News and Features
On March 27, a federal district court struck down the University of Michigan Law School's affirmative action admissions plan, ruling that the school's interest in a diverse student body did not justify using racial preferences. This past December another court in the same district reached the exact opposite result, finding the university's parallel affirmative action program for undergraduates was justified by diversity.
These diametrically opposed rulings on a single university's affirmative action programs perfectly mirror the current division in the nation's courts. Affirmative action, a near-universal practice in universities across the nation, is under serious legal attack. Disappointed white applicants have sued universities in Georgia, Washington and Texas as well as Michigan.
As in Michigan, the lower courts in these cases have divided sharply, so it is only a matter of time before the none-too-hospitable Supreme Court takes up the issue. The main point of disagreement concerns whether diversity is a sufficiently "compelling interest" to justify race-conscious admissions. There is a strong case for diversity-based affirmative action. But another justification, not generally pressed by the universities, offers a more cogent and morally persuasive rationale for affirmative action: society's interest in integration itself.
Since 1978 affirmative action in higher education has rested on the slimmest of reeds--a lone opinion from a Justice who could not attract a single other Justice to his views. In Board of Regents of the University of California v. Bakke, a divided Supreme Court struck down a medical school admissions program that set aside a predetermined number of seats for minority applicants. Four Justices deemed any consideration of race illegal under a federal statute that prohibits discrimination by entities receiving federal funds, while another four concluded that the program was a valid response to broad societal discrimination.
The decisive opinion in the Bakke case was that of Justice Lewis Powell. He voted to invalidate the University of California's program, but he also stated that racial preferences are sometimes permissible, citing with approval Harvard's affirmative action program, in which, in the name of diversity, race was considered as one "plus factor" among many, and all applicants competed for all openings. Harvard's program was not even at issue in the case, but Justice Powell's views about it have guided universities ever since.
Subsequent Supreme Court opinions have appeared to diverge from Justice Powell's analysis. For example, Justice Sandra Day O'Connor, a critical swing vote, explicitly rejected diversity as a justification for an FCC affirmative action program, stating: "Modern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination." The FCC's interest in broadcast diversity, she reasoned, was "simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications." Her opinion was in dissent, but would probably garner five votes today. In other opinions, however, Justice O'Connor has cited Justice Powell's Bakke opinion with apparent approval.
One thing is certain: The argument for diversity finds virtually universal acceptance in academe. More than 360 higher education institutions signed on to briefs defending the University of Michigan's affirmative action program. And for good reason: In our increasingly diverse society, the ability to communicate and understand across racial lines is an essential part of citizenship, and teaching that skill requires a diverse setting. Not considering race in the diversity mix would effectively penalize minorities by denying them benefits that Iowans, violinists, potential donors' children and synchronized swimmers receive.
The usual response is that the Fourteenth Amendment treats racial classifications differently. But the equal protection clause does not prohibit all consideration of race. In its recent voting rights cases, for example, the Court held that race may be considered as one factor among many in redistricting, as long as it is not the "predominant motive." The redistricting process necessarily considers all sorts of factors as proxies for likely political allegiances, and adding race to the mix does not raise the same concerns as other kinds of race-conscious decision-making. Similarly, the search for diversity necessarily considers many factors as proxies for intellectual and cultural diversity, and race should be permissible as one among many.
Ultimately, however, integration itself may be a stronger justification for affirmative action than diversity. An integrated student body undoubtedly adds to diversity. But so does admitting violinists, and surely there is a stronger argument for admitting African-Americans than violinists. Higher education is one of the few arenas in modern life where racial integration remains a realistic possibility. Despite the demise of Jim Crow, most of us continue to live, work, socialize and worship in effectively segregated settings. College student bodies, by contrast, can be integrated because they are consciously selected and are not predetermined by geography or class. Integration in higher education in turn teaches us that integrated communities are possible, and that living in such communities can break down the deep barriers that continue to divide the races. At the same time, because a college degree is essential to professional success, integration in higher education is necessary to any measure of integration beyond.
The Court and the country have failed to live up to the promise of Brown v. Board of Education. The last thing we should do is turn the Constitution into a barrier to one of the last remaining arenas of true integration in America.
