Two Cheers for Jurisprudence

The French have a saying I love: even a broken clock is right twice a day. Our court system is broken in so many ways, perhaps chiefly owing to judicial appointments’ use as political tools. But even so, sometimes they get it right and those times are worth noting with appreciation. Here are two of them.

More than a year ago, I wrote about a court case in Portland, Oregon. A mega-corporate billboard company claimed that it was unconstitutional for the city of Portland, Oregon, to regulate billboards but not murals, thus erasing the legal distinction between art and signage. Astoundingly, they won a decision and damages, and community murals started being officially treated like billboards, with a chilling effect on community-based public art. After a long string of appeals, the arguments made by Joe Cotter, who was permitted to intervene as a friend of murals, have prevailed. Here’s a bit from Judge Michael Marcus’s May 8th opinion:

The intervener’s evidence demonstrated a number of ways in which the channel of communication that is characterized by mural art is vastly distinct from the channel of communication that is characterized by standardized billboard posters and bulletins.  There are substantial differences in the manner of production and distribution, the expected duration and permanency, and, at least potentially, in the relationship between the owner of the surface and the persons and entity who apply media to that surface.  It is easy to predict how attempts to articulate regulatory definitions might stray into prohibited distinctions based on content.  There may be challenges in avoiding content-based regulations with respect to wall murals whose proponents wish to employ them for commercial purposes.  But nothing in this court’s Opinions say that the City cannot attempt to free wall murals from sign regulations in ways that do not depend on the content of the message displayed.

Moreover, once the City strays from the context of prohibition and regulation to that of promotion and enhancement, there are abundant examples of public support for preferred “art” which have not been challenged because they somehow disfavor some other version of expression.  Public art is evident on our bus mall [at least it was before the commencement of the current remodeling project to accommodate light rail] and in public buildings throughout Portland.  There are many ways in which the City promotes art and other activities which could presumably include mural art.  And, at least for purpose of the federal Constitution, the law of “limited public forum” permits a governmental entity to discriminate reasonably in the purposes for which a forum of the entity’s creation can be used – including prohibiting altogether whole categories of “speech” – as long as the process retains viewpoint neutrality and does not run afoul of some other forbidden basis of discrimination such as religion.

In other words, as tireless mural advocate Joanne Oleksiak put it, “Clear Channel has lost their plea for 60 additional billboards and there will be no monetary awards from the City, either. The climate is VERY favorable for murals!! Now artists will turn to the City to seek the development of a working mural program, rather than one geared primarily toward litigation avoidance.” If you’d like to read the whole opinion, contact portlandmuraldefense@yahoo.com. And give three cheers for Joanne and Joe, whose volunteer efforts struck a powerful blow against the commercialization of absolutely everything and for free speech and artistic expression.

Two days later, Purdue Pharma, the maker of OxyContin (sometimes called “poor man’s heroin”), pleaded guilty to misleading doctors and patients about the drug’s addictive powers and abuse potential. The company agreed to pay $600 million in fines (the third largest amount ever paid by a drug company), and three executives also pleaded guilty to criminal charges and agreed to pay $34.5 million in fines.

This is even more remarkable because in effect, it is a settlement. These people accepted guilty verdicts and paid $634.5 million because that seemed safer than letting a jury of their peers determine their punishment. Let’s think about that for a second.

OxyContin was promoted to doctors as a safe treatment for chronic pain, as from on-the-job injury. I’ve heard countless stories about it as I’ve been working on the Thousand Kites project, which you can read about by clicking on my blog category “Incarceration Nation.” A few months ago, I sat with a woman whose son was injured in the mines, and when his legal access to the drug ran out, sought other supplies. He is serving nearly twenty years in prison in a no-parole state for possession of two of these pills. The friend who told me about this court decision put it this way:

While I’m very glad the drug company executives finally had to fess-up to what they did, the personal price they are paying is nothing compared to the misery and tragedy that they created for thousands of families. E’s son would not be serving an 18-year sentence if he had not become addicted to OxyCotin prescribed to him for knee injuries he got working in the coal mines. He was supposed to get a knee replacement before he was incarcerated. Now he just lives with the pain.  It’s maddening and terrifying to think about what we human beings do to gain money and power—and even more maddening to think about how much our mainstream culture encourages the worship of material wealth and personal power.

The people who make huge sums from these crimes are ruthlessly shrewd about whom to target and how: they want unsophisticated consumers, doctors who won’t read the fine print, patients who will be grateful for any relief. When I speak with people who are targeted by advertising such as the illegal campaign OxyContin’s makers are now being punished for, they are well aware of being seen as prey. They are aware of the depraved indifference that counts them as less than fully human. This is not a mistake, they tell me. This was done to us with intention.

Yet when I go to cushier surroundings to tell what I have heard, I often meet with skepticism. Some have a hard time believing that other people like themselves, who have had all the social advantages and opportunities society extends to its favored, could behave in such evil fashion. Reading the New York Times‘ business page article should disabuse them; note that Republican presidential candidate Rudy Giuliani is one of Purdue’s lawyers, and consider this quote from Dr. Sidney Wolfe, Public Citizen’s director of health research: “The damage to the public from these white-collared drug pushers surely exceeds the collective damage done by traditional street drug pushers.” Believe it.