Sunday, January 31, 2010

Dissing the First Amendment

I was going to write about Tennessee State Senator Tim Burchett (R. Knoxville) and his plan to make it a felony for a criminal defense lawyer to dis a crime victim.* As reported by Cara Kumari of WSM-TV in Nashville,
While lawyers have called this bill unconstitutional, Burchett said it is the right thing to do.

"If I was member of the legal community, I would quit wrapping myself up in the Constitution and start thinking about what's right," said Burchett.
There goes that pesky Constitution thing again. Always getting in the way. Fortunately, Kumari explains to the people of the Volunteer State that Burchett's proposal really might be a problem.
The reason it may be unconstitutional is because the burden of proof in a criminal trial is with the prosecution.
In fact, while she's right about the burden of proof, she's wrong about why such a law would be unconstitutional. It would be unconstitutional because it would violate the most fundamental of all rights afforded to criminal defendants: The right to present a defense. Oh, and it would be a hell of an infringement on free speech, too unless it was mighty carefully circumscribed.

As Gideon says, "The Constitution is a wet blanket."

But you know, it doesn't manage to smother all fires. Especially those that burn up books. (How's that for a segue?)

Consider the Texas Department of Criminal Justice and the books it's banned during the last five years. We know about this, and about the details, because Scott Henson over at Grits for Breakfast noticed that the Austin American-Statesman's Eric Dexheimer actually went through the lists.

The Statesman reviewed 5,000 banned books. That's 1,000 a year, which is whole lot of banning, but it's probably just a small percentage because, you see, unless someone appeals, the book is just put on the forbidden list and there's no ready way to get the skinny on it. But if there's an appeal, well, then, there's a decision. That's what happens 1,000 times a year.

Grits focuses his attention on both important and popular works. He notes that Texas prisoners can't read books by some National Book Award winners and finalists, Pulitzer Prize winners, even Nobel Prize winners. Quoting the Statesman, he notes
Harold Robbins, Pat Conroy, Hunter S. Thompson, Dave Barry and James Patterson belong to the don't-read fraternity. Mystery writer Carl Hiaasen does, too, as do Kinky Friedman and Janet Fitch, whose "White Oleander" was an Oprah's Book Club selection.
And he mentions that books with paintings by da Vinci, Michaelangelo, and others are banned.

The Statesman digs deeper, exploring how it is that pictures of naked babies with angel wings are allowed, but if there are no wings? According to Tammy Shelby, "a program specialist for the prison agency's Mail System Coordinators Panel,"who denies many of the appeals,
If he is naked, the Baby Jesus would be denied.
After all, you don't want those child sex predators all riled up.

The real problem, of course, is that none of this is coherent. Books are, as Shelby readily admits, banned without the censors having read them.
When a book arrives at a Texas prison mailroom, an employee first checks the database to see if the book is already prohibited. If not, said Shelby, "he'll flip it over and read the back." If that provides insufficient information to make a decision, "they scan through it looking for key words" or pictures that would disqualify the publication.
Let's see. They examine the book in order to see if they can "disqualify" it. And they don't read it, just check for "key words." If this seems backwards, well, it is. But that's the nature of book banning. It's about fear and superstition. And the decisions reek, as these things tend to, of arbitrariness.

Many of the rejections — "Fun Under the Swastika" — seem reasonable: Race-related violence is a real concern in prisons. Yet the prohibition has been applied broadly: "Friday Night Lights," the best-selling book about Texas football, was prohibited because of its exploration of racial themes in Odessa.

In October 2007, censors rejected "Coming Through the Fire," which was reviewed on "In this small but eloquent work, Duke University professor of religion and culture C. Eric Lincoln calls for a 'no-fault reconciliation' between the races." The following month, censors approved "The Hitler We Loved and Why," published by White Power Publications.

But that's the nature of censorship. It's the foolishness that goes with the territory. Random person notices something, and it's plucked from a shelf - or a cell.

The Texas prison report comes on the heels of a pair of school book bannings that have gotten some attention.

In Culpeper County, Virginia, they pulled the "definitive" edition of The Diary of Anne Frank (the version containing material that her father cut from the edition he released and that was the only one available for decades). As both Turley and Ken at Popehat noted, the book had been assigned to 8th graders but was pulled after a parent stumbled across and objected to Anne's vagina.

There are little folds of skin all over the place, you can hardly find it. The little hole underneath is so terribly small that I simply can't imagine how a man can get in there, let alone how a whole baby can get out!

Phew. Saved those 8th graders. The ones who have vaginas won't have to think such things about them and the ones who don't have vaginas now won't think anything at all. Surely banning the book will prevent teenage pregnancy. Certainly, the school district is apparently pleased that the dangerous passage was brought to its attention. Here, according to the Culpeper Star-Exponent, is what Jim Allen, "director of instruction for the school system" had to say.

“What we have asked is that this particular edition will not be taught,” Allen said from his office Wednesday morning. “I don’t want to make a big deal out of this. So we listened to the parent and we pulled it.”

There was no outpouring of community sentiment to get rid of the book. Focus on the Family didn't threaten a lawsuit. Pat Robertson didn't say anything about pacts with the devil or looming natural disasters. And, of course, the school didn't choose to defend educational standards or academic choice. A single parent complained and the school district was delighted to pull the book. It's the way things should be, Allen said.

“I’m happy when parents get involved with these things because it lets me know that they are really looking and have their kids’ best interest (in mind). And that’s where good parenting and good teaching comes in.”

Meanwhile, on the other coast, it's an elementary school. And a dictionary. This time it was Patrick at Popehat who caught the squeal.

You know, the problem with dictionaries is that they actually have, er, words. And definitions. The Menifee Union School District thought it would be a good idea for more advanced 4th and 5th graders to have access to a collegiate dictionary. Big mistake.

It seems a parent was volunteering in her son's classroom, and rather than working with the kids, was intrigued by this whole lexicon idea. One thing led to another and, wouldn't you know it, she found the entry for "oral sex." Of course, they pulled all the copies of that vile Webster's New Collegiate Dictionary off the shelves.

But wait. The Southwest Riverside News Network website posted an update.

Students at one Menifee elementary school will have the option of using an alternative dictionary rather than one that was temporarily removed from the classroom because of language a parent found objectionable.

Superintendent Linda Callaway announced Tuesday that a Menifee Union School District review committee met and determined that both the Merriam-Webster’s Collegiate Dictionary Tenth Edition and another dictionary will be available for use by fourth and fifth graders.

“We are aware that there may have been misinformation and/or misunderstanding with regard to this issue and it is important to clarify that at no time did the District state that the dictionaries were banned from the classroom,” Callaway said, reading from a prepared statement.

“We are confident that the Review Committee’s decision offers a reasonable resolution to this issue and there provides closure,” Callaway said during a school board meeting Tuesday in Menifee.

That's much better. Now there's a dictionary for kids who don't want to risk finding dirty words and one for those willing to take a chance.

Then there's Jason Rogers, who has three children in the school district. According to the original story on, he doesn't think the dictionary is a problem.

“You have to draw the line somewhere. What are they going to do next, pull encyclopedias because they list parts of the human anatomy like the penis and vagina?”

Well, yeah.

That's what they do at TDCJ.

And in Culpeper, Virginia.

But don't let them hear any complaining about it in Knoxville, Tennessee.

* That's not 100% fair. The news report actually says that the felony would be for "unproven insinuations" about crime victims, not for dissing them. Wait. There's really no difference, is there?

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