Month: November 2014

As a victim of Yale University’s rush to abandon
any pretense of fairness in sexual harassment cases, Patrick Witt
has quite a sad tale to tell. The college football player, NBA
hopeful, and Rhodes Scholarship candidate lost everything after
Yale mishandled an informal sexual harassment accusation against
him. Now Witt is a law student at Harvard University and he is
worried his new college is equally committed to trampling accused
students’ due process rights.

Witt recently penned a column for
The Boston Globe detailing the travesty of justice that
ruined all his plans and put his life on hold. Relevant
excerpts:

Harvard’s new policies are substantially similar to those
already in effect at Yale, my alma mater. While an undergraduate
there, my ex-girlfriend filed an informal complaint against me with
the then-newly-created University-Wide Committee on Sexual
Misconduct. The committee summoned me to appear and styled the
meeting as a form of mediation. Its chairman, a professor with no
prior experience handling dispute resolution, told me that I could
have a faculty adviser present but no lawyer, and instructed me to
avoid my accuser, who, by that point, I had neither seen nor spoken
to in weeks. The committee imposed an “expectation of
confidentiality” on me so as to prevent any form of “retaliation”
against my accuser.

I would say more about what the accusation itself entailed if
indeed I had such information. Under the informal complaint
process, specific accusations are not disclosed to the accused, no
fact-finding takes place, and no record is taken of the alleged
misconduct. For the committee to issue an informal complaint, an
accuser need only bring an accusation that, if substantiated, would
constitute a violation of university policy concerning sexual
misconduct. The informal “process” begins and ends at the point of
accusation; the truth of the claim is immaterial.

When I demanded that fact-finding be done so that I could clear
my name, I was told, “There’s nothing to clear your name of.” When
I then requested that a formal complaint be lodged against me — a
process that does involve investigation into the facts — I was told
that such a course of action was impossible for me to initiate. At
any time, however, my accuser retained the right to raise the
complaint to a formal level. No matter, the Committee reassured me,
the informal complaint did not constitute a disciplinary proceeding
and nothing would be attached to my official record at Yale.

Nevertheless, Witt’s employer, the Rhodes Trust, The New
York Times, and the public at large eventually found out about
the accusation. He was disgraced but unable to rectify the matter,
since the claim was never investigated or adjudicated in any
logical way. Witt’s dream of playing in the NFL was crushed, he was
forced to withdraw his Rhodes Scholarship candidacy, and his
employment ended.

Witt warns that “the destructive power that Yale’s and now
Harvard’s new sexual misconduct policies wield is immense and
grossly underestimated.” For what it’s worth, 28 members of
Harvard’s law faculty
agree—and signed a letter saying so. Sexual harassment and rape
are serious issues that demand serious responses. They should not
be dealt with by kangaroo courts or extra-legal inquisitions.

Read Witt’s full story
here.

Well there’s
already good news on today’s Election Day. The 2012 Libertarian
Party candidate for president, former New Mexico Gov. Gary Johnson,
has announced that he’s running for the 2016 LP nomination.

He directly addressed how his views differ from Sen. Rand Paul
(R-Ky.), the most libertarian likely candidate from a major
party:

“On half the issues he’s right, but on the whole social issue
thing…. Look, libertarians are flaming liberals when it comes to
social issues, when it comes to civil liberties. A woman’s right to
choose, drug reform, immigration, marriage equality. He’s not
there.”

Johnson, who ran with Judge Jim Gray, pulled about 1.3
million votes and 1 percent of the overall total. That was the best
showing for the LP since 1980.

In an interview with Newsmax, Johnson laid out his reasons to
campaign again. Here’s a snippet of the interview (which includes
video and a transcript):

“The whole election is a big yawn. Who cares who wins,
because nothing’s really going to change? It’s like a debate
between Coke and Pepsi. They’re debating over which one tastes
better,” he said.

“They start talking about tax policy, Coke wants to reduce the
corporate tax rate to 30 percent, and Pepsi wants to drop it to 28
percent. 

