Anyone for Puccini?
Thursday’s council session, this council’s last, was the stuff of a three-act opera in reverse. Flowers, bows and farewells were first, conflict and confusion ruled the end. Working title: Kristin’s Last Stand, or Eclipse in the Afternoon.
One of the motifs will come from Hannah Kreiger-Benson’s comment: “They are either terribly misinformed or wildly misleading, neither of which is acceptable in a group which insists it should participate in crafting policy or law.” Short form: “Misinformed or misleading / That is the question.” Fortinbras will remind us of it, as near the end of the third act, he snaps his fingers for the cleaning crew to enter stage left to clear away the bodies and mule droppings. Nathan Chapman could play Scarpia, who rarely appears in plays with Fortinbras, but we’ll make it work.
While the orchestra is rehearsing the first performance (Jax Square at midnight) here are some issues to enjoy. Try to pay attention – there may be a test.
The Unconstitutionality Zone
Have you seen the Hoodie propaganda about VCE v. citywide? They filled the council chamber with this non-issue Thursday afternoon. According to them, the ordinance amendment sprung a citywide application on them too fast, and they were having palpitations. The problem was, the curfew provision in the existing ordinance as written in 1954 is vulnerable to a constitutionality challenge, so the administration wants it removed. They inserted a line in the main amendment under consideration to do so.
The concept of constitutionality seemed to be a real brain-teaser. Not only the usual myopic neo-preservationists, but the about-to-be-ex Great and Good, Jackie Clarkson (who brought us the House of Blues, don’t forget) and Cynthia Hedge-Morrell. LaToya Cantrell forcefully joined the exes in a possible foreshadowing of things to come. For CHM, constitutionality seemed to be just one of the things she either could not or was unwilling to understand at her last council meeting. Incomprehension, real or feigned, included zoning districts, which seems a bit lame, after she had spent a morning adjudicating planning appeals.
I suspect Ms Hedge-Morrell was being theatrical. Possibly auditioning for a role in the opera. I think it was in the Reagan era when somebody said, it is very hard to get somebody to understand something when his preferred outcome depends on not understanding it. Still, the better farewell would have been to pass the bill. I had begun to like her when she told us she might return to training Thoroughbreds, but the old scorpion-and-frog nature triumphed.
Most of the Hoodie types and the logic-challenged fellow travelers wanted the curfew to be unconstitutional on Bourbon Street, but not on their street.
So what was going on up on the Council bench? After their years as legislators, are they really baffled by the idea of unconstitutional? Are we looking at misinformed or misleading?
Through its three PR fronts, Krewe of Brylskispin, VCPORA and French Quarter Citizens, SmithStag has presented a little catwalk show of nay-sayers to sensible sound policy for New Orleans. I don’t think they are determining the outcome, though; more the distraction while more tangible strings are being pulled to move the puppets around the Punch and Judy show.
They lay out two overlapping parts to the illusion: curfew and “citywide.” “Citywide” has to be in quotes because the way they used it was so distorted as to be meaningless.
While VCPORANs and their Council allies were hand-wringing histrionically about extension of application outside of VCE, several grownups from the administration tried to explain to them the significance of the word “unconstitutional” and the difficulty of justifying one constitution for Bourbon Street and another one for their house. But it didn’t work.
Council’s plan in January was to start with VCE, which is six blocks of Bourbon Street, and when that was done and dusted, deploy the methodology and newly minted sound office into other areas. Good plan. Dave Woolworth and FQMD stuck to it as closely as possible. The items that VCPORA & Friends did not like were not products of the sound analysis process. They were inserted by the City Attorney for technical reasons.
One of their tricks was possibly even more surreal than the constitutionality snag. A line inserted in the amendment for some obscure reason added a line to an existing Table 1, specifying VCE-1 to remain among all the other non-Bourbon VCEs, under the existing rules. VCE-1 is not VCE. They got that right. It is about half a mile away from the center of VCE. The line seems superfluous, but if it has a meaning, it is to make explicit that VCE-1 is not included in VCE, therefore the scope is not expanding. Whatever the significance to the drafter, the line changes nothing at all. How they could associate that no-change line for one small patch with a claim that it expanded the brief to “citywide” comes back to misinformed or misleading, unattractive in a legislative setting. For this one, I’ll call misleading. It is really too simple to misunderstand.
