Stephen Kershnar
Marijuana Prohibition: The Liberty- and Better-World Arguments
Dunkirk-Fredonia Observer
February 6, 2012
Every week in The Leader, the SUNY-Fredonia student newspaper, the police blotter lists crimes for which students were arrested. Common among them are marijuana-related arrests. Also, SUNY-Fredonia had the distinct honor of being named 10th druggiest college in the U.S. by The Daily Beast, although the study’s methodology is flawed. Given the large number of marijuana-related fines, probationary sentences, and prison sentences, there is surprisingly little discussion of whether these laws are justified. The crass-and-shallow politicians dominating the Presidential race (Obama, Romney, and Gingrich) are predictably silent on the topic.
There are two convincing arguments for legalizing marijuana (pot): the liberty argument and the better-world argument. Consider the former. First, people own their own bodies. This explains, for example, why it is wrong to enslave them, forcibly take their organs, or control what they think. Second, if they own their bodies, then they have a moral right to put what they want into them, unless what they wish to put into them is owned by another or will directly harm another. This explains why people have a right to eat unhealthy foods, engage in a wide range of sexual practices (that put a variety of things in their orifices), or mark up their body with unsightly tattoos and piercings. Smoking (or eating) marijuana involves people putting things into their bodies. Hence, people have a moral right to do it.
The objections here are fairly standard and not in the least convincing. One objection is that it is illegal to smoke pot and therefore wrong to do. The obvious problem is that the fact that something is illegal does not make it wrong. For example, owning slaves used to be legal and was still morally wrong. Also, interracial marriage used to be illegal and was still morally permissible. Law doesn’t always track morality because the facts that make an action wrong (right-infringement, direct harm, exploitation, and so on) need not track the facts that make it illegal (for example, approval by the legislative and executive branches).
A related objection is that people have consented to the laws because they have chosen to live in states or a country where pot is criminalized. Somehow the very same people who put this silly argument don’t think that it also justifies the criminalization of sodomy, the legalization of marital rape, or the legalization of forced sterilization of people’s retarded children. Apparently, the they-chose-to-live-there argument is just another rhetorical device to be mindlessly flung about.
A second objection is that marijuana is harmful to the user’s health or, at least, endangers it. This objection fails for the reason that it is false. The studies do not show that moderate recreational use of marijuana is always harmful. It’s less dangerous than other widely used substances such as alcohol and cigarettes. If booze and cigarettes are not dangerous enough to ban, then neither is pot.
Were marijuana always harmful, this still doesn’t warrant trampling on people’s rights. A right is a claim on others that they allow an individual to use his body and property as he sees fit, so long as he is not directly harming others. It is the hallmark of a free society to recognize people’s body- and property-rights. This is what explains the other celebrated rights we have, specifically, right to free speech, religion, assembly, and privacy. For example, the right of free speech is simply the right that one has that others not touch his body or stuff (for example, his printing press or paper). To the degree that a government controls what a person does with his body, it tramples on his rights (that is, his liberty). Because liberty is the most important political value, and the one that has been most celebrated throughout American history, the harm-to-self argument should repel us.
A third objection is that criminalizing marijuana and hunting down people who sell or use it makes the world a better place. The objector further argues that the government should do what it can to make the world a better place, even when this is done by trampling on liberty. This objection is ugly. For example, Massachusetts Institute of Technology professor Judith Jarvis Thomson, notes that ignoring rights would make it permissible for a physician to kill a healthy patient when his healthy organs can be used to save five people who would otherwise die from organ failure. Anyone who thinks that it would be wrong for an altruistic physician (paging Dr. Obama) to start redistributing organs along these lines must also think it is wrong for a government to do so. That is, liberty limits the ways in which we can make the world a better place.
Even the notion that banning marijuana would make the world a better place is shaky. Consider the better-world argument. In the absence of force, fraud, or theft, what makes people’s lives go better makes the world a better place. In the absence of ignorance about the relevant facts, people tend to want to do what makes their lives go better. Tens of millions of people want to do pot and there is little evidence that they don’t know the relevant facts about pot usage. Thus, pot usage likely makes the world and SUNY-Fredonia better places. It does so because it makes people happier and so makes their lives go better. For the same reason, good pizza makes the world better.
