Prosecutor fired for going to "white preservationist" conference

[Frank Cross]

Might a better analogy be to the Communist hostility to free speech and 
rights of defendants?

At 03:13 PM 3/4/2006, Barksdale, Yvette wrote:
>"For example, most communists are deeply hostile to property owners,
>small farmers ("Kulaks"), members of the "bourgeoisie," committed
>religious believers and so on. It is likely that communist public
>officials would use their powers to harm or discriminate against at
>least some of these groups, if not all of them."
>
>Hi Ilya,
>
>Isn't the Communist hostility is to policies that favor private economic
>interests, or to religious faith in general, rather than to individual
>property owners, or small farmers, etc.? If so, it would not be
>surprising that a Communist would seek to use prosecutorial discretion
>to further policies that he or she thinks are important,  but that is
>what all prosecutors do. This ideology certainly may be a factor in
>hiring and retention policies, but it is not usually thought of as a
>bias or an unfairness which is a disqualification for office. Policy
>disagreements may certainly be another basis for discharging a
>subordinate prosecutor who serves at will - but that's a "we decided to
>go in a different direction" reason, rather than an "you're unfit for
>this office" reason.
>
>Perhaps the distinction makes little difference to the person who no
>longer has the job, but I think it makes a difference as to whether you
>can fire people. Perhaps the question is whether the disqualification
>would qualify as a "for cause" firing, as opposed to an "at will"
>firing.
>
>Choosing prosecutions that will advance certain ideologies (perhaps even
>expected in a prosecutor) has to be less problematic than targeting
>people for harsher treatment because of their biology (race, gender,
>etc.)
>
>yb
>
>***/////////////////////////////////////////***
>
>Professor Yvette M. Barksdale
>The John Marshall Law School
>315 S. Plymouth Ct.
>Chicago, IL 60604
>(312) 427-2737 (phone)
>(312) 427-9974 (fax)
>
>***/////////////////////////////////////////***
>
>-----Original Message-----
>From: isomin at gmu.edu [mailto:isomin at gmu.edu]
>Sent: Saturday, March 04, 2006 2:12 PM
>To: Barksdale, Yvette
>Cc: Bob Sheridan; conlawprof at lists.ucla.edu
>Subject: Re: RE: Prosecutor fired for going to "white preservationist"
>conference
>
>I am not convinced that this distinction is accurate. Even if it is, I
>doubt that it should carry much weight.
>
>Communist ideology certainly is characterized by hostility to
>"individual persons" belonging to particular groups and not just to a
>"system." For example, most communists are deeply hostile to property
>owners, small farmers ("Kulaks"), members of the "bourgeoisie,"
>committed religious believers and so on. It is likely that communist
>public officials would use their powers to harm or discriminate against
>at least some of these groups, if not all of them. Even in the area of
>racial and ethnic discrimination, communist regimes have often targeted
>particular ethnic groups for discrimination (Soviet Jews), deportation
>(e.g. - the Crimean Tatars), or even extermination (various ethnic
>groups in Cambodia, among others). Even in the US, a communist public
>official might well decide to discriminate against ethnic or racial
>groups (for example, Jews, or Florida Cubans) he views as hostile to his
>ideological objectives.
>
>More fundamentally, if a public official holds ideological views that
>are likely to lead him to abuse the powers of his office or fail to
>enforce the law, I don't think it matters much whether he does these
>things out of hostility to "individual persons" or because he or she
>believes that such actions serve to undermine a "system." The effect is
>the same and so is the government's legitimate interest in removing such
>persons from office.
>
>Ilya Somin
>Assistant Professor of Law
>George Mason University School of Law
>3301 Fairfax Dr.
