Baseball: Ozzie Guillen ordered to take Sensitivity Training

Chicago White Sox manager Ozzie Guillen was recently ordered to take "sensititvity training" after his incident of calling journalist Jay Mariotti a fag. Is this training going to do any good? Or is the whole thing a joke as John Rocker claims (if you believe him)?

I thought that Guillen's comment was certainly inappropriate, but in no way critical of homosexuals. I have heard the word fag (or f*ggot) many times (and even been called it a few times) where it had no reference at all to gays. In Guillen's case, I think some people just got a little too paranoid.

[Edited on 6/26/06 by BirdstheBest]

[Edited on 6/26/06 by BirdstheBest]

Its a shame because this guy could play the game, but he knows it just as much or more. Hes a great manager, but his mouth is getting him in the same hot water Rocker felt.

You can't say the things he said without some consequences.

He said how he knows some gay people and seen Madonna in concert. His ignorance amazes me.

Dear Everyone,

[WARNING: Perhaps my longest post ever! Imagine that!]

I am with you, Chissler, and although I am fresh off of a medical procedure, and have loads of intravenous pain meds in me, I'm going to try and post a few cogent thoughts here.

In law school, I was a generally horrible student. I had teachers I literally NEVER saw, as I maintained a "perfect attendance record" in their courses. In case you're interested, I got a "C" in Corporations (a two quarter course, no less) and a "C-" in Community Property, by doing this. I also had classes to which I went exactly once, getting me appropriately lousy grades. I set my law school's then-record, probably a still-standing record, by successfully graduating with 19 units of "D+" or "D".

I did these things for the following reasons:

(1) I knew what courses would be of use to me some day, and what courses were just a miserable, boring waste of time;

(2) I knew I would study the courses I cared about well enough to get great grades in them; and

(3) I felt I was intelligent enough that no matter how many units of "C-", "D+" and "D" I compiled, my overall GPA would not fall below 2.0.

I was right. The biggest class of the second year--the #1 most intellectual of all the 12 required subjects in California law schools--was my best class: Constitutional Law. My professor was Charles Kelso, the father of one Clark Kelso, who is now the resident Con Law scholar for the California Supreme Court. Charles Kelso taught that class for 40 years, had about 6,000 students, and said, when he retired, that I was the best student he ever had. That was 9 units of "A," needless to say, and combined with the 8 units of "B+" I got in Evidence Law--third highest grade in the class of 134, and I had the #1 highest score on the final--I knew after Year Two I could just pile on the D's in my final year. And brothers, o, did I ever do so.

Anyway, the point of all of this is NOT to tell y'all how terrible a law student I was, nor to boast about the fact my Con Law prof thought I was so good he wanted to set me up for an Ll.D. (like a Ph.D. in Law, for future Law professors) at U.C. Berkeley. It's to tell you I have a pretty fair idea of how Con Law works.

Now, I'm 20 years out of date on many things. But I absolutely can think like an expert on Con Law. There is at least one person, and probably more like 2 or 3, on the US Supreme Court around whom I could run circles on the subject, if I took a year to "get back into shape" for Con Law.

With that background....

The First Amendment is made up of many components. It simultaneously: (1) gives each of us the right to engage in our chosen religion, if any; and (2) promises us that no state--and, as interpreted by courts, also not the feds--shall impose any religion on us. So forget that b.s. about how this is a "Christian nation" and it's ok for the government to foist some particular branch of Christianity--usually Pentecostal Protestantism--on you. It's not. It's a direct violation of the First Amendment.

The first of these rights comes from the First Amendment's "Free Exercise" Clause; the second comes from its "Establishment Clause," which would be more aptly named its "Anti-Establishment Clause."

OK, now on to free speech, the right most sacredly associated with the First Amendment. Please understand this central fact:

FREE SPEECH HAS NEVER BEEN AN ABSOLUTE RIGHT.

Think about this. If your right to free speech were absolute, you would have the right to engage in all sorts of false advertising. You could say all sorts of horrible, factually untrue things about people you dislike, and get them printed in newspapers, and cause those people irreparable emotional and financial harm, and be invulnerable to any kind of lawsuit to set things straight.