The fourth objection, and one that signals desperation for pot-nannies, is that locking up pot smokers and their suppliers is necessary to protect the children. This is the sort of objection that prissy Congressmen and their effeminate political allies have used to ban steroids, pornography, online gambling, alcohol advertising, and mixed martial arts tournaments. The obvious problem with this argument is that it has no stopping point. Criminalizing alcohol, cigarettes, and swearing will reduce the frequency with which children try them. If liberty can be trampled whenever it protects children, our liberty will shrink to the size of a postage stamp. In addition, given the numbers, the goodness of adults’ enjoying the high life vastly outweighs the badness of a few more children trying pot.
Marijuana should be legal because of the liberty and better-world arguments. An interesting issue and one I won’t explore here is whether law-enforcement personnel enforcing laws against pot should feel compromised. If there is no part of the Constitution that allows the federal or state government to control how people use their bodies, and there isn’t (see Article I Section 8), then one wonders how those pledged to uphold the law can ignore the centerpiece of our legal system and still take pride in what they do.
08 February 2012
30 November 2011
The MMA Ban and the First Amendment: The New York Legislature Embarrasses Itself
Stephen Kershnar
New York’s Ban on Mixed Martial Arts
Dunkirk-Fredonia Observer
November 27, 2011
In 1997, New York banned mixed martial arts (MMA). MMA involves combat that combines a range of more specific combat sports, dominant among them wrestling, boxing, Brazilian jujitsu, and karate. New York is in the minority here. Currently, 45 of 48 of states with athletic commissions permit and regulate MMA. The law was pushed by New York City Mayor Rudy Giuliani and signed into law by Government George Pataki.
Recently, Zuffa, LLC, the parent company of the Ultimate Fighting Championship (UFC) along with a number of professional fighters and fans sued the New York officers who enforce the ban, specifically, the State Attorney General and the New York City Attorney General. The plaintiffs assert that the ban violates the Constitution, including the First Amendment, Due Process Clause, Equal Protection Clause, and Commerce Clause. I’ll focus on the First Amendment.
The First Amendment argument runs as follows. As Slate’s Dahlia Lithwick points out, the ban allows amateurs to participate in MMA, but prohibits people from advancing or profiting from it. That is, the ban targets the public performance of MMA, not the fighting that comprises it. New York enacted a narrow ban because the legislature didn’t like MMA’s message. Specifically, it wanted to protect children by banning the sport’s glorification of violence. The bill’s sponsors, Senator Goodman and Assemblyman Kaufman, were clear that they sought to ban the public performance of MMA in part because of the message it sends to children.
On a side note, this ban is uncommonly silly. Children in New York children are awash in glorifications of violence. Consider first-person shooter games, violent movies and rap music, and professional wrestling. MMA is unlikely to add much to this atmosphere. However, uncommon silliness does not make a law unconstitutional.
The problem with the ban is that the Supreme Court has been crystal clear in holding that the Constitution prohibits governments from banning a specific message, whether directly or indirectly. There are exceptions to this general rule, but they focus on a few narrow categories. The Court held that governments may ban obscenity (graphic pornography without redeeming value), child pornography (graphic child pornography), fighting words (expressions that tend to immediately cause violence), clear-and-present danger (expressions that tend to cause immediately dangerous situations), and fraud. Glorification of violence does not fit into any of these categories.
In a recent case, Brown v. Entertainment Merchants Association (2011), the Supreme Court again made it clear that states may not create new categories of unprotected expression. It specifically held that they may not ban glorifications of violence (in videogames), even when done to protect children.
Worse, the ban is so poorly written that it likely covers expressive activity that is uncontroversially protected by the First Amendment. The ban makes it a crime for people to “materially aid” a combative sport activity. As the plaintiffs point out, the materially aid clause is so sloppily written that it might cover citizens to write to state officials asking them to repeal New York state’s MMA ban, a local artist who sells t-shirts with pro-MMA slogans, New York film distributers who produce videos of MMA bouts in other states, and video “parties” at Madison Square Garden where people pay to watch MMA fights on the big screen.
