Genetic Endowments…..

 

DeliriousMe: Ownership and Identity in An Age of Genomic Medicine

by Patricia J. Williams

Published in LOG: Journal of Architecture and Urbanism, Volume 25, Summer, 2012

 

Sometimes it’s hard to count on the sustained attention of university students, distracted as they are by an excessively twittering cyber-world. Every now and then we, their professors, have to toss up something extreme to make them snap to.  In my bioethics class, for example, I announce that I’m going to hire a forensic team to come in and do a sweep of the whole classroom with little sterile sensors that will gather samples of hair, hangnails and whatever DNA may be extracted from their discarded coffee cups.  Then I’m going to spin the whole in a big centrifuge, and, with sufficient time and investment, I shall not only manufacture the first Flawlessly Above Average Columbia Law Student, but…. I shall patent the same.  And thenceforth they will not be able to reproduce without paying me royalties.

It’s a far-fetched scenario, yes, but the question of who owns our bodies–in particular the genomic information that may be culled from routine human shedding—is a matter of evolving legal importance.  Gene sequences in genetically modified plants are already owned and traded on a global scale. In the United States, the case of Association for Molecular Pathology v. Myriad Genetics recently challenged the attempt to patent human genetic sequences related to breast and ovarian cancer.  And if the 2012 Supreme Court case of Mayo v. Prometheus has made clear that processes occurring naturally may not be patented, it remains entirely unclear what will be deemed either “natural” or, for that matter, a “process.”

Beyond the technological questions involved in unlocking the secrets of the human genome, there are emotional ties to our detached but component parts, as well as those proprietary stakes. When Alistair Cooke, host of Masterpiece Theater, died in 2004, his cancer-ridden body was stolen and sold for medical-grade bone grafting; most of us will feel that the crime involved is not just about the property of the body, but is also a violation of the body’s…sanctity for lack of a better term.  When, in 2011, a teenager in China sold one of his kidneys so he could purchase a new iPad, it attracted international media attention for its extraordinary mining of the body for purely pecuniary purposes.

One of the weirder cases exploring this bioethical territory involved South Carolinian John Wood, whose leg was amputated after an airplane crash in 2004. Wanting to be buried “whole” eventually, he had the leg embalmed and placed it in a storage unit with other belongings. But he fell behind on the rental fees, and the contents of the unit were sold to one Shannon Whisnant, who found the leg carefully wrapped and nestled inside a BBQ smoker. Whisnant called the police, who traced it back to Wood. Wood insisted the leg be returned given his sincere belief that, detached or not, it was part of him. Whisnant, however, claimed that he was the purchaser-for-value, and that he hoped to put the leg on display and charge a hefty price for the viewing. “Halloween’s just around the corner,” he explained.

The ghoulishness of this scenario should not obscure the legal issues at stake: should a commodity interest in the contents of the storage unit trump the sacrosanctity of corporeal integrity? Are discarded body parts “alienable” in a free-market sense? Or do they fall in the realm of what we deem constitutionally “inalienable”?

What about DNA? Suppose we assumed that Wood’s genetic makeup included cells that were resistant to some rare disease. Do Wood or Whisnant have any proprietary claim to profits to be derived from the extraction, culture and sale of those cells? Could Whisnant not only display the leg but also publish Woods’ entire genome as part of his Halloween art show? Could the police officer to whom Whisnant brought the leg do a DNA test, retain the sample, patent a method of assaying the extracted data, and ultimately market a pharmaceutical byproduct to patients at $5000 a dose? We all leave trails of our cells wherever we go—under what circumstances should that material be regarded as discarded and thus open for exploitation by finders-as-keepers?

On May 30, 2012, the personal genetics company 23andMe announced that it had procured its first patent, for “Polymorphisms Associated With Parkinson’s Disease.” Patents create exclusionary rights in knowledge; they prohibit non-patent-holders from using that knowledge without permission or the payment of royalties. 23andMe’s patent stems from massive aggregations of data culled from customers who’ve paid considerable money for information about their genetic predispositions for various health risks. While 23andMe’s consumer contract says that no “research” on submitted spit samples shall be done without consent, many customers seem not to have realized that it goes on to define “research” as “academic”—which is to say work published in “peer-reviewed scientific journals.” The contract then distinguishes “research” from “research and development (R&D)” of commercial products—for which no consent is needed.

When announcing news of the patent, CEO Anne Wojcicki declared that she wants “discoveries to move from the realm of academic publishing to the world of impacting lives by preventing, treating or curing disease.” But it is precisely in academic publishing where new ideas are most apt to be freely shared and tested; Wojcicki seemingly wants to dislocate discoveries “from” academia “to” the gated community of patent law–simultaneously designating patent law as the exclusive geography of disease prevention, treatment and cure. As she explains, “Often the only way a company will even think about pursuing a drug lead is if they have assurance that they can recoup their investment.”

Wojcicki frequently expresses her desire to heal, and to broadly share the knowledge gained through data mining. Readers may know that Wojcicki is married to Google co-founder Sergey Brin, whose family history of Parkinson’s disease places him at risk. But that back story, compelling as it may be, is not reflected in the business model either of them pursue—nor should anyone expect it to be. As with any for-profit corporate head, their fiduciary duty is to make money. The realization of any wider or public interest in health care will not come from the private corporate sphere by itself.  The patent system, as well as our corporatized system of R&D, assure that data-aggregating businesses’ real wealth will come not from analyzing individual spit samples, but from the far greater asset of bundling customers’ genetic, lifestyle, and family history for commercial exploitation.

The reality of that exploitation must be bourne in mind by those who so easily send off DNA samples to be analyzed for either medical risk or ancestry tracking.  Over the last few years, “spit parties” have become quite popular as a kind of party game, and as a purported teaching aid in high school and college science classes, touted as both fun and educational.  But we should be much more thoughtful about the ends for which our bodies are being mined. The redemptive thrill of being co-creators of some medical miracle must be measured against the possibility that we are rendering fungible that which most profoundly distinguishes us and….enabling a commodity exchange in which important aspects of our identities will be sold to the highest bidder.

Recently I attended a science-and-democracy themed conference entitled “Deleterious Me: Whole Genome Sequencing, 23andMe, and the Crowd-Sourced Health Care Revolution” at which Anne Wojcicki was the featured speaker.  The poster for the conference, which depicted the double helix as a spiral staircase with little Lego-like people climbing upwards, ever upwards, toward a darkly gloaming heaven served as a very effective metaphor for the concerns I have about this entire industry. I worry that “DNA” is too often figured in the popular imagination as an inevitably uplifting stairway to heaven, an infallible path to higher truth. This leads to a credulous suspension of both ethics and caution.

In addition, the peculiar locution of Wojcicki’s title, “Deleterious Me,” posits the intimacy of “me” as inherently self-destructive.  It’s an odd but effective recasting of mortality as auto-immunity. One’s essence is framed as noxious, diseased, decaying.  Health and health care, by contrast, are positioned on the other side of the colon, located squarely in the geography of crowd-as-source.  If the individual is framed as dangerous, lonely, self-annihilating, its rescue lies in the comfort of crowds, safety in numbers, collective shelter from the HarmfulMe.

There is power in this conjoined set of idealized genetic references:  a poignant longing for embodied self-perfection, yet the fear and loathing of assured self-betrayal.  There’s something very nearly Shakespearean about the tension: tremulously human, mythically themed, with just a hint of hovering tragedy.  Indeed, the urgencies of our technological revolution beg for philosophizing or negotiation on some theatrical public stage—some Faustian oratorio where narrative and necromancy meet for a solemn duet.

In the 21st century, however, our greatest passion plays are exploited in the realm of private contract rather than public good or participatory democracy, rising to general consciousness only at the level of commercials aired at half-time.  So it is that privately-held companies like 23andMe can own, store and resell—to anyone–the most elemental biological markers of individual identity while marketing themselves as “direct-to-consumer” purveyors of “personal” self-knowledge.

