Volume 71 Number 2 Summer 2014 Local Government in Michigan: 65 Democracy for the Fortunate Few John Philo “Anything You Post Online Can 78 and Will be Used Against You in a Court of Law”: Criminal Liability and First Amendment Implications of Social Media Expression Kathryn R. Taylor Stephen Kimber’s What Lies 107 Across the Water—the Definitive Study of the Cuban Five Arthur Heitzer Book Review: Spying on Democracy: 126 Government Surveillance, Corporate Power, and Public Resistance Traci Yoder editor’s preface Many of Michigan’s poorest cities, kept black and ghettoized as a matter of law and policy for decades, now find themselves in a state of utter ruin- John Philo ation. The legislative and executive branches of Michigan’s government have LOCAL GOVERNMENT IN responded to the crisis in these communities by authorizing the governor to MICHIGAN: Democracy FOR appoint whomever he chooses to be an “Emergency Manager” to manage local affairs—and abolishing democratic government there. Black citizens have been THE FORTUNATE FEW disenfranchised under Michigan’s Emergency Manager laws with such dramatic Our nation’s states are famously described as laboratories of democracy disproportionality that no one even casually observing the situation could fail —places where government can “try novel social and economic experiments to conclude that extreme racial tone-deafness, or perhaps old-fashioned rac- without risk to the rest of the country.”1 Michigan’s experiments however ism, is animating the decision-making in Lansing. If you look at a map to find have gone tragically awry. Michigan has enacted novel laws that permit the Michigan’s largest black population centers—places like Flint, Benton Harbor, appointment of emergency managers who assume the governing power of and Highland Park—you’ll notice an alarming number of them are on the list local elected officials. The state has aggressively pursued such appointments of those ruled by a viceroy from the state capital. Emergency managers can over economically disenfranchised communities, predominately comprised of sell city property, privatize municipal services, and ignore customary local people of color. Within such communities, local democratic governance has practices with impunity. They arrive with a mandate originating from outside been suspended indefinitely. If this anti-democratic experiment is not ended, the city and are wholly unaccountable to those living within it. Michigan has it will set a precedent likely to be replicated in states around the country. implemented a new, hyper-racialized form of intra-state imperialism. Its largest and arguably most troubled city, the overwhelmingly black city of Detroit, is The Great Recession and municipal finance now under the authority of an emergency manager. The Great Recession of 2007–08 severely impacted the budgets of munici- palities across the country pushing thousands of municipalities to the brink of When I was a kid growing up in metro Detroit during the 1980s and 1990s default.2 The fiscal distress of municipalities is directly related to widespread there were two incontrovertible truths about the area—racial segregation and the declines in tax revenue. There is little dispute that the recession was triggered production of cars. Communities in and around greater Detroit were separated by “significant losses on residential mortgage loans to subprime borrowers that by race and ethnicity. Buying a foreign car was a damnable offense in all of became apparent shortly after house prices began to decline.”3 Massive losses them. An intense kind of local patriotism was impressed upon white suburban in mortgage markets caused a spiraling sequence of events that resulted in a kids like me for the city on which the region’s economic health depended, but tightening of lending to businesses, which in turn contributed to sharp increases with the clear understanding that the area actually inside city limits was unfit in unemployment.4 At that point, the recession was in dark bloom. for us to live in. Throughout, the recession was characterized by historically high losses Racial segregation is as much a defining feature as ever in Detroit, but, in in home values, home foreclosure rates, and unemployment. Despite very terms of its benefit to city residents, the auto industry, on which economic life modest recovery in some parts of the country, the extreme pressure placed on Continued inside the back cover ___________________________ household finances by the Great Recession has and continues to place extreme NATIONAL LAWYERS GUILD REVIEW is published quarterly by the National Lawyers Guild, a non-profit institution, pressures on the finances of local government and will continue to do so for at 132 Nassau Street, # 922, New