Fire Hydrant of Freedom
Politics, Religion, Science, Culture and Humanities => Science, Culture, & Humanities => Topic started by: Crafty_Dog on May 14, 2007, 06:35:34 AM
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All:
The McCain-Feingold law makes me seething angry. I am utterly baffled that the Supreme Court could have affirmed its constitutionality.
The camel has gotten his nose in the tent and now he seeks to stick his head in.
Marc
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WSJ
Cutting the Grass
Congressional Democrats prepare another assault on the First Amendment.
Monday, May 14, 2007 12:01 a.m. EDT
A recent Wall Street Journal/NBC News poll shows 6 in 10 Americans think the Democratic Congress "hasn't brought much change." Eager to change this impression, the Democrats are frantically trying to pass legislation before Memorial Day. First on the agenda is a bill restricting lobbying, which is heading for the House floor with lightning speed. The House Judiciary Committee is expected to pass it tomorrow, sending it to the full House for a final vote next Tuesday or Wednesday.
When a bill moves that quickly, you can bet an someone will try to make some last-minute mischief. Hardly anyone objects to the legislation's requirement that former lawmakers wait two years instead of one before lobbying Congress. Ditto with bans on lobbying by congressional spouses and restrictions on sitting members of Congress negotiating contracts with private entities for future employment.
But the legislation may be amended on the floor to restrict grassroots groups that encourage citizens to contact members of Congress. The amendment, pushed by Rep. Marty Meehan of Massachusetts, would require groups that organize such grassroots campaigns to register as "lobbyists" and file detailed quarterly reports on their donors and activities. The law would apply to any group that took in at least $100,000 in any given quarter for "paid communications campaigns" aimed at mobilizing the public.
The same groups that backed the McCain-Feingold law, limiting political speech in advance of an election, are behind this latest effort to curb political speech. Common Cause and Democracy 21 say special-interest entities hide behind current law to conceal the identities of their donors, whom they would have to reveal if they were lobbying Congress directly. "These Astroturf campaigns are just direct lobbying by another name," says Rep. Meehan, who is resigning from the House this summer and views his bill as his last hurrah in Congress.
But the First Amendment specifically prohibits Congress from abridging "the right of the people . . . to petition the Government for redress of grievances." The Supreme Court twice ruled in the 1950s that grassroots communication isn't "lobbying activity," and is fully protected by the First Amendment. Among the groups that believe the Meehan proposal would trample on the First Amendment are the National Right to Life Committee and the American Civil Liberties Union. The idea goes too far even for Sen. John McCain, who voted to strip a similar provision from a Senate lobbying reform bill last January.
The possible outcomes are disturbing. For example, Oprah Winfrey operates a website dedicated to urging people to contact Congress to demand intervention in Darfur. If her Web master took in over $100,000 in revenue from Ms. Winfrey and similar clients in a single quarter, he might be forced to make disclosures under the law.
"It's huge," Jay Sekulow of the conservative American Center for Law and Justice, told The Hill newspaper. "It's the most significant restriction on grassroots activity in recent history. I'd put it up there with the 2002 Bipartisan Campaign Reform Act"--the formal name for McCain-Feingold.
McCain-Feingold itself is riddled with loopholes, producing a slew of unintended consequences. Its provisions allowing candidates who compete against wealthy opponents who spend their own money to accept larger-than-normal legal contributions in order to compete inexplicably don't apply to the race for president. That means Mitt Romney and John Edwards, both of whom are independently wealthy, have a clear advantage should they run low on cash and need to inject funds into their campaigns quickly.
"Judged by the most visible results on promises like getting big money out of politics or cleaning up politics, campaign finance reform has been, to put it mildly, a disappointment," admits Mark Schmitt, a supporter of such reforms who has written a thoughtful essay in the journal Democracy. He urges reformers to now focus on expanding the "range of choices and voices in the system" and to take seriously the worries of those who fear that McCain-Feingold's restrictions on "election communication" have the potential to squelch important political speech. The Supreme Court is set to rule next month on a case addressing precisely that issue, and Justice Samuel Alito may be more inclined to view McCain-Feingold skeptically than was Sandra Day O'Connor, who was part of a 5-4 majority upholding the law.
