RUNNING NOTES for DO ASK, DO TELL: WHEN LIBERTY IS STRESSED

These are additional footnotes accumulated since submission for publication:

The book text is at

http://www.doaskdotell.com/content/bktxt02i.htm

Introduction:

Regarding my point that personal responsibility should incorporate accountability to the varying needs of others, and the suggestion that gay marriage and adoption (and military service) would provide an opportunity for gays to achieve this publicly, the religious right has been running towards collectivism in what it thinks is the new threat of gay marriage, after Lawrence v. Texas on sodomy laws. Social conservatives seem to be taking the poisoned bait.

Here is what a wrote to a couple of friends very recently:

What disturbs me the most about all this now is how the religious right is backtracking to wanting to punish gays for, to put it bluntly, separating themselves from baby-making.

The whole basis of the "moral' theory" is that limiting sexuality to procreative contexts is what (in their minds) provides a "collective" way to make sure that children are raised (by committed mothers and fathers) and that other dependent family members (the eldery, especially) are cared for.  Or to put it even more bluntly, to channel every adult into participating in a committed way in raising the next generation, as well as caring for the previous one. In their view, this one "universal truth" rule is supposed to generate a kind of social justice, although we all know that the experience of history is that it familism tends to disintegrate into tribalism. They may cite religious reasons, but it is the psychological thinking that matters. Many people have invested a great deal in the old way of thinking of things and don't want their props knocked away. Complemtarity (in hetereosexual marriage), according to writers like George Gilder, is what is supposed to brake reckless competition among individuals.

Yet, it is interesting also that the religious right is resorting to "collectivism" because rational arguments (personal responsibility in the usual sense) no longer work.  Kennedy took all that away from them in Lawrence.

A few conservatives, in fact, complain that the "federal marriage amendment" is not enough. They want another amendment to allow sodomy laws and deny domestic partner benefits altogether. Pretty scary.

Wounded animals can be dangerous.

Remember, too, that one of the things about Paul Rosenfels's thinking at the Ninth Street Center in the 1970s and 80s was the idea that intimate relationships should be privatized and serve the the psychogical growh interests of the partners in a relationship. Yet Paul also believed that people seriously interested in pyschological growth should shun publicity and sequester themselves in relatively sheltered communities (like the East Village in NYC) because the larger society would not be able to tolerate this.

It is ironic that right now one of the reasons for my move back to DC is to be prepared for caring for my mother if that becomes necessary.

Inauguration Day. 2005: Here are a few quotes from the address by George W. Bush, that seem to fit the tone of the end of my Introduction “The Winding Road Toward Liberty””

“The survival of liberty in our land increasingly depends on the success of liberty in other lands.”

“There is only one force of history that can break the reign of hatred and resentment and expose the pretensions of tyrants and reward the hopes of the decent and tolerant. And that is the force of human freedom.”

“In America's ideal of freedom, the exercise of rights is ennobled by service and mercy and a heart for the weak. Liberty for all does not mean independence from one another. Our nation relies on men and women who look after a neighbor and surround the lost with love. Americans, at our best, value the life we see in one another and must always remember that even the unwanted have worth.”

“Make the choice to serve in a cause larger than your wants, larger than yourself, and in your days you will add not just to the wealth of our country but to its character.”

“In America's ideal of freedom, the public interest depends on private character -- on integrity and tolerance toward others and the rule of conscience in our own lives. Self-government relies, in the end, on the governing of the self.”

“In a world moving toward liberty, we are determined to show the meaning and promise of liberty.”

Inaugural Address for Jan. 20, 2005 from President George W. Bush: http://www.cnn.com/2005/ALLPOLITICS/01/20/bush.transcript/index.html

Chapter 2:

Randy E. Barnett, in “Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas,” Cato: Supreme Court Review 2002-2003 believes that Justice Kennedy makes a distinction between “fundamental rights” and “liberty interests.” “He spends all of his energies demonstrating that same-sex freedom is a legitimate aspect of liberty—unlike, for example, actions that violate the rights of others, which are not liberty, but license.”

Barnett then goes on to connect liberty interests to the Fourteenth Amendment, using an argument that due process of law includes judicial review, even at the federal level in reviewing state laws (under federalism). Laws which compromise :liberty interests” because non-specific moral concerns (related to religion or some peoples’ “family values”) might easily lapse over into majoritarian tyranny.

This needs to be put into perspective, however, with the notion that in a democracy various groups will affiliate to advance their economic, cultural and psychological interests, even if their proposals run the risks of compromising the liberty of some people. My own father used to say, “The majority has rights, too.”

President Franklin Roosevelt, in a speech in January 1941, postulated the Four Freedoms: (1) speech and expression (2) worship (3) freedom from want (4) freedom from fear, as fundamental rights. Freedom from “want” would be a social right, supported by legislated redistribution of wealth.

I have argued in all my books against letting the law go too far in trying to implement some definition of “morality” beyond harm to others. Yet it is clear that liberty, even understood as having a large component of self-direction in relation to others, must consider actions of people in a collective or downstream context as well as immediate “consequentialism.” Generally, an action is likely to be regarded as wrong if harm would come if too many people committed it (or omitted it) and if there is a natural inclination or incentive for people to perform it. In some cases, this rises to the level of statutory pr “positive law” prohibition, either criminal, civil or both. But we must be cautious about that. For example, consider spam. There is a temptation for people to profit quickly from loopholes in technology and law, at great expense to the Internet community as a whole. But the market (better filters to prevent fraudulent headers and the ability to charge the sender) are better solutions that criminalization. Some practices inspire social disapproval that is far from universal. Making a living from a pyramid scheme may seem manipulative or exploitative, but it might have a constructive purpose. Homosexuality has, until more recent decades, attracted condemnation that starts as religious but really seems to some people as a way to “cheat the system” by not procreating. Disapproval has receded as respect for private choice and individual expression increases. In general, however, we are migrating towards an awareness that common social goods (“family values”) may be well served by individualism when the culture (through the market more than through law) strengthens individual accountability (for past mistakes or performance) and authentication (through meeting the needs of others).