York NY 10038. ISSN 0017-5390. Periodicals postage paid at New York, NY and the foreseeable future. at additional mailing offices. Subscription rates are $75/yr for libraries and institutions; $25/yr for lawyers; $10/yr for legal workers/law students; $5/yr for incarcerated persons; add $5/yr for overseas; $6.50/single copy, and should Municipalities derive most of their revenue from property taxes and state be sent to: 132 Nassau Street, # 922, New York NY 10038. POSTMASTER: Send change of address to: NATIONAL LAWYERS GUILD REVIEW, 132 Nassau Street, # 922, New York NY 10038. Address all editorial correspondence and revenue-sharing programs. Dramatic declines in home values and equally dra- law-related poems, criticisms, articles and essays to: Editor-in-Chief, NATIONAL LAWYERS GUILD REVIEW, 132 Nas- matic increases in foreclosure rates resulted in significant declines in property sau Street, # 922, New York NY 10038. Unsolicited manuscripts will not be returned unless accompanied by return postage. NATIONAL LAWYERS GUILD REVIEW is indexed/abstracted in Westlaw, PAIS-Public Affairs Information tax revenue for nearly all municipalities. Additionally, many states balanced Service, The Left Index, and in the Alternative Press Index. troubled state budgets by cutting revenue sharing programs with their munici- Editorial Board: Nathan Goetting, Editor in Chief; Richael Faithful, Executive Editor; Brett DeGroff, Managing Editor; Kathleen Johnson, Book Editor; Kelly A. Johnson, Notes Editor; Deborah Willis, Layout Editor. Contributing palities. Cities generate additional revenue through a variety of other means as Editors: Alan Clarke, Marjorie Cohn, Ryan Dreveskracht, Riva Enteen, Peter Erlinder, David Gespass, Ann Fagan permitted by state law. In Michigan, large cities collect an income tax. Record Ginger, Robyn Goldberg, Brent Lapointe Nathan H. Madson, Meredith Osborne, Henry Willis, Lester Roy Zipris. The opinions expressed in the articles are those of the various authors, and each article is Copyright, 2014, by the author unemployment levels during the late 2000s and continuing high unemploy- and by NATIONAL LAWYERS GUILD REVIEW. ______________________________ Advisory Panel: Elvia Arriola, John Brittain, Margaret Burnham, Erwin Chemerinsky, David Cole, Barbara Dudley, Richard Falk, Lennox Hinds, Sylvia A. Law, Staughton Lynd, Ruben Remigio Ferro, Jitendra Sharma, Kenji Urata, John Philo is legal director of the Sugar Law Center for Economic and Social Justice Frank Valdes, Patricia Williams. in Detroit, Michigan.. 66 national lawyers guild review local government in michigan: democracy for the fortunate few 67 ment in low income communities throughout the country resulted in dramatic Under PA 4, the governor was granted discretionary authority to declare a declines in income tax revenue for both municipalities and state government. municipality to be in a financial emergency and was empowered to appoint Since the onset of the Great Recession, dozens of states have sought strate- emergency managers over those municipalities. As in previous state law, PA4 gies to stabilize and restructure troubled municipalities. While stabilization granted emergency managers power over all matters relating to a municipal- has been the goal in most state interventions, some have been so radical that ity’s finances. However, PA4 radically departed from previous law by granting they many have begun to wonder whether the economic crisis is being seized emergency managers the power to fully act for and in the place of local elected upon as an opportunity for the realization of political rather than economic officials regarding all aspects of municipal affairs. The emergency manager restructuring. was now vested with all governing power. In fact, emergency managers were granted far greater powers than those The Michigan experiment begins possessed by local elected mayors and city councils. Emergency managers were Michigan’s experiment with anti-democratic local government is widely seen also granted the power—without public notice or comment and at their sole as having begun in response to a December 2010 court ruling. At that time, discretion— to amend, enact, repeal or simply disregard local law as stated in a state statute permitted the appointment of an emergency financial manager a city’s charter and ordinances. The emergency manager was further empow- 5 over economically troubled municipalities and school districts. Since 1989, ered to reorganize, privatize or eliminate any city department or service and nine communities had been declared in a state of financial emergency and had was granted the power to unilaterally terminate existing collective bargaining emergency financial managers appointed. Five were appointed following