My “Sort-of Debate” with Daphne Phung Over Prop 35, the Human Trafficking Initiative

As I noted here last week, one reason that I decided not to pull out all of the stops with my State Senate campaign (going from a large national fundraising effort to one focusing solely on progressive blogs and personal friends) was that I had taken a controversial position on Prop 35, the anti-human trafficking initiative sponsored mostly by Daphne Phung of “Californians Against Slavery” and funded mostly by ex-Facebook Chief Privacy Officer (and 2010 Democratic candidate for Attorney General Chris Kelly.)  Part of what I was afraid of is that my position might hurt others in the Democratic Party, especially Jay Chen and Sharon Quirk-Silva, if opponents jumped onto it.  (Happily, they didn’t — but I knew that it was a point of vulnerability.

Chris Kelly between Sharmin Bock, Jada Pinkett and Daphne Phung

From left, Alameda County Assistant District Attorney and author of the non-internet portions of Prop 35 Sharmin Bock; actress Jada Pinkett; financial backer, aspiring politician and ex-Facebook exec Chris Kelly; and California Against Slavery leader Daphne Phung.  Pinkett had a lot of company in the entertainment community in being used to support this initiative — though I’ll doubt that a single one of the celebrity endorsers had spoken to an opponent first about the statutory interpretation problems with the initiative.  Photo (used here simply for identification purposes) from AP.

I had tried to get the California Democratic Party not to endorse Prop 35 at its meeting in late July, for which purpose I wrote  this somewhat hurried piece, which I expect will likely make Vern’s list of the “OJ’s most-read posts” this year.  For my efforts, I in essence got called a friend of human trafficking by high party officials and had a lot of people not meeting my eyes for a month — when others (initially the American Association of University Women, bless them) started to see the light and my position was no longer quite so unusual and embarrassing.

Two reasons that I took a public stance on Prop 35, even at the cost of mostly scuttling my campaign, were that (1) virtually no one else, except for some good-hearted but generally not socially respected sex workers’ groups, was doing so and (2) by having a public debate I had hoped to get the “pro-35” side to ease off of some of the worst implications of its proposed statute.  The prospects for a public debate faded when it became evident at that state party meeting in Anaheim that sponsors of the bill, particularly Phung and Chris Kelly’s top aide whom he had taken with him from Facebook, had taken a dislike to me and did not wish to engage me.

(I forget the latter woman’s name, but she was the one who drafted the part of the bill requiring that registered sex offenders provide all of their online accounts and such to the state so that their online activity could be monitored — and, I cynically suspect, to take Facebook off the hook for any liability because it could claim to be relying on sex offenders’ compliance with the law.  Most of the bill was drafted by an Alameda County Assistant District Attorney, Sharmin Bock, who is represented to be an expert on human trafficking and whom I’d have dearly loved to debate.)

Well, OK, I thought — I’ll just try to debate them elsewhere.  But, despite my efforts and preliminary arrangements, this kept on not happening.  KTLK-AM 1150 had scheduled me for an interview one day along with Phung.  I cleared my schedule for the call, which never came, and then I was later told that oops, there had been a mix-up and they hadn’t realized that they were supposed to call me.  Plus, they had run out of time, or something.  I later listened to the audio file, and the hosts had segued from the very long discussion with Daphne Phung about trafficking, along with a brief interview with a sex worker at whom they poked fun, to talking for 7-8 minutes about football players wearing some unusual underwear (or something like that — I’ll see if I can find the MPEG.)

I could have, I suspect, filled that time more relevantly.  Part of the plan of the Yes on 35 campaign seemed to be to get people to think that the only opposition to the bill was those funny, silly sex workers — many of whom turned out to be a hell of a lot more sophisticated about the issue than, say, leading members of both political parties — rather than some attorney with a background in statutory analysis, for God’s sake.  So I found myself not invited to and uninvited from (when the Yes on 35 people refused to appear with me) various venues in different parts of the state.  It was chickenshit on their part — it’s not like I was going to keep the thing from winning, as we all knew — but welcome to big-time politics.

As with any coverup, though, it’s hard to get everything entirely nailed down.  And so it was with a cable-based interview show on KMVT-15 in Mountain View, California, in Silicon Valley.  Originally, I was invited to appear with Daphne Phung in studio.  Then, the day before I was planning to buy tickets, I was told that no, we wouldn’t be in studio after all; we’d have to use remote video.  I asked if Ms. Phung going to appear remotely as well, not wanting to be at a disadvantage with the viewing public; they were.  So, OK, I set up an appointment with them to record an interview from my living room over my daughter’s laptop — which, as you’ll see below, does not provide the crispest of images.

I thought that we’d be recorded in sequence and in real time.  Not so, it turned out — in fact, I was going first and they were recording sometime later.  (Naturally, Ms. Phung appeared with the host in the studio.)  I don’t know whether they demanded, and if so received, the right to see my part of the interview prior to Ms. Phung’s interview — but, given the careful marketing control of the entire enterprise, I’d be surprised if they didn’t ask.

Nevertheless: the upshot of all of this is that there is one piece of video existing in the world that features both me and Daphne Phung more or less debating, or at least being interviewed in juxtaposition by a smart interviewer about, Prop 35.  (I don’t know how to rip interviews from the internet; I hope that several of you will do so for “safe-keeping.”  I would not be surprised to see this disappear from YouTube before long.)

Daphne Phung does a good job presenting the arguments used by the Yes on 35 campaign here.  I am especially pleased, as I say at the end of my own interview segment, that future courts charged with interpreting the will of the voters when they passed Prop 35 will have access to these juxtaposed arguments.  Of course, this video was seen by only relatively few people over KMVT and, as I write, this video had been viewed only 188 times before I did so today, so let’s not pretend that voters heard my arguments.  (It’s not my fault, in other words, that it lost by 81.4% to 18.6% — but maybe I helped keep it under 10,000,000 votes.  It got 9,935,574.  Spend $2 million essentially unopposed on a “motherhood and apple pie” initiative and that’s what you get.)

You’ll see my concerns, set forth for the record, in the video.  I’m happy to be judged by how close I, rather than Ms. Phung, turn out to be to the mark in our predictions — and I hope that courts will consider, when they think about the applicability of Prop 35 to crimes like non-violent statutory rape — that in that respect voters in the main had no idea what they were voting for — and that certain literal implications of the law should not, therefore, be upheld.


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)