Curfew seemed to signify two things, uncertainly related: strange, funny looking people might bang drums and blow tubas outside our windows all night; and deleting it has citywide effect, not just VCE.
The illogic is so perfect, it is hard to find an entry point. The reason for deleting the flawed text has nothing to do with VCE per se, or any other area. The city attorney’s office says the curfew as written cannot survive a constitutionality challenge, so the text should be deleted, to reduce risk of the whole ordinance including the current amendment being overthrown and the city incurring costs for legal defense and possibly damages for a bit of text they don’t care about. The neat way to do that is stick the deletion in an amendment to the bill.
The voices of unreason, with proud flag-bearer Clarkson at the mic, say, that would have a citywide impact. Yes, say the City Attorneys, Eric Granderson of the administration and CM James Gray, that comes with the meaning of unconstitutional, the kind of word it is. If it is unconstitutional, it is unconstitutional everywhere. An unconstitutional thing no longer has a location. It is dead and gone. Trying to make it simple for them, Granderson said, you can’t have a thing be unconstitutional on Bourbon but okay on St Charles. It doesn’t work like that.
I am cynically thinking, had the bill passed with the unconstitutional curfew language, would VCPORA now be suing to bring it down on that account?
Neighborhood association types said they need time to discuss this and were not prepared. But unconstitutionality is not subject to hand-wringing. Text does not get less unconstitutional because a group of civic-minded respectable folk sit around a table trying to get comfortable with a notion they inexplicably found difficult. Not to mention (although some people including CM Susan Guidry did) that nothing prevented them from doing that even with the unsound language removed from the ordinance. It is a legal issue that needed addressing by specialists, not neighborhood do-gooders. That is why we have a city attorney’s office.
Anyway, to me it sounded like whining about it. It can’t really be unconstitutional because that isn’t what I want! Stamp your foot. What happens to people’s minds in these clubs, such that they think everything is subject to their ratification, even if they do not have the logical toolkit to work it out? And the city accepts it.
In CM Palmer’s exposition, supported by the City Attorney, the curfew provision is unconstitutional because it specifies musical instruments. The Supremes have decreed that music is free speech, like speech, so if you are allowed to talk, you are allowed to play an instrument. And speech is allowed amplification, so you can’t say a guitar isn’t. So you have to find language that covers all sound and works out a fair use of shared space.
Clarkson, Bringer of the House of Blues, you may remember, invented a new amendment to the amendment to replace the current curfew text, and temporarily hooked poor Susan Guidry into co-sponsoring it. The text was messy and they were fiddling with it on the fly. The final language was really quite funny. It said after 10.00 PM, no sound emitting devices. Does that include the human mouth and lungs? Rosalyn the Queen of Royal Street tested this during Comments by singing unamplified at high volume. Was she a device or a person? Miz Jackie didn’t seem to get it. In the language of her amendment, it would have been illegal to listen to an iPod with earphones. When this was politely pointed out by the attorneys, Council President Clarkson replied, “Now you are being ridiculous! We know what we meant!” CM Gray pointed out that when writing law that restricts people’s freedom, especially law that might be superfluous anyway, that is not good enough. The law has to say what you mean. I think Mr Gray may be the next Nolascape Hero, after Kristin Palmer. Jackie’s expression said she found that notion an unreasonable burden on legislators. As discussion went on, Ms Guidry realized what she had fallen into and found a way to back out.
Robert Watters pointed out that a curfew that prevents an adult person from playing a song on an instrument when not bothering anybody and causing no disturbance would be an unjustifiable infringement of individual liberty, about as unconstitutional as you can get. Example: fiddling with a kazoo on the bus bench at Esplanade and Claiborne at midnight next to a closed gas station, bothering no one, would be subject to a $500 fine.
In a rather dazzling show of political sleight of hand, Clarkson turned failure or refusal to grasp the “citywide” fallacy into an act of nobility: it would be a betrayal of the city’s trust to vote for a bill that removed unconstitutionality in New Orleans law, because unconstitutionality flows outside the borders of VCE. Wry smiles on the Council bench and in the chamber, as the pros unconsciously signaled appreciation of the trick. It would not do to let people think that constitutionality might be bigger than the House of Blues.