American law is quite energetic in regarding private property as a fundamental right (explicitly so in the 14^th Amendment), and some commentators feel that the United States Constitution goes out of its way to protect pre-existing property rights from democratic “veto points.” See Christopher Jencks, “The Low-Wage Puzzle,” The American Prospect, Jan. 2004.

Some scholars think that the “lost” 13^th Amendment, the “Titles of Nobility Amendment” from 1810 was really ratified; see http://www.newhousenews.com/archive/story1b070500.html (My mind wanders here, as I recall a friend’s letter in the days of the draft as mentioning my sense of “nobility” about military service.)

In the gay marriage debate, David Blankenhorn and others have suggested the idea of a “birthright” (to a mother and a father) as instrumental to social policy, like a social right, in the place of “equality.” Of course, then what next, the right to be in a home with a stay-at-home mom? See the gay marriage survey.

Free speech, as often noted, is less strongly protected even in western countries than the United States, as our Bill of Rights places a great value on it. In Canada (like Germany) there is a strong hate propaganda law, and there is now a Bill C-250 that adds sexual orientation to the hate propaganda law, supposedly making criticism of homosexuality a crime. John Leo weighed in on this with an op-ed “Support for free speech disappearing from the Left” in the April 15, 2004 The Washington Times. Alan Borovoy, general counsel of the Canadian Civil Liberties Union, said “Canada is a pleasantly authoritarian country.” The bill is supposed to exclude religious writings. Nevertheless, the Saskatchewan Human Rights Commission fined a newspaper and religious advertiser for listing biblical passages opposing homosexuality, and in British Columbia a teacher was suspended for personally written newspaper editorial letters arguing that homosexuality could be changed. Of course, this gets touchy because some sensitive jobs may reasonably require that their jobholders be silent on everything. Leo also reports of government legal censorship of antigay speech in Sweden and Britain. Now, I suppose some of my own books and website would be illegal in these countries. I present the antigay arguments for the purpose of answering them (especially the “family values” arguments now important to the gay marriage debate, as well as arguments about unit cohesion in the military), yet the mindset of laws like this would be that my even presenting and answering them dignifies them. Would Jonathan Rauch’s intellectually satisfying study of gay marriage be banned because it presents views opposed to gay marriage as well as his own views supporting it? If I visited a Muslim country right now, would I be arrested because I run a website that has a lot of criticism of radical Islam?

One important other point to me: one has a fundamental right to do something (like protest) because it is a fundamental right, not just because one is oppressed. Of course, equal protection complicates this concept (in both directions). But, again, fundamental rights refer mainly to protection from government. In a broader sense, fundamental rights would seem to incorporate the right to be free from harm by others (and that could be direct attack or unfair treatment or discrimination). This is possible only in a society ruled by law, so the law has to balance the different claims from individuals and entities at all kinds of subtle levels. That means that there can be rules about what is fair for one person to do on his own, even when he or she feels some kind of insult or oppression.

Here is a good question: Is “self-promotion” a fundamental right? Does that follow from the “life, liberty and property” clause of the 14^th Amendment? Does it have to be balanced by some kind of staged accountability to others?

When I mention Kaplan’s “tradition” argument with respect to segregation, the evolution is Plessy v. Ferguson (1896) evolving to Brown v. Board of Education (1954). That is, “separate but equal” might have come to be perceived as less tenable for children in a school system than in other public accommodations (according to the thinking in the 1950s). See my oldcourt link.

Roosevelt's inaugural address of January 11, 1944, asked Congress to adopt a "second Bill of Rights": guarantees of work, adequate housing and income, medical care and education, among others—promises designed to extend the New Deal (and thwart the appeal of communism). (Book by Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever (Basic Books, 2004)

One should note that “freedom of the press” may be a little more specific than “freedom of speech” in the First Amendment. Reporters with press credentials can gain admission to secure areas and events that a self-publisher cannot. There is legal controversy over the right of a reporter to keep his sources confidential in the case of compelling state interest. A Time magazine reporter (Matthew Cooper) has been held in contempt for refusing to testify in a DOJ probe of the leak of a CIA operative’s name (Aug 2004). The story is at http://www.cnn.com/2004/LAW/08/09/leak.probe/index.html See another note below.

Steven Greenhut supplies an op-ed “Property rights aren’t important only to developers, big business” in the Aug. 19, 2004 Free Lance-Star, Fredericksburg, Va., where he backs up the idea that the Bill of Rights should protect the small property owner, but that ever since a decision by the Michigan state supreme court in 1981 that allowed the state to take over a neighborhood “Poletown” for the benefit of General Motors, governments have favored business establishment interests in eminent domain cases, in contradiction to due process. Another important case was in 1954, Berman v. Parker, when the liberal Warren court allowed the District of Columbia (under the authority of Congress without home rule) to take over land for private developers.

