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-JOHN MADALEY

Thoughts

Requiem for a Republic

Apr 13, 2017

Last week in an attempt to show puissance and divert eyes away from his domestic train wreck, Trump bombed Syria. The strike was as appalling as it was laced with hypocrisy. Bombing to keep the peace is as effectual as using pregnancy for contraception. Purportedly the President was moved by images of the victims of Assad's chemical attack (which Assad has today refuted with barely a wisp of verisimilitude). Aside from his inconsistent tweets in this regard- and one can certainly mire themselves in the madness of the President's cyber chirps which weave a sinuous narrative of accusations and recriminations replete with grammatical and typographical errors wrapped up and hurled at the world in hubris as the first rays of sunshine gloss our side of the world- this rings hollow. The Syrian people have faced ineffably horrific assaults from all parties involved in the war for over six years and the world has been complicit, allowing the torture, mass murder, bombing, imposed starvation (including by preventing access to humanitarian supplies), rape and enslavement of the population to continue while at the same time shutting the door in the face of people scrambling to leave. The chemical attack was unfortunately not the only war crime of the war (nor was it the only chemical attack) but one of a multitude of war crimes and crimes against humanity committed by most, if not all the parties involved in the carious conflict and it seems rather brash to say that somehow Trump has only now discovered within the dredges of his demons an emaciated empathy waiting to be unchained. His argument that he was upholding international law which prohibits the use of chemical weapons is also fallible for his strike was in violation of international law as it was not authorized by the U.N. Security Council (albeit the colonial makeup of the five permanent members that continue to alone hold a veto warrants reconstruction in the interest of a less politically positioned international law, but that is for another time). Moreover, he violated domestic law by committing an act of war without the consent of Congress (but perhaps we can forgive this indiscretion considering that this domestic law has been most honoured by its continual and flagrant breach with most military actions having occurred by executive order - in fact, the last time the U.S. formally declared war was World War II). Most hypocritical of all is of course the fact that the U.S. has itself used chemical weapons in Syria (as well as other places, including Iraq and Serbia) by using toxic and carcinogenic depleted uranium munitions on ISIS strongholds, which invariably will seep into the environment and into the Syrian people.

The most grotesque part of this action, however, is the fact that we are bombing the Syrian people to purportedly protect them while refusing to grant them asylum. If Trump were really moved by the macabre images he saw, then he should have immediately avowed to lift his ban and welcome with open arms the Syrian people that have been fortunate enough to escape their stygian conflict. He has instead decided to firmly shut the door in their face and use his weapons against them, as if a little child exploring a new toy, while at the same time he has relaxed the rules for civilian causalities for U.S. military conduct. It's reprehensible.

The strike appears to have been a rather be diversionary 'wag the dog' tactic to improve his dwindling approval rates and counteract the rising acceptance that he is a mere marionette serving Putin's geopolitical ambitions. The Democrats have pummeled this point domestically, perhaps because it is the one point that can cross the increasingly pestilent domestic political divide. Perhaps because by blaming Putin and pointing to the Steele dossier (and it may sniff suspicious that 19.5% of Rosneft was sold to an investor in December whose identity is masked by a bastion of shell corporations after Trump's election was solidified by the Electoral College), Americans have attempted to absolve themselves from having elected an authoritarian kleptocrat. Yet the fact remains that America, as Marcuse so long ago predicted, may be the first democracy to have voted in a fascist (it is worth noting that Hitler became the Chancellor through an emergency decree and not by a popular vote and only when he made the popular Communist Party illegal). No one has accused Putin of actually changing the results, in fact the only accusation levelled against the actual counting of the popular vote has been by Trump with the baseless claim that Clinton's lead in the popular vote was due to cheating (and again one wonders whether this a political ploy to divert media attention to disputing a baseless claim while he clandestinely purges the State Department which continues to run in a cadaverous state or is simply the reflex of a narcissist?). As terrible as the Russian meddling in our national elections is, some may note an irony in our reaction, for while international comity warrants that countries not intervene and respect each sovereign's elections, the U.S. has been an incorrigible meddler and often through force. The Americans overthrew a democratically elected social democratic government in Guatemala in 1954 primarily to protect the profits of The United Fruit Company, to which the Dulles brothers, then Secretary of State and Director of the CIA, had ties. The U.S. went to war in Vietnam to support Ngo Dinh Diem, a dictator who refused to allow national elections because he knew that Uncle Ho would win (Thich Quang Durc's self-immolation, one of the many photos used for the anti-war movement, was in protest of Diem's persecution of Buddhists). The Chileans will surely never forget September 11, 1976, when democratically elected social democrat Salvador Allende was murdered by a coup d'etat led by Pinochet, with active support from the U.S, who then proceeded to institute a reign of terror on his populous.