Given the checkered history of campaign finance reform, its frequent use by one side of a political debate to hobble opponents, and the prospect that courts may yet find portions of McCain-Feingold unconstitutional, it would be a travesty for a Congress desperate for a quick-fix legislative accomplishment to circumscribe the First Amendment with little debate and even less understanding of what the consequences will be.
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'Honk for peace' case tests limits on free speech
Bob Egelko, Chronicle Staff Writer
Monday, May 14, 2007
When one of Deborah Mayer's elementary school students asked her on the eve of the Iraq war whether she would ever take part in a peace march, the veteran teacher recalls answering, "I honk for peace."
Soon afterward, Mayer lost her job and her home in Indiana. She was out of work for nearly three years. And when she complained to federal courts that her free-speech rights had been violated, the courts replied, essentially, that as a public school teacher she didn't have any.
As a federal appeals court in Chicago put it in January, a teacher's speech is "the commodity she sells to an employer in exchange for her salary." The Bloomington, Ind., school district had just as much right to fire Mayer, the court said, as it would have if she were a creationist who refused to teach evolution.
The ruling was legally significant. Eight months earlier, the U.S. Supreme Court had decided in a case involving the Los Angeles district attorney's office that government employees were not protected by the First Amendment when they faced discipline for speaking at work about controversies related to their jobs. The Chicago appeals court was the first to apply the same rationale to the classroom, an issue that the Supreme Court expressly left unresolved.
But legal analysts said the Mayer ruling was probably less important as a precedent than as a stark reminder that the law provides little protection for schoolteachers who express their beliefs.
As far as the courts are concerned, "public education is inherently a situation where the government is the speaker, and ... its employees are the mouthpieces of the government," said Vikram Amar, a professor at UC's Hastings College of the Law in San Francisco. Whatever academic freedom exists for college teachers is "much, much less" in public schools, he said.
A recent case from a Los Angeles charter school offers more evidence of the limits teachers face in choosing curricula or seeking redress of grievances. The school's administrators forbade seventh-graders from reading aloud at a February assembly the award-winning poem "A Wreath for Emmett Till," about a black teenager beaten to death by white men in 1955.
In an online guide to teaching the poem in grades seven and up, publisher Houghton Mifflin recommends telling students that it will be disturbing; administrators said they feared it would be too much for the kindergartners in the audience and then explained that Till's alleged whistle at a white woman was inappropriate. When social studies teacher Marisol Alba and a colleague signed letters of protest written by students at the largely African American school, both teachers were fired.
The Mayer ruling was disappointing but not surprising, said Michael Simpson, assistant general counsel of the National Education Association, the nation's largest teachers' union. For the last decade, he said, federal courts "have not been receptive to arguments that teachers, both K-12 and higher education, have free-speech rights in the classroom."
That's unacceptable, said Mayer, 57, who now teaches seventh-graders in Haines City, Fla. She said she's scraped up enough money, by selling her car, to appeal her case to the Supreme Court, though she doubts the justices will review it.
"If a teacher can be fired for saying those four little words -- 'I honk for peace' -- who's going to want to teach?" she asked. "They're taking away free speech at school. ... You might just as well get a big television and set it in front of the children and have them watch, (using) the curriculum the school board has."
On the other hand, said Francisco Negrón, lawyer for the National School Boards Association, if teachers were free to express their viewpoints in class, school boards would be less able to do their job of determining the curriculum and complying with government demands for accountability.
"Teachers bring their creativity, their energy, their skill in teaching the curriculum, but ... a teacher in K-12 is really not at liberty to design a curriculum," said Negrón, who filed arguments with the court in Mayer's case supporting the Bloomington school district. "That's the function of the school board."
The incident occurred in January 2003, when Mayer was teaching a class of fourth- through sixth-graders at Clear Creek Elementary School. As Mayer recalled it later, the question about peace marches arose during a discussion of an article in the children's edition of Time magazine, part of the school-approved curriculum, about protests against U.S. preparations for war in Iraq.
When the student asked the question about taking part in demonstrations, Mayer said, she replied that there were peace marches in Bloomington, that she blew her horn whenever she saw a "Honk for Peace" sign, and that people should seek peaceful solutions before going to war.
A student complained to her father, who complained to the principal, who canceled the school's annual "Peace Month" observance and told Mayer never to discuss the war or her political views in class.