This is more insidious than it might sound initially.   Using 23andMe as an example (and as the largest such company in the United States), it’s instructive to look at what the enterprise promises in its advertisements, versus what it actually provides.   On its website (as of May 21, 2012), the company invites you to order a DNA Spit Kit, the analysis of which will “start your journey” into a world of “endless possibilities.” The results will “help you explore” the past (“Discover your global origins, trace your ancestry, and find living relatives”); learn about your present (“Access over 200 online health and traits reports, including carrier status, drug response and disease risk”); and participate in the future (“Be part of the new genetic discoveries that can benefit us all”).

But the Terms of Service—that is, the contractual provisions to which customers actually agree—are so vague that it is unclear whether the company is really agreeing to provide any more grounded information than what one might find in a horoscope or a really slimy Ouija board.  What is clear, however, is that the company is not really making the bulk of its profit from analyzing spit samples, but rather from the sale and exploitation of data gathered from the collective spittoon.  Worse, there are serious breaches of privacy and broad potentialities for surveillance.

This is hardly a new ethical challenge. When Rebecca Skloot’s book, “The Immortal Life of Henrietta Lacks,” hit the best-seller list some years ago, there was a brief flash of heightened public awareness of the phenomenon of “bioprospecting.” Ms. Lacks was a poor black woman who suffered from a uniquely aggressive form of cervical cancer, to which she succumbed in 1951. Her cancer was rare enough that she became an object of medical study; some of her cervical cells were taken, cultured in a petri dish, and distributed widely for research purposes. It was the first so-called “immortal” human cell line and it has been the foundation for literally billions of dollars’ worth of medical and pharmaceutical discovery. Neither Lacks nor her family was informed of the removal of those cells, or the profit derived therefrom. When Skloot located Lacks’ children and grandchildren, she found a family still poor and without health care. Skloot’s exemplary response was to set up the Henrietta Lacks Foundation, a non-profit that provides emergency health care and medical scholarships to those in need. (Donations may be made by visiting www.henriettalacksfoundation.org.)  Ms. Lacks’ legacy points to the crux of the problem:  if a person’s biological material can be bought and sold and patented should not the profits therefrom be shared—at least to some degree–with the person in question, or perhaps pooled as a kind insurance for common health and welfare?

What of the privacy issues implicated in the buying and selling of intimate genetic data? 23andMe promises to “anonymize” genetic data, and to destroy saliva samples upon request.  It helps to know, however, that destroying the actual samples does not mean that the computerized map of information extracted from that sample will be destroyed.  Even where a customer attempts to eliminate an account altogether, “[o]ur contracted genotyping laboratory may…retain your Genetic Information as required by local law and we may retain backup copies for a limited period of time pursuant to our data protection policies.”  What constitutes a “limited period of time” is not defined.

In addition, where 23andMe enters into commercial arrangements, it discloses enough information to “enable partners to provide our Service to their customers and/or to provide you access to their products and services. We will not provide any individual-level Personal Information to these commercial partners without your explicit consent. 23andMe may include your Genetic and/or Self-Reported Information in Aggregated Genetic and Self-Reported Information disclosed to these commercial partners even if you have not given consent for your data to be used in 23andWe Research.”

Notice that there is a distinction made between “individual-level Personal Information” (defined as name, email, address, user ID and password, payment information, etc.) and aggregated “Genetic and/or Self-Reported Information.”  Genetic information means your genotype: the specific chemical map or sequence of your DNA.  Self-Reported information includes everything about yourself, “including your disease conditions, other health-related information, personal traits, ethnicity, family history, and other information that you enter into surveys, forms, or features while signed in to your 23andMe account.” Finally, “Aggregated” means information “combined with data from a number of other users sufficient to minimize the possibility of exposing individual-level information while still providing scientific evidence.”

But what happens if that “individual-level information” is exposed despite the company’s metrics for minimizing that possibility?  To say nothing of what happens if and when the ability to read this data improves to the point that we no longer need cumbersome details like names and social security numbers, but instead can, with ever-increasing accuracy, determine identity by “familial tracking” or by mapping genetic data onto medical records onto Googled purchasing histories onto GPS trails onto school records onto criminal data bases….

It is also interesting to contemplate what will happen to one’s data in case of bankruptcy: “In the event that 23andMe goes through a business transition such as a merger, acquisition by another company, or sale of all or a portion of its assets, your Personal Information will likely be among the assets transferred. In such a case, your information would remain subject to the promises made in any pre-existing Privacy Statement.”

If “any pre-existing Privacy Statement” leaves you scratching your head, you need to know that all of the Terms of Service, including the Privacy Statement, are in a kind of constant motion, subject to revision, amendment or replacement, “effective upon posting at www.23andMe.com.“  In other words, purchasers are bound by whatever terms are in the latest version of the contract that 23andMe dreams up.  Don’t like that?  Then you can choose to “terminate the Agreement at any time,”—even as 23andMe can just choose to hang onto your data for that “limited” but indeterminate period of time.

Under traditional concepts of contract law, such a radical subversion of any expectation interest whatsoever is arguably grounds for striking down an agreement as “illusory” (meaning that it styles itself as promising something palpable, but in fact contains so many loopholes that it holds the company to nothing at all) as well as contrary to public policy.  But in an ultra-libertarian moment haunted by rulings in such cases as Citizens United, it seems that judges and CEO’s alike are having trouble divining any difference between the narrow “choices” of a “customer” and the broad human interests of a citizen.

And so the question looms: is the language of “consumer choice” sufficient to address the ethical quandaries posed by the massive accumulation of population-wide genetic stores taxonomized as privately-owned, wealth-producing assets?  Does it pose, in crude terms, the same clash of values to be found in the apocryphal sale of Manhattan for baubles and beads—to wit, that indigenous Americans were operating under a so-called gift economy where the use of objects or land was understood as something to be passed back and forth over time (hence the term “Indian giver); whereas the English settlers were operating under a system that entitled them to erect fences, marking their claims as exclusively proprietary, in perpetuity.

Similarly, one must wonder if the easy expropriation of our DNA, particularly when couched as mere parlor “game” or spit “party,” is in any way reconciled with the vast value of what is being ceded:  the unplumbed pecuniary wealth as well the as-yet unexplored potential for surveillance and discrimination. An individual might well be led to think that his small contribution of spit is a worthless externality to his purchase of a self-revelatory service that is  “entertaining” and “fun” (as Anne Wojcicki has referred to it on more than one occasion) but…less visibly, 23andMe acquires a pot of gold.

Such a transaction also relegates that spat-out bit of golden code to the private sphere, transforms its—or your?–secrets into someone else’s property.  Clothed as contract, it is very hard to reclaim a host of genomic interests that we might otherwise think of as beyond the proprietary–like medical ethics or class access or scientific research protocols or new identity formations or protection against fraud.

If the real asset of data ownership is hidden by such contract terms, so too the “service” of “connecting” to one’s ancestors or predisposition to certain diseases is ephemeral at best. Despite the romantic lure of deliverance from the “deleterious me,” the fact remains that genetic science is still in its infancy and quite imprecise for the most part. For most medical prognostication, the probabilities assessed by any direct-to-consumer company are little more than guesstimates.  Indeed, 23andMe’s disclaimer of warranty and limitation of liability is eloquent testament to that:

“YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (1) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. 23ANDME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) 23ANDME MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM 23ANDME OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. 23ANDME DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, 23ANDME SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.

…WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT 23ANDME SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF 23ANDME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SERVICES, (v) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.

Ultimately, the revolution in genomic technology tests the delicate conceptual and jurisprudential relation between the historic sanctity or inalienability of human bodies and the body as product.  The discourses of biology and genomics, research and industry all tend to de-center the individual body in deference to idealized, hypothesized, demographic and/or normative interests.  It is an epistemic problem: and more often than not, the terms of debate are being framed in a way that discourages public engagement or debate and instead trends toward narrowing for the sake of efficiency of economic outcome.

I hope that 23andMe–and the host of data-mining companies like it—might consider how to channel the wealth yielded from patented discoveries into not-for-profit or low-cost treatment options for all—and certainly for their “direct consumers” at the very least. But if what we strive for is an informed and evidence-based advocacy rooted in social justice, it is not likely to come from competitive ownership of information in a market based on commercial profit alone.  If we wish to concede that there is knowledge-value in aggregating data from as broad a base as possible, that knowledge must be tempered by accountability to the basic constraints of civil society, such as protection against discrimination and invasion of privacy.  By the same token, hoarding and patenting genomic information so as to exclude others from using it does not enhance scientific discovery as much as the unhindered non-proprietary dispensing of solid data through the (increasingly belittled-as-inconvenient) process of peer-reviewed publication, of shared reconsideration, and of corrected republication if necessary.