The plaintiff’s other argument (New York is shutting down its message) is less clear. Their claim is that professional MMA sends messages about discipline, challenge, and inspiration. This includes the following specific messages: skill and training can accomplish remarkable things, skill and training can defeat brawn and brutality, respect for one’s opponent is consistent with combat sports, and it is admirable to be courageous in the face of a challenge. Other MMA proponents (for example, legendary fighter Renzo Grace) see the message aesthetic terms, analogous to the strategic beauty of chess. The general test for a message for First Amendment protection is whether there is a statement that the agent tries to send and the audience is likely to receive. It is not obvious that professional MMA bouts contain such a message.
The problem is that parallel arguments could be made with regard to obscenity (graphic pornography). Its message is the pleasure can be achieved through excellent performances and a range of sexual practices. It also expresses how conventional limitations on sex (limiting it to married couples, twosomes, heterosexuality, or the vagina) are outdated and hinder both pleasure and artistic displays of the human body. Still, this inconsistency is irrelevant given that the Justices who foolishly allowed the obscenity-exception to be written into the Constitution (see William Brennan) are gone and the current ones have largely prevented further rewriting.
A bigger problem for the shutting-down-message argument is that, as Jonathan Snowden of MMA Nation points out, even the UFC’s attorney, Barry Friedman, concedes that courts are skeptical about the right to engage in sport for sake of sport. For example, Friedman mentions a case allowing a municipality to ban jogging without a shirt or numchuk possession. One can see the motivation here. First, the messages here often have minimal, trivial, or vague content. For example, what message does topless jogging send?
Second, the sport category appears to be irrelevant to the Constitution. A few years ago it was incorrectly reported that for a fee, a Nevada business was allowing men to hunt naked women (employees) with paintball guns. Whether this activity is protected by the Constitution does not depend on whether this is a sport. This can be seen in that the category sport is not mentioned in the Constitution, not part of the drafters or ratifiers’ intentions, not part of what justifies it, and so on.
Third, the sport exception might result in various unprotected activities being repackaged as sport so that they might receive First Amendment protection. For example, The World’s Biggest Gang Bang 3 is a film of a woman having sex with 600 men. Were courts to recognize sport-based protection, the film could be repackaged as a sport and thereby receive First Amendment protection. It could be staged as a live sporting event, perhaps even to minors.
Were New York State’s ban to cover all MMA and not merely the public performances of it, then the ban might withstand Constitutional scrutiny, although it would be obviously irrational. The ban specifically allows boxing, wrestling, and karate competitions (Brazilian jujitsu is independently permitted) even though they comprise the vast majority of MMA action. What’s more MMA is as safe, if not more so, than a number of permitted sporting events, including professional boxing, football, ice hockey, car racing, equestrian sports, and rodeos. One study found that it was one-twentieth as dangerous as football.
Overall, the First Amendment case for striking down New York’s ban is strong because it is overbroad and, perhaps, because it targets a group’s constitutionally protected message. The law is so sloppy that it should also fall due to Due Process defects, such as vagueness and gross irrationality.
New York’s Ban on Mixed Martial Arts
Dunkirk-Fredonia Observer
November 27, 2011
In 1997, New York banned mixed martial arts (MMA). MMA involves combat that combines a range of more specific combat sports, dominant among them wrestling, boxing, Brazilian jujitsu, and karate. New York is in the minority here. Currently, 45 of 48 of states with athletic commissions permit and regulate MMA. The law was pushed by New York City Mayor Rudy Giuliani and signed into law by Government George Pataki.
Recently, Zuffa, LLC, the parent company of the Ultimate Fighting Championship (UFC) along with a number of professional fighters and fans sued the New York officers who enforce the ban, specifically, the State Attorney General and the New York City Attorney General. The plaintiffs assert that the ban violates the Constitution, including the First Amendment, Due Process Clause, Equal Protection Clause, and Commerce Clause. I’ll focus on the First Amendment.
The First Amendment argument runs as follows. As Slate’s Dahlia Lithwick points out, the ban allows amateurs to participate in MMA, but prohibits people from advancing or profiting from it. That is, the ban targets the public performance of MMA, not the fighting that comprises it. New York enacted a narrow ban because the legislature didn’t like MMA’s message. Specifically, it wanted to protect children by banning the sport’s glorification of violence. The bill’s sponsors, Senator Goodman and Assemblyman Kaufman, were clear that they sought to ban the public performance of MMA in part because of the message it sends to children.