That's not how it is, of course. How it is, is that you can get your butt sued off for defamation (libel if written; slander if spoken). The very facts that commercial speech is so heavily restricted, and that we have lawsuits for libel and slander, show you that there are limits on free speech.

You also cannot shout "FIRE!!!" in a crowded theater, for the purpose of starting a riot.

Nor can you give some vicious, purple speech designed to result in immediate violence on the part of others; California's penal statute on that subject refers to using "offensive words in a public place which are inherently likely to provoke an immediate violent reaction." This not only applies to telling someone F--- You; it also applies to, for example, telling a bunch of vile, drunken and deranged skinheads that they should immediately burn down the synagogue they're standing next to. That speech is NOT protected by the First Amendment, and if they do burn down the synagogue, you have "aided and abetted" the crime by instigating it, and you're in as much trouble as they are.

OK, class. With me so far on exceptions to free speech?

Now.... In the last 20 years, a new and extremely controversial exception to the First Amendment has appeared. It is for what they call "Hate Speech." Hate Speech, as I understand it, is speech directed at a person or group of persons based on their race, national origin, religion, sexual orientation and, perhaps, gender.

To be very blunt, 30 years ago it was vile and despicable, but constitutionally protected, to throw the word "nigg@r" around like it was nothing. Nowadays, the angry, sadistic or deliberately hateful use of that word is not considered constitutionally protected, as I understand it. Neither are the supposedly less offensive other hateful words for blacks, nor the hateful words for Hispanics, Jews, Arab-Americans, Puerto Ricans, Catholics, homosexuals, etc.

Ozzie Guillen crossed that line. I doubt that self-promoting, obnoxious, trouble-making JERK of a sportswriter was personally affronted to the extent he credibly could file a lawsuit over what Guillen called him. But there are words you do not throw around.

Gay men and women have existed for as long as the human race has existed. Heterosexual men, including me, find it impossible to understand being attracted to another man. We know--sometimes all too damn well--what being attracted to a woman is, how good a woman's body feels, and while we don't know what a man's body feels like from the outside, we have absolutely no desire to find out and cannot comprehend a man who does.

But so what? Let us just accept the fact that gay men and women exist. They always have and they always will. And most gay men probably find making love to a woman just about as unfathomable as I find having sex with a man.

Much more important: Gays have ALWAYS been extremely oppressed. A lot of them were gassed in Nazi Germany, and I mean specifically because of their sexual orientation. I'm sure that not a day goes by when several American men aren't killed because of their being gay. God only knows how many men and teenage boys get severely beaten because they are gay or what is now called "transgendered."

And over what? Our inability to understand what they feel? Our knowledge that we could never be like them, and our repugnance over what they do? So what? They let us be, don't they?

When I was a young adult, I hitch-hiked a lot. Two times, I got picked up by gay guys. Both times, they took a simply "no" for an answer. How many men in barrooms do that with women?

Ozzie crossed a very big line. I think he should be made to pay a very big fine. At his age, he won't get anything out of those classes, and I'm frankly not sure anyone would. But with his gleefully recalcitrant reaction, it's a mortal cinch his attitude isn't going to change.

So fine his unrepentant @ss is a big way. And make the amount public. Then do the same thing to the next manager or player who makes that kind of remark.

BHN

BHN, you have a grasp of Constitutional Law that the rest of us can only dream of. What I am wondering is whether or not Guillen's comment actually qualifies as hate speech. Jay Mariotti is not gay as far as we know, and Guillen's comment was not meant to imply that he is. Guillen did not slur homosexuals, and the term he used is not reserved solely as a derogatory comment toward gays. Yes, his choice of terms was poor, but was it really hate speech?

CONSTITUTIONAL LAW, PART TWO


He's not black, either, but that fact would not necessarily bring Guillen's odious speech within the protections of the First Amendment if he called the reporter a n-----.