Any notion of participatory democracy in this emerging arena must be premised on a diversity of voices—and that diversity will require broad access to the debate not merely to the technology.  We seem much too intently focused upon the benefits of aggregating fetishized bits of data from vast pools.  It is time we actually engaged the living, speaking subjects who make up the crowd, the sources, and the collectivity of our wisdom.

Warren’s Commission…

Published on The Nation (http://www.thenation.com)

The Real Risks of Fake Outrage

Patricia J. Williams | September 12, 2012

My friend G. lives on Martha’s Vineyard, an island with a complex social order. During the winter it is among the poorest districts in Massachusetts, but in the summer it vies for position as one of the richest. The year-round population is largely working-class; the summer folk are well-off, and their numbers include more than a few celebrities.

In the last week of August, G. took the ferry to the mainland to stock up on supplies at Walmart; on her return, she took a taxi home from the boat landing. Unlike in New York, the local cab companies are small businesses run by individuals who work other jobs to make ends meet. Four or five rusty vans wait at the ferry dock, and you share a van with anyone else going in your direction.

On this particular trip, G. shared her cab with an elderly couple dressed in full nautical regalia. The woman wore a red blazer and navy trousers; the gentleman sported an ivory-tipped cane, bow tie and a seersucker suit. A man carrying a shoulder-mounted camera with a long telephoto lens was filming the cab as G. boarded—and she assumed that one or the other was a famous novelist, a great diplomat or some long-retired Nobel laureate. As it turned out, however, it was the cab itself that was the main attraction: the cameraman was a Republican tracker for Scott Brown, Elizabeth Warren’s opponent in the Senate race. “He’s been following us for days,” the driver said wearily.

“Us” was Martha’s Vineyard Taxi, an enterprise owned by Morgan Reitzas, a struggling musician and part-time fisherman. Reitzas was hired by the Warren campaign to drive her to fundraisers and for sightseeing on the island. Reitzas was caring for his 4-year-old daughter, whom he’d brought along for the ride. When the tracker tried to film the inside of the van, where Reitzas’s daughter was seated, Reitzas ordered him to back away and put his hand over the lens. The resulting footage shows the confrontation, as well as the clattering spin as the camera hits the ground.

A great deal more than the camera went into spin mode. The video was posted online, where it quickly got more than 100,000 views on YouTube. Within hours, the executive director of the Massachusetts Republican Party had denounced Reitzas as a violent “campaign aide” to Warren and falsely asserted that Warren had passively witnessed the entire encounter. In response, her campaign issued a statement: “The person featured in the video was not a member of the Elizabeth Warren for Massachusetts staff. He is a cab driver. Elizabeth did not see what happened.”

The blogosphere greeted this with snide innuendo. “Consider the subtext behind ‘He is a cab driver,’” wrote a blogger at American Thinker. “The impression given is that the cab driver, as would be expected of a little person who was not a Harvard professor, was unknown to Ms. Warren.” The Brown campaign—which in April got police to remove a Democratic tracker from an event—sent an unctuous letter to the local board of selectmen urging them not to revoke Reitzas’s license and expressing concern about “how he would support his family…. He seems like a regular guy who’s just trying to get by like everyone else.”

Reitzas’s Facebook page was scoured for signs of villainous connections and a photo of him surfaced, with what hostile commentators described as “his arms around” Warren and her husband, while standing in front of an old lighthouse. It was taken during a sightseeing stop (“I’ve been photographed with many celebrities over the years, driving the cab,” Reitzas moaned) but became proof that he was lying, lying, lying and that Warren was more than just a good customer. Ultimately, his time in the spotlight exposed him to so much harassment that Reitzas took down his Facebook page, hired two lawyers and held a press conference at which he issued an apology for his aggression, denied (again) any political connection to Warren, revealed himself as an unregistered voter with no affiliation and explained (again) that he was trying to protect his daughter.

That this passes as a “political” story at all is troubling. Yet there are a thousand similar nonstories across the country during this election season. Their manufacture and magnification represent a crisis of public discourse, and we are distracted by them at our peril.

Here’s a story that matters: The balance of power in the Senate is at stake, and Warren’s campaign has been battered by huge investments in negative advertising funded by ALEC, the Koch brothers and big banks. After all, Warren designed the Consumer Financial Protection Bureau; she predicted the financial collapse well before most and fought against the 2005 Bush-era law that drastically constrained the ability of ordinary people to declare bankruptcy in the face of that collapse; she has devoted her career to reforming fraudulent lending practices, women’s wage inequalities and unfair credit schemes. It is no slight to Scott Brown—a mild-mannered moderate Republican whose political identity is configured around the amiability of his pickup truck—to say that Elizabeth Warren has more to offer in a time of economic tremulousness.

Socrates said rhetoric is the art of persuasion. He also said that persuasion in the absence of fact is mere flattery of one’s audience; and flattery unsustained by truth is neither art nor rhetoric but purest demagogy. Like the nonstory of Morgan Reitzas, too much of our political discourse is degraded by hyperbolized trivia whose fantastical properties deliver us only and exactly what we want to hear. Apparently all we want to hear about is sex, car crashes and the bleed that leads. Lacking that, the random folly of a cab driver having a really bad day would seem to suffice. It surely is time we grew up.

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Source URL: http://www.thenation.com/article/169887/real-risks-fake-outrage

THE GENOMIC IMAGINARY

GENEWATCH Magazine,
Volume 25 Issue 1
Genetics in 20 Years
Jan-Feb 2012

http://www.councilforresponsiblegenetics.org/GeneWatch/GeneWatchPage.aspx?pageId=409

By Patricia Williams

I teach a Justice and Bioethics class that, over the years, has attracted not only law students, but students from a grand variety of disciplines including medicine, engineering, biology, anthropology and journalism. At the beginning of every semester I do a silly little exercise as a way of putting on the table all the romantic images they might be harboring: I ask them to draw a cartoon depicting the DNA in their own bodies. Very few draw molecular topology. Indeed, no matter how sophisticated their backgrounds in biochemistry or genetics, whatever they draw is almost always relentlessly pre-modern: little men scurrying about with messenger bags; “a womb inside each cell”; mini-drones circulating just beneath the skin; “a golden fully-formed-but-microscopic Me, floating in the thorax”; a Harvard beanie; Da Vinci’s Vitruvian Man; a “biological Torah in the Ark of the body.”

The symbolism embedded in these framing metaphors and tropes-as delivered up by even the most secularly scientific minds-is intriguing. These are images of faith and karma and alchemy, of holy text and of the resurrection of the body-as well as of entitlement and preordination. While I ask my students to do this exercise as a way of externalizing what might otherwise remain fairly unconscious associations, these filters are persistent. They remain on the table, they do not go away.

When I contemplate the next few decades of genetic technology and research, I think of those students and what roads their chosen taxonomies will chart through the genetic forest, the mind-maps their nominations will impose upon our collective understanding. In twenty years, I have no doubt that the actual science of genomics will have continued to expand explosively. I have no doubt that we will have medicines that at present we would think of as miracles. We will have access to our farthest ancestral links. Governments, schools, employers and corporations will have access to our farthest ancestral links as well. Recombinant and synthetic biology will revolutionize our conception of reproduction and the life cycle itself.

That said, the little gallery of drawings I keep convinces me that the most important questions we face now and will then are age-old: how will we distribute the benefits of new knowledge? Will this sudden source of power and wealth be translated into public health benefits, or hoarded by elites? Will biologized notions of “endowment” displace or supersede notions of political equality?

The ability to read DNA quickly and cheaply, moreover, will put big holes in much of what we presently consider private as a matter of right. Similarly, the surveillance possibilities will give new meaning to the expression “You can run, but you can’t hide.” Finally, the delicate conceptual and jurisprudential relation between the historic sanctity or inalienability of human bodies and the body-as-product will be vexed; for if medical research is ostensibly the driver of many recent genomic discoveries, the designated funding behind that research surely exists in ambiguous tension with corporatized pharmaceutical interests.