So they retained the tainted wording, and now a lawsuit is likely to be launched against the city within a week. Noble work, Ms C. If we are lucky, Sharonda Williams will concede the case, the risky text will be out by adjudication, and unconstitutional v. locality can go back to being a category error instead of a fake legislative issue. Then this specious argument would not be available in the next round. Alternatively, the city can decide to defend the action, at considerable cost for outside council because Ms Williams has already acknowledged the plaintiff’s case. And they would still lose.
Men of Letters
I wonder if this bugs anyone else or am I alone? Let me know. Every time Smith introduces one of his krewe of kranks, you get a bunch of letters after the name chucked at you. Arline Bronzaft, Arno Bommer, Anthony Tung – before content, letters. Isn’t that just boring? Why would uni degrees validate Tung’s history-free, preservationist-bubble ideas?
Their opponents have plenty of academic letters. Dave Woolworth has a long list of degrees. Ashley Keaton has some lovely letters. Robert Watters has a decent inventory of degrees. Bob Simms must; he is a rocket scientist, but has better manners. You would need an extra page to list the academic qualifications of the Khan family, whose businesses the Vieux Carré Piranha fish and OCD Association is now attacking. For each of these, you can find a hundred others who think more clearly and see farther than Smith’s cranks, but got bored of academics a couple of years earlier, or never liked it much. Free advice to the enemy: it’s a turnoff.
The History Validation
History can inform or be turned into a trick. Speaking on the unconstitutionality of the curfew, Ashlye Keaton said the legal history began in 1808 as regulation of Congo Square. That is rhetorically significant because it links adult curfew to slavery and discrimination. (Kristin Palmer reminded us that CM Clarkson was not on the Council yet at that time, so can deny responsibility.) As the law evolves into present day, the flaw still has to be identified as currently relevant. The current rule is not invalid only because it’s ancestry traces back to 1808.
Carol Allen used history differently. She said that 76 years ago, her predecessor the first president stood before council to protect the FQ from businesses and people who wanted to tear it down. That effort had actually started several decades earlier, but at its incorporation in 1938, VCPOA, as it was known then, when ownership was distinguished from residency, a significant difference at the time, did become a forceful leader in the preservation struggle, among other things. Some of their policies looked like a mixture of moral militancy and forced gentrification bordering on ethnic cleansing to reconstruct the Quarter as it never really was, but okay, we’re here. We are not going to be able to repatriate people from Gentilly to Dauphine Street to re-open the pleasant little brothel her great-granny ran there in the 20’s, or seek out descendants of the guy who ran a floating crap game on upper Royal when Grover Cleveland was elected, to reclaim grandfathered rights of non-conforming legal use.
But Carol seemed to use that history to justify a current activity or statement without addressing the current point. Meg Lousteau did the same thing a couple of months ago. I don’t get that. I can’t justify arguments in favor of the Woolworth report by saying I won the spelling bee in the third grade or my uncle was a horse thief in Odessa. I need to provide applicable reasoning. Carol said that history makes her proud to fight for what she believes in, which is fine, but it doesn’t validate the argument at hand. Remember misinformed or misleading? The five points VCPORA was pushing Thursday had been argued inaccurate here on the 22d, using not a law degree but logic, and definitively by Sharonda Williams the next day. Proven wrong and now known to be wrong, they were still VCPORA’s weapons of choice on the 24th. Is that okay just because you believe your objective has merit, and you can point to accomplishments 76 years ago generally agreed to have merit? To honorably participate in lawcraft, you have to pass the Hannah test: neither being yourself misinformed nor intentionally misleading. Do your homework and be honest. On this criteria, VCPORA may have survived a skirmish Thursday, but no honor in it.
Before we bow out, this,is not easy to say, but I have to: Nathan Chapman’s input Thursday was very skillfully spoken, well constructed and no more logically incorrect than the rest of them working the “citywide” fallacy. I was impressed. And he brought a priceless new gem to the discussion: the former head of the Health Department said the Woolworth Report helped the Devil. A superb and illuminating addition to the process.
Then – last and I am going to get out of here – Kristin Palmer, Nolascape heroine of the week, said this process had led to vilification of the neighborhood associations, and that is abhorrent.
Is it? Nolascape may be the arch-vilifier, but we never post anything here, never, that we know is inaccurate. Polite, gentle? No. No currying favor or access. But no lies. And if we find out something was wrong, we retract and apologize, every time, no exceptions. So now that the City Attorney contradicted all of VCPORA’s five inaccurate scare-fostering points, where is the retraction? Where is the apology? All that brave history, but they just can’t do it.