Since I opened this door, I should go into some more detail about basic First Amendment principles, then do a bunch of research to bring myself up to date and learn what courts have said about this new "Hate Speech" exception:

Exercise of constitutionally-protected speech rights have always been subject to CONTENT-NEUTRAL restrictions based on: (1) time; (2) place; and (3) manner. Thus:

You can ban people from speaking through bullhorns after midnight, if you do so in a way that applies to ALL speech, and not just to conservative Republicans, or not just to anti-war activists;

People can be--and have been--banned from protesting a political foe by demonstrating in front of that person's home. A law would be unconstitutional if it only prohibited protesting in front of bigoted Pentecostal ministers' homes. But if it prohibits ALL forms of protests in front of all political foes' homes, then it is "content-neutral," and thus NOT based on the substance of the speech being banned. Rather, the ban is based on the notion it just ain't cool to protest in that sort of place, just as the bullhorn ban was based on the notion that making that kind of racket after midnight ain't cool, regardless of what you're saying.

The notion that "fighting words" are not constitutionally protected is long accepted, and was resolved by the Supreme Court in a case called Chaplinsky v. New Hampshire, in 1942. (Any of you can find it on the Internet, if you want.) Therefore, you FOR SURE don't have a right to call a gay man a f--, a black person a n-----, etc. But to my knowledge--and again, I haven't taken ConLaw for many years--the Supreme Court has not actually decided whether "hate speech" can be outlawed in a context like Guillen's.

That is, the Supreme Court has not yet said whether the First Amendment gives us the right to call someone a name under circumstances NOT likely to provoke an immediate violent response. I may be wrong about that, since I've been stuck in Criminal Law--and thus the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments--for so long. But I do not believe the Supreme Court has yet laid down a definitive ruling on this point.

I DO know that a big majority of Constitutional scholars do not believe the First Amendment protects people in using that sort of bigoted, hateful language... in ANY setting. If I had to bet $50,000 on it, however, I might bet the Supreme Court would vote AGAINST a broad, all-encompassing ban on "hate speech."

......................................

OK. I just spent a long stint on Google, reading legal developments relating to hate speech. College campuses have, as we all know, been stern in disallowing that sort of speech.

BUT...

Because most universities are state-funded, and because the First Amendment says states cannot interfere with freedom of expression, these speech bans are subject to constitutional review in courts. And some courts--although not the Big One--have reviewed these anti-hate-speech statutes.

And they have found them unconstitutional, thereby saying that "hate speech" IS constitutionally protected, except where it's likely to provoke immediate violent behavior or where it constitutes defamation of character.

This obviously is a very big issue which the US Supreme Court is going to have to resolve. But for now, from what I found on Google, it looks to me like the States, the Feds and entities paid for with governmental money cannot ban expression on the ground it constitutes "hate speech"... though they CAN ban it on the long-established ground that it constitutes defamation or "fighting words"--i.e., words inherently likely to provoke an immediate violent reaction. But calling the guy a f-- from long distance is obviously not "inherently likely to provoke an IMMEDIATE violent reaction," and it's only "defamation" if people reasonably believe it to be TRUE and it harms his reputation in the relevant community. Defamation suits are not easy to win.

As for Guillen, he wasn't punished by the government. He is subject to a code of conduct imposed by MLB and, presumably, has agreed to be subject to their code of conduct. Whether his contract is sufficiently clear on the subject of racist, sexist, anti-Semitic and homophobic language, I obviously have no idea.

Your unsolicited ConLaw scholar,

BHN

[Edited on 6/27/06 by BaseballHistoryNut]

Originally posted by BaseballHistoryNut
[WARNING: Perhaps my longest post ever! Imagine that
BHN

Wow. Thanks for chiming in on this topic. I know I learned something. Hope you heal up quick from that medical procedure so you can get back here.

yr

Dear BirdsTheBest and YeahRight,

Thank you for your warm responses.

I didn't spend all that time on these posts to show off what a smarty-pants ConLaw guy I am. I really did put this out there to give y'all a crash course on some very important principles of First Amendment law.

