Law

This Is What (Straight, Cis, Capitalist, Christian, White Male) Democracy Looks Like 

Posted on by April Hathcock

If I hear one more white person whine about free speech, I will scream with a deep primal yell borne out of the viscera of my enslaved ancestors down through the ages on whose blood, sweat, and stolen tears this mock-democracy of a country was founded and built. 

A little while ago, the almost-ironically named American Library Association Think Tank on Facebook was full of white people determined that we should go out of our way to do outreach to the KKK, and other white supremacy terrorist groups, in the hopes of promoting free speech and intellectual freedom. Not just allow them to use public facilities, mind you, but do active outreach. Because their opportunities to share their hate-filled message are so limited. 

Lately, many white people have decried the negative response from many black folks and allies to a proposed new HBO show, from the makers of the already problematic Game of Thrones, about an “imaginary” world in which the confederacy won the Civil War and slavery still existed. As if the white supremacist legacy of slavery and settler colonialism and genocide isn’t still very much alive and well in this, the real world. These folks falsely, though typically, equate the #NoConfederate response as a form of “censorship” and call for all of us to relive the spectacle of black subjugation for the sake of “free speech.”

Just recently there’s been literal outrage about the firing a white dude from a big private company for releasing a statement about the so-called “biological inferiority” of women in his field and the need to do away with calls for more diversity and inclusion. Because, ya know, when your private employer fires you from your at-will job for behaving in the job as a racist, sexist jerk, that’s such a travesty of the constitutional protection against government sanction of speech. (Please note the intense sarcasm here.)

Apparently, white people care a LOT about free speech. 

They care so much that a couple of weeks ago many of them took to calling administration at my workplace, sending me heinous emails and tweets, and leaving me threatening voicemails to demand my firing because I dare to exercise free speech to call out white supremacy and racial oppression. 

They care so much that when researchers of color across the country are faced with reprisal, including job loss, for speaking up about oppression, many celebrate the destruction of these professional lives as the cost for speaking the truth. 

They care so much that some of them, who are long-time members of the Society of American Archivists, are quitting in a huff because the SAA dared to allow a program on dismantling white supremacy in archives, in which archivists of color and white allies exercise their freedom of speech to educate others about the inherent oppression of the profession. 

(Again, please note the sarcasm.)

The fact is, these fighters for free speech only care about free speech that serves to maintain the white supremacist status quo. Freedom and democracy for all comes with an unspoken asterisk.* (*Only straight, cis, upper-class, Christian white men need apply.)

I’m tired of these proponents of oppressive democracy. Folks who pretend to care about equity and inclusion but only care about keeping whiteness front and center. 

But I appreciate the work of those who continue to speak up and speak out, even when it’s made clear that freedom of expression is just not for us. Those who take on the burden and personal risk on behalf of their communities or as allies, or both. Let’s continue to support them and each other. Let’s make “freedom for all” really mean something. 

Just Make Stuff Accessible

Posted on by April Hathcock

I’m sure many of you have heard by now about UC Berkeley’s decision to remove tons of otherwise publicly available content because the Department of Justice recently found that its content did not meet minimum accessibility standards under the Americans with Disabilities Act. This very unadulterated ableist move on the part of UC Berkeley has been accompanied by equally unadulterated ableist responses:

Ugh. When the law requires you to delete a bunch of content from the public view just because a few people can’t access it, then the law must be pretty harsh, don’t you think?

This decision is rash and ridiculous. Also, the DOJ ruling is rash and ridiculous. Now, no one gets to access the content.

The ADA requirements are clearly too rigorous when even a place like UC Berkeley finds it too burdensome to comply.

Let me make something clear: UC Berkeley knew all along what it had to do to meet the requirements of the ADA. Anyone who creates online content knows about the section 508 ADA requirements and the more inclusive W3C’s Web Content Accessibility Guidelines. Transcripts for audio material. Decent closed captions for video material (no, the YouTube auto-captions aren’t sufficient; they suck). If you provide public web content and don’t know about these guidelines then you are doing it wrong. It’s like saying you specialize in providing web video content but then not knowing how to turn on a webcam. Nope.

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“Access” by Sarah Stewart, via Flickr, CC BY 2.0

What I’m saying is this: UC Berkeley knew better. It just chose to ignore the law anyway. And now that it has been caught in its disregard for the protection of people with disabilities it has chosen to take the petulant toddler approach: if I can’t do it my own ableist way, then no one can play.

It is not the law that makes UC Berkeley’s compliance obligations overly burdensome. It is the fact that UC Berkeley has spent so much time producing content in blatant disregard of the law that now makes compliance so burdensome. Essentially, they’ve been ignoring the law for so long, that it will now cost them a lot of time and money to make things right. That’s not the law’s fault; that’s on them.

And what’s worse is I know for a fact that UC Berkeley is far from being the only institution out there in this situation. They may have been the speeding car that got pulled over by the cops, but they are far from the only or even most egregious offender. I’m certain there are other institutions out there that are blissfully ignoring ADA requirements, and the warnings of conscientious employees, in the hopes of never being called to task. I can only hope that those organizations take what is happening at Berkeley as a clear warning. And I applaud the National Association of the Deaf for pushing back on these forms of lazy ableism.