Chapter 3:

Notes are at http://www.doaskdotell.com/content/trism.htm

This would be the appropriate place to mention HR 4777, a bill to ban all forms of online gambling in the United States, and to prohibit credit card and other electronic payments to offshore sites that sponsor gambling. The bill passed the House on July 11, 2006 317-93. The Washington Post story is by Shailagh Murray and James V. Grimaldi, July 12, 2006, “House Passes Bill to Restrict Internet Poker: Legislation Would Forbid the Use of Electronic Payments. One rationalization of the bill is to prohibit money laundering that supports terrorists, drug dealers, and possibly child pornography. The bill would update the 1961 Wire Act, which prohibits using wire-based entities like telephone and telegraph to transmit wagers, to include the Internet. The Senate has a bill that makes exceptions for dog racing, online lotteries, and various other games. Here is a link: http://www.internetnews.com/bus-news/article.php/3603651 Here is another: http://www.pokerlistings.com/poker-players-alliance-fights-for-pokers-rights-1386

This bill (The Internet Gambling Enforcement Act, which had been connected to a homeland security ports security bill) was singed in to law on Oct 13, 2006 and would prohibit all credit card transactions or electronic funds transfers or checks for online wagers for most gambling, effective immediately. The Washington Post story is by Frank Ahrens, “New Law Cripples Internet Gambling: Banks are barred from handling transactions,” The Washington Post, Oct. 14, 2006. Responsibility for compliance goes with the financial institutions. If a user goes to a gambling site from the US, he or she probably cannot legally place and place online deposits for most wagers, although the site itself is probably not illegal. When must an individual be his brother's keeper? More often than he wants to know.

Jacob Sullum, of the Washington Times (“Online Gambling Default”, Oct. 27, 2006) maintains that this gambling was actually illegal domestically earlier, and that people can still pay for wagers through overseas hosted sites with “electronic checks, money orders, the U.K.-based Neteller system and credit card transactions processed in other countries.”

Jim Holt has an essay in The New York Times Magazine, p. 15, Dec 4, 2006, “The New, Soft Paternalism: When compulsive gamblers and others ask the state to restrict their choices, do they become freer?” In Missouri and Michigan, compulsive gamblers can voluntarily put themselves on a blacklist, that lists for a lifetime, that casinos must check before letting them gamble. It would seem that placing oneself on a blacklist could be part of plea bargains in the future. (Imagine a “voluntary sex offender” list based on pre-crime; Ohio is close to having that.)

Chapter 4:

In January 2003, Rep. Charles Rangel (D-NY) introduced legislation in Congress to restore the draft with mandatory military service for both men and women. He says that his motive is to make average citizens aware of the potential sacrifice of going to war with Iraq or other entities (as with the war on terror). He is particularly concerned that most members of Congress do not have kids or spouses in the military and may not feel particularly personally affected (a situation that contrasts sharply from the time of the Vietnam War). However, Secretary of Defense Donald Rumsfeld told Larry King, “absolutely not” in answer to a question as to whether the Pentagon wants a draft again. Rumsfeld sees sufficient pay as the proper incentive for military service. Charles Moskos did come out with a widely publicized statement (Jan 3, 2002) that a resumption of the draft should be accompanied by rescinding “don’t ask, don’t tell” and the military ban. In an account from CSSMM, “But he said the draft was a "higher virtue" than the privacy rights of straight soldiers, which he has frequently cited in his opposition to letting gays serve openly with straights.  He added that instituting the draft would require ending all forms of the gay ban.  ‘You can't use a gay ban with a draft because that would make it too easy for people to get out,; he said.”

Moskos has been particularly articulate about the observation that in a volunteer force a disproportionate percentage of servicemembers come from poorer backgrounds (even with better pay today), and one of the arguments against the gay ban has been that military service is often a good entry point into later civilian careers for persons with disadvantaged backgrounds. The “benefit” of military service in forcing persons of different backgrounds to mix socially is well documented.

Contacts on the CSSMM statement

Aaron Belkin, Director
Center for the Study of Sexual Minorities in the Military University of
California, Santa Barbara 805-893-5664; belkin aattt polsci.uscb.edu

http://www.gaymilitary.ucsb.edu/ is the website for CSSMM

Charles Moskos
Department of Sociology
Northwestern University
011-31-20-320-7499 (in Amsterdam)
c-moskos AaTt nwu.edu

In conjunction with the notes for the next chapter, some jobs of a “national service” or “community service” nature can include unexpected incidents of forced intimacy on the job. For example, civilian engineers sometimes work and live on Navy ships, and some civilian law enforcement training programs (like the FBI Academy at Quantico, VA) require recruits to live together while training, in a military-like setting. Of course, this observation is well known for fire departments (including volunteer fire services in rural areas). Obviously this happens, in a way, in medicine, nursing and custodial care. Some teaching and teaching assistant positions (such as those with elementary or preschool, gym or in special education, as well as, obviously, daycare) sometimes can create moments of unexpected “intimacy.” Substitute teachers may sometimes intend to teach only in academic settings but find themselves in unusual situations (physical education with locker rooms and showers, or special education, or public health training). (See wchap5.htm, note 157). The point is that carrying out the messy work in an imperfect world can lead to these kinds of problems. One might be expected to “pay his dues” by contingently working in a situation of forced intimacy. So Sam Nunn’s argument about “privacy” of heterosexual soldiers in the barracks could have legal implications in other areas. Does, following the example or informal precedent set by the statutory 1993 “don’t ask don’t tell” military policy, a client have some kind of constitutional right of “privacy” not to be put in an intimate setting with a publicly self-announced or self-published homosexual (even assuming that the individual homosexual does nothing “wrong” on the job and has a clean police record)? The capacity of the client (say a child or mentally disabled person) to give legal “consent” (when compared to a volunteer but not to a drafted soldier) could also have legal significance down the road. So an “intimate employment” situation that is “wrong” in the military could be wrong, by inference, in other situations. I worry about the legal implications of the “don’t ask don’t tell” law in other areas. See my definitions of “publication” at my vocabulary or intellectual property files. As an incidental manner, “disparate effects” of employment patterns in some custodial jobs like day care may well occur by gender and sexual orientation, since normally these jobs are sought and taken by people with child care experience (parents themselves) but this seems a moot point as these jobs often pay poorly and are not desired.

