About Michael Jay Friedman

After practicing law for a number of years, Michael Jay Friedman returned to school and earned a doctorate in U.S. political and diplomatic history.||Today he heads the State Department team that produces books and other print publications describing American life, history, and culture to foreign audiences. Michael is the author of Free At Last: The U.S. Civil Rights Movement and other Department publications. He practices democracy at home, but routinely is outvoted by his wife and daughter.

The Berlin Wall: 20 Years Later

I cried when the Berlin Wall fell. But we’ll get to that in a moment.

Back in my long-ago youth, my übercool friends and I disdained the highly popular and hugely overrated Saturday Night Live comedy sketch show for the less viewed but vastly superior SCTV, a series produced by the Toronto, Canada based Second City troupe. The conceit was that SCTV was a really lousy independent television station and the sketches were programs broadcast on that station. Very, very late on Saturday nights (not even VCRs existed in this era), as my underage friends and I schemed ever more elaborate more plans to obtain beer, we chortled knowingly as Rick Moranis impersonated Dick Cavett interviewing himself. (Money line: “Woody and I tend to shy away.”)

On one memorable episode, a Soviet television station hijacked the SCTV signal, forcing westerners to endure braggadocio about the wonders of Soviet technology, represented by new Russian “mini-cams.” (Each could fill a house.) YouTube has preserved a sketch that nearly sent me to the hospital from uncontrollable laughter a quarter-century ago: I give you “What Fits Into Russia with Feliks Dzerzhinsky.”

Even in the late 1970s, it seems, the Soviet Union was something of a joke, and Dave Thomas is very funny as the Soviet blowhard. Except it wasn’t, and he isn’t. The real Dzerzhinsky, we might recall, founded the Cheka, the Bolshevik secret police, which, as Wikipedia rather primly puts it, “performed mass arrests, imprisonments, and executions of ‘enemies of the people.’” Nor was the Soviet Union was a joke during the SCTV era. As an important book about that time is entitled, from the Soviet viewpoint, The World Was Going Our Way. Before the microprocessor changed the world, a nation that excelled at refining iron and steel, at fashioning nuclear warheads, at forcibly imposing its ideology on other nations was a real force. The world changed in ways that made it impossible for the inflexible communist system to keep up, but that did not become clear for a while longer. It never was inevitable that the Cold War would end the way it did.

As the world celebrates the Berlin Wall’s demise, a brief history lesson is in order. The Soviet Union was evil. Like any regime dedicated to an ideology rather than the needs of real human beings, it murdered with abandon. Stalin killed millions more even than Hitler—his own people and others. And this does not count those who survived the gulag, those whose lives were mutilated by the lack of basic freedoms, and the entire nations deprived of their freedom and self-determination by force of Soviet arms and Soviet-controlled “indigenous” communist movements.

So yeah, I cried when the Wall came down. I was 27 years old, had never set foot in Europe, and in truth had never endured any loss of freedom greater than working in an air-conditioned office five days a week. I cried, and I was ashamed of every person I met that day who didn’t.

A personal note: I’ve been kicked upstairs to a position of greater “responsibility.” (This means less time in Microsoft Word and more in Microsoft Outlook.) I’ll be stepping back from this blog. But I’ll be reading it. And if the genius kids who run this space—I almost surely am older than Tanya and Michelle combined—get out of line (NOTE TO GENIUS KIDS: history did not begin with the election of Barack Obama), well… to quote a leading contemporary American political philosopher, “I’ll be back.”

On Eminent Domain

Back in my lawyer days, I frequently represented local governments. From time to time this would oblige me to prosecute an action “in eminent domain.” Eminent domain is legal speak for “the town needs a piece of your front yard to widen the traffic-clogged roadway that passes by your house.” The state’s ability to take land for a public purpose is an unquestioned attribute of sovereignty, limited in the U.S. by the Fifth Amendment to the Constitution: “…nor shall private property be taken for public use, without just compensation.”