>Arlington, VA 22201
>ph: 703-993-8069
>fax: 703-993-8202
>e-mail: isomin at gmu.edu
>Website: http://mason.gmu.edu/~isomin/
>
>----- Original Message -----
>From: "Barksdale, Yvette" <7barksda at jmls.edu>
>Date: Saturday, March 4, 2006 3:53 am
>Subject: RE: Prosecutor fired for going to "white preservationist"
>conference
>
> > Whether or not it was proper to fire Communists or not, I do think
> > white supremacists are different in kind. As Ilya states,
> > Communism was an ideology which was simply fighting ideology -and
> > thus their antagonism was toward systems, not individual persons.
> > Accordingly, there was less reason to question the fairness of
> > their individual prosecutorial decisions.  (Unless there was some
> > basis for concluding that their prosecutorial discretion could be
> > used in a way which furthered their political and economic
> > agenda.)
> >
> > In contrast, white supremacy is predicated on the superiority of
> > one group of people over another group of people, based solely
> > upon that individual's racial or ethnic identity. And,
> > historically, ideological white supremacy has been strongly linked
> > with antagonism or hatred of non-white persons, solely because of
> > their color.  Whether this particular prosecutor's white
> > supremacist views were accompanied by hostility, disdain,
> > antagonism to persons of color , for example,  is a question of
> > fact. (as opposed to,  perhaps nothing more than a pathetic
> > delusional aspiration of a world  sometime in the next millenia
> > where everybody looks just like him)
> >
> > But the prosecutorial problem for white supremacists is not
> > distasteful ideology, but a concern that they will in fact
> > discriminate against minority defendants (or victims) because they
> > think them "inherently criminal" or "less deserving of fair
> > treatment and concern", or " a scourge that needs to be removed
> > from the earth, whatever the means,  etc. "
> >
> >
> > yb
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of isomin at gmu.edu
> > Sent: Sat 3/4/2006 12:24 AM
> > To: Bob Sheridan
> > Cc: conlawprof at lists.ucla.edu
> > Subject: Re: Prosecutor fired for going to "white preservationist"
> > conference
> >
> >
> > In addition to the good points made by David, I would add only
> > that there is a big difference between sexual orientation (which
> > is almost certainly an involuntary psychological attribute, if I
> > understand the scientific consensus correctly) and ideology and
> > political belief. The latter is likely to be a relevant
> > qualification for government employment far more often than the
> > former (which, I believe, will almost never be relevant).
> >
> > Ilya Somin
> > Assistant Professor of Law
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> >
> > ----- Original Message -----
> > From: Bob Sheridan <bobsheridan at earthlink.net>
> > Date: Saturday, March 4, 2006 0:37 am
> > Subject: Re: Prosecutor fired for going to "white preservationist"
> > conference
> > > Let me throw the issue of gay orientation into the mix, and offer
> > > the
> > > position of a conservative friend, decades ago, on the issue of
> > > whether
> > > gays should be allowed to teach in the public schools.  He was
> > > opposed
> > > on the ground that gay role models might influence students in the
> > > direction he didn't favor.  To the suggestion that this was not
> > > likely
> > > to happen, he replied that he "didn't intend to give them a chance
> > > to
> > > find out."
> > >
> > > This is the essence of what Sen. Joseph McCarthy advocated when he
> > > went
> > > after supposed Reds in the State Department and, with his allies,
> > > in the
> > > New York public schools, the fear that a fifth column of secret
> > > believers in the wrong thing might undermine correct thinking
> > > where it
> > > counted most, in the State Department, the public schools, etc.
> > > The
> > > more the fear, the more the willingness to root out the boogie-
> > > man, who,
> > > after all, might just be real.