“Where’s the libertarian viewpoint, which says do away with it
completely? Do away with income tax, corporate tax? Abolish the
IRS. If you’re going to replace it with anything, replace it with a
national consumption tax. That’s real meat on the bones. I just
don’t see any meat anywhere.”…

“People are clamoring to hear good ideas as opposed to the
lesser of two evils . . . Either the Democrats are going to win or
the Republicans are going to win, but the losers are all of us out
here as citizens that really do want meaningful change, and none of
it’s happening. There’s no dialogue regarding meaningful
change.”

More here.

Back in 2012, Reason ran a series of articles, each making “the
libertarian case” for the Democratic, Republican, and Libertarian
presidential contender. I authored the one arguing in favor of
Johnson.
Read that (and the others) here.

Back in 2011, Reason TV followed Johnson as he talked with
Occupy Wall Street protesters in NYC. Take a look:

Today is the official release
date for my book Overruled: The Long War for Control of the
U.S. Supreme Court. It’s available at
Amazon,
Barnes & Noble, and everywhere else books are sold
online.

Here’s what the early reviewers are saying:

“A riveting account of the raging debate over the future of our
Constitution between those who contend that judges must ‘defer’ to
legislatures and those who view the judiciary as an equal branch of
government whose mandate is to secure the rights and liberties of
the people by holding government to its just powers. Root reveals
the inside story behind the surging movement to restore
constitutionally-limited government. I loved this book.” —Randy E.
Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown
University Law Center, and Director, Georgetown Center for the
Constitution

“An intriguing account of judicial and economic policy
reflecting controversies within conservatism over civil rights and
other issues.”—Kirkus Reviews

“In Overruled, Damon Root explains a divide in judicial
theory about which I was not only ignorant but mistaken. ‘Judicial
activism’ is wrong. Right? It gives unelected authorities
minority power to impose rules and regulations that violate
individual rights without a democratic process. Wrong. It’s
‘judicial deference’ that gives elected authorities majority power
to impose rules and regulations that violate individual rights
within a democratic process. And to further confuse the issue
judicial activism and judicial deference have, by turns, been the
darlings of both Liberals and Conservatives. Fortunately, Damon
Root explains it all.”—P. J. O’Rourke, journalist and H. L. Mencken
Research Fellow at the Cato Institute

“The conflict between judicial activism and judicial restraint
has been part of the Supreme Court since its inception. In this
book, Root, senior editor at Reason magazine, takes a
fresh look at activism vs. restraint by placing judicial
interpretation at the center of the ideological disagreements
between libertarians and conservatives that have taken place
throughout U.S. history…. The segments about gun control and the
Affordable Care Act are especially compelling.”—Library
Journal

“Damon Root, whom I have had the pleasure of interrogating on
television, understands the concept of personal liberty in a free
society better than many members of the legal profession; and he
knows, too, that the Constitution was written by men who properly
feared the numerous insidious ways that government assaults our
natural rights. In Overruled, he shares his knowledge and
uncanny ability to explain liberty lost with his readers. This book
is nothing short of a lucid and brilliantly crafted history of the
Framers’ fears coming to pass at the hands of a judiciary faithless
to first principles. Read it today so you can anticipate and
understand the judicial contortions coming tomorrow.”—Hon. Andrew
P. Napolitano, Senior Judicial Analyst, Fox News Channel,
Distinguished Visiting Professor of Constitutional Jurisprudence,
Brooklyn Law School

Perhaps you’d like to peek inside the book and read an excerpt?
Amazon
will let you do it.

• Governor Chris Christie (R-N.J.), who was
  re-elected last year in a heavily Democratic state, is in
  Pennsylvania campaigning for Governor Tom Corbett (R-Pa.), who
  is expected to lose handily today in the fairly evenly divided
  state. Voters all over the
  United States are going to the polls to vote for candidates for
  governor, Congress, and on various ballot initiatives. The
  White House is pre-emptively blaming unhappiness on what’s
  expected to be a poor showing by Democrats today.
• One World Trade Center in
  New York City will receive its first tenants Monday.
• The United Kingdom’s new spy chief,
  Robert Hannigan, says privacy is not an “absolute right” and
  insists on a “new deal” that will permit government more control
  over technology companies, for safety.
• The European Union
  condemned “illegal” elections in eastern Ukraine held by
  pro-Russian separatists and won by pro-Russian separatists. The
  winners are expected to be sworn in today.
• Plans are moving forward in Israel
  to build 500 new settler homes in East Jerusalem.
• France, which has the biggest space agency in Europe, also has
  its only team of government UFO hunters.

