Roundup

This week in Washington:
- Obama reverses Bush's ban on federal funding for embryonic stem cell research
- A provision of the just-passed budget bill will help make contraception more affordable for many
- Today the White House launches a Women & Girls' Council, which hopefully will be more than symbolic

In Saudi Arabia, a 75-year-old widow has been sentenced to four months in prison, forty lashes, and deportation for having two unrelated men in her home. The two men -- one of whom is her deceased husband's nephew, and both of whom have also been sentenced -- were apparently bringing her some bread. Her lawyer plans to appeal. More at Religion Clause.

On a much less weighty note, a law professor at the University of Montana complains that the student newspaper's sex advice column "affects my reputation as a member of the faculty" -- no, really --and has suggested the state legislature should tighten restrictions on student publishing. According to the paper in question, the prof complained that legislators should set "criteria for giving someone a job as a columnist writing in an area of 'alleged expertise' or for reviewing objectionable material." Being a law prof, she's come up with proposed restrictions that just pass the First Amendment red-face test, but something tells me this isn't going anywhere. Are authors in student papers really expected to be experts? And what standards should the legislature set to qualify as a sex columnist?

Finally, Cook County, Ill. Sheriff Tom Dart is suing Craigslist, claiming its "erotic services" ads are a public nuisance. Sex worker rights advocates have, naturally, criticized the suit, which probably amounts to little more than a publicity stunt. Craigslist says it's "mystified" by the suit, pointing to its cooperation with law enforcement in Illinois and elsewhere to minimize use of the site to violate the law. One Internet law expert has opined that the lawsuit can't stand, because under federal law Craigslist can't be held liable for users who seek to violate the law unless it actively helps them do so. (Said lawyer also wonders whether there are actually many "erotic services" posts on Craigslist that are only advertising legal services, but a quick search of the many postings specifying "no sex" suggests that yes, there are; most of them are for pro-Dommes.)

OT: U.S. to chill out on med marijuana, needles

The SF Chronicle is reporting:

U.S. Attorney General Eric Holder is sending strong signals that President Obama - who as a candidate said states should be allowed to make their own rules on medical marijuana - will end raids on pot dispensaries in California.

Asked at a Washington news conference Wednesday about Drug Enforcement Administration raids in California since Obama took office last month, Holder said the administration has changed its policy.

"What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing here in law enforcement," he said. "What he said during the campaign is now American policy."

Bill Piper, national affairs director of the Drug Policy Alliance, a marijuana advocacy group, said the statement is encouraging.

"I think it definitely signals that Obama is moving in a new direction, that it means what he said on the campaign trail that marijuana should be treated as a health issue rather than a criminal justice issue," he said.

Piper said Obama has also indicated he will drop the federal government's long-standing opposition to health officials' needle-exchange programs for drug users.

Referring to states' medical marijuana laws, a White House spokesman said Obama "believes that federal resources should not be used to circumvent state laws."

Hopefully Obama's administration will conclude the same about using federal resources to, say, prosecute adult filmmakers.

Deputy AG nominees attacked for defense of porn

I've previously blogged about the uncertain future of federal obscenity prosecutions, which increased sharply under the Bush Administration. Although based on general ideological leanings we would expect a decline in such activity in favor of fighting real crime, I also noted that both Attorney General Eric Holder and Solicitor General nominee Elena Kagan have in the past advocated for more vigorous enforcement of laws against pornography.

Now, conservative groups are attacking Deputy AG nominee David Ogden for his past work defending adult publishers and filmmakers, as well as defending reproductive rights. Both are causes Ogden has been heavily involved in over the years in a number of high-profile cases, and cultural conservatives are hopping mad that this ally of what they call "Big Porno" (no, really) will be second in command of the Justice Department. AVN has a good summary of Ogden's controversial civil-liberties resume. (As always with AVN, beware of NSFW ads.)

Time for a new approach to human trafficking

Melissa Ditmore and Andrea Ritchie of the Urban Justice Center's Sex Workers Project have a great new post up at RH Reality Check. The post is based on the Project's new report: "Kicking Down the Door: The Use of Raids to Fight To Fight Trafficking in Persons":

We found that while there have been some successes, raids are generally an ineffective anti-trafficking tool, and in many cases are harmful to people who have been trafficked. Trafficked women reported that they were repeatedly arrested, in some cases up to ten times, in police raids on brothels and other sex work venues, without ever being identified as trafficked. ...

The Obama administration has the opportunity to reassess this failed federal approach to human trafficking. The recent passage of federal anti-trafficking legislation championed by Vice President Joe Biden offers a fresh start - and a chance to avoid repeating the mistakes of the past.

