The SilvergLatest

FIRE President Greg Lukianoff for the WSJ: Feds to Students: You Can't Say That

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 17 May 2013 19:35:04 GMT

FIRE president and Unlearning Liberty: Campus Censorship and the End of American Debate author Greg Lukianoff writes for the Friday, May 17 opinion page of the Wall Street Journal about the May 9 letter declaring sexual harassment "unwelcome conduct of a sexual nature." What the Departments of Justice and Education have done, as explained by Lukianoff, constitutes a major assault on both free speech and Due Process on virtually every American college campus, public and private. I think it is unlikely that many, if any, colleges and universities will fight back rather than roll-over, hire more administrators, and do the federal government’s bidding. This means more work for those of us out here in civil society to protect what is left of academic freedom and fair disciplinary procedures on our beleaguered campuses.

You can access the piece at the following link:http://online.wsj.com/article/SB10001424127887323582904578485041304763554.html

No Sex Talk Allowed

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 16 May 2013 20:29:02 GMT

Those who enjoyed my most recent column for Minding the Campus about the Department of Justice / Department of Education letter on sexual harassment should read lifelong civil liberties advocate, writer and attorney Wendy Kaminer's brilliant May 16th piece for the Atlantic: "No Sex Talk Allowed."

Kaminer writes:

"Who will benefit from this system? Not educators who hope to foster critical thinking, not students seeking intellectual instead of bureaucratic experiences, not parents whose tuition dollars support unwieldy student life bureaucracies, and not those administrators who value academic freedom and the university's traditional educational mission. The Obama administration's bureaucratic dream is an educational nightmare. Who will benefit from this system? Equity consultants, for sure."

Read on at: http://www.theatlantic.com/sexes/archive/2013/05/no-sex-talk-allowed/275782/

The Feds Mandate Abolition of Free Speech on Campus

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 14 May 2013 20:22:57 GMT

Want to openly discuss gender discrepancies in the workplace? Want to listen to uncensored rap music? How about put on a comedy show? Not on our campuses! And what if you or a friend or family member has to pursue a defense to an unmeritorious charge of sexual harassment? Forget it!

On May 9^th, the Department of Justice and the Department of Education jointly issued a letter to the University of Montana, which the government called “a blueprint for colleges and universities throughout the country,” and which mandates changes to campus sexual harassment policies that will effectively make each of the above actions punishable offenses and will turn hearings into even worse kangaroo courts than exist today. This is a very serious development that everyone who thinks our universities play an important function in society will want to know about.

In my latest column for Minding the Campus, co-authored with my research assistant Juliana DeVries, we argue that the federal government’s unconstitutional mandate will obliterate free speech and fair process on campuses and make every student guilty of “harassment” several times a day. You can read the column on the Minding the Campus website.

An excerpt after the jump...

Civilization and Its Discontents: Burying the Boston Marathon Bomber

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 14 May 2013 14:00:27 GMT

Americans conceive of our struggle against terrorism as an us-versus-them battle between our civilization and those who would seek to destroy it. But the recent controversy over the burial of Tamerlan Tsarnaev shows that our civilization can also fall victim to our own sometimes brutish impulses.

My latest column for Forbes.com, co-authored with my research assistant Zachary Bloom, addresses the ethical obligations that we as a civilized society must remember to obey in the wake of terrorist attacks. You can find it on my “Injustice Department” blog.

Beware the FBI when it is not recording

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 13 May 2013 21:32:40 GMT

Civil libertarians are used to sounding the alarm about pervasive government surveillance in the era of cellphones, drones and the Internet. But, as alleged Marathon bomber Dzhokhar Tsarnaev’s classmate Robel Phillipos is now discovering, an equal threat to liberty is the FBI policy forbidding recording of interviews.

My latest column, which ran in this Saturday’s (May 11^th) Boston Globe, explains the danger faced by witnesses and defendants who talk to the FBI. You can find it on the Globe’s website.

O’Brien indictment: the sausage factory and the democratic process

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 03 May 2013 17:04:54 GMT

Former Probation Department Commissioner John O’Brien was recently federally indicted for bribery and racketeering, after a series of Boston Globe stories and an official investigation showed that the probation department under O’Brien was giving preferential treatment to job candidates recommended by legislators and some judges in exchange for favorable treatment by the legislature in budgetary decisions. In my most recent column for Massachusetts Lawyers Weekly, coauthored with my friend and former law partner, Judge Nancy Gertner, we argue that, though the Probation Department’s hiring practices were not crimes under the present federal criminal code. It would be hard to find a government official who would not be subject to prosecution under such a large and nebulous definition of “corruption” and “fraudulent pretenses” as the U.S. Attorney describes in the O’Brien indictment.