One could speculate about reality television shows, also. (For example, in the PBS Series “Colonial House” a participant “comes out” but he is accepted anyway, apparently.) Private television production companies could set their own policies on this matter in a libertarian world, but they would need to make their policies clear in advance to applicants.

Log Cabin Republicans is filing a new lawsuit to overturn “don’t ask don’t tell” in late 2004, based on Lawrence v. Texas. It is not clear if the courts will allow LCR standing to sue. Here is the press release: http://www.logcabin.org/logcabin/press_101204.html. But let us expand here. Remember, In August, 2004, the Court of Military Appeals declined to take it upon itself to declare Article 125 unconstitutional, notwithstanding Lawrence v. Texas. The case is United States v. Marcum. http://www.doaskdotell.com/content/marcum.pdf. But suppose Article 125 were overturned. That does not automatically mean that DADT falls because Congress and the Executive have so much explicit constitutionally-mandated discretion to run the military. However, we are seeing a conscious efforts by the courts to balance individual liberties, even perhaps for servicemembers, with national security and other compelling state interests. A good example is the Supreme Court’s holding on keeping some of the constitutional rights for detainees in the war on terror. Certainly Lawrence v. Texas (especially Kennedy’s Opinion) adds ammunition. I argued in Chapter 4 of my first book that the biggest problem was that, in essence, the presumption clause based on happenstance statements was overbroad. For example, the provision E-2 “that the member has stated that he or she is a homosexual or bisexual, or words to that effect,” could have be revised with an add-on like “(stated) for purposes or self-promotion or in a forum opening available to the public, or to specifically to other constituents of that member’s unit or command.” (See Appendix 10.) Many people would not like this, either, but it would be much harder for commanders to abuse than the current law. That can be pursued well here.

Note: The United States Military Code of Conduct, Article I, states: "I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense."

From a 12/2006 press release from SLDN about another challenge to DADT:

December 6 2004 – “Servicemembers Legal Defense Network (SLDN) filed a lawsuit today, Cook v. Rumsfeld, in the U.S. District Court for the District of Massachusetts on behalf of twelve lesbian and gay veterans seeking re-instatement in the U.S. Armed Forces…

“Among the plaintiffs named in today’s lawsuit are:

• Former Navy Lieutenant Jenny Kopfstein….

• Former Army Sergeant First Class Stacy Vasquez…
• Former Air Force Captain Monica Hill…. 
• Former Air Force Sergeant David Hall….

Dr. Hill’s case is particularly galling because it is complicated by the need for her to care for a partner dying of cancer. Nevertheless, the Air Force pursued her with recoupment orders.

The plaintiffs are represented by SLDN and the law firm of Wilmer Cutler Pickering Hale and Dorr LLP.  Copies of today’s lawsuit, biographical information on each of the plaintiffs and related information on “Don’t Ask, Don’t Tell” are available online at http://www.sldn.org/.” The press release (with much more detailed information about the service records of the individual plaintiffs) is http://www.sldn.org/templates/press/record.html?record=1718

A PDF document of the complaint is at http://www.sldn.org/binary-data/SLDN_ARTICLES/pdf_file/1718.pdf

The U. S. Army Court of Criminal Appeals overturned the guilty plea of a soldier Kenneth Bullock for heterosexual oral sex (sodomy, a violation of UCMJ 125), with much of its reasoning based on Lawrence v Texas. This ruling may well help in constructing more legal precedential arguments against DADT, as above. See http://www.sldn.org/templates/press/record.html?record=1758 or Michael Dobbs, “Some Believe Ruling Undercuts Don’t Ask,” Dec. 8, 2004, The Washington Post, p. A11.

Chapter 5 :

 (P 103) Recently, however, both the TSA and FBI have included sexual orientation on the list of items for which they will not discriminate in employment, including, apparently, all "sensitive" positions in the contexts discussed elsewhere on this site. If these are attached to national security but not directly part of the Armed Forces (and they are not), under Posse Comitatus it would be legally controversial for the government to claim that Article I Section 8 gave it more powers to regulate personal characteristics of applicants (as with the military don't ask, don't tell). The TSA and FBI would probably be minimally affected by Bush administration plans to privatize many government jobs, thus supposedly threatening non-discrimination protections (indeed since the point of TSA security screening is to federalize it and take over a job in which private companies supposedly failed.)

In the summer of 2003, the TSA actually indicated that it had run out of money and might have to lay off (or eliminate through attrition) up to 6000 screeners that it had hired, even in the faced of increased pressure for screening of ordinary objects in accordance with new intelligence. However, we believe that it likely that these positions will be restored. Some are already being replaced with part-time positions at many airports.

A member of the traveling public, if randomly screened in an intimate manner without probable cause, might have a legal claim to a right of privacy, not to be screened (in an intimate matter) by a member of the opposite sex or by a member of the same sex who publicly proclaimed homosexual orientation. (This happened to me once, screening by a female, in early 2002 before TSA took over the job of screening.) General screening procedures today appear to involve wanding as opposed to actual touching and do not seem objectionable. However, drug couriers have been known to hide contraband by swallowing it and it would seem that terrorists could conceivably try to hide difficult-to-detect and dangerous materials in unusual places about the body. TSA now asks about previous pat-down (“pat down”) experience even in initial applications for security screeners but does not require the experience.

In November 2006, a TSA screener in uniform discussed the 2001 shoebomber incident in jest in an Arlington VA barbershop (he said that the device might have gone off on the plane if it had not gotten wet in rain), and suggested that underwear could have to be screened; but that development could raise the issues of screeners and personal bodily privacy (as noted above), and as a major basis for banning open gays from the military.