On a side note, this ban is uncommonly silly. Children in New York children are awash in glorifications of violence. Consider first-person shooter games, violent movies and rap music, and professional wrestling. MMA is unlikely to add much to this atmosphere. However, uncommon silliness does not make a law unconstitutional.
The problem with the ban is that the Supreme Court has been crystal clear in holding that the Constitution prohibits governments from banning a specific message, whether directly or indirectly. There are exceptions to this general rule, but they focus on a few narrow categories. The Court held that governments may ban obscenity (graphic pornography without redeeming value), child pornography (graphic child pornography), fighting words (expressions that tend to immediately cause violence), clear-and-present danger (expressions that tend to cause immediately dangerous situations), and fraud. Glorification of violence does not fit into any of these categories.
In a recent case, Brown v. Entertainment Merchants Association (2011), the Supreme Court again made it clear that states may not create new categories of unprotected expression. It specifically held that they may not ban glorifications of violence (in videogames), even when done to protect children.
Worse, the ban is so poorly written that it likely covers expressive activity that is uncontroversially protected by the First Amendment. The ban makes it a crime for people to “materially aid” a combative sport activity. As the plaintiffs point out, the materially aid clause is so sloppily written that it might cover citizens to write to state officials asking them to repeal New York state’s MMA ban, a local artist who sells t-shirts with pro-MMA slogans, New York film distributers who produce videos of MMA bouts in other states, and video “parties” at Madison Square Garden where people pay to watch MMA fights on the big screen.
The plaintiff’s other argument (New York is shutting down its message) is less clear. Their claim is that professional MMA sends messages about discipline, challenge, and inspiration. This includes the following specific messages: skill and training can accomplish remarkable things, skill and training can defeat brawn and brutality, respect for one’s opponent is consistent with combat sports, and it is admirable to be courageous in the face of a challenge. Other MMA proponents (for example, legendary fighter Renzo Grace) see the message aesthetic terms, analogous to the strategic beauty of chess. The general test for a message for First Amendment protection is whether there is a statement that the agent tries to send and the audience is likely to receive. It is not obvious that professional MMA bouts contain such a message.
The problem is that parallel arguments could be made with regard to obscenity (graphic pornography). Its message is the pleasure can be achieved through excellent performances and a range of sexual practices. It also expresses how conventional limitations on sex (limiting it to married couples, twosomes, heterosexuality, or the vagina) are outdated and hinder both pleasure and artistic displays of the human body. Still, this inconsistency is irrelevant given that the Justices who foolishly allowed the obscenity-exception to be written into the Constitution (see William Brennan) are gone and the current ones have largely prevented further rewriting.
A bigger problem for the shutting-down-message argument is that, as Jonathan Snowden of MMA Nation points out, even the UFC’s attorney, Barry Friedman, concedes that courts are skeptical about the right to engage in sport for sake of sport. For example, Friedman mentions a case allowing a municipality to ban jogging without a shirt or numchuk possession. One can see the motivation here. First, the messages here often have minimal, trivial, or vague content. For example, what message does topless jogging send?
Second, the sport category appears to be irrelevant to the Constitution. A few years ago it was incorrectly reported that for a fee, a Nevada business was allowing men to hunt naked women (employees) with paintball guns. Whether this activity is protected by the Constitution does not depend on whether this is a sport. This can be seen in that the category sport is not mentioned in the Constitution, not part of the drafters or ratifiers’ intentions, not part of what justifies it, and so on.
Third, the sport exception might result in various unprotected activities being repackaged as sport so that they might receive First Amendment protection. For example, The World’s Biggest Gang Bang 3 is a film of a woman having sex with 600 men. Were courts to recognize sport-based protection, the film could be repackaged as a sport and thereby receive First Amendment protection. It could be staged as a live sporting event, perhaps even to minors.
Were New York State’s ban to cover all MMA and not merely the public performances of it, then the ban might withstand Constitutional scrutiny, although it would be obviously irrational. The ban specifically allows boxing, wrestling, and karate competitions (Brazilian jujitsu is independently permitted) even though they comprise the vast majority of MMA action. What’s more MMA is as safe, if not more so, than a number of permitted sporting events, including professional boxing, football, ice hockey, car racing, equestrian sports, and rodeos. One study found that it was one-twentieth as dangerous as football.