From the fledgling attorney’s point of view, eminent domain cases were a way to pad one’s record. You couldn’t actually lose one. It was not unlike American college football, where State U. runs up a string of 64-0 victories against the hapless opposition (Marylanders: this does not apply to you. The idea is to win against the hapless opposition.) Homeowners might argue that their property was worth more compensation, but not that the town could not take the property. Many tried, and were crushed by my sage legal argumentation: “I represent the town. I win.”

But the key was that the state could only take private property for a public purpose. Until, many feel, Kelo v. City of New London. In that 2005 case, the Supreme Court held that the city of New London, Connecticut, could exercise eminent domain against private property —what some considered a poor, unsightly neighborhood — and then transfer that property to another private owner who promised to “redevelop” it into more desirable (and only tenuously public) uses that Justice Thomas characterized as “suspiciously agreeable to the Pfizer Corporation,” which had recently built a facility nearby.

Big-time political disputes ensued. Had the high court defined “public use” so broadly as to drain the constitutional language of all meaning? Some 42 states responded by enacting laws narrowing the eminent domain power.

But now comes news from New York, where the Court of Appeals will hear a Brooklyn case in which the state seeks to seize private property (another “blighted” neighborhood) in favor of a $4.9 billion project to include residential and commercial buildings … and a $170 million basketball arena for the NBA New Jersey Nets franchise, who would thereupon move to Brooklyn. Just to complete the picture, the Nets soon may be sold to Russian billionaire Mikhail Prokhorov, who has offered $200 million for an 80% stake in the Nets, and 45% in the new stadium.

My questions: has eminent domain gone too far? How ought we define “public use?” And can the tender egos of young lawyers stand losing a few cases?

Of Walls and Diplomacy

I believe it is important sometimes to pause and think a moment about those who sacrifice most deeply in the name of democracy. Here are two items that may encourage you to give pause.

First item, and a bit of shameless self-promotion it is. My office this week published a new book, The Berlin Wall: 20 Years Later. For those too young to recall, desperate East Berliners tried every means to traverse that wall. In the words of the historian David Reynolds: “the fugitives kept on coming — jumping from windows, cutting the wire, tunneling beneath the wall, even ballooning above it.” Over 200 died trying to cross over to democracy and freedom. Have a look at the book and let me know what you think.

Meanwhile, in 2009, the National Endowment for Democracy honored five Cubans persecuted for their advocacy of democratic rights within Cuba. Read here about their personal sacrifices. “Despite solitary confinement, beatings, the denial of medical care, and separation from family, all five have persisted in their cause, countering their oppressors with hunger strikes and organizing for the support of other political prisoners.” I was glad to see President Obama listed along with the other dignitaries offering messages of solidarity. But as an historian I was glad also to see the names Lech Walesa and Vaclav Havel right below Obama’s. The story of the Wall, it seems, remains pertinent today.

Fairness Doctrine

Following on my “One Man, One Vote, One Time” entry, I note as a bridge to discussing the proper regulation (if any) of media in a democracy, that the Chavez regime in Venezuela now apparently has driven many opposition radio stations off the air, citing improper “paperwork.”

In the United States, officeholders may be forgiven for assuming that the media effectively is the opposition. But, for radio and television (not newspapers) at least, it wasn’t always that way. From 1949 until 1987, the U.S. Federal Communications Commission enforced a policy called the “Fairness Doctrine.” As Wikipedia explains, it required “the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that was (in the Commission’s view) honest, equitable and balanced.”

A recipe, in other words, for boredom. My co-bloggers here, weaned as they are on modern news programs like Hardball, and CNN Ideology Deathmatch 2000 (ok, I made the last one up but watch some CNN exec grab the idea and run with it) cannot conceive how it used to be. Right between one’s favorite programs, a somber looking man or primly-dressed woman would appear on the screen as an even more serious voice intoned: “This is a Channel 9 editorial.”