On March 26, PBS carried something that has become increasingly rare in our media-besotted land: genuine journalism. The program was an explosive investigation by Bill Moyers and his staff of a decades-long program by the chemical industry to hide the life-threatening dangers associated with the use and production of their products. People were dying who did not have to die; they were living with debilitating illnesses and receiving no compensation from the companies.
The industry did everything it could to discredit Moyers. It set up a website, wrote angry letters to PBS and accused Moyers of a biased presentation--before having seen the program.
One would think that a story of this magnitude would interest others in the mainstream media. One would be wrong. In the Washington Post, media columnist Howard Kurtz focused on the controversy between Moyers and the companies. The New York Times, however, reviewed the program as if taking orders directly from the chemical industry. "Have we perhaps grown up in a perverse sort of way and now accept that spectacular progress like that of the last half-century cannot be achieved without tradeoffs?" wrote Neil Genzlinger. "Nothing good, be it democracy or more durable house paint, comes without a price."
No one on the program argued against tradeoffs or democracy. The issue Moyers presented was quite simple: Do companies have the right to lie and mislead their workers and the public about the potentially harmful effects of their products? If tradeoffs or democracy were the issue, then the victims of these companies would at least have been given the relevant information about the likelihood that they might contract cancer or other life-threatening diseases as a result of their exposure to toxic chemicals. Yet, as Moyers reported, that information was deliberately withheld or covered up by the companies.
People died or were permanently disfigured as a result of the coverups Bill Moyers exposed. Yet the Times likened acceptance of (slow) murder by corporations for profits to growing up. It's hard to know which is more offensive: the actions of the corporations or the willingness of journalists to act as apologists for them.
All signs point to an all-out drive by the Bush Administration to slot judicial conservatives into the eighty-nine current vacancies on the federal bench. The recent to-do about ending the American Bar Association's role in screening nominees was a smoke signal to the conservative base that only the "right" kind of judges henceforth need apply. White House counsel Alberto Gonzales grumbled that the ABA, which has been screening nominees since the Eisenhower Administration, "takes public positions on divisive political, legal and social issues." In fact, ABA's screening committees eschew political judgments, instead evaluating the candidates' ethics, competence and judicial temperament.
The real meaning of Gonzales's words is that the Bushites want a free hand to appoint their own ideologues. Conservatives crave revenge for the 1987 Senate rejection of Supreme Court nominee Robert Bork, whom four members of the ABA's fifteen-member standing committee found "not qualified." This split decision by the usually unanimous committee gave ammunition to Bork's opponents. Gonzales let the word go forth that in selecting nominees he and John Ashcroft will heed the Federalist Society and kindred far-right legal groups whose acolytes honeycomb this Administration.
Bush further heartened his right-wing supporters by blocking Clinton nominees for the bench like Roger Gregory, who had been given an interim appointment to the Fourth Circuit. (He's the first African-American to enter Jesse Helms's segregated preserve.) Meanwhile, other solidly qualified Clinton nominees have been left dangling by the Judiciary Committee, including James Klein, the able DC public defender; Helene White (whose nomination was stalled for more than 1,500 days) and a score of others for whom Senator Orrin Hatch refused to hold hearings.
The Bushites' court-packing drive is a grade-A rush job. For one thing, the roll Bush is on is petering out with his tax plan seen by a wider public as too friendly to the rich. Then, too, if an enfeebled Strom Thurmond exits the stage, control of the Judiciary Committee would shift to the Democrats, and then it's a whole new ball game.
If ever there was a time for mobilizing a counteroffensive, this is it. Bush has no mandate to add more weight to an already rightward-tilting federal bench. The Supreme Court's patently political ruling in Bush v. Gore has shaken its credibility. There is a growing constituency for judicial integrity and against a rollback of individual rights. Public-interest groups are tuning up. Some that will be in the thick of the fight: National Women's Law Center, National Abortion and Reproductive Rights Action League, Leadership Conference on Civil Rights, People for the American Way, NAACP Legal Defense and Educational Fund (for more information contact Marcia Kuntz at the Alliance for Justice, 202-822-6070; email@example.com).
Progressives must also apply pressure on Democratic senators to stall the Bush drive to stack the bench. Yale law professor Bruce Ackerman's suggestion that no Bush Supreme Court nominees should be approved is on the mark. Democrats should demand the same privilege that Hatch claimed of vetting all lower court nominees before their names become public.