What I hope we will have refined by then is our sense of urgency about the social justice issues presented by genomics. I hope that we will have embraced this science for what it teaches us about our common humanity and our interdependence with all other life forms. I hope that we will be guided by respect for the dignity of organisms and caution about unintended consequence, rather than by commercial profit, magical thinking, predestination, hubristic risk disguised as “progress,” mutilation masquerading as “improvement,” or eugenics doing business as…usual.

This is what I hope. But that is also what I fear.

Patricia J. Williams, JD, is a Professor of Law at Columbia University and a member of CRG’s Board of Directors. She writes a monthly column for The Nation called “Diary of a Mad Law Professor.”

The Legacy of Anita Hill, Then and Now

Published on The Nation (http://www.thenation.com)

 

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Patricia J. Williams | October 5, 2011

Sad fact: there are few women of my generation who don’t have what is known as our “Anita story.” Mine occurred in 1980. I was five years out of law school and had decided to shift my career from practice to teaching. I was walking down a long hallway at the Association of American Law Schools meat market for new hires. There were two men behind me who were joking about the excellent shape of my legs and the unusually well-defined musculature of my lower quadrants. (Did I mention that it was a very, very long hallway?) At the end of that eternal passage was my appointed interview room. I escaped into it, only to be followed by the two. They, as it turned out, were doing the hiring.

Life was like that sometimes, I thought. And so I went through all the proper motions of expressing how much my fine ideas could contribute to their faculty, pretending that nothing had happened.

I didn’t stop pretending nothing had happened until 1991, when Anita Hill testified to the Senate Judiciary Committee about the unwanted office approaches of her boss, then-chair of the Equal Employment Opportunity Commission Clarence Thomas. I remember how still and dignified she was at the center of that howling hurricane of mockery, meanness and machismo. It was like some psychedelic cross between The Crucible and The Wizard of Oz, with its swirling fantasies of witchcraft, conspiracy theories and mad satyric orgies. I remember everyone from Orrin Hatch to Rush Limbaugh dismissing anything that “might have happened” as “bedroom politics,” even though Hill’s allegations centered on misbehavior in the boardroom, not the bedroom, and even though those allegations implicated precisely Thomas’s public ethics as the chief enforcement officer of sexual harassment laws. “He said, she said” entered the national vocabulary. So did “They just don’t get it.”

Anita Hill graduated from Yale Law School in 1980. The percentage of women in law schools was 38 percent—in contrast to the approximately
50 percent it is today. Back in those times there were so few women among the legal professoriate that many law schools didn’t even have women’s bathrooms. And as for women of color—there were only five or six of us teaching in the entire United States.

If the percentages of women in all professions improved over the next decade or so, the ability to speak up and speak out was often constrained by fear of losing status, ruining one’s career. It was the shockingly abysmal treatment of Anita Hill by the United States Senate that changed all that. Women were mobilized in a way unseen since the time of the suffragettes. EMILY’s List took off, as well as hundreds of networks for women’s political empowerment. Twenty years later, if some men’s behavior has not changed as much as one might have hoped, the collective women’s response has undergone seismic change. It’s not “nothing” anymore.

Anita Hill remains an icon to whom subsequent generations are rightfully indebted. At the same time, she has not remained trapped by her own symbolism or frozen in time. It is sometimes forgotten that she is a respected scholar of contract jurisprudence, commercial law and education policy. She is a prolific author, publishing numerous law review articles, essays, editorials and books. Today, Hill is a professor of social policy, law and women’s studies at Brandeis University. Much of her most recent research has been on the housing market, and her most recent book, published this month, is Reimagining Equality: Stories of Gender, Race, and Finding Home.

It is ironic that the full substance of Hill’s remarkable intellectual presence remains so overshadowed by those fleeting, if powerful, moments of her Senate testimony. If the larger accomplishments of her life aren’t quite as iconic as that confrontation with Clarence Thomas, they nonetheless merit attention by feminists and scholars alike. To begin with, Hill is a remarkably elegant and accessible writer. For those who wish to apprehend the gravitas of her intelligence and dignity, Reimagining Equality would be a good place to start.

Some will remember that Hill was introduced at the 1991 hearings in the company of a large family—she is the youngest of thirteen children—but very little attention was paid to the significance of that protective wall of humanity. It helps, through this book, to have met Mollie Elliot, Hill’s determined maternal great-grandmother, born into slavery in 1847. It is instructive to read about how her grandfather fled Arkansas in 1914, narrowly escaping an old-fashioned, low-tech lynching. It is inspiring to know that her mother, Erma Hill, would have been 100 years old on October 16, and that “each day I honor her by working to live up to her dream that I will find a more just America than the one she lived in and that, as she did, I will leave it better than I found it.”

Despite this, Reimagining Equality is not principally a memoir. The arc of “home” ranges from her ancestors’ efforts at making their Arkansas farm a secure geographic space to her own settling in Massachusetts as the homesteading of an identity even more than of literal place alone. This trajectory is accompanied by a brilliantly lucid detailing of the apportionment of American real estate—and along with it, the American dream—along the lines of race, gender and class. While the most memorable heroines of this book are women who struggle to make a safe and nurturing domestic space of their own, the underlying narrative antagonism is rooted in a universal story that affects us all—of corrupt, downwardly spiraling land and banking practices that have disproportionately targeted women, minorities and the poor. From the 1800s to today, Hill meticulously tracks notions of communities split by the government’s investment in racialized redlining of neighborhoods; of encompassing traditions of maternity riven by neonatalist notions about which mothers should be having more or fewer babies; and of “ghetto lending practices” that have poisonously metastasized into today’s bundled subprime mortgage crisis.

Reimagining Equality is an important achievement. Hill manages to humanize and reinvigorate the American promise of security in one’s pride of home—even against the backdrop of harder-edged, more militaristically inflected calls to “homeland security.” The kinder, gentler complications that Hill brings to bear in teasing out this contrast are an eloquent continuation of her giving voice to the invisible, the voiceless, the undocumented, the hopeless and, yes, the all too literally homeless.

In 1991, Anita Hill made history by the simple yet terrifically courageous act of standing up to an arrogantly gender-biased political culture, as well as that part of “the public [who] rejected the testimony of my life experience.” Twenty years later, let us make sure that her written legacy is no less remembered than Thomas’s radically right-leaning Supreme Court opinions. Let us honor her by fully recognizing the liveliness of her ongoing cultural engagement: the excavation of a resonant equality that shimmers at the heart of the American dream, a light that demands its place as a beacon to all Americans, and beyond.

 

Sex, Lies and The DSK Case

Published on The Nation (http://www.thenation.com)

 

I’ve been to a lot of dinner parties lately where the question du jour is whether Nafissatou Diallo should have been “given her day in court” so she could “fully air” her charges against Dominique Strauss-Kahn; and, while we’re on the topic, whether Manhattan District Attorney Cyrus Vance Jr. compromised his political career with the motion to dismiss. It’s slow around Labor Day, so I understand the hunger to have that case go on forever; it would have been a mega-spectacle, and I, too, would have loved seeing the blood vessels in Nancy Grace’s temples balloon and throb.

Carnival possibilities notwithstanding, however, it’s important to remember that criminal cases fall apart all the time. Through one prism, this was just one of them—such is life. At the same time, as Katha Pollitt noted recently in a post on The Nation’s website, the onus on a victim asserting rape is very, very great. It seems there’s always “something” in her past that can and will be used against her. In addition, the way l’Affaire DSK played with hot-button political figurations—money, race, ethnicity, immigration—made its end especially excruciating. Like a piñata that has spewed its contents after much bashing, a ghostly ruin of pluralized images were left to us: poor hotel workers, haughty Frenchmen, lying black women, callous prosecutors, Muslim mothers, high-priced lawyers, insidious unnamed sources, guys who smile like cats that swallowed the canary and traumatized rape victims everywhere.

It’s important to understand why this case fell apart, to distinguish some of its particular features from the more general challenges in prosecuting rape. First, rape cases are notoriously difficult to prove, because the crime is so often one-on-one, or “he said/she said.” In the past, the mere lack of other witnesses was considered legal reason for letting rape go unprosecuted. This is no longer true—and despite confusing media assertions to the contrary, Diallo’s case was not dismissed on those grounds.