But I digress. The U.S. cannot and should not be able to strike with impunity based on its own interpretation of international law. A concerted international effort is required - and has long been required - to end the conflict in Syria (and then to back off and allow the Syrian people to choose their own government and govern in their interest). Bombing is not going to be the answer to this and will only lead to further suffering of the Syrian people for indubitably Assad has a well stocked bunker he can inhabit while his people must face another assault from the skies. Sanctions and air raids alone hurt civilians most and have been proven to be ineffectual, if not counter to regime change as it allows dictators to fortify their weakened people and utilize the outside bombing to entrench their propaganda that they are protecting their people against an outside attack (regime change begins at home). Nevertheless, fuelled by ulterior motives, the Trump administration has stampeded forth with this new militant agenda (and today has dropped the most destructive non-nuclear bomb, the GBU-43/B on an ISIS stronghold in Afghanistan with Trump praising our military prowess - it's nauseating).

The U.S. attempted earlier this week to unsuccessfully to secure Security Council authorization in an effort to legitimize its actions, but Russia has predictably vetoed it and both Putin and Trump claim that relations are worse as if they hope that this charade would now obscure the Russian shadow over Trump's election. It is unfortunate if diplomatic relations have actually been strained because better relations with Russia was one of only two sensible polices that Trump had (the other is to fix the flailing infrastructure across the U.S., but unfortunately I doubt they will start with fixing the corroding water pipes which continue to poison children around the U.S.). When Trump took office, the doomsday clock reverted back to two and half minutes to midnight where it stood at the height of the Cold War. The geopolitical situation is incendiary and delicate and requires rather an arabesque of diplomacy - the continuation of war by other means, to invert a quote from Carl von Clausewitz. Yet we have a bumbling bellicose buffoon whose interactions with his homologues is full of misunderstandings, personal vendettas and pretension (did not Merkel's expression say it all?). We may be witnessing the final fury of the last fight of an expiring empire as the scepter moves West.

There is a growing jingoist trend across the world as those guttered by globalization are finding solace in demagogues. In an article I recently read from the March issue of Le Monde Diplomatique, the author astutely commented that we are seeing, with respect to recent history, continual unprecedented acts in politics and Trump is merely the American manifestation of this portentous pattern. From Modi in India (who should not be cleansed from the violence that engulfed Gujarat when he was Chief Minister there in 2002), to the Hanson resurgence in Australia, to Brexit, to Beppe Grillo's Trumpisti in Italy (and where L'Espresso predicts that Berlusconi will immediately run for office next year when he is legally allowed to, currently cleansing his image to paint himself as a man of stability in an increasingly politically divisive climate- as the electorate is led to the polls as a lamb to slaughter, he's pictured hugging goats and feeding them bottles of milk). Now the French, where Hollande has had unprecedented power and where the country continues to be under a state of national emergency, are set to go to the polls with Marine Le Pen dutifully following her father's stead. Yet as the right advances, so does the left and what we're experiencing is not so much the swing of a pendulum, but the stretching of a rubber band as the contradictions of capitalism have catapulted them to the centre. Trump won the election, but Bernie is stronger than ever and rightfully so (go Bernie! Go!). The latest undulation in the French polls is the wave of support for Melenchon. Not all is lost.

There comes a time, as Dr. King said, when silence becomes betrayal. As the band tightens, we must take a stand before we lose our legs. Since Trump took office, the administration has launched a blitzkrieg upon our rights and the institutions that protect them (Columbia University Law School has provided us useful tracker for the human rights violations of this administration http://hrlr.law.columbia.edu/trump-human-rights-tracker/). John Cleese said it best when he commented on the Trump administration being stocked like a pirate ship, including appointing a pro-oil climate change denier to lead the EPA with an eviscerated budget, a Secretary of Education with no experience in public education with a proselytizing bent and a member of C-Fam, a group that is dedicated to reducing women's reproductive rights and gay people's rights, a group the Southern Poverty Law Center has labelled a hate group, to our delegation to the U.N. Commission on the Status of Women. All of his appointments follow the cognitive dissonance of the far right - the gutting of all social programs in the interest of 'small government' and the promotion of conservative Christian policies in the misguided and unconstitutional interpretation of religious liberty only covering Christianity and being utilized to encroach upon other people's rights. These groups have long been political bed fellows and took a surge under Reagan who deliberately romanced them for a governing formula that essentially equates to small government when it concerns breakfast, big government when it concerns the bedroom. Then there's the warmongering, for the government governs with two arms, hypocrisy and hysteria. As Machiavelli opined, it is better to have people fear you than love you, for love is fickle. The Trump administration may embark on another war which will indubitably fill corporate coffers when reconstruction contracts are handed out to U.S. companies and which, considering Trump's dalliance with Eric Prince, the owner of Blackwater (and of some note, Betsy's brother), the biggest private security force contractor in the second Iraq war, may turn out to be in no small way fought by mercenaries who are not bound by the Uniform Code of Military Justice (albeit under Trump's watch this may be relaxed to naught). We wake each day to an Orwellian landscape in which we can be told, without apparently any irony, that there are 'alternative facts' as if Trump were an evangelical solipsist (meanwhile Conway is currently facing misconduct violations that were filed against her with the D.C. Bar in respect of her hyperbolic statements as porte-parole for The Don).