Let's heed the admonition of Nan Aron of the Alliance for Justice: "Fight early, fight often and fight to win."
The election this March of an openly gay Mayor of Paris--the Socialist Bertrand Delanoë--would have been unthinkable just a few years ago. That's one reason the American edition of Frédéric Martel's The Pink and the Black (it appeared in France five years ago) is so pertinent: It's the first attempt at a history of the modern French gay movement, without whose achievements the victory of Delanoë would not have been possible. It all began on March 10, 1971. Radio star Ménie Grégoire was moderating her enormously popular chat show before a live audience in Paris's famous Salle Playel. The broadcast's theme that day: "That Painful Problem, Homosexuality," with experts from law, medicine and the Catholic Church. Suddenly interrupting some priestly condescensions, a group of homosexual women rose from the audience, yelling, "It's not true, we're not suffering! Down with the heterocops!" The lesbians stormed the stage, and the control room cut off the microphones and switched to recorded music. The militants' message: "Homosexuals are sick of being a painful problem." The Front Homosexuel d'Action Révolutionnaire (FHAR), and with it the modern French gay movement, had been born.
The youthful activists who formed the FHAR had their political coming-of-age in the turbulent student-left rebellion of May 1968 that turned into a nationwide general strike in all walks of life, a gigantic outpouring of social protest against the suffocating atmosphere of de Gaulle's France. And while the young far-left soixante-huitards ('68ers) were initially hostile to "supposedly bourgeois homosexuality," as Martel writes, the May rebellion "contained, in embryo, all the ingredients of sexual liberation, for which it was a dress rehearsal." While the FHAR was initiated by women, it quickly admitted men as "objective allies."
One of the first men to join the FHAR was Guy Hocquenghem, who rapidly became the nascent movement's undisputed star. Hocquenghem's political itinerary was fairly typical of the soixante-huitards. After an "apprenticeship" in the Union of Communist Students when he was a brilliant philosophy student at the prestigious École Normale Supérieure in Paris, he was a leader of the National Union of French Students and--rejecting the heavy-handed Stalinism of the French Communist Party--became by turns a Trotskyist and then a Maoist. By the time of the FHAR's founding he was a prominent member of Vive la Révolution (VLR), a libertarian split-off from the orthodox Maoists that was led by Roland Castro (later a prominent architect and adviser to French President François Mitterrand on urbanism).
After joining the FHAR, Hocquenghem proposed that it put together a special issue of Tout!, the VLR's newspaper, which he coordinated. In the issue, 50,000 copies of which were published in April 1971, were articles titled "Our Bodies Do Belong to Us," "The Right to Homosexuality and Every Sort of Sexuality," "The Right of Minors to Freedom of Desire and Its Satisfactions" and, most important, "Let's Stop Cowering in the Corner." Martel records that "thus the theme of coming out appeared for the first time in France.... The FHAR, 'a saw for cutting up reality in a different way,' in Hocquenghem's expression, had found its slogan."
All this became a public scandal when the Interior Minister had Jean-Paul Sartre, who had lent his name to Tout! as editorial director, indicted for "public indecency" and "pornography"; police seized 10,000 copies of Tout! and the vice squad raided its offices. In the end Sartre, and the gay liberationists, won in court, a stunning victory against the justice system.
The FHAR's general meetings, held in the amphitheater of the École des Beaux Arts, grew rapidly from fifty people to a hundred, to a thousand, and they "marked a momentous time in the history of the evolution of mores in France. They got homosexuals talking," Martel writes. In this heady atmosphere, its air perfumed by hashish smoke, the "militants put revolution into practice: they invented cruising relieved of its furtiveness, and, moving through [the school's] hallways...or on the upper floors and in the attic, they experimented with Fourier's 36,000 forms of love."
In January 1972 Hocquenghem, by then teaching philosophy at the University of Vincennes and already moving away from VLR, published a historic and much-discussed article--"The Revolution of Homosexuals"--an autobiography-cum-manifesto in Le Nouvel Observateur, the influential mass-circulation left-wing weekly; and by the end of the year he'd produced Homosexual Desire, the first theoretical work by an avowed homosexual in France. The book influenced a whole generation of gay liberationists in Europe (and when brought out in the United States two years later by Schocken Books, many American gay intellectuals as well). The FHAR, which had strong anarchist tendencies, imploded by the end of that year, as its meetings were overwhelmed by those who came only for sex, not debate. But Hocquenghem--with his "angelic beauty," his assured platform performances and his gifted pen--had become, as Martel puts it, "a hero," "for many...the one who had 'liberated homosexuals'" and "the emblem of homosexuality in France."