The column after the jump...

Bulger’s immunity defense: what appearance of justice requires

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 22 Apr 2013 16:35:06 GMT

Public confidence in the justice system suffered a major blow when the late-1990s trial of Stephen Flemmi revealed the federal government’s cozy relationship with Whitey Bulger and the Winter Hill gang. Federal Judge Denise Casper, the new judge recently assigned to Bulger’s trial, now has a golden opportunity to help restore that confidence. Casper’s upcoming first major ruling will be pivotal. She has to decide whether to reconsider a decision by her predecessor, Judge Richard Stearns, that Bulger and his lawyers will not be allowed to present Bulger’s asserted immunity defense to the jury unless they first convince the judge that the federal government actually granted Bulger effective immunity. In my most recent column for Mass Lawyers Weekly, I argue that Casper must take a second at this ruling.

The column after the jump...

KPMG and Scott London: Long-Forgotten Devil's Deal Means Feds Are Unlikely to Bring Corporate Charges

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 18 Apr 2013 15:58:54 GMT

On March 20 former KPMG partner Scott London admitted to passing confidential inside information to his friend Bryan Shaw, who reportedly traded on that information, making over a million dollars. In my most recent “Injustice Department” column for Forbes.com, co-authored with my research assistants Juliana DeVries and Zachary Bloom, I explain how appalling violations of trust are nothing new to the KPMG leadership, considering their long-forgotten devil’s deal with the U.S. Department of Justice back in 2004, whereby the firm “cooperated” with the government and threw its employees and clients under the bus. A culture of betrayal is made almost inevitable by the prosecutorial tactics of the DOJ, which turn colleague against colleague and company against employee on the basis of not-always-truthful testimony.

You canfind the column here, on my "Injustice Department" blog.

Climbing the Ladder to Steven A. Cohen

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 05 Apr 2013 19:02:59 GMT

I was struck recently by a page-one story in the Wall Street Journal about the latest arrest in the Department of Justice’s ongoing investigation of alleged insider trading at SAC Capital, a prominent hedge fund. So far six people have pleaded guilty or been convicted, and four have agreed to “cooperate.” It is the meaning of “cooperation” that is at the heart of my opinion piece.

You will find my column in today’s paper on the “Opinion” page, or on the Wall Street Journal’s website.

"The Harvard Email Snooping Case: Overreaching Administrators at Work" on Minding the Campus

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 27 Mar 2013 17:12:23 GMT

As those of you who read my various writing know, our nation’s campuses are far from hubs of free inquiry. Today’s campus culture more accurately resembles a corporation, or, viewed a bit more cynically, a mini-police state. In my most recent piece for Minding the Campus, co-authored with my research assistants, Juliana DeVries and Zachary Bloom, we explain how the Harvard email search scandal is only the latest demonstration of administrators and lawyers’ power over faculty and staff. This latest invasion of academic prerogatives by the overlords should be a wake-up call to spur a rebellion against the unholy trends destroying liberal arts institutions all over the country.

You can read the piece at the following link:

http://www.mindingthecampus.com/originals/2013/03/the_harvard_email_snooping_cas.html

Boston Phoenix RIP

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 27 Mar 2013 16:55:29 GMT

As many of you likely have heard, The Boston Phoenix (last year re-named simply The Phoenix) has ceased publication, a victim of the harsh economic times for print journalism. The remaining skeleton staff presiding over the sad burial rites has edited and published the final issue of the paper, available only in an on-line version that can be read at http://thephoenix.com.

I have written my final column that will be of particular interest to those of you who have been reading this rather remarkable “alternative weekly” for years. But it should also be of interest to those who have not had the pleasure of such a long-term reading experience. Here is my piece:

http://thephoenix.com/Boston/news/153300-freedom-watch-my-final-phoenix-column/

The Strange and Dangerous Case of the Lottery and Mr. Cahill

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 18 Mar 2013 14:34:59 GMT

The states are often described, in the memorable words of Justice Louis Brandeis, as the “laboratories of democracy,” places in which new laws and practices can be tested and perfected on the local level before spreading to the rest of the nation. Unfortunately, this process can occasionally go awry, as it did with Massachusetts’ recent anti-corruption law. Modeled after the vague and excessively broad federal “honest services fraud” statute, the Massachusetts law ended up criminalizing vast swaths of ordinary political activity.