WUSA Channel 9 in Washington reports (Dec 1 2006) that airports will soon have Xray screening (in lieu of pat downs) and this raises obvious sexual privacy questions among screener employment. Story: http://www.wusa9.com/news/news_article.aspx?storyid=54081

Regarding the footnotes, persons with previous work experience in security screening or weapons or explosives detection are more likely to pass the initial TSA assessment and be hired as screeners, but such experience is not an absolute requirement for entry level screening positions. This seems like a common sense expectation. The TSA does not seem to be treating entry level screening positions as a kind of morally driven “national service” opportunity.

John M. Bridgeland summarized voluntary national service programs with a column. “Building a Culture of Service: Americans respond to help the nation” in the Dec 2, 2003 The Washington Times, p. A19. Besides the Citizen Corps, Bridgeland discusses the Senior Corps, which takes care of the elderly and tutors children and recruited 33000 volunteers in 2002, and has a goal of 67000 for 2003. This program sometimes pays a small stipend for senior home companions (the companion must be at least age 60). The Peace Corps processes 20000 inquiries a year for 7533 slots, and demands considerable previous volunteer experience on its application form.

Chapter 6

(P 111) The family values problem is well explored by the article “Childless by Choice” by Leslie Fulbright of the Seattle Times (April 1, 2003). The article discusses organizations for child-free couples and singles, such as Child Free by Choice, No Rugrats, To Breed or Not to Breed Brats, and No Kidding!. But then the article goes into areas and quotes that highlight the cultural tension among those whose lives revolve around family and those whose don’t. “’Any healthy culture is child-centric because the future rests with our children,’ said Allan Carlson of the Family Research Council. ’These (No Kidding!) peop;le are copping out on the future, refusing to accept the standard obligation for responsible membership in our society. I would describe them as childish, immature and irresponsible.’” Well, that puts it bluntly. I’m part of the problem, a freeloader, Even Dr. Laura isn’t this blunt.

“Virginia Rutter, a sociologist at the University of Washington, sees the opposition to the child free as both psychological and political. She says there are two issues: caring for children and a societal level and the choice at an individual level. ‘People think that those who don’t (re)produce are somehow the source of the lack of child care that we have as a society. When facing an extraordinary stress, they are angry and seem to direct that at individuals rather than the system. They see themselves as morally superior because they are dealing with the hardship.’”

“In contrast, many No Kidding! Members—often called selfish—see child-bearing as narcissistic and don’t understand why society equates reproduction with responsibility.”

I would add here that you could expand the idea of family obligation to eldercare and even community service, and then propose that everyone should be expected to share in this. For gay men and lesbians this begs the question. Gay marriage and parenting is resisted partly on rather circular arguments. But there is also a desire to relegate homosexuals as second-class citizens, by making sure that they cannot carry out a required responsibility, or by assigning them to specific roles like staying home to take custodial care of aging parents, as used to be expected in past generations.

Conservatism also comes into play in discussing the handling of the new SARS epidemic. Conservatives and libertarians both are properly skeptical of giving local health officials quarantining and isolation powers, whereas more authoritarian governments like Singapore have no qualms about this. Quarantine refers to restricting the movements of a person who is exposed to infection but asymptomatic. Isolation refers to an infected person. Should infected but asymptomatic and possibly resistant persons be forced to sacrifice their freedom for those who have less resistance to an infectious disease? As we learned with HIV, public health issues can test the philosophical limits of individualism.

Chapter 7:

One of my friends has come up with the idea that the only valid way to demonstrate the ability love and take responsibility for another person is a romantic commitment, independent of all external “adaptive” (success, career, etc.) circumstances. Then it makes sense that a failure in romance would hurt a person for a long time.

As for “upward affiliation” (a term that originated in the 1980s with George Gilder, Men and Marriage), one could also say that when a man marries and procreates children, he often wants at least one son to be a “better” man than him. That is a form of heterosexual upward affiliation. However, one takes chances with nature, genetics and biology when one has kids. That is a major point.

Chapter 8:

(Chap 8) Most companies and recruiting firms have job application web sites, but using these seems to result in few placements. The one aggregate jobs site that seems to work reasonably well for attracting IT recruiters is http://www.dice.com/.. But some recruiters, seeing their commission structure as a numbers game, have been more concerned with rapid submission of candidates than with careful screening, and in some cases multiple unauthorized submissions of a candidate to a job have been a problem, particularly to clients that do not want to be identified. Will some recruiting companies build a new paradigm based on the idea of pre-screening candidates for commitment to I.T. and not accepting those who have been out of work for a long time and not consciously tried to keep themselves trained? If so, people could find that recessions weed them out of the market altogether.

Another observation: many cultures base salutations based upon what the (usually, male) person does for a profession. In the west, this is mostly “Dr.” “Professor” etc., but sometimes in other cultures many other professions (“Architect”) are included. The idea that a person is much more than what he does for a “profession” is rather modern in liberal society.

An article in The New York Times, April 22, 2003 by Saul Hansel, “Internet Is Losing Ground In Battle Against Spam,” outlined the technical efforts involved in mass emailing spam (which seems at first to have a business model that generates easy profits) and in stopping it. The article leaves the impression that programmers and I.T. people may have been tempted into the spam industry to keep bringing in money, a move that can put the I.T. professional on a par (in the minds of some people) with a commercial pornographer. This kind of development, as well as virus and worm writing, may be damaging to the reputation of the business as a whole. Will people who have worked in the spam industry one day find themselves blacklisted from legitimate jobs even if the economy recovers? Of course, you can ask if people on the bench too long will also find themselves weeded out permanently.