The FHAR was not the first organization of French queers. Arcadie was an austere "homophile" review founded in 1954 by an ex-seminarian, André Baudry; as it gained subscribers, it gradually became a discreet movement, a kind of secretive homo Freemasonry dominated by ultramontane Catholics. Baudry preached "sublimating one's sexual and emotional orientation into asceticism," and he opened Arcadie's parties and dinners with sermons attacking homosexuals who cruised parks and toilets. It was supported by the likes of Jean Cocteau and the right-wing novelist and diplomat Roger Peyrefitte; its members included lawyers, magistrates, military men and government officials--all deeply closeted. But it did conduct the first dialogue with mainstream politicians on behalf of same-sexers and was not without influence. Martel's chapter on Arcadie, "Down with Daddy's Homosexuality" (a FHAR slogan), is fine gay historiography.
One of the few prominent leftists to join Arcadie was Jean-Louis Bory. A member of the French Resistance who fought in the Orléans forest in World War II, in 1945 Bory won the Prix Goncourt for his first novel at the age of 26. A socialist, Bory signed the famous appeal of the 121 writers and intellectuals calling for resistance to France's repressive war in Algeria in the 1950s. Over the years he published a series of novels in which "the latent homosexuality of his characters became increasingly clear," and in 1973 he wrote an unambiguous confessional autobiography. A year before the FHAR's founding Bory had "participated in the first mass-audience radio broadcast" on homosexuality, on which "he rejected any idea of a 'homosexual movement' but defended the fight for freedom, declaring that he was obviously a homosexual and a 'model citizen,' and that the two were necessarily linked in his mind." Bory mistrusted the radical aggressive visibility championed by Hocquenghem, but as a fixture on radio and TV in the 1970s he championed the homosexuals' "right to indifference." In 1977 Bory and Hocquenghem jointly published a book in which they outlined their differing views, later summed up by the philosopher René Schérer, Hocquenghem's friend and mentor: "[Bory] was living within the logic of Arcadie and was fighting for integration and tolerance, whereas Guy always insisted on marginality: he wanted integration with exceptionality, integration within marginality."
Exhausted by his role as the "responsible left's" gay spokesman, Bory committed suicide in 1979. Hocquenghem left organized politics altogether and became well known as a journalist, essayist, novelist and broadcaster, teaching all the while. Since Martel makes him such a central figure throughout the book, it's unfortunate there is no more than a cursory and often reductionist presentation of his thought (for an overview in English, see Bill Marshall's Guy Hocquenghem: Beyond Gay Identity, from Duke University Press).
I have emphasized the early years of French gay politics because they are so little known here, but there's much more in Martel's book, which--dare I say it?--doesn't miss a trick. There are chapters on the changing loci of gay male cruising and gay nightlife; a rich chapter detailing the history of lesbians, whose struggle for identity was primarily within the women's movement, not the gay movement; on the ultimately successful effort to repeal the various laws criminalizing homosexuality, of which France was free from the French Revolution (as of 1793) until Vichy; on the rise and fall of the weekly Gai Pied and other organs of the political gay press; on the contribution gays made to the victory of François Mitterrand and the Socialists in 1981--and their subsequent disillusionment; on the retreat from militancy in the 1980s, the triumph of gay commercialism, the gay ghetto.
But the most impassioned chapters in the book are devoted to AIDS. Martel writes that in the early '80s, gay intellectuals, militants, organizations and the gay press were largely in denial about the threat of AIDS. Even the association of gay doctors was in denial. After Michel Foucault died of the disease in 1984, his partner of twenty-three years, Daniel Defert, and a group of friends launched the association Aides, with two goals: prevention education and care for the sick. The heroic loneliness of Defert and his colleagues as they battled the epidemic is as moving as the refusals they met with in the gay world are appalling. Why was organized gay life in France virtually last in Western Europe to respond effectively to AIDS? The sociologist Michel Setbon has argued that "AIDS as a problem specific to homosexuals placed [gay] organizations on the horns of a dilemma that was painful, if not impossible, to address," given the state of medical knowledge at the time: "Either adopt the epidemiological definition of AIDS as a 'gay cancer' and risk being stigmatized, or deny its reality and avoid homophobia."