Mayer, who had been hired after the semester started and had received a good job evaluation before the incident, was dismissed at the end of the school year. The school said it was for poor performance, but the appeals court assumed that she had been fired for her comments and said the school had acted legally.
"Teachers hire out their own speech and must provide the service for which employers are willing to pay," a three-judge panel of the Seventh U.S. Circuit Court of Appeals said Jan. 24. "The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials."
Mayer, the court said, was told by her bosses that she could teach about the war "as long as she kept her opinions to herself." Like the Los Angeles district attorney's employee whose demotion led to the Supreme Court's 2006 ruling, the appellate panel said, Mayer had no constitutional right to say anything on the job that conflicted with her employer's policy.
Mayer's lawyer asked for a rehearing, saying the evidence was clear that the school had no such policy when Mayer answered the student's question. The court denied reconsideration in March without comment.
Mayer, who had taught for more than 20 years, couldn't afford to keep her Indiana home after being fired and left the state. She got another teaching job in Florida, but lost it after disclosing her previous dismissal, and didn't get another position until last fall.
As all parties to Mayer's case recognize, her statements would have been constitutionally protected and beyond the government's power to suppress if she had been speaking on a street corner or at a public hearing.
But in the classroom, as in the workplace, courts have upheld limits on speech. In both settings, past rulings have taken into account the institution's need to function efficiently and keep order, and the rights of co-workers and students not to be subjected to unwanted diatribes.
In 1969, the Supreme Court upheld a high school student's right to wear a black armband as a silent protest against the Vietnam War and barred schools from stifling student expression unless it was disruptive or interfered with education. The court retreated from that standard somewhat in a 1988 ruling upholding censorship of student newspapers, and will revisit the issue in a pending case involving an Alaskan student who was suspended for unfurling a banner outside the school grounds that read, "Bong Hits 4 Jesus."
The Supreme Court has never ruled on teachers' free speech. In lower courts, teachers have won cases by showing they were punished for violating policies that school officials never explained to them beforehand or invented after the fact. A federal appeals court in 2001 ruled in favor of a fifth-grade teacher in Kentucky who was fired for bringing actor Woody Harrelson to her class to discuss the benefits of industrial hemp, an appearance that school officials had approved.
But teachers who were on notice of school policies they transgressed have usually lost their cases. In one Bay Area case, in August 2005, a federal judge in San Jose rejected arguments by Cupertino elementary school teacher Stephen Williams that his principal had violated his freedom of speech by prohibiting him from using outside religious materials in history lessons.
Unless the Supreme Court takes up Mayer's case, its legal effect is limited to federal courts in Illinois, Indiana and Wisconsin, the three states in the Seventh Circuit. But Amar, the Hastings law professor, and others said the ruling could be influential elsewhere because there are few appellate decisions on the issue, and because the author, Chief Judge Frank Easterbrook, is a prominent conservative jurist.
"Very few schools are going to be that harsh in muzzling or silencing their teachers," but the ruling indicates they would be free to do so, Amar said.
Simpson, the National Education Association's lawyer, said the ruling, though within the legal mainstream, was bad for education because teachers are not "hired to read a script." The case might interest the Supreme Court, and the NEA will probably file a brief in support of Mayer's appeal should the justices take the case, he said.
Beverly Tucker, chief counsel of the NEA-affiliated California Teachers Association, said she doubts that federal courts in California would take as conservative a position as the court in Mayer's case. But she expects school districts to cite the ruling in the next case that arises.
"If I were a public school teacher, I would live in fear that some innocuous remark made in the classroom in response to a question from a pupil would lead to me being terminated" under such a ruling, Tucker said.
As for Mayer, she isn't sure what rankles her most -- the impact on her life, the stigma of being branded a rogue teacher, or the court's assertion that a teacher's speech is a commodity purchased by the government.
"My free speech," she said, "is not for sale at any price."
E-mail Bob Egelko at begelko@sfchronicle.com.
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/05/14/MNG9PPQGVV1.DTL
This article appeared on page A - 1 of the San Francisco Chronicle
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Mistaking Words for Weapons
The day after the Virginia Tech massacre, we noted that an earlier shooting at a Virginia campus had been cut short when a student with a legal handgun helped subdue the killer. We suggested that perhaps Virginia Tech officials' decision to designate their campus "gun-free" was not the wisest choice.