The budget is dispositive of the intentions of the new administration - it ossifies the paltry social welfare programs and drastically expands our current over-spending on our somewhat ironically termed defense budget (more money for weapons and rockets - is the Toddler-in-Chief treating the Treasury like his toy chest?). The administration's porte-parole on the budget, Mick Mulvaney, did not shy from explaining why there is no educational utility for providing school children a meal that will otherwise go hungry, as if callousness were now a virtue. As the budget cuts the lifeline for children (and saves barely any money as a result), Melania Trump is pictured on the cover of Mexican Vanity Fair ignobly eating diamonds. How are they not embarrassed? There is no longer any shame, not even a nod to decency nor convention nor the constitution - rather than obscuring his conflict of interest, the President flaunts them.

He continues to run and profit from his businesses, continues to seek weekend retreats at his estate (at a cost to taxpayers many times more than the feigned humility in refusing the state salary) and has populated his cabinet with his family. In what is an unprecedented move, the Trump administration didn't merely send lower level officials to the Inter-American Commission on Human Rights during its recent session to review the Trump's administration immigration and detention policies and the approval of the Dakota Access Pipeline, it just didn't show up.

However, this may not be a volte-face from the general trend of previous administrations (for instance private contractors were about 1 to 4 ratio during the war in Iraq) but simply an intensification of the executive's mission creep. The trick of the two party system has entrenched a political paradigm that serves ruling interests - American democracy is an oligarchy in masquerade and the two main parties are arguably more different in style than in substance. As our society has become more deeply stratified, more unequal, and as tensions percolate to a nearing boiling point, Trotsky's analysis of fascism comes to mind - liberalism is the face of the ruling class when it's not afraid and fascism is its face when it is, or rather, the mask has been discarded and the menace revealed. For instance, the Obama administration continued and expanded indefinite detention, drone attacks and utilized the Espionage Act to criminalize whistleblowing more times than any other administration, among other human rights violations. The Obama administration was also notorious in deporting people and amped up deportations to such an extent that Obama was called the Deporter-in-Chief. Yet the new administration is a greater menace, its daggers glistening from its serpentine smile. It doesn't deport furtively but puts a limelight on it. It proudly asserts its cruelty, including separating undocumented parents from their children (and what deterrence will the U.S. achieve by this cruel tactic of forcing parents to decide whether to leave their children or take them from the only home they'd ever known? What does the U.S. achieve by placing these children in foster care? It's despicable). It publicizes a portentous list of 'crimes' committed by undocumented immigrants and established an office to collect victim reports (the Victims of Immigration Crime Engagement Office) and since such office has a very partisan strategy, one may wonder how diligently it would investigate the veracity of any such reports. The Trump administration's rhetoric is devoid of any effort to sanitize its pernicious policies but is actively denying people's humanity by carving people out in groups. These lists should scream warning. Who is next?

This repellent rhetoric has emboldened those that would otherwise scurry in the shadows with their stygian schemes. The Southern Poverty Law Center notes that hate crimes increased during the election and after Trump took office (https://www.splcenter.org/issues/hate-and-extremism). On Holocaust Remembrance Day, the administration acknowledged it purposefully did not mention the Shoah at a time when there have been more attacks against Jewish people, synagogues and cemeteries thus making the administration at the least extremely reckless, if not complicit in these attacks. Violence against minorities - against transgender people, homosexual people and black people is also the rise - the media focuses on terrorism by Islamic groups but this terrorism- for this is exactly what is- should not be discounted (nor should our own government's terrorism across the world and upon minorities internally - is not the police harassment and abuse, and at times, murder, of unarmed black persons, terrorism?).

Fascist elements tinge the administration. Fascism is not a clear set of defined principles - after all the founder of fascism, Benito Mussolini, started off as a socialist (he was the editor of Avanti! before being expelled) and was more of a political opportunist than anything else. Yet fascism, from fasces or the bundle of rods that was the symbol of the guard of Roman magistrates, has certain qualities that have manifested itself across a spectrum of systems as diverse as Hitler's Germany to Franco's Spain. It is authoritarian and tends to cultivate a cult of personality of the leader in charge (keeping a chokehold on the Fourth Estate), it is jingoist, it places importance on the home and women's conservative, reproducing role within it, it aims for autarky, it tends to be expansionist and militaristic and it is a form of state capitalism, with the state supporting its corporations. The current administration fits the bill and one may wonder whether this current proto-fascist stance will only intensify. Trump is producing executive orders and dropping bombs as if they were official tweets. He is holding victory rallies and the rapacity and fragility of his ego is astounding (almost as is his allergy to truth). He is propping up the religious right (a draft memo of an executive order violating the anti-establishment clause of the First Amendment was leaked in February, which purports to provide the Christian right a greenlight to discriminate). His vilification of minorities is emboldening hate groups and carving further division in an already intensely divided country. He has even allegedly directly incited violence at protestors at one of his campaign rallies last year (this issue is being heard in Nwanguma et. al. v Trump before the U.S. District Court of the Western District of Kentuky with Trump proffering a misguided First Amendment defense, which does not defend such incitements). He has now wormed his way away from an isolationist stance to warmongering.