The analytical theses at the end of Martel's book, which were widely criticized in the French gay press, may remind American readers of the attacks on the gay movement emanating from the Independent Gay Forum, the network of conservative gay intellectuals founded by the likes of The New Republic's Andrew Sullivan and the National Journal's Jonathan Rauch. Moreover, a condescending bitterness creeps into Martel's tone when writing about liberationist militants, which his assimilationist and reformist politics do not fully explain. When I raised this with Martel, he told me that one of those to whom he dedicates the book, at the time his 18-year-old lover, had been "infected with HIV by a militant." Pity he didn't tell his readers.
I lived in France for much of the '80s and knew a number of the people in this book--Hocquenghem was a valued friend--and find serious factual errors in Martel's work. He writes that Hocquenghem "refused to be tested" for AIDS and "reportedly learned he was HIV-positive only after he was already ill. He supposedly even refused...to be monitored medically." These unsourced statements are entirely false, as Guy's lover and literary executor, the journalist Roland Surzur (who took the test with him), confirmed to me. Martel attacks Hocquenghem for blindly writing as late as September 1985, "How can we believe in a medical establishment that discourages us, that announces nothing but contagion, that marches only to the tune of fear and despair?" These words appear shocking--unless one knows they were written two months after Hocquenghem tested positive, which gives them an entirely different meaning. The first group to emerge from the gay community to fight the epidemic was not Aides, as Martel writes, but Vaincre le Sida, founded by an ex-FHAR activist, Dr. Patrice Meyer. I've discovered other errors and inexactitudes too numerous to list here. Many of those Martel attacks are no longer here to defend themselves; Hocquenghem died of AIDS in 1988.
I think Setbon's view is the right one: Fear of homophobia was the principal cause of AIDS denial in France. But Martel believes the fault lies elsewhere: with "identity politics." He doubts "the advisability of building a political community of homosexuals" and calls for an abandonment of "communitarianism." Yet he was hired as a counselor on gay issues by two Socialist governments precisely because the community, and the gay vote, had become important. And in a democracy, all electoral politics is, to one degree or another, based on the politics of identity.
In the late 1970s, the legendary Socialist Gaston Defferre--mayor of Marseilles for decades and his party's onetime presidential candidate--took a number of real and symbolic steps in favor of same-sexers. Asked to explain this, the leader of the city's organized gays later said, "Defferre's success came from the fact that he always had his Armenians, his Greeks.... When there got to be queers, he had his queers." To get so big they try to co-opt you is half the battle; the other half, harder, is to resist.
I have long embraced the proposition that homosexuals are different from everyone else except in bed--it is oppression and fear that makes them so. Martel insists that "we must do our best to make 'homosexuality' a meaningless term, a word with no relation to reality. Only ever-changing individuals must remain." A noble sentiment--but I'm afraid I think that day is further away, much further away, than he does.
Praising its coverage, not criticizing it, is the best route to getting published.
A woman two months pregnant goes to see her Ob-Gyn for prenatal care. As required by law, her doctor informs her that her condition places her at greater risk for a wide range of medical problems: hypertension and diabetes if she is overweight; complications of surgery if, like one in four women, she has a Caesarean section; permanent weight gain with its attendant problems, including heart disease; urinary tract infections and prolapsed uterus if she has had multiple pregnancies; postpartum depression or psychosis, leading in rare cases to suicide or infanticide; not to mention excruciating childbirth pain, stretch marks and death. There are ominous social possibilities, too, the doctor continues, reading from his state-supplied script: increased vulnerability to domestic violence; being or becoming a single mother, with all the struggles and poverty that entails; job and housing discrimination; the curtailment of education and professional training; and lowered income for life.
No state legislature would compel doctors to confront patients with the statistical risks of childbearing, serious though they are; a doctor who did so on his own would strike many as intrusive, offensive and out of his mind. Should a woman seek abortion, however, anti-choicers are pushing state laws requiring that she be informed of a risk most experts do not believe exists: a link between abortion and breast cancer. Like the supposedly widespread psychological trauma of abortion, which even anti-choice Surgeon General Dr. C. Everett Koop was unable to find evidence of, the abortion-breast cancer connection is being aggressively promoted by the anti-choice movement. (Even Mother Jones, always quick to take feminists down a peg, leapt on this bandwagon, with an April/May 1995 piece entitled "Abortion's Risk.")