Overall, the First Amendment case for striking down New York’s ban is strong because it is overbroad and, perhaps, because it targets a group’s constitutionally protected message. The law is so sloppy that it should also fall due to Due Process defects, such as vagueness and gross irrationality.
16 November 2011
Joe Paterno and the Sexual-Abuse Scandal
Stephen Kershnar
Blaming Joe Paterno
Dunkirk-Fredonia Observer
November 14, 2011
A sexual abuse scandal has brought down legendary Pennsylvania State University football coach Joe Paterno. At issue is whether he is guilty of a crime or a moral failure. Let me begin by stating the obvious: sexually assaulting children is extremely harmful, horribly wrong, highly illegal, and should not be tolerated.
Here are the facts as set out by Wikipedia, The Washington Post, ESPN, Sports Illustrated, and other news sources. For 31 years, Jerry Sandusky served as an assistant coach under head coach Paterno from 1969 to 1999. For 23 of those years, he was the team’s defensive coordinator (lead defensive coach). In 1977, he founded a charity (The Second Mile) designed to help troubled boys at State College, Pennsylvania, where Penn State is located. Roughly two weeks ago (November 5, 2011), Sandusky was arrested and charged with 40 criminal counts of sex crimes against boys. This includes seven counts of sexual assault (involuntary deviant sexual intercourse), seven counts of indecent assault, eight counts of corruption of minors, and so on.
The evidence for these alleged crimes is not new. In 2000, a janitor noticed Sandusky in a Penn State shower performing oral sex on a boy. He reported what he saw to his supervisor, but the latter did not pass this information on to school officials or the police. In 2010, assistant coach Mike McQueary saw Sandusky sodomizing a ten-year-old boy in the shower. He did not intervene, but later reported the incident to Paterno. The next day Paterno relayed this information to Athletic Director Tim Curley. Curley and Penn State Senior Vice President Gary Schultz (the administrator in charge of the police) ordered Sandusky not to bring any more children from Second Mile to the football building. University President Graham Spanier approved this order. None of the three appear to have taken further action. Sandusky was allowed to operate a summer camp on a Penn State satellite campus (Behrend near Eric), where he had daily contact with boys ages 9 to 18.
Curley and Schultz appeared before a grand jury. They testified that McQueary didn’t tell them of sexual activity. They were then charged with perjury (lying about McQueary) and failure to report suspected child abuse to the police. Penn State placed Curley on administrative leave and Schultz resigned. The Board of Trustees gave Spanier an ultimatum: resign or be fired. He resigned. Paterno offered to retire, but the Board refused and fired him.
One issue is whether Paterno committed a crime. University of Mississippi law professor Michael McCann argues that while possible charges against him include obstruction of justice, perjury, and failure to report suspected child abuse, he is probably not legally guilty of these crimes. Legally, a person obstructs justice when he conceals evidence or when he delays or frustrates a criminal investigation. Paterno probably didn’t do this because the day after McQueary spoke to him, he reported a version of what he heard to his boss, Tim Curley. Under oath, Paterno testified that McQueary told him that Sandusky was engaged in a general act (“doing something of a sexual nature”) to a boy, whereas McQueary testified he told Paterno that Sandusky was engaged in anal intercourse, but it is doubtful this difference, and how it affected what he told Curley, obstructs justice. Also, there is a time limit on pursuing this crime and it is about to expire.
Paterno is likely not legally guilty of perjury. The difference in Paterno’s and McQueary’s testimony is not clearly lying (intentional misrepresentation). Paterno might have failed to remember exactly what he was told (most of us can’t remember exactly what we were told and Paterno is 84 years old). Also, convicting Paterno would require a prosecutor to show that McQueary, rather than Paterno, did not misremember what he said or lie. Given his failure to intervene, McQueary might be seen as having a motive to misstate what he told Paterno.
Nor is Paterno likely legally guilty of failing to report sexual abuse. The Pennsylvania Child Protective Services Law requires teachers and school administrators to report alleged abuse to child protective services, police, or a supervisor. Paterno did this. In addition, it is doubtful that the law applies to him.