By the way, here are other rights granted by the First Amendment:

(1) THE RIGHT TO ASSOCIATE WITH WHOMEVER WE LIKE. Obviously this right, like all of the others discussed above, has its restrictions. Parolees, like prisoners, lose tons of constitutional rights, and one of them is this right, as there are all sorts of restrictions on whom they can associate with. Also, we have no First Amendment right to engage in criminal conspiracies.

Thus, if a group exists solely for the purpose of committing criminal acts--say, for example, a leftist group which exists solely to bomb banks, or a right-wing group which exists solely to murder abortion doctors--their "associating" is really just one ongoing criminal conspiracy. As such, it is criminally punishable. But if they get together to go bowling (what fun!!!), well, they have that right. The fact that each of them is a lowlife in society's eyes is irrelevant.

(2) THE FREEDOM NOT TO BE COMPELLED TO ASSOCIATE. This one is just what it says. The government cannot compel you to belong to a group you don't want to, nor to hang out with people you don't want to. That doesn't mean your employer cannot do it, unless your employer is the government. What gets tricky is when government jobs require certain dues, etc. But the government cannot make me join a political cause I find repugnant, no matter how repugnant others may find my reasons for refusing.

Thus, if there's a government job where members have a $5 due to preserve the American flag, and I think the only thing flags are good for is burning, that's my prerogative and I don't have to pay $5 for something I find repugnant. And that's a pretty important right.

(3) FREEDOM OF ASSEMBLY. OK, I will admit it. I didn't study this one much in law school, and I don't know much about it. But this one is explicitly written into the text of the First Amendment, and it's pretty straightforward in what it says. We have the right to petition the government to redress our grievances. In other words, "Here's what we think is wrong. NOW DO SOMETHING ABOUT IT, DAMMIT!"

Now, that's just one of our Constitutional Amendments, and there are nearly as many rights packed into the Fifth and Sixth Amendments, which are for us scumbag criminal lawyers. But my vote for the most important amendment goes, hands down, to the First Amendment.

Gonna write me a song called "I Left My Heart in My ConLaw Class."

BHN

Thank you for taking the time to investigate and then post all of that. The Constitution is a hobby of mine--that is, learning about it and its history. I actually once considered law school (a lot of people have told me that I would make a good lawyer or a politician), but the money just wasn't there, and I did not want to go that deep into debt.

That post helped clear up some of my misunderstandings about the first amendment. My only big question the remains unanswered is whether or not the First Amendment was actually written with the idea of separation of church and state in mind. I know the actual phrase "separation of church and state" actually came from a letter Thomas Jefferson worte to the Danbury Association. I have read that the framers never intended religion to get thown out of the schools or out of the courthouses, but rather they simply wished to prevent the government from establishing a state church. What is the truth on that?

By the way, good luck on that recovery. I can see you have been keeping yourself busy updating your knowledge of Constitutional Law. Any career change in mind?

No. My ConLaw prof fervently wanted me to apply to the Ll.D. program at UC Berkeley, and said he would do everything he could to help get me in there. In the Summer of 1984, I called someone there and spent at least an hour talking to her. I asked her if the fact I took forever--clowning around and bouncing in and out of school and getting drunk all the time, to get my undergrad degree from UCD (University of California at Davis) would be bad for me, in light of the fact I'd then been dead sober for over 4 years. (Her answer: NO, undergrad performance is irrelevant at that level.)

Then I hit her with the big one: I was god's gift to ConLaw, but I had horrendous overall grades at a mediocre law school, because I'd known all along I'd never use most of my subjects and I'd treated those subjects accordingly. Her answer: The (world-class) ConLaw professors in charge of their Ll.D. program would not care about those courses and my laughable grades, IF they were convinced these things were true:

(1) I was as great at Con Law as Professor Kelso said;

and

(2) If given the enormous honor of being admitted to Berkeley's Ll.D. program in ConLaw, I would give up my errant ways as a student, and work my @ss off for the three years I was there, making myself everything I could possibly be as a Con Law scholar. I mean, some of the world's greatest ConLaw minds would have been taking their time to teach me and a small handful of others--I don't know how many, but maybe 8 or 10--that vital subject. If someone gives you that honor, you obviously have a pretty high moral duty to treat it like the great honor it is, no?