"It's yet another example of efforts to encumber this legal choice and make it more difficult and painful for women," says Dr. Wendy Chavkin, professor of public health and clinical obstetrics and gynecology at New York's Columbia Presbyterian Hospital, and editor in chief of the Journal of the American Medical Women's Association. It's also an attempt by anti-choicers to reframe their opposition to abortion as concern for women's health, something not usually high on their list. These are, after all, the same people who fight health exceptions to "partial birth" abortion bans and who have successfully prevented poor women from receiving medically necessary abortions with Medicaid funds.
Nonetheless, such is the power of the anti-choice movement that laws have been passed in Montana and Mississippi, and bills are pending in fifteen other states, mandating a breast cancer warning (and in some cases, a waiting period for it to sink in). Along with laws come lawsuits: In Fargo, North Dakota, the Red River Women's Clinic is being sued for failing to give such a warning; a 19-year-old Pennsylvania woman is suing a New Jersey clinic for her abortion two years ago, which left her, she claims, with an overwhelming fear of contracting breast cancer. In ferociously anti-choice Louisiana, a new law permits women to sue for damages--including damages to the fetus!--up to ten years after their abortion. Given today's high rates of breast cancer, a deluge of litigation is in the making.
Does abortion cause breast cancer? Some studies have appeared to suggest a connection: Dr. Janet Daling, for example, an epidemiologist who says she is pro-choice, compared the abortion histories of 1,800 women with and without breast cancer and found that, among those who had been pregnant at least once, the risk of breast cancer was 50 percent higher for those who had abortions--but her cancer-free sample was obtained through telephone interviews with women chosen at random from the phone book. Not everyone has a phone, of course, which raises questions about the comparability of the samples, and besides, how many women would volunteer information about their abortion history to a voice on the phone? Like other studies showing a link, this one was marred by "recall bias": Cancer patients are more likely to volunteer negative information about themselves than healthy people. They are looking for an explanation for a disease--and one many feel must somehow be their fault. Demographic studies, which are free from recall bias, produce different results: Lindefors Harris, analyzing the national medical database of Swedish women in 1989, found that women did deny their abortions, that breast cancer patients were less likely to do so--and that women who had had abortions were less likely to get breast cancer. The largest study to date, of 1.5 million Danish women, found no correlation.
"The supposed link between breast cancer and abortion is motivated by politics, not medicine," says Dr. David Grimes, clinical professor of obstetrics and gynecology at the University of North Carolina. "The weight of the evidence at this time indicates no association. To force this on women is just cruel." Indeed, the National Cancer Institute, the American Cancer Society and the World Health Organization, none of which have an ax to grind, reject the notion. The standard medical textbook, Diseases of the Breast, concurs. The main figure advocating the link is Dr. Joel Brind, professor of biology and endocrinology at Baruch College, who has done no original research on this issue but is a tireless anti-choice propagandist--plug "abortion breast cancer" into a search engine and the top half dozen sites are his.
Abortion is just about the only medical procedure in which doctors and patients are hemmed about by lawmakers. No other operation has legally mandated waiting periods, although many are dangerous, life-altering and irreversible; with no other operation are doctors legally required to give specific information--certainly not information that the vast preponderance of medical opinion believes to be false or at best unproven. Good medical practice calls for discussion of the pros and cons of particular courses of treatment, not burdening the patient's choice with unsubstantiated fears. Will we ever see a law requiring doctors to tell pregnant patients that abortion is statistically safer than carrying to term--which it is? Sure, the day state lawmakers put a waiting period on Viagra prescriptions, to let male patients really consider whether an erection is worth a heart attack.
The grand ambition of the Rev. Al Sharpton.
The reporting was scandalous, too.
Drive across the United
States, mostly on Interstate 40, and you have plenty of time to
listen to the radio. Even more time than usual if, to take my own
situation, you're in a 1976 Ford 530 one-ton, plowing along at 50
mph. By day I listen to FM.