Well, it's a good thing we aren't still in college, and not only because we're way too old. If we were, we might have gotten into trouble just for employing our First Amendment rights to defend others' Second Amendment rights. It happened to Troy Scheffler, a 31-year-old graduate student at Hamline University in St. Paul, Minn., as City Pages, a local weekly, reports:
In the aftermath [of Virginia Tech], officials at Hamline University sought to comfort their 4,000 students. David Stern, the vice president for academic and student affairs, sent a campus-wide email offering extra counseling sessions for those who needed help coping.
Scheffler had a different opinion of how the university should react. Using the email handle "Tough Guy Scheffler," Troy fired off his response: Counseling wouldn't make students feel safer, he argued. They needed protection. And the best way to provide it would be for the university to lift its recently implemented prohibition against concealed weapons.
"Ironically, according to a few VA Tech forums, there are plenty of students complaining that this wouldn't have happened if the school wouldn't have banned their permits a few months ago," Scheffler wrote. "I just don't understand why leftists don't understand that criminals don't care about laws; that is why they're criminals. Maybe this school will reconsider its repression of law-abiding citizens' rights." . . .
On April 23, Scheffler received a letter informing him he'd been placed on interim suspension. To be considered for readmittance, he'd have to pay for a psychological evaluation and undergo any treatment deemed necessary, then meet with the dean of students, who would ultimately decide whether Scheffler was fit to return to the university. . . .
Scheffler obeyed the campus ban and didn't go to class, but his classmate, Kenny Bucholz, told him a police officer was stationed outside the classroom. "He had a gun and everything," Bucholz says.
Hey, wait. Why would the policeman need a gun? Oh yeah, for protection!
Political Journal WSJ
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'Bong Hits 4 Jesus' case limits student rights
WASHINGTON (CNN) -- The Supreme Court ruled against a former high school student Monday in the "Bong Hits 4 Jesus" banner case -- a split decision that limits students' free speech rights.
Joseph Frederick was 18 when he unveiled the 14-foot paper sign on a public sidewalk outside his Juneau, Alaska, high school in 2002.
Principal Deborah Morse confiscated it and suspended Frederick. He sued, taking his case all the way to the nation's highest court.
The justices ruled 6-3 that Frederick's free speech rights were not violated by his suspension over what the majority's written opinion called a "sophomoric" banner.
"It was reasonable for (the principal) to conclude that the banner promoted illegal drug use-- and that failing to act would send a powerful message to the students in her charge," Chief Justice John Roberts wrote for the court's majority. (Opinionexternal link)
Roberts added that while the court has limited student free speech rights in the past, young people do not give up all their First Amendment rights when they enter a school.
Roberts was supported by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer, and Samuel Alito. Breyer noted separately he would give Morse qualified immunity from the lawsuit, but did not sign onto the majority's broader free speech limits on students.
In dissent, Justice John Paul Stevens said, "This case began with a silly nonsensical banner, (and) ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, so long as someone could perceive that speech to contain a latent pro-drug message."
He was backed by Justices David Souter and Ruth Bader Ginsburg.
At issue was the discretion schools should be allowed to limit messages that appear to advocate illegal drug use. "Bong," as noted in the appeal filed with the justices, "is a slang term for drug paraphernalia."
The incident occurred in January 2002 just outside school grounds when the Olympic torch relay was moving through the Alaska capital on its way to the Salt Lake City, Utah, Winter Games.
Though he was standing on a public sidewalk, the school argued Frederick was part of a school-sanctioned event, because students were let out of classes and accompanied by their teachers.
Morse ordered the senior to take down the sign, but he refused. That led to a 10-day suspension for violating a school policy on promoting illegal drug use.
Frederick filed suit, saying his First Amendment rights were infringed. A federal appeals court in San Francisco agreed, concluding the school could not show Frederick had disrupted the school's educational mission by showing a banner off campus.
Former independent counsel Kenneth Starr argued for the principal that a school "must be able to fashion its educational mission" without undue hindsight from the courts.
Morse, who attended arguments in March, told CNN at the time: "I was empowered to enforce the school board's written policies at that time aimed at keeping illegal substances out of the school environment."