The administration sees utility in the shock of its stampede, providing fodder for acerbic satire - Trump has crafted a caricature of himself, his insistence that his inauguration crowd was bigger than Obama's, Sean Spicer comparing piles of paper - is this carious circus a deliberate attempt to divert attention away from more clandestine carnage this administration will wreak? The callous and unconstitutional travel ban, which at first also covered dual nationals and permanent residents - was it a ploy? Was it a diversionary tactic to avoid prying eyes while it purged the State Department and appointed Steve Bannon to the National Security Council (a move which ultimately and thankfully failed)? To avoid discussion as to why Trump announced his candidacy for 2020 on the same day that he took office, a highly unusual move that allows him to receive campaign contributions immediately and clamours for bribery?  To avoid discussion as to why Trump is forming his own Praetorian Guard, answerable only to him? Or was it a way to test our institutions? To see if the judiciary would keel over in deference to the executive branch as it attempted to cut down Montesquieu's tree, to see whether government departments would follow the judiciary (for after all the executive is meant to enforce the interpretation of the law by the judiciary and the law is only as good as its enforcement) or remain loyal to the President. To see which justices were loyal, which executive officials obeyed before another purge? Is the onslaught on our institutions also an intended assault upon our own consciousness? Are we daily pummeled by shock after shock of this pernicious pantomime in a war of attrition until we've lost our resolve and are mere husks of hope, succumbing to the abyss of apathy? Until we interpellate a new political paradigm as natural and immutable?

Certainly I've had days in which I've been mired in malaise, reading the noxious news in a blitzkrieg of nail biting, with my toddler, who acutely registers my brood, anxiously imploring me with his diaphanous eyes to muster up felicity, in response to which I've resorted with a policy of blackout days from the news (except admittedly scanning the headlines of B92 in Serbian where the English 'u' must be written as an 'a' in the Latin script, just so I can see a photo of our President with a Serbian headline attached, as 'Tramp' is so much more of a befitting proper noun- sometimes, it's the little things that provide us pleasure)- and yet this is exactly what we should not be doing. An oubliette may seem inviting but we must resist this temptation. The administration is just getting started. Hitler used the burning of the Reichstag to dismantle the Communist Party, his main opponent, and to ensure enough seats by his National Socialist party to enact Article 48 of the Weimar Constitution and dismantle the Weimar democracy. The Bush administration used the horrific acts on September 11, 2001 to dispense with rights under an act that hardly any representative read under the weight of its sententious title (an Act that as Gore Vidal pointed out was drafted and ready in waiting for some time for an incident to occur that would provide it blind acceptance)- for which representative wanted to be seen at a time that the country was seemingly under siege, of being unpatriotic (the most pejorative term in the American political lexicon)? What will be Trump's Reichstag fire? Will we understand it's a ploy and not let his pestilent policy permeate through the polity?

The title to this post may be a misnomer, for I want to end on a positive note. Trump's election has galvanized a resistance and his nefarious and spurious ways have spurred apolitical people to action. The protest marches were far larger than his inauguration crowds. People are regularly calling their representatives and urging them to take a stand. Clinton may have had much of the same policies, at least with respect to foreign policy and the economy, albeit executed in a more delicate fashion, and the opposition would probably have been tepid at best. Trump's offensive, febrile manner has been a gift to the progressive resistance. Opposition to Bannon, whose paper waxes vitriol and who holds far right nationalist policies, has been successful (a narcissist has a fragile ego which can be well manipulated) and Democracy's watchdog is barking away at Trump's mistakes (Jack Shafer rightly termed it a 'journalistic spring' in an article for Politico earlier in the year). Earlier in the year, the media excoriated Trump for the killing of eight year old Nasser al-Awlaki, who was an innocent victim of Trump's first Yemeni drone attack. Yet Obama's drone attacks, including through cluster bombs, killed many Yemeni people, including Nasser's sixteen year old brother Abdulraham. Obama didn't get a chastising front page headline from a major paper, nor much opprobrium for his war in Yemen, but rather received a Nobel peace prize (but then again so did arch carpet bomber Kissinger in one of history's great ironies). The bark is back. This a step forward. The far right is claiming victories, but so is the left. Mississippi has HB 1523, but it is rightly being challenged and the 7th Circuit (though another circuit, Mississippi as well as Texas are in the 5th), has just handed down Hively v. Ivy Tech which rightly interprets Title VII's sex discrimination coverage to include discrimination on sexual orientation (this is how the EEOC and DOJ had interpreted it under Obama). Trump wants to run ram shod on the environment by Maryland just banned fracking. One of the benefits of our checks and balances system is that we have three branches and three levels of government to prevent a cancer in one becoming malignant. If the Federal government is intent on seppuku, the State and Local governments must step in. This will result however in the fact that the people most hurt by Trump's policies will be Trump voters - but maybe they will rebel and a Democratic sweep in the congressional elections may not be so far-fetched. The Democratic Party is being revitalized and is taking on a more progressive platform- will it be Bernie 2020?