The moral issue is murkier. Was Paterno blameworthy for failing to do more? First, Paterno promptly turned the information over to his boss (Curley). He likely knew or reasonably expected that the information would be given to the administrator who oversaw the Penn State police force (Schultz). It is unclear that he knew or should have known that these two would have dropped the ball by not ordering an investigation. Nor did Paterno have a clear duty to monitor or oversee their actions.
By analogy, consider a lieutenant in the army who gets a report of a sergeant abusing recruits. He promptly reports this to his commanding officer (a captain) whom he trusts and who tells him he will take it from there. It is not clear that the lieutenant should second-guess the captain’s judgment about what happened and how to proceed. Nor is it clear the lieutenant should insist on meeting with the military police or the commanding officer’s boss (for example, a major) if the commanding officer were to disbelieve the report.
Second, even if he should have known, negligence is not the sort of moral failure that makes one a monster. Consider a ship pilot who daydreams and doesn’t notice himself doing so. As a result, he fails to steer his ship away from the rocks, which results in it sinking and a passenger drowning. Such an individual is flawed, but not terribly blameworthy.
Third, people often confuse moral and legal obligations. This is commonly seen in police officers and judges who enforce obviously unjust laws with a clear conscience. Consider, for example, officers who aggressively enforced laws that criminalized homosexuality in the 60’s and 70’s and perhaps, also, those who enforced the Rockefeller anti-drug laws. It is unclear whether Paterno made this mistake, but it is a common one.
Fourth, it is very hard to turn in beloved family and friends. Most mothers would have a hard time turning in a son, even if they had evidence that he committed a date rape and was a threat to do it again in the future. This might be due to self-deception or the sheer strength of her love. A similar thing is true of soldiers who witness wartime atrocities by brothers in arms. Consider, for example, soldiers who observed the My Lai massacre and did nothing to stop it. My guess is that after 31 years of working together under stressful conditions, Paterno was close to Sandusky.
Fifth, there is an underlying philosophical issue as to whether people have a moral duty to save strangers. For example, many rich and middle class people fail to donate money to starving children in the third world and don’t see themselves as bad people. Whether there is such a duty and whether it applied to Paterno is a discussion for another day.
None of this establishes that Paterno acted rightly (or wrongly). What it likely establishes is that he is not a moral cretin, gross moral failure, disgusting human being, etc. It is a separate matter whether these labels fit Spanier, Schultz, and Curley. They obviously fit Sandusky.
Blaming Joe Paterno
Dunkirk-Fredonia Observer
November 14, 2011
A sexual abuse scandal has brought down legendary Pennsylvania State University football coach Joe Paterno. At issue is whether he is guilty of a crime or a moral failure. Let me begin by stating the obvious: sexually assaulting children is extremely harmful, horribly wrong, highly illegal, and should not be tolerated.
Here are the facts as set out by Wikipedia, The Washington Post, ESPN, Sports Illustrated, and other news sources. For 31 years, Jerry Sandusky served as an assistant coach under head coach Paterno from 1969 to 1999. For 23 of those years, he was the team’s defensive coordinator (lead defensive coach). In 1977, he founded a charity (The Second Mile) designed to help troubled boys at State College, Pennsylvania, where Penn State is located. Roughly two weeks ago (November 5, 2011), Sandusky was arrested and charged with 40 criminal counts of sex crimes against boys. This includes seven counts of sexual assault (involuntary deviant sexual intercourse), seven counts of indecent assault, eight counts of corruption of minors, and so on.
The evidence for these alleged crimes is not new. In 2000, a janitor noticed Sandusky in a Penn State shower performing oral sex on a boy. He reported what he saw to his supervisor, but the latter did not pass this information on to school officials or the police. In 2010, assistant coach Mike McQueary saw Sandusky sodomizing a ten-year-old boy in the shower. He did not intervene, but later reported the incident to Paterno. The next day Paterno relayed this information to Athletic Director Tim Curley. Curley and Penn State Senior Vice President Gary Schultz (the administrator in charge of the police) ordered Sandusky not to bring any more children from Second Mile to the football building. University President Graham Spanier approved this order. None of the three appear to have taken further action. Sandusky was allowed to operate a summer camp on a Penn State satellite campus (Behrend near Eric), where he had daily contact with boys ages 9 to 18.