Another wrinkle of this problem is that when former generalists in “business systems” try to get lower paying jobs, they can run into problems with the lack of regimented skill. At one of my workplaces blindfold keyboard proficiency training was offered, but also laughed at back in the mid 1990s.

Some I.T. professionals who are doing well in the job market today were running their own web servers or even web hosting companies on the Internet as early as the mid 1990s, teaching themselves everything about administration and foiling hacker attacks and rebuilding machines, while more mainstream business systems applications programmers in the mainframe world were preparing for Y2K (the most ambitious, curious and competitive programmers could do both).

Recruiters now tell me that, especially in the mainframe market, the trend of corporations to outsource (though watch the language: “offshoring” is a subset of “outsourcing”) jobs to overseas areas with lower wages and also to hire resident legal aliens is reducing job opportunities considerably. Some global companies can claim that overseas workers are their own employees and it is sometimes cheaper to bring them here. This gets back to the political argument about global competition and the idea that Americans must compete with other parts of the world where skills and work ethic are high in comparison to living standards. Indeed, the free market is forcing a cultural revolution! Added to this is the fact that IT people, seeing themselves as rugged individualists, have resisted unionizing and organizing. So you can’t have something for nothing and you can’t have it both ways!

For more on offshoring visit the Information Technology Association of America, especially the testimony of Harris N. Miller before the House of Representatives, “The Offshoring of High Skilled Jobs,” Oct. 20, 2003, at http://www.itaa.org/govt/cong/102003test.pdf

CNET/Tech Republic provided an essay by Joe Santana, Two Steps to Protect Your Job from Offshore Outsourcing” on October 16, 2003. His recommendations center on moving into positions demanding technical leadership skills such as business process design, contract management, systems architecture. He predicts that outsourcing will taper off by 2005 and that jobs will start returning stateside, but in the meantime IT professionals must make critical career decisions now to keep earning paychecks and not to be eliminated from or weeded out of the market before then as obsolete. The basic advice is, be committed to your career now and make job changes promptly while you still have a job to get leadership experience. The direct references is at http://techrepublic.com.com/5100-6316-5074311.html?tag=e106 (You may need to have a subscription to read this).

I have a more current discussion of outsourcing (March 2004) at http://www.doaskdotell.com/outsourc.htm

Clay Risen weighs in with a somewhat favorable view of offshoring in “Missed Target: Is Outsourcing Really So Bad?” in The New Republic, Feb, 2, 2004.

ABC “World News Tonight” presented a news story on March 9, 2004, about employers offering I.T. jobs at home but at much lower wages, comparable to what might be paid in India. One such company is cMarket, set up by Jon Carson in Massachusetts. The migration of skilled jobs to India and similar countries will gradually cause living standards and wages in those countries to rise, which may be necessary in the long run for our own economic growth.

Another problem has been multiple submissions of resumes from the same candidate from different consulting firms, without checking for duplication. Candidates should pick the consulting firm to represent them carefully, as some will present them much more professionally than others, and many clients (such as states running MMIS programs) will consider only the first resume they receive from any given candidate. Obviously there are ethical issues here. Visit The Independent Computer Consultants Association, especially http://www.icca.org/ethics.asp

I weigh in all this some more at a “personal responsibility essay.”

Peter Coffee contributed a tongue-lashing editorial to the September 1, 2003 eWEEK: The Enterprise Newsweekly: “Port Scans: Syllabus for Success: How to Prove You’re Really an IT Professional,” p. 32. Coffee summarizes, “Amateurs do what is interesting; professionals do what’s crucial.” Earlier, he says, “An IT professional makes a much bigger contribution by being versed in the language of uncertainty, by being able to think and speak at a professional level about the modeling and analysis of both business and technical risk…What separates the winners from the losers on the IT racetrack is more often their skill in picking a path rather than their competence in merely keeping the engine running.” This sounds to me like he is saying, be committed to your business you serve as well as just to the technical virtuosity for its own sake. Like Ephram Brown in Everwood, you have to play the Appassionata was well as play scales, and you have to read as well as memorize. You have to nurture the whole forest, and not just the trees. The attitudes that I encountered my last three years of IT were a confusing mix of paradoxes. Many coworkers felt that one was obligated to play technology for the fun of it (and to drop interest in everything else), because this was the only way to be “good” enough (geeky enough) to hunt and peck through unfamiliar problems caused by others. Curiosity for its own sake was a virtue. I think Coffee is saying you have to pock a direction, too. Technology has moved so quickly and become some expendable (that is, send it overseas) that many employers have become obsessed with pattern-matching to specific skills. It sounds as though IT professionals are to be expected to maintain their technical agility on their own time and expense, but this alone will not set a direction, because there are so many interrelated technologies. And so many companies are doing nothing but ultimately silly things, trying desperately to increase sales volume or bring together merged operations to shave positions, and creating very little. That is partly why I moved towards social and political information, because I did not want to leave the debate about human rights to others. Another reason that employers seem so picky about matching to very specific skills may, ironically, be compliance with employers’ perceptions of anti-discrimination laws; matching to specific skills keeps the employment decision narrowly focused on the posted job and specific hands-on skills.

I devoted a major part of my 1997 book to the workplace, so how could I have been so flattened myself? In the 80s and 90s, a big value was placed on programmers who could keep a particular application running reliably (with on-call duties), as opposed to middle managers. In the climate of the early 2000’s, much of this kind of work could be outsourced or offshored. Much more emphasis was placed in the market on gaining expertise in specific skills. A IT professional or student would have to plan his career and training carefully to have expertise in skills requirements. It is possible to keep earning a living with legacy skills if one is really good enough and can move around a lot. The other big factor is that companies or clients often have very specific skills requirements as a defense against discrimination claims. Inadvertently, this strategy may lead to de facto age discrimination, however. One possible strategy for the “marginalized” professional is to develop a specific product or service himself.

