Shielding the Powerful

In a milestone win for corporate wrongdoers, the U.S. Supreme Court made an alarming decision yesterday to overturn the landmark $80 million punitive damage award against Philip Morris. The ruling effectively stretches the Constitution’s guarantee of due process in a way that will make it easier for companies that act reprehensibly to sidestep serious punishments. It also provides unsettling new evidence that the court is more concerned about — and more willing to protect — the powerful, as opposed to the powerless.

In 1999, an Oregon jury awarded Mayola Williams, the widow of cigarette smoker Jesse Williams, about $821,000 in compensatory damages and $79.5 million in punitive damages. Ms. Williams argued that Philip Morris had spent 40 years denying the connection between smoking and cancer, even though Phillip Morris executives knew cigarettes were deadly. The Oregon Supreme Court upheld the punitive damages award, saying that Philip Morris’s actions had been “extraordinarily reprehensible.” The ruling justices reasoned that by keeping Oregonians smoking longer than they otherwise would have, the company’s actions would, “naturally and inevitably lead to significant injury or death.”

However, by a 5-to-4 vote that did not follow the usual ideological lines, the Supreme Court ruled yesterday that the award was improper because it punished Philip Morris for harm done to people who were not part of the lawsuit. So, because the Oregon justices took into consideration the well-being of the general public, the Supreme Court overturned their ruling. There is nothing unusual, or wrong, about courts considering the broader impact of a wrongdoer’s misdeeds. As Justice John Paul Stevens noted in dissent, “A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim.” The fact that Philip Morris hurt so many other smokers along with Jesse Williams is surely relevant to its punishment.

The court in recent years has become increasingly proactive when it comes to defending the rights of corporations by striking down punitive damage awards. Yesterday’s ruling continues that trend; and while the ruling did not designate such large punitive damage awards to be unconstitutional, it does expand the notion of due process and overturns the decisions of a jury and a state supreme court.

Unfortunately, the court has been far less activist when ordinary people seek protection or challenge their punishments. The ruling stands in particular contrast with the court’s 2003 decision that the Eighth Amendment’s ban on “cruel and unusual punishments” did not bar California, under its “three strikes” law, from sentencing a man to 50 years in prison for stealing $153.53 worth of videotapes. Other idiosyncratic legislation, such as the Digital Millenium Copyright Act, which imposes penalties of up to ten years in prison and fines of up to $250,000 for illegally sharing copywrighted music or video files, illustrates the influence that corporate America wields over the upper echelons of government. Yesterday’s decision is another disturbing sign that America's governing branches are not completely sovereign, and — as the current court reads the Constitution — powerful commercial parties have more rights than common citizens.

Everyone Hates Tim Hardaway

Well if you haven't heard by now, John Amaechi is out of the closet. That's right, the former power forward for the Utah Jazz and Orlando Magic is gay, and the barrage of conflicting viewpoints has commenced. It is fair to say that among the athletes, coaches and various in-the-know basketball types polled, the reactions have been tempered; any disapproval was expressed very mildly -- if at all. Then, of course, there is former Miami Heat guard and ESPN basketball analyst Tim Haradaway, who on Miami's 730 The Ticket radio last week, made his shocking revelation, "I hate gay people."

You played right into Amaechi's hands, Tim.

What's worse, he did his famous "UTEP two-step," and issued a thoroughly spurious apology through his agent. It was an ill-conceived attempt at damage control, and NBA Commissioner David Stern was not swayed. Hardaway was consequently banished from this weekend's All-Star festivities in Las Vegas, where he was scheduled to make a host of appearances on behalf of the NBA.

"It is inappropriate for him to be representing us given the disparity between his views and ours," Stern said in a statement.

Wait -- so David Stern is a gay-rights advocate? Not quite. Stern's primary interests are economic, as he wishes to ensure the continued financial prosperity of the NBA. He won't risk isolating gay fans or further polarizing players by letting such a controversial issue take a definitive face through the NBA or the opinions of its representatives. It might be fair to say that Stern is more concerned with avoiding criticism than promoting diversity. This might be the case for the majority of mainstream sports pundits as well, who are commonly verbose yet uncharacteristically reserved and benign on this particular topic.