Curley and Schultz appeared before a grand jury. They testified that McQueary didn’t tell them of sexual activity. They were then charged with perjury (lying about McQueary) and failure to report suspected child abuse to the police. Penn State placed Curley on administrative leave and Schultz resigned. The Board of Trustees gave Spanier an ultimatum: resign or be fired. He resigned. Paterno offered to retire, but the Board refused and fired him.
One issue is whether Paterno committed a crime. University of Mississippi law professor Michael McCann argues that while possible charges against him include obstruction of justice, perjury, and failure to report suspected child abuse, he is probably not legally guilty of these crimes. Legally, a person obstructs justice when he conceals evidence or when he delays or frustrates a criminal investigation. Paterno probably didn’t do this because the day after McQueary spoke to him, he reported a version of what he heard to his boss, Tim Curley. Under oath, Paterno testified that McQueary told him that Sandusky was engaged in a general act (“doing something of a sexual nature”) to a boy, whereas McQueary testified he told Paterno that Sandusky was engaged in anal intercourse, but it is doubtful this difference, and how it affected what he told Curley, obstructs justice. Also, there is a time limit on pursuing this crime and it is about to expire.
Paterno is likely not legally guilty of perjury. The difference in Paterno’s and McQueary’s testimony is not clearly lying (intentional misrepresentation). Paterno might have failed to remember exactly what he was told (most of us can’t remember exactly what we were told and Paterno is 84 years old). Also, convicting Paterno would require a prosecutor to show that McQueary, rather than Paterno, did not misremember what he said or lie. Given his failure to intervene, McQueary might be seen as having a motive to misstate what he told Paterno.
Nor is Paterno likely legally guilty of failing to report sexual abuse. The Pennsylvania Child Protective Services Law requires teachers and school administrators to report alleged abuse to child protective services, police, or a supervisor. Paterno did this. In addition, it is doubtful that the law applies to him.
The moral issue is murkier. Was Paterno blameworthy for failing to do more? First, Paterno promptly turned the information over to his boss (Curley). He likely knew or reasonably expected that the information would be given to the administrator who oversaw the Penn State police force (Schultz). It is unclear that he knew or should have known that these two would have dropped the ball by not ordering an investigation. Nor did Paterno have a clear duty to monitor or oversee their actions.
By analogy, consider a lieutenant in the army who gets a report of a sergeant abusing recruits. He promptly reports this to his commanding officer (a captain) whom he trusts and who tells him he will take it from there. It is not clear that the lieutenant should second-guess the captain’s judgment about what happened and how to proceed. Nor is it clear the lieutenant should insist on meeting with the military police or the commanding officer’s boss (for example, a major) if the commanding officer were to disbelieve the report.
Second, even if he should have known, negligence is not the sort of moral failure that makes one a monster. Consider a ship pilot who daydreams and doesn’t notice himself doing so. As a result, he fails to steer his ship away from the rocks, which results in it sinking and a passenger drowning. Such an individual is flawed, but not terribly blameworthy.
Third, people often confuse moral and legal obligations. This is commonly seen in police officers and judges who enforce obviously unjust laws with a clear conscience. Consider, for example, officers who aggressively enforced laws that criminalized homosexuality in the 60’s and 70’s and perhaps, also, those who enforced the Rockefeller anti-drug laws. It is unclear whether Paterno made this mistake, but it is a common one.
Fourth, it is very hard to turn in beloved family and friends. Most mothers would have a hard time turning in a son, even if they had evidence that he committed a date rape and was a threat to do it again in the future. This might be due to self-deception or the sheer strength of her love. A similar thing is true of soldiers who witness wartime atrocities by brothers in arms. Consider, for example, soldiers who observed the My Lai massacre and did nothing to stop it. My guess is that after 31 years of working together under stressful conditions, Paterno was close to Sandusky.
Fifth, there is an underlying philosophical issue as to whether people have a moral duty to save strangers. For example, many rich and middle class people fail to donate money to starving children in the third world and don’t see themselves as bad people. Whether there is such a duty and whether it applied to Paterno is a discussion for another day.
None of this establishes that Paterno acted rightly (or wrongly). What it likely establishes is that he is not a moral cretin, gross moral failure, disgusting human being, etc. It is a separate matter whether these labels fit Spanier, Schultz, and Curley. They obviously fit Sandusky.
Subscribe to:
Posts (Atom)