As for Frederick, he is halfway across the globe, teaching English to students in China.
Now 24, he told reporters in March that he displayed the banner in a deliberate attempt to provoke a response from principal Morse, by whom he had been disciplined previously. But Frederick claimed his message of free speech is very important to him, even if the wording of the infamous banner itself was not.
"I find it absurdly funny," he said. "I was not promoting drugs. ... I assumed most people would take it as a joke."
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In the world that the fuzzy wuzzies are twisting into something that indulges their soft lifestyle and weak spirit, freedom of speech only exists for those who have the backing of special interest groups. Not only SHOULD you be able to voice your opinion, you CAN ...it's only through years of PC indoctrination that peoples voices have been muted. Oh yeah, and we're developing into a society that can't think for itself. This goes hand in hand with the current growing crop of people believing, cause they haven't been told any different, that they have the right to happiness. It's the PERSUIT of happiness folks.
Just my random thoughts. I didn't assist in the decline of our civilization, but I refuse to be part of the problem. :x
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Conservative Group Challenges
Portions of Finance Law
By T.W. FARNAM
March 8, 2008; Page A4
A new conservative group has filed a lawsuit seeking to overturn some of the most basic parts of campaign-finance law.
The challenge, from a group calling itself SpeechNow.org, is the latest in a series of attempts to weaken the campaign finance system as money floods into politics in this campaign year.
The suit challenges laws that date back to the 1970s but also fits a pattern of blowback from the restrictions in the McCain-Feingold campaign finance law, co-sponsored by Sen. John McCain, the presumptive Republican presidential nominee. "McCain-Feingold was kind of the last straw for a lot of people," said SpeechNow.org founder David Keating, a long-time advocate for conservative causes. "No one understands what the law is anymore."
First Amendment Focus
The challenge, which was filed in federal district court in Washington, D.C., zeroes in on a requirement that if two or more individuals work together to push for -- or against -- a candidate for federal office, they must submit paperwork to become a political committee and abide by contribution limits. The Supreme Court has said the requirement doesn't apply to individuals acting alone because preventing a person from purchasing airtime to express an opinion about candidates would violate free-speech protections.
SpeechNow.org is charging that the restrictions on forming groups violate First Amendment rights to freedom of speech and association. The group's detractors say the contribution limits prevent corruption, but even some liberals are finding the case hard to discount completely.
"It's a significant constitutional challenge," said Bob Bauer, who heads the political law group for Perkins Coie LLP and a lawyer for Barack Obama's presidential campaign. "Especially with the courts we have now, the chances of success shouldn't be discounted."
In June, a 5-4 Supreme Court decision set aside federal restrictions on corporate- and union-funded broadcast ads that mentioned specific candidates in the weeks before an election. The Bush-appointed chief justice, John Roberts, gave heart to conservatives by saying that "enough is enough" and that the court "must give the benefit of any doubt to protecting rather than stifling speech."
Mr. Keating, who is moonlighting for SpeechNow.org while holding down a job as the director of the antitax advocacy group the Club for Growth, quickly found support for his new group from like-minded conservative Ed Crane, founder of the libertarian Cato Institute, and several rich donors.
One donor has even pledged more than $100,000 to SpeechNow.org, but the group hasn't been able to accept any donations beyond $1,000, the law's threshold for registering as a political committee.
With free legal help from two law organizations, the group is seeking an injunction in district court that would allow it to operate in the 2008 election.
A staff opinion of the Federal Election Commission said the group's plans were illegal under current law, and Wednesday, commission lawyers responded to the request for an injunction by writing that it wasn't warranted because the individuals could act independently.
If granted, the injunction would allow SpeechNow.org to produce and air attack advertisements against Rep. Dan Burton, an Indiana Republican and Sen. Mary Landrieu, a Democrat from Louisiana. The scripts for the ads challenge them for supporting increased campaign-finance restrictions.
"Politicians like Mary Landrieu don't like free speech," a script reads. As a jail cell slams shut on screen, an announcer adds that the McCain-Feingold law can imprison violators. "Hey, Mary Landrieu. This is America, not Russia."
A Landrieu campaign spokesman said the senator voted with 59 others "because she believes power should be situated with voters like ordinary Louisianans instead of with millionaires and billionaires."