A good first step would be to move away from high-profile, resource-intensive and largely ineffective raids and to address the economic and social circumstances that increase vulnerability to trafficking....Expansion and targeted enforcement of labor laws in [sectors where trafficking flourishes] would not only go a long way toward locating, identifying and assisting trafficked persons, it would also protect the rights of all workers.

For the long term, strategies led by individuals and communities with knowledge of and access to trafficked people are far more likely than raids to meet with success....

Trafficking victims by definition have sought opportunity in the United States only to find themselves in coercive and abusive situations. We owe it to them to find better ways to locate, identify and assist them, and to develop anti-trafficking initiatives that prioritize their needs, choices, and self-determination as human beings. A good way to start would be to extend a helping hand that is not also holding a gun.

As I've noted in this blog before, the Sex Workers Project is doing some truly outstanding advocacy.

Another step the Obama administration could take would be to re-examine the equation of prostitution with trafficking under various provisions of federal law, including in restrictions on international aid. Some of these policies make providing life-saving services to sex workers more difficult, and distract from the serious problem of human trafficking.

Blog for Choice: Repeal the Hyde Amendment

For Blog for Choice Day, bloggers have been asked: What is your top pro-choice hope for President Obama and/or the new Congress? Mine is Medicaid coverage for abortion services.

Cost remains one of the biggest barriers to accessing abortion. Abortion is expensive - on top of the time one needs to take off from work, and the added time and expense caused by state restrictions such as waiting periods and the sparsity of providers in many parts of the country. Even when women can scrape the money together, doing so requires precious time. Such waits can make it harder to find a willing and competent provider, and can also increase the cost further.

Coverage of abortion services is generally excluded by Medicaid under what's known as the Hyde Amendment. Twenty-eight years ago, the Supreme Court upheld that general exclusion, saying in part:

The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. ...

Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.

Harris v. McRae (1980). There are several possible objections to this ruling. One is that the above reflects an impoverished conception of the right to bodily self-determination. Another, perhaps stronger under current juriprudence, is that singling out abortion services, when health care services for men are generally covered, is a form of invidious discrimination against women.

Constitutional doctrine aside, both points are highly relevant to President Obama's promise of guaranteeing health care for all. "Health care for all" has to mean more than access to an insurance plan. It has to mean access to comprehensive health care, without arbitrary and discriminatory exclusions such as the Hyde Amendment. Or, for that matter, exclusions of life-saving preventive care, or of contraceptives, or services related to gender transition. Opposing these exclusions is not only just, it is sound public health policy.

I know that repealing the Hyde Amendment is not a top priority for Obama or for Democrats in Congress, as it is more controversial than some other pro-choice measures. But so long as individuals lack health insurance coverage for abortion, the promise of "health care for all" will not be fully realized.

The obligatory Inauguration post

Yes, I was there on the Mall - if the foot of the Washington Monument counts as the Mall. It was amazing.

There was plenty of booing when former(!) President Bush entered, and some more when Rick Warren was introduced. Other folks turned their backs in protest of Warren's noxious views on LGBT equality. But at such a moment, sharing a long, loving kiss with your significant other is the best protest of all.

Also, Bishop Gene Robinson appeared on NPR's Talk of the Nation on Monday to discuss his role in the inaugural concert, the frustrating "technical error" that kept his invocation from being broadcast, and other matters besides. It's an interesting interview.

Arthur Leonard says LGBT activists should not feel turned off by that flub or by the President(!)'s failure to mention LGBT folks in his inaugural address. I'm inclined to agree with him that " there is too much feverish interpretation going on here." The proof, of course, will be in the pudding.

By pudding I mean executive rule changes and legislative initiatives. Hopefully also among that pudding will be a quick move to repeal the "global gag rule" that bars international family planning groups from even discussing abortion.

Some gender and sexuality firsts

Last week Jared Polis was sworn is as the third out member of Congress, and the first to come out before being elected to his first term (unlike Reps. Tammy Baldwin and Barney Frank, who came out as incumbents). He will sit on the House Education and Labor committee.

Since the House also swore in its first female speaker for her second term, it's nice to see that they're finally made their own written rules gender-neutral. On a more substantive note, they quickly got down to business and passed the Lily Ledbetter Fair Pay Act, which now goes to the Senate.

Across the pond, South Africa's president has appointed Justice Edwin Cameron to that country's Constitutional Court, making him the first openly gay jurist on any nation's highest court. (The U.S. might see its own first out Supreme Court Justice if Obama were to appoint Stanford law professor and perennial shortlister Kathleen Sullivan.)

[This post was supposed to happen before now, but Blogger and I did not see eye to eye about it.]

Hey, that was a FEMINIST fist jab!