The first test case pursued by Massachusetts Attorney General Martha Coakley was a prosecution of former state Treasurer Timothy Cahill. In light of the jury’s acquittal of the co-defendant and its hung verdict in Cahill’s case, my latest column, which ran in this weekend’s Wall Street Journal, takes a look at the anti-corruption law and the alleged “criminal” activity that Cahill engaged in while making a third-party bid for governor in 2010.

You can find my column on the Wall Street Journal’s website, or, for those without a subscription to the Journal, you can find the full column after the jump.

Man's Best Friend Is No Friend to the Fourth Amendment

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 01 Mar 2013 15:29:09 GMT

In a bizarre mid-February opinion in the case of Florida v. Clayton Harris, the US Supreme Court unanimously ruled that a drug-sniffing dog’s credentials—rather than his field accuracy—are what matter in determining whether the dog’s tail-wagging “alert” creates sufficient probable cause for police to conduct a search without a warrant. This elevation of credentials over demonstrated skill should come as no surprise: Of the nine Supreme Court justices, five were full-time academics at some point before joining the Court, three were adjunct professors and only one earned his stripes exclusively in the real world. In my most recent piece for Forbes.com, I explain how the Florida v. Clayton Harris ruling is an invasion of citizens’ privacy rights that nevertheless united a divided Court based on the justices’ shared reverence for impressive curriculum vitae.

The column after the jump...

Preserving Justice by Saying No

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 04 Feb 2013 17:03:45 GMT

My book review of Jess Bravin’s new book, TERROR COURTS: ROUGH JUSTICE AT GUANTANAMO BAY (Yale University Press) is now available on Reason.com. The book is a very interesting read by a very sophisticated reporter of law and justice issues. The review after the jump...

Kevin Cullen writes about my former client David LaMacchia

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 30 Jan 2013 16:01:24 GMT

The tragic suicide of computer genius Aaron Swartz earlier this month has sparked widespread criticism of the Justice Department and of how prosecutors Carmen Ortiz and Steve Heymann mishandled Swartz’s case. I wrote my own piece for last week’s Massachusetts Lawyers Weekly about how Swartz was hardly the first victim of this system run amok. In his column for Tuesday’s Boston Globe, columnist Kevin Cullen writes about the similar case of David LaMacchia. I represented LaMacchia when he was a student at MIT nineteen years ago and found himself in trouble with the DOJ after using the MIT system to copy software and post it to a virtual bulletin board for others to freely access. Unbelievably, LaMacchia was actually pursued by the same career prosecutor who eventually went after Swartz.

Cullen’s haunting piece begs to be read and shared. You can find it on the Boston Globe's website.

The Swartz suicide and the sick culture of the DOJ

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 23 Jan 2013 20:14:11 GMT

In the aftermath of the unfathomably sad suicide of Aaron Swartz, I was asked to do an op-ed for the Massachusetts Lawyers Weekly. I was given leave to be frank, and so I was frank. The piece after the jump...

Campus Censorship Breeds Societal Dysfunction

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 16 Jan 2013 18:15:15 GMT

Greg Lukianoff, president of the Foundation for Individual Rights in Education (or FIRE, whose board of directors I chair), has written a remarkable and groundbreaking new book: Unlearning Liberty: Campus Censorship and the End of American Debate. In it, he posits that pervasive censorship and disregard for due process on our nation’s campuses have disrupted the gears and self-correcting mechanisms essential for the functioning of our free society. In my latest Forbes.com column, I explain how the mindless totalitarianism that befouls the vast majority of our college campuses helps explain some of the injustices of our legal system. The degradation of important social and legal institutions begins somewhere, and I agree with Lukianoff that a lot of our problems start with what is happening in our sadly degenerated system of higher education.

You can find the piece on my Forbes.com Injustice Department blog.

"Black and Whitey: How the Feds Disable Criminal Defense" for Forbes.com

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 03 Jan 2013 18:06:35 GMT

Lord Conrad Black and James “Whitey” Bulger are vastly different men. But both federal prosecutions raise similar fundamental questions about the propriety of certain prosecutorial tactics that interfere with a defendant’s constitutional right to mount an adequate defense. In my most recent “Injustice Department” column for Forbes.com, I explain how these tactics virtually assure convictions, regardless of guilt or the niceties of “due process of law.” Yet these unconstitutional techniques are the rule, not the exception, when the Department of Justice really wants to win a case without the defendant putting up much of a fight.