The Supreme Court has previously upheld contribution limits with the goal of preventing "corruption or the appearance of corruption."
An individual can spend unlimited amounts of money advocating for or against candidates because the court has said it is a violation of free speech to restrict expenditures for ads or other communications. But once two or more people get together and raise more than $1,000, they can each contribute only as much as $5,000 annually to their group.
In its case, SpeechNow.org contends that there is no way large donations to it could lead to corruption because the group can't give to, or coordinate with, candidates.
Fred Wertheimer, the president of a group that advocates for restrictions on money in politics, thinks that publicly disclosed donations could corrupt politicians because they would know who had helped them. Also, political-advocacy groups often share officers who come in and out of campaigns and the government, making it easy for politicians to reward people for their support.
"The contribution limits are constitutional," Mr. Wertheimer said, adding that most independent groups are funded by people who used to give to the political parties until those contributions were banned by a law that was later upheld by the Supreme Court.
Mr. Wertheimer's group, Democracy 21, filed a friend-of-the-court brief earlier this week saying SpeechNow.org shouldn't be permitted to operate. In rejecting SpeechNow.org's request to prevent Democracy 21's filing, the court Thursday said that the free-speech group's brief to restrict opposition was filed "apparently without any sense of irony."
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WSJ
Foreign Law and the First Amendment
By FLOYD ABRAMS
April 30, 2008
Late in 1941, the U.S. Supreme Court issued an opinion which, for the first time in our history, starkly distinguished American protection of speech from that of England.
Two union members had been convicted of assaulting nonunion truck drivers. The day before they were to be sentenced, the Los Angeles Times published an editorial urging the trial judge not to grant probation, but to punish the transgressors severely: "This community," the editorial asserted, "needs the example of their assignment to the jute mill."
Getty Images
Contempt of court proceedings were brought against the newspaper. California law at the time, like that of other states, was rooted in English law, under which such commentary, aimed at a judge during a trial, constituted contempt. Under English law, both then and today, such speech is punishable by massive fines or even imprisonment.
In reversing the ruling of the California courts holding the newspaper in contempt, the Supreme Court set this country on a different course. "No purpose in ratifying the Bill of Rights was clearer," Justice Hugo Black wrote, "than of securing for the people of the United States much greater freedom of . . . expression . . . than the people of Great Britain had ever enjoyed."
Today, there are sharp distinctions between U.S. and English law. One difference is that under the First Amendment we provide far more protection for speech that is claimed to be libelous.
There is no need for democratic nations to agree upon such matters. The values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each.
But a serious problem has surfaced. In recent years, English libel law has come to have a disturbing impact on the right of Americans to speak out.
England has become a choice venue for libel plaintiffs from around the world, including those who seek to intimidate critics whose works would be protected in the U.S. but might not in that country. That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.
The case against Rachel Ehrenfeld in England by Saudi banker Khalid Bin Mahfouz is illustrative. Her 2003 book "Funding Evil: How Terrorism is Funded and How to Stop It" dealt at length with one of the most significant (and difficult and dangerous to research) topics – the funding of terrorism. The conduct of Mr. Bin Mahfouz as a possible funder of terrorism was one of the subjects discussed in the book, which was published in New York.
Twenty-three copies of the book were sold in England. On that slim basis, Mr. Bin Mahfouz sued there, claiming that his reputation had been gravely harmed.
Ms. Ehrenfeld (on the advice of English counsel) refused to appear before the English courts, and a judgment against her was entered in the amount of $225,000. At any time, Mr. Bin Mahfouz could seek to enforce that judgment. Whether or not he does, the harm to Ms. Enhrenfeld's reputation remains real.
She sought a declaratory judgment in New York determining that the English judgment was not enforceable here, and that her work was protected under American law. But the New York Court of Appeals determined that her suit could not be heard under state law. Any change in that law, the court concluded, was up to the New York legislature.
To the surprise of those who denigrate the ability of the New York legislature to act decisively, both the Assembly and its Senate have unanimously passed a bill that would give Ms. Ehrenfeld and other citizens who are sued for libel abroad the right to obtain a declaration here that their works are protected under American law.
Gov. David Paterson has until the end of today to decide whether or not he will sign the bill. Meanwhile, the Ehrenfeld saga has led Rep. Peter King (R., N.Y.) to propose federal legislation which would provide similar relief.