The fact is that ADA requirements actually fall way short of providing people with disabilities with adequate access to materials. So complying with those rules is, quite literally, the very least that an organization can do.

Let’s do better.

Jim Crow 2.0

Posted on by April Hathcock

During my parents’ lifetimes, the law in many states, like Mississippi and North Carolina, allowed people to refuse to serve them:

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Bus station waiting room in Jackson, MS, 1961.                       William Lovelace, Express, Getty Images

This law also told them where they could use the restroom:

White Only Restroom Sign

1962, South Carolina, USA                                                             Restroom sign for segregated men’s room in county courthouse in Sumter.  Image by © Bob Adelman/Corbis

Officially, those laws don’t exist anymore…for my parents. But they’ve made a comeback.

With the passage of HB2 in North Carolina and the so-called “religious freedom” bill in Mississippi, Jim Crow is rearing his ugly zombie head.

Under these new laws, and others like them that are surfacing, people can tell others where to use the restroom and refuse to provide them with service. Sound familiar?

These kinds of affronts to civil rights cannot stand. While it’s great to complain about them on social media, the time has long come to take action. As my dear friend Chris Bourg notes:

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So, please join me in writing to Gov. Phil Bryant of Mississippi and Gov. Pat McCrory of North Carolina. Feel free to use my letters below.

Dear Gov. Bryant:

HB 1523 is an affront to civil rights. The law is unconstitutional and flies in the face of the very basics of human rights. It not only hurts LGBTQ people but all people.

Repeal HB

 

Dear Gov. McCrory:

HB 2 is an affront to civil rights. The law is unconstitutional and flies in the face of the very basic of human rights. It not only hurts trans and genderqueer people but all people.

Repeal HB 2 now!

 

 

Fair Use for Social Justice

Posted on by April Hathcock

This week is fair use week; and as I spent my time preparing and giving workshops on how to harness the power of fair use within the walls of the ivory tower, I also thought of the many ways in which fair use can be used as a tool for social justice.

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Slide from “Figuring Out Fair Use” by April Hathcock, CC BY-NC

Fair use is an exception to the exclusive rights of a capitalistic copyright system that allows owners to exclusively own and monetize works for about a century after their death. Though originally created “to promote the Progress of Science and useful Arts” (U.S. Const. Art. I, §8, cl. 8), it is now widely used to ensure the ability to reap financial award from “original works of authorship” (17 U.S.C. 102)—sometimes by the author but most often by the corporation to which the author has assigned their rights.

In the midst of this bleak copyright environment, there exists fair use: an imperfect, but powerful copyright exception that allows limited use of materials without permission for purposes “such as criticism, comment, news reporting,” and more (17 U.S.C. 107).

Despite popular belief, fair use is a right and not just a defense. You don’t have to wait until you are sued to assess your use and determine whether it’s fair. You have a right to make that determination as you contemplate your potential use.

And that determination is naturally flexible, allowing for changes in the way copyrightable creations become “fixed in any tangible medium of expression” (17 U.S.C. 102) and the various ways in which fair users may need to exercise their right to use. The famous “four-factor test” is in fact a “four-factor plus test,” allowing for the consideration of additional factors as circumstances may warrant (17 U.S.C. 107).

What does all this have to do with social justice? Like with any socio-legal structure or process rooted in a society of capitalism and oppression, copyright law affects different groups and different forms of expression differently. There is privilege in copyright law. There are haves and have-nots. There is the mainstream and there is the marginalized.

But with fair use, there’s at least a teeny bit more equity in the system. The haves are not able to exercise monopolistic power over their works because their power is not absolute. There are limits and exceptions, allowing the have-nots to benefit from information and cultural materials being offered at high cost in the market.

And it does come down to the high cost of information in the market. While plain data and ideas—which make up the basis of information—are not copyrightable, much of our information becomes locked down in copyright because of the fixed and tangible nature of how we create and value knowledge. White, capitalist society is not an oral society. Whatever there is to know, whatever there is that is worth knowing, is “fixed in any tangible medium of expression” and subject to the market forces of copyright. Information is available and there’s tons of it, but it is far from free.

Those of us working in libraryland should readily see how important fair use can and should be to our social justice mission of providing information to all. And we should also realize how this same power of fair use is essential to providing some form of equity for marginalized groups.

Just look at what happens when fair use fails: The precedent set in Biz Markie’s loss of his sampling case nearly crippled hip-hop and virtually all other forms of black music that rely on sampling previously created rhythms and beats to create new musical creation. This is a tradition that harkens back to the drum circles on the African plains and shared oral culture, none of which finds value or validation in a white, capitalist society. What is more, this lack of fair use continues to plague the black music industry; just ask Robin Thicke and Pharrell Williams.

In the realm of higher education, we see the potential trouble a failure of fair use can cause in the lawsuit against Georgia State University, a public institution with a diverse student body, located in the heart of a city comprised of over 50% people of color. Librarians, faculty, and staff were working to save students on exorbitant textbook fees by harnessing the power of fair use to make educational materials—and the valuable knowledge they contain—available on password-protected course sites. While the case, through all its permutations, seems to be headed for a positive note for the university and its students, it is still an example of how much fair use is desperately needed. This case has been going on for eight years and still isn’t closed. All for the sake of providing students from diverse backgrounds with the materials they need to learn.