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The release of that viral street
harassment video last week prompted all kinds of interesting
reactions:
some took the strong this-is-awful-and-must-stop position,

some agreed street harassment was bad but not everything in the
video qualified,
others criticized  the problematic racial aspects of the
video, while still
others wondered what was so wrong with black and Latino men
giving compliments to women on the street.

As a libertarian, I had nothing special to say about the video
at first—harassment is bad, leave people alone, etc.— but then
the conversation took a predictable turn. Should the government
ban catcalling and police street harassment more aggressively?
Some people think so. The New York Times featured
a discussion on the topic. Here was the opinion of one legal
scholar, Northwestern University’s Laura Beth Nielsen:

The police may largely ignore harassment on the street because
men often do not understand how pervasive it can be, but most
importantly because there are no laws being violated in such
encounters. About two thirds of women report that they hear such
comments every day, but men’s estimates of the frequency of such
remarks is significantly lower. All of the women I
interviewed for my
researchreported changing their routes, behavior,
transportation or dress to avoid street harassment.

I’d propose a law that would prohibit street harassment and
would also be consistent with our First Amendment jurisprudence
about other kinds of hate speech (cross-burning
in Virginia vs. Black) that intimidates, harasses and
perpetuates inequality. It would allow states and cities to
recognize street harassment for what it is: physical and
psychological acts that intimidate, exclude, subordinate and
reinforce male dominance over women.

Empower the government to arrest people for giving unsolicited
greetings in public? Egads, what a terrible idea! (It’s as if
Nielsen was cognizant of the fact that libertarians were feeling
left out of this discussion and wanted to find a way to include us.
That’s nice of her, wrong though her opinion is.) New York City
cops certainly don’t need another reason to arrest black and Latino
men on the streets, for one thing. For another, trusting agents of
the state to correctly distinguish between protected and
unprotected speech is a tall order in the most favorable of
circumstances, and would only get worse if a broad new category of
speech was outlawed—to say nothing of the unlikelihood of such a
law passing a First Amendment test.

“Street Harassment Shouldn’t Be a Crime,”
agreed Lizzie Crocker of The Daily Beast. Crocker
chided Hollaback!, the organization behind the video, for
supporting efforts to legislatively prohibit such behavior and
claimed that “according to Hollaback’s mission statement, the group
is interested in modifying the law to punish offenders (and raising
significant First Amendment concerns).”

I poured over Hollaback!’s
website looking for evidence of this claim and was prepared to
skewer the group for pushing a pro-censorship and
pro-criminalization agenda. Alas, I found nothing of the sort.
Hollaback!’s strategy revolves around building a public awareness
campaign to shame street harassers into changing their ways. The
group does not specifically call for any sort of legislative
action, as far as I can tell.

To clarify the matter, I reached out to Emily May, co-founder
and executive director of Hollaback! She forwarded me a column
written by the group’s deputy director, Debjani Roy, about
“Finding Effective Solutions to Street Harassment”:

When it comes to combating street harassment, increasing
criminalization is not the answer.

The criminal justice system disproportionately targets and
affects low-income communities and communities of color, as
evidenced by more recent policies such as New York City’s Stop and
Frisk program and other degrading forms of racial profiling. Our
objective is to address and shift cultural and social dialogues and
attitudes of patriarchy that purport street harassment as simply
the price you pay for being a woman or being LBGTQ. It is not to
re-victimize men already discriminated against by the system.

So there you have it. Hollaback!—the organization behind the
viral street harassment video and primary activist group fixated on
this issue—does not support criminalization as an answer to the
problem. No one else should, either.