> > >
> > > We talk now as though the Communist Party of the '40s, '50s, and
> > > '60s,
> > > was somehow not quite as real, deadly, or feared, as it was
> > > perceived in
> > > those days.  However fearsome it may have been in actuality, the
> > > general
> > > belief was that it operated from secret cells and took its
> > > instructions
> > > from Moscow, the Cold War enemy who gave us the Berlin Blockade
> > > for
> > > which we gave them the airlift in 1948.  The Soviets fought us by
> > > proxy
> > > in Korea.  The Red Chinese that came over the Yalu River fired
> > > real
> > > bullets into American troops. The fear at home was real, hence the
> > > witch-hunt, which was also real.  The Cold War mentality, the fear
> > > that
> > > Big Brother will use your words and associations and reading
> > > matter
> > > against you affects thinking to this day.  The fight over the
> > > Patriot
> > > Act authorization of the FBI to check books read at public
> > > libraries is
> > > an echo of this experience and well worth the fight.  It's why
> > > this
> > > discussion is important.  We don't want to repeat the McCarthy
> > > experience, but we don't want our public officials attending what
> > > we see
> > > as racist rallies when his job includes prosecuting minorities.
> > > It
> > > would take a broad-minded minority member indeed who was
> > > prosecuted by
> > > such a public official to think that he was just doing his job in
> > > a
> > > public-spirited racially neutral manner.
> > >
> > > In state court in California we get one peremptory challenge of a
> > > judge
> > > if we don't like his leanings.  In court-ordered arbitration, we
> > > get a
> > > list from which to plink undesirables.  But not with the more
> > > powerful
> > > prosecutor, with whom we're stuck.  More powerful because
> > > prosecutors
> > > get to file what judges act on.
> > >
> > > My contribution to the formulation of the rule that Eugene was
> > > asking
> > > for earlier will be to suggest that when a public official,
> > > through his
> > > statements or behavior, causes a significant portion of the
> > > community at
> > > large to have good cause for concern about whether he is impartial
> > > or
> > > not, he ought to be disqualified from the matter if not the job.
> > >
> > > Balancing the public's right to have confidence in the neutrality
> > > of
> > > government against the individual's right to associate and speak
> > > his
> > > mind, in the racial situation I'm inclined to favor the right of
> > > the
> > > minority community to have confidence in governmental neutrality,
> > > anything less being to bring government into disrepute.
> > >
> > > I might feel differently in a different context, which suggests to
> > > me
> > > that in these discussions, context is everything, and that no
> > > general
> > > rule I'm capable of formulating is apt to help decide other cases.
> > >
> > > rs
> > >
> > > isomin at gmu.edu wrote:
> > > > I do not regard this as a "sanction." Rather, attitude and
> > > ideological orientation are part of the necessary qualification
> > > for the job of holding public office, especially an office with
> > > significant discretionary power over people's lives and liberties
> > > (as is certainly true of prosecutors). I do not think that the
> > > government is required to wait until a white supremacist
> > > government employee actually commits racist actions in office
> > > before getting rid of him. By that time, at least some harm will
> > > already have occurred. There are some people whose ideological
> > > views play no part in how they carry out the duties of a public
> > > office, but the government is not required to assume that everyone
> > > belongs to this group (which I think is surely a minority).
> > > >
> > > > The answer to the question of how much of an inquiry should be
> > > made to determine whether someone really is a white supremacist
> > > ("are you or have you ever been...") is one that probably varies
> > > on a case by case, job by job basis. However, this is separable
> > > from the issue of what to do with employees who we know are white
> > > supremacists with a high degree of certainty.
> > > >
> > > > Finally, I am not arguing that government should ALWAYS fire
> > > white supremacists or communists. If the job in question has
> > > little discretionary authority and few or no opportunities for the
> > > employee's views to influence his conduct, I can see an argument
> > > for keeping him on. But I do not think there is any constitutional
> > > bar to firing government officials because of their political
> > > views. When and if to do so is, to my mind, purely a matter of
> > policy.> >
> > > >
> > > >
> > > > Ilya Somin
> > > > Assistant Professor of Law
> > > > George Mason University School of Law
> > > > 3301 Fairfax Dr.