Divide and conquer is a well-tested way for an unpopular government to control a population, for as Hume pointed out, the ruling class only ever rules with the consent, however obtained whether through propaganda, fear or apathy, of the population, who are always greater in number. Dr. King was assassinated at a time when he moved from civil rights to economic rights and viewed race relations as a product of class relations (which as Fanon pointed out reifies pigmentation so that the subject of capital understands themselves as the subject of race). We must build bridges, instead of walls. The left's greatest failing has been our internecine rivalries and divided, the right has conquered. Our eponymous belatedness, stemming from the  pernicious punctuality of the Girondists, is a constant reminder that we're late to the game. Franco only secured victory in Spain due to the internal squabbling between the centrist Republic and the leftist groups, from anarchists, to Stalinists, to Trotskyites, which together could have easily defeated him. The carious circus of the Trump administration, its conspicuous callousness, may be just the odious opponent we need to come together. As the band tightens, for there is a fissure in the hegemony, we need to ask ourselves, where will we be when it snaps?

In Support of AB1687 and its Expansion - A Discussion of IMDB.COM v. KAMALA HARRIS

Dec 5, 2016

California’s AB 1687 goes into effect January 1, 2017 and will prevent online entertainment employment service providers from failing to remove a subscriber’s age upon request from their site and sites under their control. The law resulted from a failed suit by an actress against IMDb for displaying her real age without her consent which resulted in direct employment discrimination by casting directors who deemed her too old to play roles for which she looked the part. IMDb has already filed suit for declaratory relief that the law is facially unconstitutional. IMDb claims that the law infringes free speech by not being narrowly tailored to its purpose of preventing age discrimination, that it is vague, that it violates the dormant commerce clause and IMDb is entitled to the § 230 safe harbor under the Communications Decency Act. In its complaint, IMDb points to its humble origins as a fan database but IMDb and its sister site, IMDbPro are no longer merely fan databases but are instrumental in the industry. IMDb touts this in its own promotional materials in which it states that the content that it provides is both accurate and the most extensive in the industry. IMDb cannot on the one hand solicit subscriptions from employers based on having verified information of potential employees and on the other claim that it is not a content producer. IMDb has no claim to the § 230 affirmative defense.

IMDb’s dormant commerce clause argument should fail under the Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) test which holds that states have limited power to legislate over areas affecting inter-state commerce, so long as they are primarily legislating for a local benefit and do not cause an undue burden on business. California is legislating for the primary benefit of one of its main industries and the burden can hardly be characterized as undue for IMDb does not have to take on a policing function but merely has to remove information when requested to do so by a subscriber. A decision against California would be disastrous, considering how much of our activity takes place online and that the new Federal administration is set to go on a rampage of deregulation (the wisdom of electing regulators who intend to govern by deregulating, akin to going to a doctor that does not believe in medicine, is left for another post).

Additionally, it is not so clear cut as many pundits have already vociferously voiced, that AB1687 won’t pass First Amendment muster. While IMDb argues for strict scrutiny based on content-regulation, their speech should be interpreted as commercial speech and subject to a lesser standard. Additionally, while IMDb points to recent California appellate cases that have accepted that film credits on IMDb and on screen are in the public interest (which cloak IMDb extends to age information of film employees), these cases, of which the gravamen were contractual credit disputes, can be distinguished from information that have no place being put under the nose of prospective employers. In Dyer v. Childress (2007)147 Cal.App.4th 1273, 55 Cal.Rptr.3d 544, the court held that while films and their themes are in the public interest and protected speech, not all speech within a film (and one can extend this to speech connected to a film) is thereby similarly protected and must be viewed with specificity. While it is inarguable that films are in the public interest, the demographics of the people involved in the film should not enjoy such blanket protection, particularly when it exposes them to discrimination in employment.

IMDb’s complaint suggests that California’s law will have no impact on age discrimination and will chill speech, opening the floodgates for California to police all sites and not just IMDb, but for anyone that knows how the industry currently works in practice, this argument is fallible and even mendacious, for IMDb well knows how it works and serves its own ends. Casting directors, particularly for low budget projects, are impelled to make very quick decisions and it is becoming standard practice to simply rifle through IMDbPro and IMDb profiles (not just IMDbPro profiles as IMDb contests). Thus while Wikipedia may have an actor’s age, a casting director may not have the time to access it. More importantly, as SAG-AFTRA has well explained and IMDb continues to impudently ignore, the crux of the issue is that IMDb displays protected class information (for the issue is wider than simply age) to prospective employers even if such employers do not wish to see this information and/or were not looking for it and allows rife ground for unconscious bias to influence employment decisions. Additionally, Wikipedia and other, even for-profit sites, are not primarily an employment engagement service like IMDb’s sister site, IMDbPro. IMDb by creating IMDbPro has directed its purpose towards employment and thereby should be enveloped within the restraints of employment law.