Bunked down at night, there's
some choice on the motels' cable systems, all the way from C-SPAN to
pay-as-you-snooze filth, though there's much less of that than there
used to be. Or maybe you have to go to a Marriott or kindred high-end
place to get it. By contrast, the choice on daytime radio, FM or AM,
is indeed a vast wasteland, far more bleak than the high plains of
Texas and New Mexico I've been looking at for the past couple of
days. It's awful. Even the religious stuff has gone to the dogs. I
remember twenty years ago making the same drive through the Bible
Belt and you'd hear crazed preachers raving in tongues. These days
hell has gone to love. Christian radio is so warm and fuzzy you'd
think you were listening to Terry Gross.
By any measure,
and you don't need to drive along I-40 to find this out, radio in
this country is in ghastly shape. Since the 1996 Telecommunications
"Reform" Act, conceived in darkness and signed in stealth, the
situation has got even worse. Twenty, thirty years ago broadcasters
could own only a dozen stations nationwide and no more than two in
any single market. Clear Channel Communications alone owns and
operates almost 1,200 stations pumping out identical muck in all
states. Since 1996 there's been a colossal shakeout. Small
broadcasters can no longer hack it. Two or three companies, with
eight stations each, can control a market. Bob McChesney cites an
industry publication as saying that the amount of advertising is up
to eighteen minutes an hour, with the commercials separated by the
same endless golden oldies. On I-40 in Tennessee alone I listened to
"Help!" at least sixteen times.
The new chairman of the
FCC, Colin Powell's son Michael, has just made life even easier for
Clear Channel and the other big groups. On March 12 he OK'd
thirty-two mergers and kindred transactions in twenty-six markets.
Three days later, at the instigation of the FCC, cops burst into
Radio Free Cascadia in Eugene, Oregon, seized broadcasting equipment
and shut RFC down.
Michael Powell--actually installed on
the FCC by Clinton in 1997, no doubt eager to stroke Powell Senior at
the time--is clearly aiming for higher things than the FCC, and he's
certainly increased his own family's resources. His OK of the
AOL-Time Warner merger stands to net his father, a man freighted with
AOL stock options derived from his recent service on that company's
board, many millions of dollars. Michael insists there was a Chinese
wall across the family dining table and that he and Dad never chatted
about AOL. Why would they need to? If there's a hippo on the hearth
rug, you don't need to put a sign on it.
Is there any chink
of light amid the darkness of Radioland? Yes, there is. Several, in
fact. For one thing, the tide may be turning in the Pacifica fight.
In the recent meeting in Houston the national Pacifica board took a
beating in its effort to fix the bylaws so as to make it easier to
continue its mission of destruction. And recent court decisions in
California have favored courtroom challenges to the national board's
onslaughts on local control of stations such as KPFA.
all, the Pacifica Board is now reaping the consequences of its
forcible late-night seizure of WBAI offices last December and the
barely credible arrogance and stupidity of WBAI interim station
manager Utrice Leid, who on March 5 pulled the plug on Representative
Major Owens in the midst of a live broadcast because he dared discuss
A furious Owens has now raised a stink
on the floor of the House about Pacifica's highhanded conduct and has
put forward a plan to settle the row. Somewhere down the road we can
maybe see a scenario developing in which the Pacifica National Board
gets pushed toward the exit. Meanwhile, Juan Gonzalez, who resigned
from Democracy Now! recently, recommends: Don't finance the
enemy. Put your contributions to Pacifica stations in
And low-power radio? The commercial broadcasters
fought savagely all last year to beat back the FCC's admittedly
flawed plan to license more than 1,000 low-power stations. In the end
the radio lobby attached a rider to an appropriations bill signed by
Clinton late last year, with provisions insuring that low power would
never gain a foothold in cities, also insuring that the pirate
broadcasters of yesteryear, who created the momentum for low power,
could never get licenses. But make no mistake who the real villain
was. Listen to Peter Franck of the National Lawyers Guild in San
Francisco, who has been a leading force in the push for low-power FM.
"From talking to people in DC it is absolutely clear that if NPR had
not vigorously joined the National Association of Broadcasters in its
attempt to kill microradio, the legislation would not have gone
But all would-be low-power broadcasters should
know that right now there's opportunity. The FCC has been accepting
applications for licenses (in some regions the window has already
closed), and mostly it's been conservatives (churches included)
jumping in. In many states you can still make applications to the
FCC. Jump in! Contact the Lawyers Guild's Center on Democratic
Communications at (415) 522-9814 or Aakorn@igc.org, but first take a
look at their website (www.nlgcdc.org).