> > > > Arlington, VA 22201
> > > > ph: 703-993-8069
> > > > fax: 703-993-8202
> > > > e-mail: isomin at gmu.edu
> > > > Website: http://mason.gmu.edu/~isomin/
> > > >
> > > > ----- Original Message -----
> > > > From: Jeff Renz <jr167163e at mail1.umt.edu>
> > > > Date: Friday, March 3, 2006 6:01 pm
> > > > Subject: Re: Prosecutor fired for going to "white
> > > preservationist" conference
> > > >
> > > >
> > > >> Assuming that this organization does not have as its agenda
> > > >> violence against non-whites or overthrow of the government, I
> > > >> could not disagree more.  What ever happened to sanctions
> > > against
> > > >> someone for their conduct, as opposed to their beliefs?  Will
> > > we
> > > >> ask applicants, "Are you now or have you ever been a white
> > > >> supremacist?"  Would membership in the Church of Jesus Christ,
> > > >> Aryan make a difference?
> > > >>
> > > >> Jeff
> > > >>  ----- Original Message -----
> > > >>  From: isomin at gmu.edu
> > > >>  To: Kermit Roosevelt
> > > >>  Cc: Volokh, Eugene ; conlawprof at lists.ucla.edu
> > > >>  Sent: Friday, March 03, 2006 3:15 PM
> > > >>  Subject: Re: Prosecutor fired for going to "white
> > > >> preservationist" conference
> > > >>
> > > >>
> > > >>  One further point:
> > > >>
> > > >>  I agree that people who attend communist meetings may in some
> > > >> cases be just "fellow travelers" who aren't committed to the
> > > full
> > > >> communist agenda. But of course the same thing can be said of
> > > some
> > > >> people who attend white supremacist meetings. Maybe some of
> > > them
> > > >> also don't share the group's full agenda.
> > > >>
> > > >>  In my view, we should generally err on the safe side and get
> > > rid
> > > >> of such officials anyway, unless there is clear proof that they
> > > >> don't really share the objectionalbe group's agenda (e.g. -
> > > they
> > > >> went to the meeting by mistake, or went there only to do
> > > research,
> > > >> etc.). More to the point, as a constitutional matter, the
> > > >> determination as to whether a given government employee's
> > > >> commitment to communism or white supremacy is great enough to
> > > >> justify firing is one that should be left to the employee's
> > > >> political superiors and not to the courts.
> > > >>
> > > >>  Ilya Somin
> > > >>  Assistant Professor of Law
> > > >>  George Mason University School of Law
> > > >>  3301 Fairfax Dr.
> > > >>  Arlington, VA 22201
> > > >>  ph: 703-993-8069
> > > >>  fax: 703-993-8202
> > > >>  e-mail: isomin at gmu.edu
> > > >>  Website: http://mason.gmu.edu/~isomin/
> > > >>
> > > >>
> > > >>
> > > >> --------------------------------------------------------------
> > --
> > > ---
> > > >> -----------
> > > >>
> > > >>
> > > >>  Two thoughts.  First, I do think there's a constitutional
> > > >> difference between communism and white supremacy in that I see
> > > no
> > > >> problem with a state government saying in some official way "Of
> > > >> course we're going to abide by our constitutional obligations,
> > > but
> > > >> we want people to know that this state's position is that
> > > >> communism is a superior form of government."  I do see a
> > > problem
> > > >> with that state government saying "Of course we're going to
> > > abide
> > > >> by our constitutional obligations, but we want people to know
> > > that
> > > >> this state's position is that the white race is superior."  Is
> > > >> that not right?
> > > >>
> > > >>  Second, and with reference also to Ilya's suggestion that
> > > >> communism is inconsistent with the 13th Amendment, I guess my
> > > >> thinking here is affected by my belief that someone who attends
> > > a
> > > >> white supremacist meeting is quite likely to share those values
> > > of
> > > >> the organization that are not permissible for public officials
> > > to
> > > >> act on, and perhaps to act on them.  I find it much less likely
> > > >> that someone who attends a communist meeting will approve of
> > > >> overthrowing the government by force, or employing involuntary
> > > >> servitude.  (I don't know what your source for the 1950s
> > > express
> > > >> agenda is, but weren't there plenty of fellow travelers who
> > > >> attended meetings without intending violent revolution?  The
> > > >> American Communist party nowadays, from what I can get off the
> > > >> internet, is not advocating violent revolution.) So comparing
> > > >> someone who attends a communist meeting to someone who attends
> > > a
> > > >> white supremacist meeting doesn't strike me as the right
> > > analogy,
> > > >> any more than comparing someone who attends a Republican
> > > meeting
> > > >> to someone who attends a white supremacist meeting would.