While the gravamen of Huong’s suit was age discrimination, which is rife in the entertainment industry and disproportionally affects women, she did not file any employment claims (nor did she file in California due to conceding the Washington State choice of law and not being a California resident). However, for California residents, it may be possible to frame both Title VII and FEHA arguments against IMDb (assuming in the case of the latter that one could resist both a motion to compel arbitration on unconscionability grounds and against the contractual choice of law due to being contrary to a fundamental public policy of California, preventing employment discrimination in a major state industry).

Both statues expressly state that liable employers include their “agents” and while appellate authority has considered that this should not impose personal liability upon employees as agents of their employer, this renders the statutory language superfluous (for the fictional company entities are only ever held liable under respondeat superior). This reasoning was supported by public policy arguments against holding employees personally liable, including that they did not have the pockets to withstand a damages award and that it would impede personnel decisions as management would be hyper sensitive and solely make choices that would result in the least risk of personal liability. Holding a major profit making venture like IMDb, that directly profits from placing demographic information showing that a person is in a protected category to prospective employers would allow for sufficient damages and would not impede personnel decisions. Further, it would deter discrimination because employers sometimes only look to IMDb- and this is what IMDb itself touts in its promotional materials of being the most authoritative and accurate one stop shop for casting- and therefore cannot but see protected class information which allows for unconscious bias to frame decisions. FEHA helps us even further by allowing an “aiding and abetting” claim. This FEHA claim has also been unsuccessfully argued to impose personal liability on supervisory employees as the court reasoned that only third parties can “aid and abet” corporations, since their employee actions are taken to be their own. IMDb is exactly such a party, willingly and knowingly refusing to delete protected class information that is shown to prospective employers as they review prospective employees.

While AB1687 is restricted to age discrimination, IMDb’s impudent refusal to delete demographic information has a greater societal impact. Its policy is particularly harmful to transgender persons and the law should be expanded to allow transgender persons to request deletion of their demographic information and the association of their past birth names on their current profiles. IMDb’s obstinate refusal fails to treat transgender persons as their true gender by retaining inaccurate gendered pronouns, retaining the posting of private biographical information such as past birth certificates and association of past credits under birth names is not only utterly disrespectful of its own customer base (outside of normal human decency which we all owe each other) but extremely harmful. It is well known that transgender persons have an extremely elevated suicide rate. Further, it exposes the transitioned status of below-the-line artists that are not otherwise in the public eye and constantly nooses them to their former lives when they were imprisoned within their own skin. This exposition, apart from the harmful emotional effects, leaves them at risk of employment discrimination and hostile work environments.

Discrimination against transgender persons is also pervasive in the acting world - on the one hand, transgender persons are mostly relegated to transgender roles, on the other, the most acclaimed and pivotal transgender roles have been given to cisgender actors. This is tantamount to accepting that being transgender is a state that one slips in and out of, as if transgender persons are appearing in one permanent performance, so that cigender persons can flow in and out of the same experience and relegates us back to the times when men played female roles and white people played back roles, practices which we currently find insupportable. Additionally, by relegating transgender persons to transgender roles, we deny their gender and thereby deny their personhood. IMDb may argue that biological sex information, which is really tantamount to health information that we otherwise accept is private, should be in the public interest, but if a court accepts this, what kind of society are we reflecting? Is it really someone else’s concern what concoction of hormones or reproductive organs someone was born with? How does this information aid our commonwealth, in particular when the dire consequences upon transgender persons are so severe? Further, while IMDb’s policy exposes transgender persons to employment discrimination and denies them privacy, it also exposes them to the risk of violence (this year alone, there have been at least 21 murders of transgender persons, mostly of black transgender women, including Dhee Whigham, a young woman who was stabbed 119 times).

The current legal battle between California and IMDb is restricted to a law that is aimed at the mischief of facilitating age discrimination in the entertainment industry, a vital industry for the state, which is a worthy end goal in itself, but the ramifications of this battle are wider. If the law survives constitutional challenge, California should expand the law to prevent the revelation of other demographic information that reveals protected categories and leaves entertainers exposed to discrimination. Foremost is the needed protection of transgender persons who continue to be exposed to employment discrimination, harassment, invasions of privacy, emotional distress and risks of violence by IMDb’s unflinching policies.

NEVER SAY NEVER - THE DANGEROUS DIVIDE IN AMERICAN POLITICS AND THE PROSPECT OF DISUNION

Nov 11, 2016

I have been angered, frustrated and disillusioned with results before, but I have never cried. Wednesday I was riven with a deluge of tears as I tried to process the electoral results and the seething rancor they revealed, for the electorate has deemed legitimate Trump's parade of pestilence. I am not alone - it is evident that nearly half the country believes it is encased within a collective nightmare trying to scream itself awake.