Corporate sponorship has a way of restricting even the most expressive elements into stale banalities. The same commericalism which makes celebrities such icons also limits their ability to present themselves truthfully. While we associate certain names and faces with our favorite products, we can never be sure of those individuals' core values -- they are molded, to a certain public degree, to serve commercial interests. After all, look at what happened to Hardaway: he expressed his opinion, however vitriolic, and his own fraternity banned him from their three-day-long alumni homecoming party in Sin City. However, Hardaway serves an important purpose, because he cleared the path for a much more meaningful discussion.

The echo that triggered this dreadful "gay-in-the-NBA" avalanche is a book, Amaechi's newly-published "Man in the Middle." By all accounts, Amaechi's career was not remarkable. The only factor that lends any interest to his memoir is his sexual preference. To be specific, what everyone really wants to know is: To what degree was his homosexuality an issue? Who else knew he was gay? And once they found out, how did they react? Amaechi could have answered all of these questions by coming out while he was actually still playing in the League. At least then he could say that it was truly for a cause other than book sales.

As a gay, black Englishman in Utah, Amaechi chose to stay in the closet. In "Man in the Middle," he does make the revelation that several current NBA players are also gay, although he doesn't name names. It is interesting to consider whether those players would have their current jobs if they were openly gay. Taking into account the negative reaction by some to Amaechi's out-coming, an openly gay athlete would risk disapproval among fans and reduced endorsement opportunities, not to mention loss of respect from teammates. Just ask The King.

"With teammates you have to be trustworthy, and if you're gay and you're not admitting that you are, then you are not trustworthy," LeBron James said in an interview with the Cleveland Plain Dealer. "So that's like the No. 1 thing as teammates - we all trust each other. We're like family and you take showers with each other. We're on the bus together and we talk about a lot of things and if you're not trustworthy, like admitting you're gay, you can't be trusted. You've heard of the in-room, locker-room code. What happens in the locker-room stays in there. It's a trust factor, honestly. A big trust factor."

While an actively homosexual team-sport athlete might become an inspirational figure from a certain perspective, coming out would undoubtedly have a negative effect on his or her playing career (with the exception, ironically, of the WNBA, where it is widely accepted that a large number of players are lesbian). Any preconceived or subconcious prejudice harbored by other players, coaches, team officials and even referees would undoubtedly cause repeated clashes. The common stereotypes of homosexuality directly contradict the macho, male-athelete stereotype. This is the true essence of James' statement. Once again, Amaechi could have smashed some of these perceptual barriers by simply coming out during his playing days.

So Amaechi is a hypocrite. But then, aren't the players, pundits and apologists who were so quick to villify Amaechi's alternative lifestyle hypocrites also? By voicing so loudly their beleifs and disapproval, aren't they embracing the same freedom of expression for which Amaechi is being criticized? Maybe moralistic homophobes hate Amaechi for being gay, but they hate him even more for announcing his preference and effectively bringing his homosexuality into the limelight. Perhaps the only thing they perceive to be more threatening than the existence of homosexuals would be mainstream America's acceptance of, or at least ambivalence to, homosexuality.

I believe this is the direction Tim Hardaway was coming from. He was upset that there had not been more vocal opposition of Amaechi's disclosure and subsequent profiteering. Hardaway exposed his bigotry by using the h-word, was supremely dishonored, and gave Amaechi opporunity to elevate himself by responding with tolerance and reason.

"Finally, someone who is honest," Amaechi said in an interview with Miami Herald columnist Dan LeBatard. "[Hardaway's statement] is ridiculous, absurd, petty, bigoted and shows a lack of empathy that is gargantuan and unfathomable. But it is honest. And it illustrates the problem better than any of the fuzzy language other people have used so far."

Ultimately, sexual preference is a private matter that is decided in the heart and mind of each individual. Amaechi's book does help raise awareness and discussion of discrimination against homosexuals, but the NBA arena is not the appropriate forum for the debate. In fact, such a polarizing issue cannot be fairly or openly deliberated, let alone neutralized, when all relevant parties have such substantial and enmeshed corporate ties -- the truth is too often obscured by commerical interests. Unfortunately for the truth, there is far too much money at stake.