Second, despite our best aphorisms that “even” prostitutes and pathological liars can be raped, it remains true that the credibility of rape victims is too frequently doubted for specious reasons having to do with their sexual history. Media accounts suggested that Diallo’s suit was dismissed because of her “questionable past,” but that wasn’t what weakened the case most. It was that she lied to prosecutors again and again and again. The fact that she falsely claimed on her asylum application to have been gang-raped in Guinea probably wasn’t enough to doom the case—she might still have presented herself quite sympathetically as a desperate refugee fleeing a war zone—but there were other things undermining her credibility. Diallo repeatedly confused or misrepresented crucial sequences of events to the grand jury, to police and to prosecutors. Not only did the police investigation turn up a jumble of discrepancies in her story; her own attorney permitted her, even advised her, to talk and talk and talk to all manner of tabloid media hounds. That rather unusual—I would say reckless—decision captured yet more discrepancies for the record and diminished her reliability further.

Third, where an accuser’s story becomes subject to documentable weaknesses on this great a scale, it’s the prosecutor’s duty to move for dismissal. What seems to be overlooked in calls to give Diallo “her day in court” is that our criminal justice system pursues cases in the interest of public order, not on behalf of an individual complainant. That’s why criminal cases are titled “The People” of a jurisdiction versus an alleged criminal actor. (A civil—or more “private interest”—claim, on the other hand, would allow “Ms. Diallo as an individual” to bring a case against “Mr. Strauss-Kahn as an individual,” and, given the lighter burden of proof in civil cases, would offer a better chance of winning such a suit.) Vance does not represent either “the police,” as so many seem to think, or Diallo, but rather the broad justice interests of the entire state; it’s the reason he was required to reveal the flaws in her story when the investigation uncovered them. If it’s exculpatory, the defendant has a right to know.

The responsibility of prosecutors to dismiss a weakened case is designed to be a filter of sorts. Not only would it be a waste of public resources to take questionable cases to trial; it would fundamentally challenge the very notions of presumed innocence and reasonable doubt. The prosecutor cannot—as a matter of absolute professional ethics—proceed to trial with a claim where the prime witness repeatedly changes or lies about relevant, substantive elements of the story. This is not a matter of discretion: prosecutors are forbidden from presenting a case to a jury when they do not believe they can win, as judged by the standard of “beyond a reasonable doubt.”

That said, the perceptions of prosecutors in determining who is a credible accuser are inflected by the same biases and assumptions that afflict the culture at large. When it comes to rape cases, data have shown that men are more often believed than women, and whites more than blacks, and fine suits more than sweatpants. Bad prosecutors make bad decisions about witness credibility all the time—and therein lie the grounds for our political advocacy, the reason to keep pressing for more educated participants at every level of the system, from police to prosecutors to judges.

We have plenty of reasons to be worried about the social divides that play out daily in our judicial system. But if there is bias at work in Vance’s handling of his office, this case isn’t the best proof. The wrenching demographics of misogynistic insult, assault and murder cannot alone determine the result of a given “case or controversy” (as our Constitution puts it). Putting them ahead of actual proof to seek vengeance against a “smugly smiling” icon of the banking industry is not so very different from carelessly assuming that a “scowling” black youth “probably” did it because he was wearing a hoodie. We cannot—should not—all be Nancy Grace.

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Reality Wars

Slouching Towards Faux

Patricia J. Williams | July 13, 2011

Shortly after Dominique Strauss-Kahn was indicted on charges of attempted rape, his friend Bernard-Henri Lévy wrote a defense of him that, among other wrongheaded assertions, denounced the American justice system as one where “anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.” What Lévy actually described is a presumption of guilt, not the American presumption of innocence. In the United States, the prosecutor—whose responsibility extends not merely to the accuser but to the general interests of justice—has the burden of proof. The accused doesn’t have to prove or disprove anything; indeed, the accused doesn’t have to say a word, as per our Fifth Amendment.

Lévy’s offhand remark came closer to describing the global media than our courts. Journalistic values like accuracy, accountability and respect for human dignity have fallen by the wayside as entertainment and titillation have prevailed. The inescapable rush to judgment that pours forth in hi-def in seemingly every public space—from elevators to taxicabs to airports to bank lobbies—is a kind of civic poison.

It’s because of the media that we find our democratic processes foundering in increasingly debased public discussion: Strauss-Kahn’s accuser is driven to suing the New York Post for its unsubstantiated claims that she is a prostitute. Pundits mock the very principled prosecutor, Cyrus Vance Jr., as a sucker for having dutifully and appropriately revealed potentially exculpatory information. Radio jocks spend hours dumping on those who believe the accuser’s history of lying has anything to do with Strauss-Kahn’s “obvious” guilt. When HLN opinionator Nancy Grace’s howling impersonation of blind Fury wins her more respect than the deliberation of an actual jury, as in the Casey Anthony murder trial, we worry for the safety of judges, defendants, accusers and jurors. We forget that the case against Anthony was circumstantial; as much as she lied to law enforcement—a crime for which she has been convicted—her child’s body was so decomposed there was no way to prove either how she died or who did it.

We are swimming in a gloop of scuttlebutt and tittle-tattle, driven by “unnamed sources” who always represent themselves as “close to the investigation” yet who speak only “on condition of anonymity.” Those deceptively anodyne descriptors have moved us down an ethical spectrum from transparent reporting to stories that are “underwritten,” bribed, extorted or outright lies.

Consider, for example, the insidious model of Rupert Murdoch’s media empire. Fox News Channel is a subsidiary of the Fox Entertainment Group, which in turn is a subsidiary of Murdoch’s conglomerate News Corporation. It’s a perfect circle, a consciously structured looping between news and entertainment, a business model premised on positing the amorality of “anything goes” as the civic equivalent of “freedom of the press.”

In Britain, Murdoch’s devouring influence is finally being challenged with revelations that his employees compromised a murder investigation by hacking into the voicemail of the victim and erasing her last messages; tapped the phones of politicians with whom Murdoch took issue; and paid police officers and government officials “in the six figures” for information about ongoing investigations. It is perhaps only in America that any enterprise of Murdoch’s labeled “fair and balanced” is still received as anything but laughable. We know, too, that paying for information has become broad practice among American tabloids like the Post; but we seem inured to the concern that tabloid sensibility is not just unreliable but corrupting.

The Anglo-American justice system constructs criminal cases as singular—as particular to named individuals and specifically delineated indictments. Social narratives, norms and values can never be entirely absent, but the system attempts to regulate their influence through mechanisms like the rules of evidence (barring rumor and unsubstantiated opinion) and standards of proof (like “reasonable person” and “reasonable doubt”). To keep from destroying reputations unnecessarily, we adhere to a presumption of innocence. Police are supposed to keep certain aspects of investigations closed until there is at least “probable cause.” Similarly, both sides screen and filter evidence for probity. In some cases, judges have the discretion to sequester juries from outside or inflammatory input. And we trust lawyers, prosecutors and judges to keep confidences as a matter of professional ethics.

But none of these structural buffers can operate as they should if a Murdoch-like empire runs the world, carelessly spitting out the home addresses of those it wishes to skewer, hacking into the phones of unlucky witnesses, pursuing stories into sealed records, private homes and bathroom stalls. Our democracy depends on a free press to discuss the issues of the day without interference from government. What that noble ideal does not account for is the existence of media monopolies able to exercise national and international control over civic spaces—even to the degree that their power vies with that of governments. Their careless, nonempirical, even fictionalized narratives invade privacy, ruin careers, mythologize racial stereotypes, exploit class divisions, exacerbate ideological discord, unleash mobs, wreak vengeance, assemble armies and annihilate the common good.

Today’s media chatter is beholden not to truth but rather to profit, fear and fantasy. What becomes of the duty to listen that is at the heart of free expression? What becomes of the shared mulling of ideas that allows us to think of one another as equals who exist in society with one another? What becomes of the measured thought exchange that is the essence of due process?