I was proud to vote in my first U.S. election. Albeit I was not voting by sex, I was pleasantly cognizant of the fact that my candidates for the Presidency, the Senate and the House were all women. I was not a fervent Hillary supporter - I voted for Bernie in the primary-but I increasingly admired her resilience throughout the election as she waded through a mesh of misogyny and I was not disenchanted to vote for her. Around me, I could see incipient smiles, trying to best contain a dripping enthusiasm that on the one hand stemmed from being on the cusp of an historic moment of electing the first female President and on the other, a realization that our ballot was cast in a Manichean battle against a fascist foe with a carnivorous smile armed with sharpened daggers.

I was also a nervous wreck. In San Francisco and New York, my friends were increasingly jubilant throughout election day while I attacked my nails in a blitzkrieg of anxiety. Later, as we watched the Electoral College incarnadine, my husband assured me that Clinton would still win, utterly incredulous that any other result were possible. Living in the Bay Area bubble, it was an easy mistake to make. This was electile disfunction at its worst.

I didn’t predict this stygian result, yet I was circumspect that a Clinton victory was assured. Possibly it was because as an immigrant American, one stemming from Europe and Australia, I harbored a fear of middle America that my fellow American friends did not share - that frightful particular American mix of arrogance and ignorance that imposes itself on the world stage in all its putrid splendor. This election proved true all my worst fears. Presidents in this country seem not to be elected on policy but on the cult of personality. The country was besotted by Trump - either people loved him or loved to hate him and we were all mired into his madness, all caught up in the Trump circus. With the benefit of hindsight, it should have been obvious to us that a B grade celebrity who talks so impudently would be loved by a gun toting, geographically challenged, xenophobic, myopic, rapaciously religious, racist and misogynist electorate. Trump tapped into the America that is stereotyped across the world, the America that educated, liberal Americans are embarrassed to be associated with.

Trump is the epitome of everything that the world despises and fears about Americans - a country that believes it has the manifest destiny to stampede across the world and proclaim its right to do so with gleaming, sharpened teeth. Trump, in his impudence, pugnacity, uncouthness and arrogance may just be the anthropomorphic version of this country. American arrogance is nauseating to foreigners. As someone who was raised in Australia, with its Anglo-Celtic tradition of self-deprecation and our “cultural cringe” which nourishes an appetite to savor all of the world’s various tastes, it is distasteful to hear Americans proclaim they have the “greatest country in the world”. This apocryphal adage lambasts the electorate at every turn and Trump whipped this into a fine frappé - he knew it was style over substance that mattered and he had an acute understanding of his Electoral College math.

We remain deeply afraid of Trump's presidency - of a resurgence of jingoism and military actions abroad, of the destruction of the environment (at a time when it is most vulnerable) and the dismantling of our rights - and yet as afraid as we are of Trump, we are as afraid of our fellow Americans who lapped up his lies and who voted for a candidate that would go to Washington and say “you’re fired” and vent their frustration without a feasible plan as to what to do next. Trump said everything that a large proportion of the white working class wanted to say and his election will indubitably embolden these acrid sentiments.

As much as we are afraid of those that voted for Trump, as aghast and appalled and downright flabbergasted that fellow human beings - particularly in a supposedly sophisticated country like ours - can think and behave in such fashion, their tastes have been artfully constructed by social neglect and propaganda, by religious instruction and not education. It has been and continues to be an effective means to divide and conquer economic interest that should, but for constructions of identity which have imbued political significance to and reified pigmentation and sex, be aligned. It is no coincidence that Martin Luther King, Jr.’s last speech before his assassination was in support of striking workers and that he was moving towards an understanding that civil rights were moot without economic rights. He well understood that the racial divide served the ruling class and that a bridge between the racial divide was necessary, for there is power in plurality.

Tragically, the people that voted for Trump, did so because they were effectively disenfranchised, because they have been neglected and because they are in crisis - because they have been pushed to their limits and pushed back with an insufferable candidate. Trump’s campaign was ignoble to say the least but he to some extent accurately inveighed in crude, simple terms against a crumbling, corrupt system, against the revolving door between government and private industry, against international trade liberalization which has led to democratic deficits and increased income inequality (as Marx so presciently predicted would occur in Grundrisse). Trump’s rallying cry resonated because he reflected a segment of the population’s real concerns. The fact that he was a beneficiary of the system didn’t seem to matter for he effectively painted himself, a billionaire, as an outsider and blamed “career politicians” for all the people’s ills using Clinton’s vast experience – one of her main strengths – against her, while concomitantly painting his own inexperience as a strength.

It may be that people voted for Trump despite the pestilence and pantomime and because of his avowed protectionism. After all, Trump triumph followed Bernie’s victory in the primaries, another candidate whose platform was premised against government corruption and trade liberalization. Unfortunately, we did not get Bernie, but a candidate who as much as he disparaged “career politicians”, ironically defeated his opponent by mastering realpolitik and exploiting supra-economic divisions within the electoral pie to carve out the biggest piece.