This is a little too cute for words:

Elena Kagan, Obama's SG, on pornography

Earlier this week President-Elect Obama announced he would nominate Harvard Law School Dean Elena Kagan to be Solicitor General. There is much to like about the choice. Kagan is an accomplished scholar and much-lauded dean who has often been discussed as a potential Supreme Court nominee. She is also a liberal, a feminist and a former clerk for Justice Thurgood Marshall, and would be the first female appointed to the position often referred to as "the tenth Justice" and "America's lawyer." (For non-lawyers, the SG supervises government involvement in appellate litigation and represents the government in the Supreme Court.)

(Disclaimer: Let me make very, very clear that the criticisms expressed in this post do not in any way reflect the view of any organization with which I am or have been affiliated.)

I think Kagan will make a fine SG, and deserves confirmation. Given the focus of this blog, however, I want to highlight published views of Kagan's with which I disagree, and which could impact her work as Solicitor General. Those views are contained in a now somewhat dated article (Kagan hasn't written much since becoming dean of HLS): Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993). In it, Kagan advocates policies that could have could seriously limit and discourage sexual speech.

Kagan begins her article thusly:

This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.

Thus, Kagan equates pornography with hate speech, characterizing it as fundamentally harmful and undesirable speech.

She then suggests, in light of the Supreme Court's then-recent ruling in R.A.V. v City of St. Paul (striking down a ban on racially motivated cross-burning because it was "viewpoint-based"), what approaches to regulating pornography and hate speech are and are not likely to be successful, i.e. held constitutional. Her points about pornography are more or less as follows:

1. Regulations based on whether material endorses, approves, or actually causes harm to women will be struck down.
2. Communities should act to prosecute attempts to force people into pornography and "the sexual assaults and other violent acts so frequently committed against women in the making of pornography."
3. Using pimping/pandering/prostitution laws against pornographers, however, may be unconstitutional.
4. Regulating material on the basis that it depicts "sexual violence" has promise. However, a focus on "sexual violence" is subject to dispute as being viewpoint discrimination in disguise, since "violence" may be interpreted to mean simply that the material is "demeaning" to women.
5. If we can ban distribution of material depicting child abuse, perhaps we can also ban distribution of adult pornography the production of which involves unlawful conduct.
6. Feminists should embrace the doctrine of obscenity, despite its vagueness and its link to "traditional" notions of sexual morality, as a means of prosecuting pornographers.
7. Feminists should press courts to recognize a new First Amendment exception for pornography that would permit viewpoint-based regulations.

Kagan's legal analysis in this article is smart, nuanced, and overall has to be admired. But some of her proposals (4, 6, 7) are troubling, as they are clearly targeted at imposing broad bans on the general category of sexually explicit speech (though Kagan suggests the narrower, and probably unworkable, category of "materials that operate primarily ...as masturbatory devices"). Indeed, at several points (2, 5) Kagan makes clear that targeting actual crimes against women and the depiction of such crimes does not, in her view, go far enough. At the same time, the article takes for granted, as much anti-pornography literature does, that the adult entertainment industry is rife with coercion and violence (which, if it were true, would mean that local, state and federal law enforcement are essentially ignoring large-scale, organized violent crime). It's also notable that she rejects other approaches (1, 3) only with reluctance.

These are not views I would like to see espoused by America's lawyer. In particular her enthusiasm for the outmoded, unworkable and puritanical obscenity doctrine is troubling. But, even assuming Kagan's views have not changed since 1993, I doubt she will have opportunities to have much influence on these issues in her term as SG. At any event, I think Kagan will make an excellent SG despite my disagreement with her views on these issues.

EDIT: As I've previously noted here, AG nominee Eric Holder has also been a past advocate for obscenity enforcement. Hard to say, though, what these two nominations for top DOJ slots portend for the new administration's legal and law enforcement priorities in relation to obscenity.

Whither Obscenity Enforcement?

We can expect the Obama administration to make a clear and positive break on a number of issues covered here. For example, the new administration is expected to favor comprehensive sex education and undo the reviled "Global Gag Rule." But what about the Bush Administration's obscenity crusade? Can we expect that, simply because Obama is a Democrat and has voiced progressive positions on most social issues that his Justice Department will turn away from systematic obscenity prosecutions?

That's less clear, for a number of reasons. Obama has never spoken to the issue, so far as I'm aware. He and AG pick Eric Holder can certainly guide DOJ priorities, but ultimately federal prosecutors have considerable discretion to enforce the laws on the books. Additionally, Holder has in the past made noises favoring robust obscenity enforcement. For a discussion from the adult industry perspective, see this column by Mark Kernes over at AVN.