We need fair use in order to provide information to more people, in order to break beyond institutional, market-driven barriers that function to keep information locked away for a high price. Fair use is the tool we use to make the creation and distribution of knowledge and culture more equitable. Fair use is a tool we use to build a more just society.

(Some of) The Trouble with IRB

Posted on by April Hathcock

I’m working on a research project with one of my favorite people, Jennifer Vinopal, and we had to go through the U.S. Institutional Review Board (IRB) process. (Commence collective groan.)

The IRB process is required for human subject research and involves having your proposed study reviewed by a select group from your institution for any potential ethical issues. It can be a very long, painful, drawn-out process, and there’s plenty of critique out there that it often does not serve its purpose to ensure the ethicality of human subject research (Heimer & Petty, 2010). (That last article is paywalled, sorry. ILL at your library or contact me directly for a copy.)

Aside from the personal annoyance of having to deal with IRB—which really wasn’t that bad for me because Jennifer is incredible and took the lead on that part of our work, plus our study was exempt—as I’ve learned more about IRB standards in general, I’ve come across some serious issues.

IRB standards in the U.S. are based on federal regulations issued by the U.S. Department of Health and Human Resources. They lay out the types of research requiring IRB approval and the standards by which that research should be judged for its ethicality. Part of those regulations involves identifying population groups that are particularly vulnerable and require heightened standards for research conducted among them. There are three. Just three. (See a problem already?)

  1. Pregnant women and their fetuses (Subpart B)
  2. Prisoners (Subpart C)
  3. Children (Subpart D)

Now right off the bat, this list is far from adequate. I can come up with several more categories that should be on this list: people who are homeless; members of an immigrant population, particularly if undocumented; sex workers; people with physical or mental disabilities that render them incapable of conveying meaningful consent; and on and on. But those three are the only ones.

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“Prison doors” by rytc via Flickr, CC BY-NC-ND 2.0

As if the dearth of categories isn’t enough, there are also problems with the so-called extra protections afforded these categories of people. In particular, I was troubled by what I learned about the requirements for research among prisoner populations.

First off, prisoners only include people who are confined to an institution by court order. Obviously, people in prison but also people on house arrest or in court-mandated rehabilitation or psychiatric wards. However, it does NOT include parolees, even though they are subject to court-ordered monitoring and are susceptible to some of the same vulnerabilities as the currently incarcerated.

Imagine if the director of the halfway house invites a researcher to come in and interview residents for a research project. Even if there’s no overt coercion at play, what might a recently paroled resident think about refusing to participate in the study? This person is already struggling to reenter society, get a job, find a permanent place to live—would it pay to potentially piss off a highly educated researcher or the director of the housing facility? What if word gets back to the parole officer? Will there be repercussions there?

Another issue I found lies in the required composition of IRBs reviewing prisoner research. IRBs in general are required to have at least five members. For boards reviewing prisoner research, only one of those members needs to be a prisoner, former prisoner, or someone who can advocate for the prisoners’ rights (such as a prison chaplain, social worker, or other such representative, thankfully excluding wardens, guards, and the like). One of at least five. Only one.

Can you imagine being an ex-con, sitting in a room with a bunch of scholar-types, discussing why it is NOT okay to conduct research on your former fellow inmates? Better yet, can you imagine being a current prisoner, in your orange jumpsuit or whatnot, sitting in a room with a bunch of free and highly educated researchers, discussing why it would not be a good idea to conduct research on you and your fellow inmates?

Talk about power differential. Meaningless agency is no agency at all.

It terrifies me that this is the type of bureaucracy passing as “safeguards” for the interests of vulnerable populations. And when you consider that 60% of male prison inmates are black or Hispanic and that black females are as much as 4x more likely to be imprisoned than white females (U.S. Dept. of Justice, 2015), you can see how this lack of protection and agency can cut across other lines of oppression.

For IRBs to be meaningful, they have to involve more than just an annoying bureaucratic step in the research process. This isn’t just about preventing overt forms of exploitation like the Tuskegee syphilis study; there are also more subtle forms of oppression and exploitation at play.

 

References

Heimer, C. A., & Petty, J. (2010). “Bureaucratic ethics: IRBs and the legal regulation of human subject research.” Annual Review of Law and Social Science 6, 601-26.

Tuskegee University (n.d.). “About the USPHS syphilis study.” Retrieved from http://www.tuskegee.edu/about_us/centers_of_excellence/bioethics_center/about_the_usphs_syphilis_study.aspx.

U.S. Dept. of Health & Human Services (2010). “Protection of human subjects.” 45 C.F.R. 46. Retrieved from http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html.

U.S. Dept. of Justice, Bureau of Justice Statistics (2015). Prepared by Dr. E. Ann Carson. Prisoners in 2014. Retrieved from http://www.bjs.gov/content/pub/pdf/p14.pdf.