Thus the working class canvassed, voted and fell for Trump – and yet they will suffer more from a Trump presidency, in which social stratification will be further entrenched. This is of course the central problem of democracy - that without a diligent demos it is held hostage by demagogues that spur factionalism to divide and conquer. The media, the Fourth Estate, is supposed to be democracy's watchdog, but while it may be protected by the First Amendment (for now), it has no duty to perform its role and is a creature of the corporate form which is in servitude to profit. Democracy is only as good as its demos and in a country in which people are struggling to survive, without access to proper healthcare and education, without prospect, battered and bludgeoned by sensationalist news (I have developed a nervous tick which is activated when I hear the word “email”), a noxious nihilism has taken hold that has produced a pantomime for a President. For some, it’s not about rising up, it’s about bringing everyone else down. We must be clear on this - they have a right to be angry. They have been stomped and abused and exploited and to some extent, forgotten in the current political lexicon. For some in this country, the battle is being able to use a particular bathroom, for others, it’s the ability to access any bathroom, yet supra-economic divisions comprise the majority of our contemporary public sphere and masquerade the pervasive economic tensions that fuel these divides (for instance, reproductive rights are as much economic rights as rights to inter alia, dignity and bodily integrity). Unfortunately for all of us and not the least the vast majority of Trump voters, the trajectory of their febrile fury is misdirected and has only served to widen the social schism.

The results of this election have revealed a deep divide among the American public and albeit there are pockets of progression in the Rust Belt and below the Mason-Dixon line, the rift is largely along geographic lines and rural-urban divide. America has always been a country of paradoxes, of cavernous contradictions. To some extent, this has been its strength. However, I would not be surprised, depending on how much power the Federal government aims to exercise with all three arms now gripped by one prurient party, in Montesquieu’s nightmare, whether these states will not continue to be so united. The rift is rife and seems to be widening. Protests across the country to dump Trump may point to the fact that Clinton won the popular vote and that they feel disenfranchised by the Electoral College which they find archaic and undemocratic and indeed so do I – it lends itself to the gerrymandering of districts in which the parties in power can ensure their constituents more weight (and it may be worthwhile to note that Republicans hold the majority of gubernatorial positions and House and Senate seats)- but if we are to continue our Federal system, we must continue, in some way, to accommodate the less populous states.

Indubitably the results of this election have fortified the Californian independence movement. I would wager that my fellow citizens of California largely found out about this movement after they googled secession reeling from the septic shock of the election results. California may not be the only state to consider this. Will a rich, progressive state want to subsidize the Federal government when its people are not provided public services from the Federal government and when such money is instead used by the Federal government to wage imperialist wars which the people disagree with? Should not those same taxes go to a state government which aims to protect the environment, fund education and healthcare? As some states delve deeper into a theocracy which runs rampant over people’s rights under the guise of religious freedoms while others move toward an accepting and open society, we are increasingly living in different Americas. We may be witnessing the first spell of depression of a country contemplating suicide.

I was born in the Socialist Federal Republic of Yugoslavia, a country that no longer exists and I am well aware of how malleable our geographic borders and national identities are. My parents fled the country before the war, understanding that when the results of a referendum revealed that most people considered themselves a Serbian or Croatian first and then a Yugoslav, the future there was dismal and not for them.

As we process the ballot’s belly flop and ask ourselves after this virulent vitriol who we are and where we want to go, whether we consider ourselves, for instance, a New Yorker first, a Californian first, or an American, the seeds of what some may term secession and some may term sedition will spurt forth their fruit. It is a frightening prospect. Succession is never easy and may lead to war. I trust many people would scoff and say “well it can’t happen here” even though it happened here in historic terms just a moment ago. The last thing people tend to agree on at the precipice of war is that “it can’t happen here” but as Thucydides noted, history repeats and surely this election has taught us that we can never say never.

I’m mindful of an article I read a few weeks ago discussing the contrast between the risks of the different types of death that pervaded the news and their statistical probability (albeit I am wary of their seeming neutrality and accuracy). The odds, as I remember them, of being killed by a terrorist attack were close to one in a million. The risk of suicide was 1 in 6. Our biggest threat leers behind the mirror. The biggest threat to America is America and Mr. Trump- you can’t build a wall around that.

About

A Belgrade born, Sydney raised New Yorker turned San Franciscan, Alexandra Arneri-Matsis has a multidisciplinary background in law, international governance and media. Before practicing law, Arneri-Matsis worked at several U.N. departments, including the Australasian Information Office in Sydney, the Security Council Division at UNDPA and the Sustainable Development Division at UNDESA and presented and produced radio, with a show on socio-political issues on 2SER.

Arneri-Matsis is a Partner at Cittone & Chinta LLP where she practices entertainment, employment and intellectual property law and has a dedicated pro bono practice for the advancement of labor, LGBT and women’s rights. She is a graduate of Sydney University and New York University School of Law.

She has had art exhibits in New York and Rome (for a portfolio of work go to http://drawnandconfused.com/) and writes Ninja Belly, a blog on the beautiful madness of pregnancy and motherhood.

Gravity Logo by Delia Gosman.

Original Gravity Compositions by Paul Pryor-Lorentz. To see more of Paul’s work go here https://soundcloud.com/jumpprogram

Post-Production Sound Editing by Chris Lorentz. To see more of Chris’s work, go here http://tragicgadget.com/

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