crimes. The real cases to compare with Amirault's are those of his mother and sister, who were convicted of the same crimes, although slightly fewer of them. Cheryl Amirault LeFave and Violet Amirault received sentences half as long and were released after serving half as many years as Gerald. Does Gerald's being a man have something to do with these disparate outcomes? Absolutely. The women benefited from the leniency still--if fitfully--bestowed by the justice system on women. Moreover, as the case against the Amiraults came to look more and more troubling with hindsight, the original scenario, in which the three were equally involved in molesting children, was replaced by a theory, never put forward during the trials, that Gerald was the ringleader and the women his dupes. How could this be? The evidence against the three was the same.
At her press conference, Governor Swift refused to discuss the case against Gerald and three times declined to respond when asked how he had failed to demonstrate good behavior in prison. The clear implication is that her motives were political: With Massachusetts in an uproar over the ongoing scandal of pedophile priests, to commute Gerald Amirault's sentence would have made her vulnerable in November when, as a not very popular or experienced Republican appointee, she faces an uphill struggle for election. What an irony--the Catholic Church protects genuine child molesters for decades and thereby creates a political situation in which an innocent man is trapped in jail. But Swift's calculation is backfiring. The Boston Globe, the Boston Herald, the Boston-based Christian Science Monitor, the Berkshire Eagle in Swift's home county have all editorialized against her decision; polls show wide support for Amirault's release.
Massachusetts--liberal, modern, technocratic Massachusetts--is the only state in which people convicted in the 1980s wave of ritual child abuse cases are still in prison. Bernard Baran, whose case shares many features with that of the Amiraults, with the added strike against him of being homosexual, has been incarcerated for almost half his life. Meanwhile, Scott Harshbarger, the DA who originally prosecuted the Amirault case, is now head of Common Cause. Will it take another 300 years for the state to acknowledge that Salem was not its last miscarriage of justice?
Corzine: You set the right context.
The Federal Communications Commission is presently conducting an inquiry--a "rulemaking"--to determine whether to relax, or even to eliminate, the remaining few regulations that limit how many me