Chapter 9, p. 142. In “Dissent: Programmer Says U.S. Cut Funding after Comments” by Jennifer Lee, The New York Times, p. A19, April 24, 2003, there is a report of “conflict of interest” between free political speech and the workplace, somewhat similar in nature to what I personally experienced. Canadian programmer Theo de Raadt, a founder of the OpenBSD project, had received funding from the Defense Research Project Agency (DARPA), through the University of Pennsylvania. In an interview in the early Spring 2003 published by The Globe and Mail of Toronto, Mr. De Raadt expressed discomfort in the military source of the funding, a belief that the war with Iraq was motivated by oil profits, and the statement, “I try to convince myself that our grant means that half of a cruise missile doesn’t get built.” Shortly thereafter the university sponsor Jonathan Smith expressed displeasure at his statements, and then announced that military funding for the project had ceased. Later, there was a report that the cutoff was only for a scheduled hackathon. However Mr. De Raadt indicates that their salaries are no longer supported by military financing.

There is another risk to online giveaway of content. See Glenn Fleishmann, “Blindsided by Bandwidth Fees, Online Barkers Think Twice” in The New York Times, Apr. 24, 2003. Computer-book publisher Tim O’Reilly, maintaining that ‘obscurity is a far greater threat to authors and creative artists than piracy’ gave away an e-book about Adobe GoLive 6, and had to pull the after 3 days when unexpected publicity by Mac led to 30,000 downloads. Meg Pickard ran into problems with a Valentine card giveaway. Typically, academically-oriented text probably runs much less risk of this, as most ISP’s provide enough bandwidth for any reasonable access of several books. Of course, a site might attract a scripted cache-clearing attack intending to put it out of business, similar to problems experienced by 800 numbers. It is still not practical, however, for self-publishers to offer their own DV movies or large music or video libraries on shared hosting. Typically, such artists will have to set up their own servers, but they may need expensive T! lines if they have large volumes.

There has been a lot opposition by the National Writer’s Union to work-for-hire electronic republishing policies by many publishers. I believe that publishers have a right to control material that they (the publishers) originally conceived of, and that writers should be able to control their own work (if it starts with their own concepts). That is, writers should control successive copyrights and non-compete issues for work that is primarily of their own conception. Freelance writers run the risk of sounding like persons who didn’t make it in technically demanding fields if they are careless in the way they market themselves; writers should stress specialization (such as grant writing, technical writing, proposals, annual statements, systems manuals, proofreading) when dealing with corporate or non-profit clients.

And this brings back the question of professionalism. In an Internet age, professionalism tends to demand that a “professional” person be able to sell another party’s narrow point-of-view in an adversarial manner (as opposed to selling the writer’s own). Making a living this way runs the risk of detracting from the writer’s credibility when he sells his own work, and tends to narrow the reach of debate.

The Authors’ Guild does have a group health insurance policy for its members, according to a communication from NWU. The domain is authorsguild.org

Amazon.com has recently announced a plan to build a searchable online book database, mainly of nonfiction from a number of publishers. The facility would be similar to what I offer of my own books on this site. (See story by David D. Kirkpatrick, New York Times, July 21, 2003.

Former Montgomery County Md. Police Chief Charles Moose was forced to resign his position by a county ethics committee before his book “Three Weeks in October” on the DC area snipers could be published, although Moose could benefit only once the book was published.

Keep in mind during all of these musings about where a self-publisher “deserves” to be listened to or should be accountable for some kind of financial result, that self-publishing involves the deployment of a property right, as opposed to a job which is based on the property right of another party.

A state representative in South Carolina (as of Nov. 2004) has introduced legislation forbidding any school or public libraries in the state from purchasing any books that promote homosexuality or present it favorably. I guess that wouldn’t be good for me.

Another potentiality comes to mind with self-publishing of controversial materials on the web. If I were to go to a strict Muslim country (Saudi Arabia or maybe even Egypt), could I be arrested and indefinitely imprisoned (without trial) for running a worldwide available website that arguably is critical of fundamentalist Islam? The First Amendment does not apply outside of the United States, and the web is available everywhere. There has been little discussion of this possibility (even by the State Department), although we remember that fundamentalist Shiite clerics in Iran put a bounty on Salman Rushdie, living in England, for his novel Satanic Verses back in the early 90s. In late 2004, there were threats against Sikh playwright Gurpreet Kaur Bhatti for her play Behzti (“Sishonor”), depicting violence in a Sikh temple, after it opened in Birmingham’s Repertory Theater (England). This may become a disturbing trend that could have a chilling effect on speech even in the West, especially when controversial writers travel internationally. Another example is the murder on Nov. 2, 2004 in Amsterdam, Netherlands, of Dutch filmmaker and columnist by a Dutch-Moroccan Mohammed Bouyeri, apparently for his criticism of the supposed treatmentof women in Islam, especially in his short film Submission, about violence against women in some Islamist societies. Bouyeri was apparently a legal Dutch resident already. Here is an account: http://en.wikipedia.org/wiki/Theo_van_Gogh_(film_director)

This whole Rushdie observation brings to mind another issue, property insurance, hate crimes and terrorism. Most property policies have exclusions for terrorism because it is actuarially so difficult to assess. There have been problems with socially unpopular groups (especially abortion clinics) losing insurance after “hate crime” style attacks. Some states have tried to address these problems. See http://www.womensenews.org/article.cfm/dyn/aid/2677/context/archive , or, regarding religious-based hatred, http://www.jewishinseattle.org/JF/About/Government/ActionAlert_2_18.asp . I am not aware that this has been a big problem for gay bars in recent years. Generally, libertarians oppose specific “hate crimes” legislation because it implies special treatment for some victims or implies that a crime is more or less heinous because of the identity of the victim, and because it seems intellectually unprincipled. With the issue of insurability, there could some day be a need for legislative protection. I would be concerned about the possibility of “unpopular” “high profile” people as tenants or homeowners being perceived as attracting unacceptable risk, but this has apparently not so far been much of a problem in the United States (it may have been in Europe and the UK).