“The management of this station,” my brother and I would learn, while wishing Big Suit would clam up so Bugs Bunny could start, “opposes littering. It is highly regrettable when citizens deposit their trash on the ground instead of in the supplied receptacles.” The key was that if Channel 9 took a stand on any issue one might actually care about, like the Vietnam War, or Yankees versus Mets, “honest, equitable, and balanced” would be a bit harder to achieve: “On the one hand, Walter, we must support our noble South Vietnamese allies; on the other, the people plainly prefer the Communist alternative…”

When the Fairness Doctrine ended, the gloves came off, but American conservatives were faster. Chafing under perceived oppression by the “liberal media, “conservative listeners flocked to right-wing talkers like Rush Limbaugh, and many radio stations began to program hard-hitting and often pungent conservative-themed talk programming. Some of it is informative; some is of the “Barack Obama is either a foreigner or a space alien” variety. (A liberal network now exists, but no one listens. Mostly because it’s boring.)

But with Democrats ensconced in both the congressional majority and the White House, rumors abound that the Fairness Doctrine is poised for a return. What do you think? “Deathmatch 2000” or “Crusade Against Litterbugs?” Are the Democrats trying, Chavez-like, to silence their opponents? And does the internet render the whole debate irrelevant?

One Man, One Vote, One Time?

Once it was much easier to determine which nations were functioning democracies and which not. Elections? Check. Rule of law? Check. But contemporary autocrats have grown adept at blurring the lines.

Take Venezuela’s Hugo Chávez. By all accounts the legitimate winner of presidential elections in 1998, 2000, and 2006, Chavez subsequently expended great effort to eliminate his nation’s presidential term limits. A leading opposition television station was driven from the air, its license renewal denied. The Mayor of Caracas, Venezuela’s capital, and a Chavez opponent, saw his offices taken over by what The Economist magazine called “chavista mobs” and his control of the municipal budget transferred to a new city official appointed by, well, one guess. This is hardly a comprehensive list.

But Chávez can argue that all these measures (save maybe the mobs) fell within the letter of the law. If so, does that make his regime a democratic one? Suppose a majority of Venezuelans support his policies?

More recently, the Honduran military sent legitimately elected President Manuel Zelaya packing when, defying Congress, the Supreme Court, and the Constitution of Honduras, he moved to organize a Chavez-style referendum to end presidential term limits. So who are the democrats there?

Or think back to Algeria in December 1991 when the Islamic Salvation Front won the first round of national elections. Many expected that the Front would win the second round and then, ensconced in power, take steps to forestall any further elections. “One Man, One Vote, One Time,” was the fear. Or so the Algerian military argued when it cancelled the second round of elections and banned religion based political parties.

Much we can discuss here. Does observance of the letter but not the spirit of the law make one a democrat? Should it make a difference? Democracy Digest quotes a Chilean official who cuts to the heart of the matter: “What happens when an elected president turns against the rule of law and attempts to destroy it?”

More on Diversity, Life Experience and Judicial Temperament

A few add-on thoughts to a post I did a few weeks ago. In my previous life as an attorney, in New Jersey (insert joke here), I heard stories—possibly apocryphal but I think not—about a certain state supreme court justice who had been raised, shall we say, in privilege. One day, while still a mere trial court judge, said legal genius presided over a tort action, a typical ‘slip-and-fall’ case of the type much beloved by the plaintiff’s bar. In ruling against the defendant supermarket, His Honor suggested the store had been negligent because it had not carpeted its floors. Surely, he reasoned, the plaintiff would not have been injured were the floor covered with a cut pile, possibly a plush.

The supermarket’s attorney objected, rather plausibly in my view, that customers couldn’t push their shopping carts down carpeted aisles. Silence from the bench. Gradually, it dawns on all present that the judge didn’t know what a shopping cart was! After all, as those who knew him better later admitted, “the help” always did the shopping for Judge’s family.

This is why diversity of life experience is so important. A supreme court justice who knows what it’s like to pay rent in a tenement house, or pick cotton, or for that matter meet a payroll, can better understand real-life nuances and, in my view, better dispense justice. And this diversity is especially useful on a court with only nine members.