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Source URL: http://www.thenation.com/article/162003/slouching-towards-faux

L’Affaire DSK

Published on The Nation (http://www.thenation.com)

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 The Perp Walk That Demeaned Us All

Patricia J. Williams | May 24, 2011

When Dominique Strauss-Kahn first mulled over the idea of running for President of France, he professed concern that his vulnerabilities in the coming election would be the trifecta of “money, women, his being Jewish.” In the week since a housekeeper at New York’s Sofitel Hotel alleged that he assaulted and attempted to rape her, all three of those elements have converged to render any thought of a political future for Strauss-Kahn entirely beside the point.

On the surface, Strauss-Kahn’s troubles are all about “women.” He has long had a reputation for salacious advances. On one hand, therefore, it’s tempting to assume the present accusations fit him as “in character.” On the other hand, given his prominence and the seismic stakes for the European Union, his well-advertised randiness, in the opinion of many, renders him the world’s easiest fall guy.

On the surface, furthermore, the case can be framed as one individual charging another with sexual crimes, period. Strauss-Kahn has been arrested, pleaded not guilty, released on bail, put under house detention. Ostensibly, he will be presumed innocent until a trial allows all the facts to be presented in an orderly fashion, witnesses to testify, motives to be assessed, credibility to be evaluated, irrelevant and extraneous information to be barred from consideration.

Unfortunately, what has unfolded is not that simple. The international media frenzy has all but obliterated any space for a presumption of innocence; and it has relentlessly impugned both Strauss-Kahn and his accuser in broad, vulgar stereotypes—not only about sex, but about wealth, Guinean colonials, socialism, fame, French masculinity, American Puritanism, Muslim women, Jewish identity and Africans as bearers of HIV. It will be very hard to see justice done against a backdrop of so much roiling passion, rumor-mongering and pure projection. The deliverance of due process requires restraint, not just in the media but among the citizens of America and of the world. So I would like to offer some modest caveats as this case proceeds through the digestive tract of a world obsessed with celebrity dirt.

First, we do not know what happened. We can choose to believe what we want, but it serves no civic purpose to allow one’s personal hunches to stand in the way of being open to the specific evidence-based possibilities that will be presented in a court of law. For example, French intellectual Bernard Henri-Levy [1]’s publicly stated conviction that a proper first-class maid never cleans alone is spectacularly boneheaded. Even if it were true that housekeepers traveled only in “brigades,” it’s a generalization, a stereotype, irrelevant to whether DSK committed the crimes of which he is accused. At the same time, it is no less reflexively patronizing to conclude, as many women apparently have, that solely because the accuser is female or an immigrant or poor or Muslim or a widow that she could ever be anything other than truthful. And that is indeed all we know about her—that she is a poor Muslim widow from Guinea. Nor, of course, should we know much more about her identity, as a matter of due process. But, again, that process requires patience for victims’ stories to be played out in the appropriate place and time; it is not an invitation to plug the holes in our knowledge with bold imaginings.

Secondly, it is Dominique Strauss-Kahn who has been charged in this matter. It is not his wealth that is on trial, nor French effeteness or socialism or the International Monetary Fund. Rape and assault are committed by aggressors at every level of society—rich and poor—and on every continent. It is specious to opine, as did Ben Stein [2], that DSK couldn’t have done it because he’s a fat, old man and, besides, who ever heard of an economist being a rapist. It is just as specious to assume that he must have done it because all French men are supposedly sexist pigs. And it is nothing less than distressing to see racist speculation in the blogosphere that the accuser is “another Tawana Brawley”; or Ann Coulter’s twittered sneer that “DSK’s accuser is Muslim, he’s Jewish, so now DSK is claiming that he raped in self-defense.”

Thirdly, none of these observations preclude a clear, and clearly separate, analysis of misogyny in French or American political culture. Indeed, it’s well past time for French women to ratchet up the debate about their relative lack of representation in the highest echelons of power. The DSK affaire has elicited so much offensive commentary from prominent French personalities that an ironically nominated “marche des salopes” (or “slutwalk”) was organized in Paris to protest the prevalence of institutional gender bias. The casually medieval rationalizations for priapic behavior that have dropped from the mouths of the intelligensia are positively cringe-worthy: “le droit de jambage” (the right of the leg), “le droit de seigneur” (the right of the lord over his servant’s wife), “le troussage de domestique” (the right to fumble under the skirts of the help) and “un petit viol sympa” (a friendly little rape).

Fourthly, while it is better not to indulge in conspiracy theorizing, it is also good not to rule it out as impossible. Politics is a complicated, dirty business, as the impeachment hearings of President Clinton ought to have instructed us. (Who guessed back then that Newt Gingrich, while skewering Clinton’s morals, was cheating on his then-wife with his present wife?) For Americans, who by and large have never heard of DSK, the possibility of his arrest being a set-up is inconceivable. But in the immediate aftermath of his detention, a majority of French citizens believe he has been purposely brought down. Why? Dominique Strauss-Kahn was well on track not just to become France’s president but its first Jewish president. As head of the IMF, he led that institution in a distinctly progressive manner. He sharply critiqued corrupt American bankers and banking practices and, early on, predicted the collapse of the mortgage market. As a center-left Socialist party member, he was close to negotiating a European Union bailout for Greece. And his elimination from the election empowers the candidacy of Marine LePen, head of the anti-immigrant, anti-Muslim and anti-Semitic National Front party, whose popularity, alarmingly enough, currently polls higher than that of Nicolas Sarkozy.

Finally, we should curtail the unseemly expressions of glee many American commentators have found in DSK’s lowered status. Rather than just condemning the crimes for which he has been indicted, the media condemns him for his wife’s inheritance; for his Porsche; for being a limousine liberal or a caviar socialist; for “pretending” to “spread the wealth” while wearing “$35,000 suits”; for flying first class; for having large and multiple homes; for owning more than one cell phone; and for being effetely French (Bon Dieu, we seem to hate the French!). A columnist in the Daily News derided [3] DSK’s very bearing because he “swung his arms as if he were striding down a corridor of power.” The New York Post went on to describe him as a “whiney fat cat,” the “jet-setting” “darling of the French left” who exudes “pompous arrogance.” According to the Post’s sources, “Cops ‘are not thrilled by the French idiot…’ ”

There’s an element of sadism in this sort of reporting that is troubling—rather like the partying at Osama bin Laden’s death. One doesn’t have to defend Strauss-Kahn’s alleged actions to reflect upon what reveling in his humiliation—the exuberant fun some people are having—says about us. While imprisoned on Riker’s Island, for example, there was a good bit of gloating about DSK’s having been “forced to cool his heels in the lockup,” as the NY Post put it. “The dingy digs, where prisoners are allotted $1.80 per meal, were a far cry from the $3,000-a-night luxury suite….”

No doubt. But that gap in accommodations says nothing about individual guilt or innocence. It does, however, reveal a deep resentment about class. At the same time, that bit of datum both highlights and obscures the alarming conditions in our jails and prisons, to say nothing of the way that class is also a cipher for race. Riker’s Island, one of the largest penal colonies in New York—or the world—has a daily population somewhere between 13,000 and 14,000. Most of those are pre-trial detainees, and 92 percent are black or non-white Latinos. In other words, the inmates at Riker’s Island are not convicts for the most part: they are arrestees waiting for trial. But because they are poor and cannot afford bail, the average length of their stay is fifty-one days [4].

The public mockery of DSK’s having to endure, for a couple of nights, the wretched toilets, the meager food, the “dingy” surroundings misses a deeper point: that there are thousands of other presumptively innocent-until-proved guilty people languishing in Riker’s stinking conditions whom we are also mocking, rendering invisible or summarily deeming deserving thereof. The too-easy revulsion at their poverty or race is in perfect counterpoint to the infuriated huffing about DSK’s fortune and nationality.

This concern is most efficiently symbolized in the indignities of the so-called “perp walk.” To American audiences, it’s become an unthinking ritual of police practice—parade the deliciously dastardly defendants. See Lindsay Lohan without her makeup! Mel Gibson with his eyes crossed! Charlie Sheen with a manic film of sweat! The French press was deeply unsettled to see their former finance minister dragged through a forest of photographers, rumpled, handcuffed and red-eyed. Some French analysts saw it as a kind of democratizing gesture, a bracing reminder that elites need to be taught that they’re just like everyone else. But I think the perp walk—a relatively recent product of voyeuristic reality TV shows like Cops—is undignified and humiliating for all defendants.