These fights are
all essentially the same, against the same enemy, whether in the form
of the Pacifica board or the directors of NPR or the NAB or the
government: the fight for democracy in communications. Here Franck
and others are already contemplating a deeper assault on the 1996 act
and the 1934 Communications Act, on constitutional grounds. The
purpose of the First Amendment is democracy. Democracy requires a
broad range of opinion. After sixty-five years of a commercially
based media system we have a narrow range of debate; this abuse of
the airwaves is therefore unconstitutional. That's a big fight, but
here it comes.
Adrian Wilson can't make a lobbying trip to
Albany anytime soon: The New York State Department of Corrections
does not escort its prisoners to the state capital for teach-ins. But
his story--typical of the 22,000 nonviolent drug offenders in New
York's cellblocks on any given day--could serve as the centerpiece of
the campaign now under way for the long-overdue repeal of the
notoriously punitive Rockefeller drug laws. In 1983 Wilson, an
African-American, then 29, was arrested for drug possession--his
first offense--and prosecutors offered him a plea bargain that would
have required him to undergo electroshock treatments and eight
months' incarceration. Wilson chose instead to exercise his
constitutional right to a trial. Convicted of possessing four ounces
of cocaine, instead of eight months he faced a mandatory prison term
of fifteen years to life.
No single moment in the history
of US criminal justice matches the destructive impact of the New York
legislature's 1973 session. That was when Governor Nelson Rockefeller
set the tone for a national wave of prison-packing schemes with the
drug laws that bear his name. As Wilson's case illustrates, the
Rockefeller drug laws combined two regressive criminal justice
policies into a new and potent brew: They prescribe imprisonment
rather than treatment for drug offenders, and they establish
mandatory minimum sentences and give the power to decide sentences to
the prosecutors, who choose charges, rather than to the judges
The outcome, repeated thousands of times
daily around the country: Nonviolent drug offenders like Wilson get
punished not in proportion to any presumed threat to society but for
daring to inconvenience prosecutors with a trial. With built-in
incentives for police and prosecutors to concentrate on low-level
users and with racial discrimination an inevitability, the
Rockefeller drug laws are the ancestor of just about every regressive
criminal justice policy since enacted--three-strikes laws, federal
sentencing guidelines and zero-tolerance police sweeps.
With the cost for imprisoning Rockefeller drug offenders
topping $710 million per year, Governor George Pataki has at last
proposed a package of reforms reducing minimum drug sentences and
expanding treatment. Assembly Democrats--many of whom have dodged the
issue for years until Pataki opened the door--have upped the ante,
proposing more sweeping discretion for judges and more money for drug
treatment. The Correctional Association of New York and a broad array
of activist, religious and legal-reform groups have launched a Drop
the Rock campaign (kicked off with a March 1 forum in Manhattan
co-sponsored by the Nation Institute), which on March 27 will bring
thousands to Albany for a day of teach-ins and citizen lobbying. Only
a handful of district attorneys, worried about losing their
sentencing leverage in plea bargains, are holding out for the
Rockefeller status quo.
So the question is not whether New York will reform but if reform will go far enough. Pataki's plan would not give judges any more discretion for Class B felonies, the most commonly charged drug offenses in New York, and would actually
increase some minimum sentences. Pataki would allow prosecutors to handpick the offenders tracked into treatment--a certain recipe for abuse and another usurpation of the proper authority of judges. Perhaps most important, Pataki has so far come nowhere near proposing a budget for drug treatment commensurate with the need. Drug-law reform without a commitment to drug treatment is a half-measure, similar to the 1980s deinstitutionalization of psychiatric patients
with no system of community mental healthcare in place.
New York, which for years styled itself as a pioneer in criminal justice
policy, is now playing catch-up to states like California, whose
voters last November overwhelmingly approved a treatment-over-prison
referendum for first- and second-time offenders, or Colorado and
Nevada, which have passed medical-marijuana measures. But the
Rockefeller laws are the founding charter of the failed war on drugs,
and their repeal would turn state reform tremors into an American
earthquake. In immediate impact on the lives of the poor and people
of color, and as a long-term shift in national priorities, there will
be no more important campaign this year. It's time to Drop the
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