But is being a Latina relevant? I think Judge Sotomayor means to equate her racial/ethnic heritage with a form of experience. But once we admit ethnicity and race, or as previous generations might more starkly have put it—blood—to the discussion, great mischief can follow. How to answer the bigot who suggests the Judge might be too “hot-blooded” for the high court? There are plenty of Catholics and Jews on the Supreme Court. Care to ponder the implications of that? I don’t. And I don’t think the discussion is good for American democracy.
Confusing experience with racial, ethnic, or other characteristics of birth raises all kinds of complications. Here’s one from the recent presidential campaign: should “affirmative action” apply to President Obama’s daughters when they apply to college? They add racial diversity, but is their life experience (except for Dad being President!) all that unique among students at elite institutions? I bet the first lady makes sure Malia and Sasha know what a shopping cart is, but the case for the uniqueness of their life experience is weaker than that for, well, Sonya Sotomayor.

Judge Sotomayor certainly is a Latina. She may prove a wise jurist, and this would be a blessing for our nation. But let’s keep the two separate.

On Nationalism and Democracy

Sonia SotomayorMuch has been made of how Supreme Court nominee Sonya Sotomayor numbered among her professional qualifications her status as a “wise Latina.” (She since has backtracked — sort of.) The focus on this decidedly non-jurisprudential issue reflects the nominee’s ability to elide practical, substantive discussion of her juridical philosophy — in this, she follows in the well-trod footsteps of every nominee since the 1987 mau-mauing of Robert Bork — and her opponents’ consequent inability to lay a glove on her.

The matter might be worth more thought. For me, the genius of the United States is that American nationalism is grounded not in blood, but rather in acceptance of a common creed, one featuring tolerance and common acceptance of democratic governance. (It is more complicated I know. But Tanya keeps me on a strict word count!) After all the bloodshed during the wars of the twentieth century, one sees great merit in defining a polity as a self-selected community of shared values rather than a group of kinsmen. Amazingly, at that century’s end, one still could read about the German-born children of Turkish immigrants to Germany, who, having lived in Germany all their lives, were ineligible for German citizenship… because of their ancestry. (Recent reforms have (partly) changed this.)

If the twentieth century taught us anything, surely it was to beware of associating social, political, or intellectual characteristics with race and with blood.

I am certain that Judge Sotomayor’s “wise Latina” remark was intended as a reference to her personal experience and not her genetic heritage. “When I choose a word,” Humpty Dumpty told Alice, “it means just what I choose it to mean, neither more nor less.” But potential Supreme Court justices, and presidents, and really all of us should be more careful than the typical ovoid. How much better for democracy if the argument instead were: “Home girl grew up in Co-op City [a working-class neighborhood in the Bronx, a less glamorous part of New York City] and has seen things no child of privilege ever dreamed of?”

This kind of argument, incidentally, would apply equally to Justice Clarence Thomas, who grew up in a Georgia community that lacked paved roads and a sewage system. It also would be more true to the wellsprings of American democracy.

Pimp My Congressman

It’s not easy being one of the old folks at America.gov. I run our book (sheets of paper bound together with glue) division but spend much of my work day blogging, tweeting, aggregating, and facebooking. I appreciate that new colleagues at least try not to drum their fingers on the table when I suggest gently that something called democracy did exist even before Meet Up, Move On, and the Obama Campaign SMS of the Day, and that sometimes it worked pretty well. Also, no one has yet called me “Grandpa,” and for this I also am grateful.

But now the kids have gone too far, what with their Internet and their reality TV. Behold the cnn.com series “Freshman Year.” Meet two newly minted Congressmen: the Utah Republican with the “smoking hot wife” and the rumpled, vegan, gay Democrat who boasts of having more Facebook friends than his Utah colleague. “You better make it fun, or people are going to tune you out,” he says. Be alert also for potential cameos by the U.S. Representative with the “six-pack abs.” (He usually turns up on Colbert Report.) If you have the good sense not to watch this dreck, Michelle Cottle describes it nicely here.