We should remember the great mistakes made in the name of perp walks: the Innocence Project has exonerated hundreds of defendants who “looked” guilty based on questionable metrics like “shiftiness.” When the prosecutor called DSK’s exit from the hotel the behavior of a man in a hurry, for example, NY Daily News columnist Michael Daly mused, “This is what you would expect your basic sex criminal to do.” For those of us old enough to remember the Central Park Jogger case, this is very close to the kind of generic categorization that allowed the jury to convict despite the thinnest of circumstantial evidence; and it was nearly two decades before those young men were finally exonerated by DNA evidence.

Hence, the perp walk is a social equalizer all right, but not in a good way. It’s a shaming ritual, rarely performed upon middle-class arrestees, and much more often upon the extremes of the class spectrum: either highly visible figures whose images may be sold at platinum prices to the likes of People magazine, or poor non-white denizens whose dark unhappy images evoke shock and horror in service to what author Michelle Alexander calls “the New Jim Crow.”

Given the fact that the United States—with more than 2 million bodies behind bars—leads the entire world in rates of incarceration, the perp walk is hardly the greatest icon of equal rights. It might be a wiser course if we think seriously about whether such habitual indignities might not endlessly and further instantiate a downwardly corkscrewed presumption of guilt that ultimately indicts us all.

Gender Trouble

Published on The Nation (http://www.thenation.com)

Patricia J. William | May 4, 2011

Over the past few years, attacks on transgendered people in public places have been on the rise. In 2009 a transwoman in Queens was pelted with rocks, beer bottles and misogynistic slurs. Just weeks before in the same borough, two men used a belt buckle to beat a transwoman named Leslie Mora. In late April a widely disseminated video captured two teenage girls punching and dragging Chrissy Lee Polis from a women’s room to the front door of a Baltimore-area McDonald’s. That video, made by an employee, shows bystanders just watching, with little move to aid her.

Crimes like these often stem from simple homophobia; but they reveal a more specific discomfort with the ambiguity that transgendered people embody. The intensity of that discomfort extends to many situations that fall short of violence. Insults and isolation in housing, the workplace, gyms, schools and always, always in public bathrooms—premised on resolute gender binarism—leave transgendered people forever making the “wrong” choice. There are, for example, queasy debates at Smith and other women’s colleges about how to negotiate the presence of students who are admitted as women but graduate as men.

Transgender identities challenge us to think about the morphisms of “sex” and “gender,” “woman” and “man,” “real” and “not real.” This is a hot topic in academic circles: for example, attempting to disambiguate the notion of “identity” as a matter of legal subjectivity, when, say, a man with a heap of warrants is finally arrested—but by the time the police catch up, he has become a she, and in the name of that transformation asserts as a defense that “he” was a different person. It’s easy to dismiss this sort of discussion as funny or unimportant, but I think it’s necessary, not merely because it directly affects the lives of the transgendered but because it tests and expands the thinking of those of us who are not transgendered yet whose collective responses shape the social environment.

Take Smith. Its administration has said it welcomes trans students as part of a diverse community, but apparently not all students and alumnae agree. For some, a commitment to remaining a women’s college rests on assumptions about what a woman is as a biological matter, what gender is as a social construction and why a woman’s experience is, or is deemed to be, different from that of a man. Trans students evoke squeamishness particularly among older alums, as well as among those who come to a “single sex” school for its white-glove, ladylike connotations, or perhaps out of commitment to women’s education as a form of empowerment (Gloria Steinem went to Smith, after all). This contentious conversation scrutinizes not just the gender of individual students but overall institutional identity. The debate at Smith brought to the fore, for example, those who were unhappy to see their school’s feminine image newly shared with transmen.

The debate is difficult precisely because it feels so new—and in some ways it is. Sex reassignment technologies are so novel that the accompanying medical discourse still conflates those who have ambiguous genitalia; those whose endocrine systems are ambiguously skewed; and those whose psychology is felt to be at odds with their biology. And what about the culture of elective cosmetic surgery, or the cult of physical perfection that drives even normatively gendered people to feel “not normative enough” and so seek to become “more feminine” or “more masculine” through the wizardry of nose jobs, labial stitching, liposuction, pectoral implants and breast enhancement?

So what do we mean when we ask a pregnant person if “it” is a boy or a girl? The inquiry seems permissible only in utero. We get edgy when we don’t already know the answer when encountering a full-grown adult. Do we expand our meaning so that “woman” includes those who may have been born with uncertain genitalia but who grew up being dressed, viewed, identified as female from birth? Do we include that category of people who regarded themselves as men from the very beginning of childhood consciousness yet who, in asserting that sense of self, are not privileged with the perquisites of (white, straight) masculinity but are instead branded as freaks or frauds?

Most difficult of all, what might it mean to explode the entire category of “woman” as anything like a stable designation? What does that mean for the status of women’s colleges, women’s sports, to say nothing of the proverbial ladies’ room? After all, it’s not as though men have never been on the campuses of women’s colleges. I went to a women’s college, and “gentlemen callers” were everywhere—at meals, in seminars, in bedrooms and bathrooms, all but climbing in the windows on weekends. But those were “men” defined in a clear, binary and thoroughly heterosexual context.

To engage in gender-bending means that we are thrown into confusion with regard to everything from Title IX to the college rankings of U.S. News & World Report. Rightly or wrongly, women’s and men’s identities are still largely linked to the preservation of images of good wives in pearls and husbands in spats or, as one of the teenagers in the McDonald’s assault put it, to literally beating back competition for the affections of “my man” (or “woman,” as the case may be).

There are lessons to be mastered in all this, about principles of antidiscrimination and freedom of expression; about the complexities of perceived reputation (“I don’t want to be sneered at for still having a woman’s body,” said a Bryn Mawr student in the process of changing genders); and about institutional investments, dependent as they are on assessments of risk (Smith’s endowment managers are no doubt sweating bullets, given the power of alums as donors). Resolving these conflicts with dignity and thoughtfulness is no less important than educating and prosecuting those who use sticks and stones to beat away their terror of humanity’s infinite variability.

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Source URL: http://www.thenation.com/article/160445/gender-trouble

License and Liberty

by Patricia J. Williams

Released: 10 Mar 2011

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Fred Phelps’s Westboro Baptist Church is an alarming coven of zealots. Somehow they find the energy to picket everything from Comic-Con (“an excuse for whores to wear skimpy get-ups”) to the funeral of Mr. Rogers (for teaching tolerance to children) to the Golden Globe Awards (because “people chase after frivolity and vanity when they ought to turn back to their Lord Jesus Christ and_Repent and Obey”). Prejudiced in the broadest sense, they maintain that Catholics are the “most hateful people on earth”; Muhammad was a “whoremonger”; and “Jews are the real Nazis.”

It’s not surprising, then, that the Supreme Court created a stir with its recent holding inSnyder v. Phelps that freedom of expression precludes the government from punishing Westboro for picketing the funerals of private citizens with hateful epithets. The opinion, however, is quite narrow — the Court held only that the political content of Westboro’s rhetoric was protected by the First Amendment against torts of intentional infliction of emotional distress — and the popular impression that Westboro is now free to shout its fire and brimstone at funerals willy-nilly is misleading. Indeed, in the incident in question, Westboro complied with police requests to stay 1,000 feet from the funeral, and all but the tops of its members’ signs were hidden from mourners’ view.

What is most interesting, therefore, about Westboro’s social challenge was not really in the suit. Indeed, the general revulsion at the Snyder decision is probably underwritten less by the particulars of the case than by concerns about the Phelps family’s sanity: about their ghoulish haunting of funerals, their open calls for hatred, the sad plight of the smallest of their children holding God Hates Fags signs, as well as the enormous publicity that always attends such a sorry little band. The issues at stake go beyond free speech and touch on communications technology, profit, celebrity and mental health. Consider, for example, what happened in the wake of Jared Lee Loughner’s rampage in Tucson, when it was reported that the Westboro church “agreed” not to protest at the funerals of the shooting victims. But agreement implies agency, rationality, capacity to contract. How did Westboro — which claims to have picketed more than 44,000 events in more than 813 cities — suddenly become so “agreeable,” anyway?