> > > >>
> > > >>  Volokh, Eugene wrote:
> > > >>    I've always been puzzled by this argument.  If you interpret
> > > >> constitutional provisions as relevant to evaluating private
> > > speech and
> > > >> conduct -- and not just as enabling government conduct or
> > > restricting>> government conduct -- then here is the list of
> > > provisions that are
> > > >> anti-Communist:  Article I, which sets up a (relative)
> > > democracy,
> > > >> whichis inconsistent with Communist revolution.  Article III,
> > > >> which sets up
> > > >> an independent judiciary, which is inconsistent with Communist
> > > >> revolution.  The Takings Clause and the Fifth and Fourteenth
> > > >> Amendments'Due Process Clauses protect private property rights,
> > > >> which is
> > > >> inconsistent with Communist revolution.  The First Amendment
> > > protects>> religious freedom and free speech, which was
> > > inconsistent with the
> > > >> Communist agenda.  I'm sure we can find lots of other examples.
> > > >> Remember, the 1950s Communist Party weren't the 1980s Euro-
> > > >> Communists of
> > > >> Italy and the like; its express agenda was in large part about
> > > violent>> revolution and installation of the dictatorship (are we
> > > getting>> inconsistent with the U.S. Constitution yet?) of the
> > > proletariat.>>
> > > >>    If some speech can be more suppressed because it's somehow
> > > >> "anti-Constitutional" (not my view, but the view that I'm
> > > responding>> to), then Communist speech, it seems to me, would
> > > surely have to head
> > > >> the list.
> > > >>
> > > >>    Eugene
> > > >>
> > > >>  -----Original Message-----
> > > >>
> > > >>
> > > >> Is it?  Aren't white supremacy and communism different
> > > >> because the 14th
> > > >> Amendment is more anti-white-supremacy than anti-communist?
> > > >>
> > > >> Volokh, Eugene wrote:
> > > >>
> > > >>       Any thoughts on the First Amendment issues?  The natural
> > > >>      analogy,
> > > >>    of course, is whether it was proper for prosecutors to be
> > > >> fired for
> > > >> similar Communist-related activities.
> > > >>
> > > >>   Eugene
> > > >>
> > > >>
> > > >> >From the Hornell Evening Tribune
> > > >> March 3, 2006
> > > >> http://www.eveningtribune.com/articles/2006/03/03/news/news03.txt
> > > >>
> > > >>
> > > >> Allegany DA fires 'white preservationist' prosecutor:
> > > >>      Firestorm erupts
> > > >>    downstate, with call for investigation of DA's office;
> > > >>      Alfred U. will
> > > >>    still allow Michael Regan to serve as adjunct professor
> > > >>
> > > >>
> > > >>
> > > >>
> > > >> >From Wellsville Daily Reporter and Associated Press reports
> > > >>
> > > >> BELMONT - Allegany County Assistant District Attorney
> > > >>      Michael Regan was
> > > >>    fired from his job as a county prosecutor Thursday over his
> > > >>      attendance
> > > >>    at a conference of "white preservationists."
> > > >>
> > > >> Regan was terminated following an investigation by his boss,
> > > >>      Allegany
> > > >>    County District Attorney Terrence Parker, who said he had
> > > >> received
> > > >> numerous e-mails expressing concern about the assistant
> > > district
> > > >> attorney's presence at a meeting of the New Century Foundation
> > > in
> > > >> northern Virginia last week....
