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Jewish World Review May 17, 2000 / 12 Iyar, 5760

Michael Kelly

Michael Kelly
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Cuomo's Thought Police -- LIBERTY -- and liberal values, the greatest of which is a passion for protecting the individual from the tender mercies of the state -- won a great but fragile victory this week. Typically, the victory was cast in the press as a triumph for conservatism.

By a 5-4 decision, with the justices voting along ideological lines defined in similar past decisions, the Supreme Court on Monday struck down a six-year-old provision of the Violence Against Women Act, which allowed women who are victims of crimes deemed to be "motivated by gender" to sue their attackers in federal court.

The justices upheld a lower court's dismissal of a lawsuit brought by a woman under the Violence Against Women Act against two Virginia Tech football players whom she had accused of raping her. After the defendants challenged the constitutionality of the law, the Justice Department intervened, arguing that Congress was entitled, under the commerce clause of the Constitution, to regulate crimes against women because violence against women, in the aggregate, hurts the national economy.

In rejecting this almost comically expansionist view of federal powers, Chief Justice William H. Rehnquist noted that this reasoning "would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or consumption." Rehnquist reminded the Justice Department and Congress that police authority is a power "which the Founders denied the national government and reposed in the states."

The court's narrowly divided opinion demonstrates just how closely held is the balance in the great struggle between those who champion civil liberties and those who champion civil rights, in which liberalism's traditional protection of liberties has given way to the imperative of protecting selected groups (some minorities, women, gays) from what is seen as systemic discrimination. "Rights" liberalism, as opposed to "liberties" liberalism, is the reigning liberalism and it is very much Clinton liberalism.

An extraordinary example of Clintonian rights-based liberalism in practice may be found in the administration's litigation against one Roy E. Frankhouser. Frankhouser is a self-described chaplain to the Ku Klux Klan with a long arrest record and a reputation for attempting to harass and frighten advocates of integration.

Beginning in 1997 Frankhouser allegedly waged a vicious campaign of intimidation against Bonnie L. Jouhari, a former fair-housing specialist for the Reading-Berks County Human Relations Council in Reading, Pa. According to Jouhari, Frankhouser spent many hours sitting on a public bench outside her office and taking photographs of her through the window. He broadcast images of Jouhari on his Web site, calling her "a race traitor," and said that "traitors like this should beware, for in our day, they will be hung from the neck from the nearest tree or lamppost."

Despite this threatening behavior, local police and the Justice Department took no action against Frankhouser, noting his First Amendment right to self-expression. So, last January, the Department of Housing and Urban Development sued Frankhouser for violating fair housing laws, the first time the federal government had ever used civil rights law to attempt to suppress speech on a Web site.

Up against the U.S. government, Frankhouser settled. In an agreement dictated by the government's lawyers, he promised last week to stay 100 feet away from Jouhari and her daughter and to pay Jouhari 5 percent of his salary for 10 years. So far, well and good. But Frankhouser was forced to do much more than this. He has also agreed to issue an apology to Jouhari on his public access cable TV show, to refrain from otherwise ever mentioning her in public again, to display on the front of his house a HUD poster inveighing against discrimination in housing sales and rentals and to attend sensitivity sessions.

"We think this settlement makes a very loud statement, not just to this particular case but to anyone who would think of engaging or involving themselves in this hideous type of behavior," crowed HUD Secretary Andrew M. Cuomo. Indeed the settlement does make a loud statement. It says that the government may not only compel an individual to stop harassing another person but may also force that individual to curtail his speech, to make statements contrary to his beliefs, even to undergo schooling in the wrongness of his beliefs. The settlement also says, by implication, that this use of coercive force against free speech and thought is to be selectively employed, in support of the opinions and beliefs the government deems to be desired. I cannot imagine Cuomo using the might of the government to force, say, a Nation of Islam race-ranter into reeducation camp.

Is this really liberalism? Is this really what liberals want?

Michael Kelly is the editor of National Journal. Send your comments to him by clicking here.


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03/01/00:The Pinhead Factor
03/01/00: The Christian Right: Past Its Prime . . .
02/24/00: McCain's Majority
02/16/00: Sharpton's Supplicants
02/09/00: The GOP Pilgrims' Sad Tale
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01/26/00: Million-Dollar Mediocrity
01/19/00: Campaign Reform: Let's Pretend
01/12/00: Never Again? Oh, Never Mind
01/05/00: Turn Off, Tune Out, Drop In
12/22/99: Gore's TV Gambit
12/15/99: Campaigns Do Clarify
12/08/99: Kosovo's Killers
12/01/99: Not Ready for Prime Time?
11/24/99: The Company He Keeps
11/17/99: Republican Illusion
11/10/99: The Know-Nothing Media
11/03/99: Necessary Partisanship
10/27/99: Buchanan's Gift to George W. Bush
10/21/99: Who are the real friends of the poor?
10/14/99: Gore's 'courage'!?
10/08/99: Republican Stunts
09/23/99: Buchanan's folly
09/16/99: Beatty and Buchanan: That's Entertainment!
09/09/99: Puerto Rico Surprise (Cont'd)
09/02/99: Puerto Rico Surprise
08/12/99:The Age of No Class
08/05/99: Assessing Welfare Reform
07/29/99: On the Wrong Side
07/21/99: Mass Sentimentality
07/15/99: Blame Hillary
07/08/99: Guide to the Arts: For Your Summer Reading . . .
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06/25/99:Smorgasbord by the Sea
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06/09/99: Stumbling Forward
06/02/99: Commencement '90s-Style
05/26/99: Will we ever learn? Clintochio is a lying ...
05/19/99: Comforting Milosevic
05/13/99: Short-Order Strategists
05/06/99: Four Revolting Spectacles

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