There is a lovely French term that one sometimes finds in real books and not on Facebook: fin de siècle. It refers to the passing of an era, and hints that moral, spiritual, and even intellectual degeneration is its cause. In more pessimistic moments, I wonder about how our new and fabulous information technologies affect representative government. Does Congressman Six-Pack represent fin de siècle democracy? Or can we vote him off the island? We might call it an election….

Too Much Democracy?

When a Philadelphia crowd gathered outside the 1787 Constitutional Convention asked Benjamin Franklin what kind of government the delegates had arrived at, his answer was “a republic, if you can keep it.” Significantly, Franklin did not use the word democracy.

The founders wanted a balanced regime. Of the legislative, executive and judicial branches, the voting public would directly choose only the House of Representatives, that is to say one-half of one-third of the national government. Subsequent years have witnessed constitutional amendments extending popular voting to the Senate and, mediated through the Electoral College, to the Presidency.

As our federal system permits, each of the fifty states has settled upon its own constitutional arrangements, and each thus addresses the question faced by the founders, and by subsequent generations of Americans: How Much Democracy?

The California State FlagMore perhaps than any other state, California’s answer has been “Bring it on!” Californians can call for new laws by “initiative” and pass them by referendum. Unlike other states that employ these procedures, California’s legislature cannot override the results. It instead remains busy trying to muster the two-thirds majority required to adopt a state budget. By one count, the poor, tortured California constitution has been amended or revised over 500 times, and is several times longer than its federal counterpart.

And today California is broke. One problem: even as Californians vote themselves tax reductions, they also pass new laws requiring larger expenditures—from appropriations for stem-cell research to costly “three-strike” laws mandating long and expensive prison terms for non-violent offenses. Some now argue for a new state constitutional convention, one that might, among other reforms, temper the state’s experiment with direct democracy.

Hence my question: does California have too much democracy?

Does Libel Tourism Threaten a Free Press?

Countries define defamation, whether written (libel) or oral according their own legal standards and social norms.

In the United States, the Supreme Court decision New York Times v. Sullivan (1964) established that the Constitution protects even false statements about “public figures.” To prevail in a libel case, such a figure must prove not only that what an author or reporter wrote was wrong, but that the author knew it was false (or else acted in reckless disregard of its truth or falsity.) By placing the burden of proof on the plaintiff, the U.S. standard maximizes press freedom, but makes it more difficult for an individual to protect his reputation. In Great Britain, by contrast, the burden is on the defendant to prove the truth of an allegedly defamatory statement. As a result, many British publishers would prefer to settle libel cases, even pulp offending books, rather than risk hefty damage awards, or the litigation costs required to prove “truth.”

So far, a case of different nations/different standards. Plaintiffs, of course, frequently choose to sue authors and publishers in Britain — known to some as “Club Med for Libel Tourists.” But again, different countries/different laws, right?

Enter the internet, and a terrorist financing expert named Rachel Ehrenfeld. Her book, Funding Evil: How Terrorism is Financed—And How to Stop It, was published in the U.S., and not in Britain. But about two dozen Brits managed to buy copies on the internet. Sheikh Khalid bin Mahfouz, named in the book as “alleged to have deposited” funds into terrorist accounts, and a veteran plaintiff in British libel court, sued Ehrenfeld—in British court. Ehrenfeld declined to defend the suit, asserting that she neither lived nor worked in Britain, and that her book had not been published there. Regardless, a British court ordered the book’s destruction, and that Ehrenfeld both apologize publicly and pay $200,000 damages.

American courts normally could be required to enforce a British judgment. But U.S. legislators began to take notice. The New York legislature passed a new law declaring unenforceable in that state foreign judgments contrary to a party’s First Amendment free speech rights. Congress now is discussing a similar law, dubbed the Free Speech Protection Act.

A number of interesting issues here. What is an appropriate legal standard for libel? Should one country’s judgment be honored by another whose standard is more (or less) restrictive? Whose law controls when the internet routinely carries words and images across national boundaries? A lot to discuss. I hope we can hash this out on the discussion boards.