The column after the jump...

Tufts Students Interview Silverglate on Baran Case

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 03 Jan 2013 15:52:48 GMT

Tufts undergraduates Aeden Pillai and Mike Yeung recently interviewed me on the topic of prosecutorial misconduct in the case of Bernard Baran for their course on contemporary issues in the criminal justice system. You can read the piece on Mr. Pillai's blog, with an excerpt after the jump.

"A Doctor's Posthumous Vindication" in the Wall Street Journal

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 26 Dec 2012 15:54:06 GMT

On December 3, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in favor of Al Caronia, a pharmaceutical salesman who had been convicted of violating the Federal Food, Drug and Cosmetic Act by pitching the off-label uses of a narcolepsy drug to doctors at conferences throughout the country. Declaring that the Department of Justice’s overly broad interpretation of the law violated Caronia’s free speech rights, the Court vindicated a practice that has become commonplace among physicians.

Doctors such as Peter Gleason, Caronia’s former codefendant, learn through their experiences with patients that many drugs turn out to be effective treatments for ailments other than those for which the FDA has granted official approval. And physicians have a well-established right to prescribe any drug for any use they see fit and to share their insights about effective treatments with other doctors. So it came as quite a surprise to Dr. Gleason when he was arrested by a half-dozen federal agents one day in 2006 and sent down the rabbit hole of the federal criminal justice system for allegedly conspiring to mislead his fellow physicians. I discussed Dr. Gleason’s unjust prosecution in my book Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). My latest piece for the Wall Street Journal serves as a postscript for that discussion, explaining how the Second Circuit’s ruling vindicated Dr. Gleason’s belief that he had never engaged in any improper activity – vindication that, tragically, came too late.

You can find the piece on the Journal's website.

"Tim Cahill, the lottery, and the demands of democracy" on Bostonglobe.com

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 17 Dec 2012 22:56:04 GMT

After realizing that nobody writing about or reporting on the prosecution of former Massachusetts treasurer Timothy Cahill nor his co-defendant Scott Campbell seemed to grasp the fundamental reasons that the prosecution was both unlawful and ill-considered as a matter of sound public policy, I decided to write a short piece on the case for The Boston Globe. (The Globe’s news and editorial pages were a prime example of what I view as a wrong-headed view of the case – cheering on the prosecution despite its violating the Due Process of Law rights of the defendants as well as the public’s right to benefit from public officials’ exercise of their informing function. And so I submitted my piece to the Globe, which, admirably, agreed to run it despite it’s being critical of the paper.)

You can find it on the Boston Globe's website.

The San Antonio Four Show the Injustice of Sexual Abuse Witch-hunts

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 12 Nov 2012 23:06:16 GMT

Americans of a certain age will recall the child sexual abuse hysteria that swept the nation in the 1980s and 90s, dealing mainly with day care centers and other such institutions. Starting in California with accusations that day-care workers were molesting and raping children as part of Satanic cult rituals, the hysteria led to dozens of similar prosecutions. It is a testament to the absurdity of the hysteria that almost all the accused have since been exonerated.

I worked directly on the infamous Fells Acres/Amirault and Bernard Baran cases here in Massachusetts, the latter of which involved a defendant prosecuted largely because of his homosexuality. The surviving Amiraults are now out on parole, and Baran was exonerated by the courts when tapes surfaced showing social workers planting false memories of abuse into the minds of children who attended the day care center he worked at.

Just as egregious is the case of the San Antonio Four, in which four women have languished in prison for twelve years for allegedly molesting two children. Long thought to be settled, the case has sprung back to life now that one of the accusers has recanted and one of the defendants has been released on parole. The National Center for Reason and Justice, on whose board of directors I serve, has taken up the women’s cause, helping fund the women’s defense team and paying for a polygraph attesting to their innocence.

In our latest article for Forbes.com’s “Injustice Department,” my research assistant Zachary Bloom and I examine the egregious facts of the case, and discuss the necessity of overcoming the courts’ bias towards “finality” rather than justice in cases like that of the San Antonio Four.

Continued after the jump...

Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 22 Oct 2012 19:16:58 GMT

Just last month, the Wilmington, NC, federal district court held a long-awaited and hard-fought-for evidentiary hearing in the case of Dr. Jeffrey R. MacDonald. In 1979 Dr. MacDonald was convicted of murdering his daughters and pregnant wife, and he has spent the last 33 years in federal prison, never wavering from his claim of innocence. Over the years, an enormous aggregation of previously unavailable (in large measure because it was suppressed) evidence has corroborated MacDonald’s account of the night of the murders: that four drugged-out intruders, three men and one woman, invaded his home, beat him unconscious, and murdered his family.

The vast trove of evidence uncovered post-conviction has emerged mainly through repeated court filings by MacDonald’s lawyers over the years, including the most recent filing of DNA evidence that convinced the notoriously conservative Fourth Circuit Court of Appeals to order a lower court to convene an evidentiary hearing to take further evidence and to then consider the full picture, including all of the accumulated evidence. Now, importantly, the evidence is bolstered by documentary filmmaker Errol Morris’s new book, A Wilderness of Error, which was released on September 4. The book is an impressive feat, cataloguing the decades of lies, cover-ups, false narratives and grave misfortunes and outrages that have characterized the MacDonald saga. It raises serious doubts about the fairness of MacDonald’s trial and leaves little doubt about his innocence. It is well worth a read, as is its accompanying website, which serves as an invaluable repository for the enormous amount of evidence contained within the text.

A Wilderness of Error chronicles not just a human tragedy, but a chilling case that puts front-and-center pivotal questions about the future of the writ of habeas corpus—the ancient procedural device for revisiting otherwise final convictions. Until now, MacDonald’s repeated attempts to have courts look anew at his conviction have come to naught, largely due to procedural factors that favor “finality” over truth and accuracy. In my most recent column for Forbes.com, I argue that this case should force the courts to condemn to history’s scrap heap these Byzantine obstacles to justice that keep the wrongly convicted in prison.

Those of you who know me understand how strongly I feel about this mind-bogglingly outrageous miscarriage of justice. I am thankful that Errol Morris, who has his choice of absolutely any topic on which to do a book or make a documentary movie, has chosen to write on the MacDonald case.

Unlearning Liberty Now Available on Amazon

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 18 Oct 2012 15:11:33 GMT

The Draconian restrictions on freedom of speech and thought throughout American higher education are an extraordinarily dangerous but under-appreciated development. This is what motivated me to co-author the book The Shadow University: The Betrayal of Liberty on America’s Campuses in 1998 and to co-found the Foundation for Individual Rights (FIRE) in 1999, whose board of directors I chair. FIRE President Greg Lukianoff has now taken on the urgently important task of updating the dismal (although in some ways oddly entertaining, if not hilarious) picture in his new book Unlearning Liberty: Campus Censorship and the End of American Debate, now available on Amazon.

In Unlearning Liberty, Lukianoff takes readers through the life of a modern-day college student, from orientation to the end of freshman year. He describes various examples from the past 15 years of horrendous (and yet typical) violations of university students’ free speech rights: a student in Indiana punished for reading a book, a student in Georgia expelled for a pro-environment collage he posted on Facebook, students at Yale banned from putting an F. Scott Fitzgerald quote on a T shirt, and students across the country corralled into tiny “free speech zones.” Lukianoff further demonstrates how our universities’ cultures of censorship are bleeding into the larger society and stunting our ability as a nation to engage in rational discussion.

I highly recommend Unlearning Liberty: Campus Censorship and the End of American Debate to all those concerned with the future of liberty and open debate in America.

"On Liberty" Premieres on NightSide with Dan Rea

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 10 Oct 2012 18:05:51 GMT

On September 27, Wendy Kaminer and I appeared together on WBZ 1030's NightSide with Dan Rea for the inaugural broadcast of our soon-to-be-recurring "On Liberty" segment--a project that has been brewing for many years. During the show we discussed the violent protests in the Muslim world supposedly incited by the "Innocence of Muslims" YouTube video, and then opened up the phone lines for callers. The calls led us to an array of First Amendment issues, from flag burning to students' free speech rights to the infamous "shouting fire in a crowded theater," which has become a kind of slogan for would-be censors in recent years.

It was a gripping conversation, and is well worth a listen. You can find it as a podcast on the CBS Boston/WBZ website.

The next installment of "On Liberty" will be on air during the rapidly-approaching holiday season, and will focus on religion in the public sphere.