> > > >>
> > > >> "It has become clear that his recent activities will continue
> > > to
> > > >> significantly disrupt and impair his effectiveness as an
> > > assistant
> > > >> district attorney and the operations of the entire district
> > > >>      attorney's
> > > >>    office," Parker said.
> > > >>
> > > >> Regan was quoted in Saturday's Washington Post as calling
> > > >>      participants
> > > >>    at the conference "white preservationists" rather than white
> > > >> supremacists, and saying U.S. policies on immigration, trade
> > > and
> > > >> demographics have put the country on the wrong path. He
> > > declined
> > > >> to
> > > >> comment in the days that followed....
> > > >>
> > > >> Wellsville Attorney Bill Gunner said he has opposed Regan in
> > > >>      court and
> > > >>    has never seen any "bigotry or bias toward any particular
> > > >> ethnic or
> > > >> religious group." ...
> > > >>
> > > >> The Anti-Defamation League characterizes the New Century
> > > >>      Foundation's
> > > >>    ideology as "intellectualized, pseudoscientific white
> > > >> supremacy" and
> > > >> said the group promotes "genteel" racism.
> > > >>
> > > >> The ADL's regional director for New York was among those who
> > > >>      wrote to
> > > >>    Parker, noting the article also quoted Regan as saying: "You
> > > >> can see
> > > >> European Christian Americans are an endangered species." ...
> > > >>
> > > >> _______________________________________________
> > > >> To post, send message to Conlawprof at lists.ucla.edu
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> > > >>
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> > > >> members can (rightly or wrongly) forward the messages to others.
> > > >>
> > > >>
> > > >>      --
> > > >> Kermit Roosevelt
> > > >> Assistant Professor
> > > >> University of Pennsylvania Law School
> > > >> 3400 Chestnut Street
> > > >> Philadelphia PA 19104
> > > >> 215.746.8775
> > > >>
> > > >>
> > > >>    _______________________________________________
> > > >> To post, send message to Conlawprof at lists.ucla.edu
> > > >> To subscribe, unsubscribe, change options, or get password, see
> > > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >>
> > > >> Please note that messages sent to this large list cannot be
> > > viewed
> > > >> as private.  Anyone can subscribe to the list and read messages
> > > >> that are posted; people can read the Web archives; and list
> > > >> members can (rightly or wrongly) forward the messages to others.
> > > >>
> > > >>
> > > >> --
> > > >> Kermit Roosevelt
> > > >> Assistant Professor
> > > >> University of Pennsylvania Law School
> > > >> 3400 Chestnut Street
> > > >> Philadelphia PA 19104
> > > >> 215.746.8775
> > > >>
> > > >> --------------------------------------------------------------
> > --
> > > ---
> > > >> -----------
> > > >>
> > > >>
> > > >>  _______________________________________________
> > > >>  To post, send message to Conlawprof at lists.ucla.edu
> > > >>  To subscribe, unsubscribe, change options, or get password,
> > > see
> > > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >>
> > > >>  Please note that messages sent to this large list cannot be
> > > >> viewed as private.  Anyone can subscribe to the list and read
> > > >> messages that are posted; people can read the Web archives; and
> > > >> list members can (rightly or wrongly) forward the messages to
> > > others.>>
> > > >>
> > > >>
> > > >> --------------------------------------------------------------
> > --
> > > ---
> > > >> -----------
> > > >>
> > > >>
> > > >>  _______________________________________________
> > > >>  To post, send message to Conlawprof at lists.ucla.edu
> > > >>  To subscribe, unsubscribe, change options, or get password,
> > > see
> > > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >>
> > > >>  Please note that messages sent to this large list cannot be
> > > >> viewed as private.  Anyone can subscribe to the list and read
> > > >> messages that are posted; people can read the Web archives; and
> > > >> list members can (rightly or wrongly) forward the messages to
> > > others.>>
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu
> > > > To subscribe, unsubscribe, change options, or get password, see
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> > > >
> > > > Please note that messages sent to this large list cannot be
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> > others.> >
> > > >
> > >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
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> >
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> >
> >
> >
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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178