Believe me, it was not lost on me what an honor we were talking about. I couldn't believe they were even willing to consider it, given all my laughable grades. But I was confident I could go there and satisfy the panel of experts that I had what they wanted. So I told her I would take two or three weeks and look as deeply inside myself as I could, because I did not want to apply for this tremendous honor unless I was sure I would get every possible thing out of it. Or, to state it differently, I wanted to be certain in my mind that I would be able to return the enormous favor they'd have been doing me.

And, after a great deal of introspection, I wasn't.

I think students everywhere are basically the same, except in terms of intelligence. That is, I'll bet you law students at Stanford and U.C. Berkeley, while more intelligent--and in most cases ENORMOUSLY more intelligent, than those at other law schools in California--are just as half-@ssed and lazy as those anywhere else. And I think ConLaw is like Duplicate Bridge or Chess. It is this endlessly deep subject that no human can ever master, and that can be studied with enormous intellectual stimulation and satisfaction. I enjoyed it 10 times more than any other Law class I ever took.

So... Had I become a ConLaw prof, even at a prestigious, high-level law school, as would have been likely had I gotten an Ll.D. from Berkeley....

I'd have spent my life constantly frustrated and irritated by all the rich, flip, arrogant, indifferent brats who blew off my class and my great subject. It would have been an annual, ongoing source of irritation--if not apoplexy--to me. (Then again, I'd have a pension, lol.)

To use a parallel: My dad had a Ph.D. in American History from Stanford, obviously a huge feat in the early 1950's, and he taught at a low-level college. I was a History major at a great university, but he was as good an historian as any of their profs, and since I didn't like my dad, you can believe that. He spent his career disseminating his encyclopedic knowlede of American History--objective and subjective; military, economic, cultural, sociological and especially political--to halfwits who were "bored" to tears.

I just couldn't see parlaying an incredible education, from some of the greatest American ConLaw minds in the world, into that.

So instead of being a somewhat underpaid but prestigious ConLaw prof, I'm a hugely underpaid criminal appeals attorney who got to do what he wanted. And in the two famous cases I've won, I've avoided national TV like the plague, just as I'm sure most of you would want to do. I mean, who the hell wants to be interviewed on CNN, NBC, etc.? Answer: Only a strutting narcissist and/or self-promoter. Anyone else would be shy, if not petrified. So when I got not one, but two, such chances in 1995 and 1996, I declined. Just like I'm sure most or all of the people I know here would do.

I know I talk like anything but an ordinary guy, but in a lot of respects, I'm a lot more like an ordinary guy than my job and past accomplishments suggest. I hope several of you, who've known me almost a year now, have come to realize that. I can't do anything about my style of expression, because I was raised on it from Day One, with two parents who met at Stanford Grad School, but I like everyday guys a lot better than most lawyers and just about all rich brats, I'll tell you that.

BHN

P.S.: Please don't feel, any of you, like I've just given you a brilliant, esoteric knowledge of First Amendment law. I've given you the basic principles, especially as to freedom of speech and the various types of regulation to which it is subject--fighting words; defamatory words; incitement-to-violence words; fraudulent commercial words; plus limitations relating to the time, place and manner of speech, IF those limitations are content-neutral, i.e., not limited to specific types of expression.

After 21 years, Professor Kelso's all-time star student is too rusty to give you a great education on the First Amendment, even if one of you wanted it.

BtB, I'll try to remember to make a response--if I can, these 21 years later--to your question about the Establishment Clause, some other time.

BHN

[Edited on 6/28/06 by BaseballHistoryNut]

the man has a right to his opinion. say what you want about castro but the man stuck to his ideals and has helped his people. they get free health care, education and do not bow down to american foreign policy. even though we have freedom of speech, showing respect for castro was the stupidest thing you could have done in south florida. it would be like going to israel and saying you admire hitler. i'm sure the marlins knew what they were getting into when they hired the outspoken manager, but in my opinion what he said was not illegal or even wrong and baseball is punishing him to appease the cuban population of south florida.