Another little explored wrinkle in the self-publishing paradigm could be that, once a person puts out his own work and makes it “official,” zoning officials, in at least a few random jurisdictions, might want to force him or her to use commercial space. See http://www.doaskdotell.com/content/smallbiz.htm Publicity that does not generate revenue could turn out to be an Achilles Heel.

The First Amendment lists freedom of speech and freedom of the press as separate original (or fundamental) rights. It is not necessarily true that the freedom to speak about a matter to another person gives the right to make it totally “public.” The original legal definition of “publication” is the rendering of a statement to at least one other competent person who understands it; it is the “press” that makes the information publicly available for anyone to see. There is a public perception that a press needs to have professional journalistic credentials. That is not always the case. Martin Luther was not a member of the “press” and neither was Jesus! Yet they both made their ideas very public (in a meaningful sense, they were both “self publishers”). There is a practical problem that unsupervised self-publication of personal materials, even those belonging to the author and not confidential in the traditional legal sense, can affect others unintentionally in an age of search engines (“Google”), enemies and stalkers. We sometimes call this the “myspace.com problem,” named after the social networking site established around 2003. Will the right to “publish” (that is, join the “press”) eventually require a greater legal accountability to others (possibly blood family most of all)? That is, the right to "pressify" could depend upon one's circumstances rather than (or as well as) on the content of what is "published." It’s conceivable that the law could move in that direction. We don’t really know yet. There is more about the myspace problem at http://www.doaskdotell.com/content/blog.htm and http://www.doaskdotell.com/controv/professionalism.htm

I supposed that one could draw a whimsical analogy between self-publishing and Clark Kent’s ability to catch his own forward passes when playing football (Smallville).

It’s also important that careless and unsupervised “self-promotion” occurs in trade publishing. Smokinggun.com revealed the exaggerations of James Frey’s “A Million Little Pieces,” in which the author fabricated sensational details in a memoir and perhaps incriminated himself falsely in order to attract attention and sell print. He even conned Oprah, who confronted him on a rematch on Jan. 26, 2006.

I recall that when I accidentally showed up on television in Lee Park in Dallas at a 1980 Gay Pride March, a W-2 consultant where I worked remarked the Monday morning afterward, “that was YOU.” Incidental appearances on television used to be a big deal for gay people, who would sit in special sections at MCC (then on Reagan St in Oak Lawn) not to show up on television at MCC services or at Dallas Gay Alliance or Dallas Gay Political Caucus meetings! (This was even more sensitive during the early days of the AIDS epidemic.) Television in those days was like today’s Internet search engines.

Self-publishing about controversy today implies an attitude of “globalism” that somewhat countermands family values and is a new kind of individualism.

Chapter 10

Here are notes on another related case:

June 23, 2003: The Supreme Court ruled that a law requiring public libraries to use anti-pornographic filters to get federal funds is constitutional, even if the filters sometimes block non-pornographic materials. This is a 6-3 ruling, but two of the justices held that libraries must disable filters for adult patrons who want them to. Libraries, however, may not be able to do this readily, as filters are often applied system-wide, and the law did not allow a library that only filters some of its computers (leaving unfiltered computers in an “adult room”) to receive federal funds.

The case is United States v. American Library Association, Inc., a challenge to the Library Services and Technology Act (LSTA) and CIPA, the Children’s Internet Protection Act.

The references is http://www.cnn.com/2003/LAW/06/23/scotus.library.ap/index.html

The findlaw reference for the court opinion is http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-361

A Miami man was arrested in Sept 2003 for registering domain names with intentional misspellings to direct naïve viewers (especially children) to pornography sites. Apparently he was compensated according to the hit volume on these sites. We are trying to get the exact law under which he was charged. But the government is claiming that new laws regarding registration of WHOIS information may be needed. Right now, ICANN officially requires domain owners to maintain contact information accurately but this is not often enforced. Again, the possibility that some domain suffixes and names are misleading (the obvious example is a “.com” that is not a real business) and that some operators do not want to give out real land home or business addresses might be perceived as a regulatory problem. See the article in Reuters by Andy Sullivan Sept 4 2003 “Lax Controls Encourage Web Scams, Lawmakers say.” This is very important, as it could limit the ability of individual operators (like me) to publish (legitimate non pornographic information) effectively on the Internet in the future, so this brings up problems like what we saw with COPA.

Here is a good reference on the 2002 ruling from the Supreme Court that CPPA (the Child Pornography Prevention Act) is unconstitutional: http://www.gigalaw.com/articles/2002-all/landau-2002-07-all.html Or http://archives.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/ Also http://archives.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/ or http://www.law.indiana.edu/fclj/pubs/v55/no1/mota.pdf or http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-795 . The law may be replaced by H.R. 4623 The Child Obscenity and Pornography Prevention Act, filed Apr 30, 2002, is described at http://www.aclj.org/News/Read.aspx?ID=557 , http://www.aclu.org/Privacy/Privacy.cfm?ID=10364&c=252 also at http://www.govtrack.us/congress/bill.xpd?bill=h107-4623 More details at http://www.doaskdotell.com/refer/intelct.htm

On page 169, I’m not sure that the book Lolita would be illegal since text child pornography is generally legal in the United States, but the movie certainly could be. There were apparently some concerns even about text, however, with the 1996 law.

The First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

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