As it turned out, there was indeed an explicit bargain not to protest in exchange for airtime on two radio stations. Arrangements like this have worked for Westboro before; most notoriously, it received lots of airtime in exchange for not picketing the funerals of five Amish schoolgirls killed by a gunman in 2006. Margie Phelps, a lawyer for the church, said that such contracts were made based on how much publicity they would get: “It’s how many ears we can reach. That is our job; that is our goal.”

That Westboro was not at the Arizona funerals was good news, but the transaction behind it is worrisome. Conservative host Mike Gallagher, one of the radio personalities who “donated” an hour on his show, said, “I don’t like the idea of giving them the satisfaction of this, but I believe my radio airwaves are less important than them hurting families.” But Gallagher’s nationally syndicated show reaches millions of listeners. Was Westboro’s absence really “worth” such broad access to so “many ears”? Gallagher positioned “his” airwaves as some kind of chit to be traded according to no bounds but his own. The deal had more than a whiff of extortion about it, like children who declare that they will stop screaming only if their parents let them have that candy bar NOW! What’s at work is less free speech than plain old bullying, shot through with entertainment value — a show that will get everyone’s juices jumping, better than a fistfight on Jerry Springer.

A week before the show aired, Gallagher gave lip service to balancing the program with moderating voices. In getting his network to agree, he said that it was important to have “a skilled, intellectual theologian type” in the studio at the same time. “So we invited the great Dinesh D’Souza to also be a part of this very important broadcast.”

One hardly knows whether to laugh or cry. Dinesh D’Souza? The one who blamed the “cultural left” for 9/11 because “what disgusts [Muslims] are not free elections but the sight of hundreds of homosexuals kissing each other and taking marriage vows.” The same D’Souza who believed that torture at Abu Ghraib “didn’t represent the values of conservative America” but rather “the sexual immodesty of liberal America.” D’Souza! Who as editor of The Dartmouth Review, published a vulgar satire of Jewish students’ celebration of Succoth.

Gallagher continued: “We’ve managed to do what the courts have been unable to do, and that is stop the Westboro Baptist Church from going to hurt these particular families…. We’re very proud of that, especially in the light of…this horrendous accusation that talk-radio somehow led to the events of last Saturday…with our so-called inflammatory rhetoric.”

And so the broadcast went forth to the multitudes, on January 17, Martin Luther King Day. Phelps’s daughter Shirley Phelps-Roper spoke in a soothing rush of soft urgency, declaring that final destruction is imminent. “God hates,” she said in her agreeably dulcet way; it’s just “His perfect righteous determination.” She called the Tucson shooting a “God-smack,” and complained “the media has shut the door to the word of God.” “The federal judge in Arizona [one of the murdered victims]…is paying the down payment for putting us on trial.”

My belief in free speech extends, with some distaste, to the Mike Gallagher Show. I believe that words ought to be countered with more words. I am not sure, however, if simple ideological commitment to free speech is sufficient when the ability to have one’s words heard is so linked to wealth and to access to complex propagandistic magnifications of the human voice. And I remain very unsure if the gospel of violent vengeance, which so titillates mass media, is not providing the basis for prophecy of its own.

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The Fire Next Time

The Right Wing Reboots Segregation

Patricia J. Williams | January 6, 2011

As we pass from 2010 to the new year, Congress resumes in its conservative-dominated configuration. This new wave is sustained by a right-wing power base informed by ideologues who would eviscerate the Fourteenth Amendment’s promise of equality by restricting voting rights and limiting public expenditures on the “parasites” who leech off the welfare of “their” America.

Many of these views, while wrapped in Ayn Rand’s individualist “ethical egoism,” protect a political and social order based on wealth and impermeable group privilege, one also rooted in a segregationist “us versus them” mentality, albeit persisting well beyond the racial divide. Christians versus others. Natives versus immigrants. English-only speakers versus snooty cosmopolitans. Inherited privilege versus equality as birthright.

Consider these recent salvos: Arizona State Senator Russell Pearce is so concerned about the “hijacking” of the Fourteenth Amendment that he has sponsored a bill that would refuse issuance of state birth certificates to children born here whose parents are not legal citizens. Rand Paul, freshman senator from Kentucky, believes that the Fair Housing Act is wrong because “a free society will abide unofficial, private discrimination, even when that means allowing hate-filled groups to exclude people based on the color of their skin.” John Cook, the very public member of the Texas State Republican Executive Committee, wants to replace Republican Joe Straus, who is Jewish, as speaker of the Texas House of Representatives because “We elected a House with Christian, conservative values. We now want a true Christian, conservative running it.” And Judson Phillips, head of the Tea Party Nation, has endorsed “the original intent” of restricting voting rights to citizens who are property holders because “if you’re a property owner, you actually have a vested stake in the community.”

Many policies originally promulgated to maintain economic supremacy by controlling the movement and political force of blacks in the Deep South seem to have come full circle, afflicting not just recent immigrants but poor and middle-class white people. One vivid example is the fate of Gene Cranick, an elderly, wheelchair-bound white resident of Obion County, Tennessee. When a backyard trash fire spread to his house in October, the fire department arrived, only to watch his home burn to the ground because Cranick had not paid a $75 yearly “pay to spray” fee. Cranick had the misfortune to live in an unincorporated area that had the limited services historically associated with black neighborhoods—when fire, sewer and police services would stop at the edge of a town based on the lines of segregation. Richard Kluger’s book Simple Justicerelates how in the 1950s civil rights activist Joseph DeLaine’s South Carolina home was apparently targeted by arsonists: “Members of the all-white Summerton fire department were on hand as the wooden house burned to the ground, but they made no effort to put out the flames because DeLaine’s house, they said, was beyond the town limits. And it was—by 100 feet.” (For those interested in the details of the legal and political battles for the Fourteenth Amendment’s promise of equal citizenship, I highly recommend Patricia Sullivan’s Lift Every Voice: The NAACP and the Making of the Civil Rights Movement.)

Just a few weeks ago, while speaking of his youth in Yazoo City, Mississippi, during the most violent times of the civil rights movement, Governor Haley Barbour became positively misty: “I just don’t remember it as being that bad.” How bad wasn’t it? According to Barbour, the White Citizens’ Council heroically ensured school integration and bravely kept the Ku Klux Klan at bay. In fact, the White Citizens’ Council set up a system of all-white private academies that left Mississippi’s public schools virtually all black and all woefully underfunded. It is true that to some degree the White Citizens’ Council often took public stances in opposition to the KKK, yet this professed opposition was not because it was in favor of blacks’ civil rights but because Klan violence attracted international attention, which was often “bad for business.” So instead the council tended to espouse resistance to integration through economic threats and the isolation of entire communities.

Indeed, Haley’s elder brother Jeppie was elected mayor of Yazoo City in 1968 on a platform of economic isolation of any blacks (or whites) who pressed for integration. Willie Morris’s 1971 book Yazoo: Integration in a Deep-Southern Town details what Jeppie described as blacks’ efforts to “get us on our knees so they can tell us what to do.” “When I came into office I intended to get some paving and some sewage improvements for the colored,” Jeppie said. “But now I can’t get too enthusiastic about it.” The time might come, Jeppie warned, for the whites to retaliate with firings and other measures.

Recently, The Huffington Post ran excerpts from a 1956 article by David Halberstam in which Nick Roberts of the Yazoo City Citizens’ Council explained why fifty-one of fifty-three blacks who had signed an integration petition withdrew their names: “If a man works for you, and you believe in something, and that man is working against it and undermining it, why you don’t want him working for you—of course you don’t.” This sort of thinking imagines the collective power of the White Citizens’ Council as nothing more than the individual choices of “a man” in dealing with “that man”—both of whom are syntactically equally endowed with options and opportunities. In the aggregate, however, these “preferences” become insidious disguises for a gangsterish mentality by which the endowed “we” eliminates anything but the narrowest sense of community. The rest of the polity, marked as “them,” remain alien—all while being chided to pay and pay and pay in order to play. That this creates a controlling class of the economically privileged—to wit, an oligarchy—seems utterly lost on the ground these days.

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Source URL: http://www.thenation.com/article/157530/right-wing-reboots-segregation