The need for such legislation has become very real – all the more so since English libel law is increasingly being used to limit public debate about terrorism. Mr. Bin Mahfouz has personally commenced or threatened to commence at least 30 law suits in England. This tactic has served him well in obtaining libel judgments that would be unthinkable as well as unconstitutional here. The danger is that other American writers and publishers will shy away from this crucial subject, out of fear of being sued far from home.
This is a reasonable concern as a good deal of litigation related to reporting on terrorism has been threatened or started in England by individuals who have limited contact with that nation, but who find its libel law congenial.
England should be free to choose its own libel law. But so should we. It is not too much to ask that American law should protect our people when they speak in precisely the "uninhibited, robust and wide-open" manner that the First Amendment was drafted to protect.
Mr. Abrams is a partner in the law firm of Cahill Gordon & Reindel LLP and the author of "Speaking Freely: Trials of the First Amendment" (Viking, 2005).
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The Reformers Who Ruined Politics
May 6, 2008; Page A22
Nearly halfway to choosing the next President, voters are witnessing an amazing spectacle in addition to the Barack Obama-Hillary Clinton scrum. All three of the contenders are avowed believers in ever more restrictive and convoluted campaign finance laws. They are also proving, with their every decision, why those laws have become a national farce.
With his fund raising headed for the stratosphere, Mr. Obama has transformed himself from earnest reformer to Senator Moneybags willing to renege on his pledge to accept public financing. Mrs. Clinton flirted initially with another donor scandal, and now her big givers are maxed out so even she has to scramble for cash for the later primaries. And John McCain, the caped crusader of reform for more than a decade, has taken to bending rules so he can remain competitive: His campaign pledged his eligibility for federal matching funds as collateral for a bank loan, then declined public funding and its spending limits for the primary season.
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If you don't like how this looks, send your complaints to the three candidates. They were all proponents of fund-raising rules sold as a way to "cleanse" the system. Send your complaints as well to the good-government types who pledge allegiance to the idea that money is the root of political evil. They have had their way since the Watergate era, passing reform after reform.
AP
George Soros
Yet in 2008 the role of money is more important than ever, only by means less accountable and transparent. To run for President nowadays means devoting a large share of your time to creating a fund-raising "machine." Scores of good potential candidates won't run because they can't stomach the endless wheedling required to raise campaign cash in $2,300 chunks.
If the goal was to make campaigning cheaper, that didn't work either. In the early 1990s, a respectable presidential primary campaign needed $20 million. Mr. Obama had raised more than $230 million by the end of March. He's to be congratulated for raising record numbers of small donations over the Internet. But the truth is that small donations still make up a minority of all contributions – 34% – according to the Campaign Finance Institute at George Washington University.
Not that we agree that the virtue of a donation is inversely related to its size. The stakes of a presidential race are high, and those with money and a motive cannot be kept on the sidelines in a free society (if it's to remain a free society). Whether as individuals or through unions or other organized groups, citizens have a First Amendment right to support their candidate – and they will find a way to do so.
Increasingly, they are turning to 527s and other independent political groups not covered under McCain-Feingold's 2002 restrictions. Between 2002 and 2004, spending by 527s more than doubled to $653 million, according to the Center for Public Integrity and the Center for Responsive Politics. At least $177 million of that came from 52 individuals who donated more than $1 million each. Total spending by independent political groups is expected to approach $1 billion by the end of this election.
The King Canutes of reform are outraged. Their answer is to stack new regulations on top of the current malfunctioning regulations they said would solve everything. Fred Wertheimer at Democracy 21, the godfather of this mess going back to the 1970s, now denounces the 527s, which he says create "enormous inequities."
Maybe he's referring to George Soros, his billionaire ally and fellow supporter of McCain-Feingold. Today Mr. Soros and his friends conduct a fleet of liberal 527s so broad that it is nearly untrackable. The reforms that were sold in the name of minimizing the influence of "fat cats" has made one of America's richest men among the most powerful in politics. The very reforms championed by Mr. McCain could help Mr. Soros defeat the Arizonan this year.
Another unsavory result has been deterring nonprofessional candidates from giving political lifers a run for their money. No one can realistically contemplate running for office without a team of lawyers to navigate the campaign laws. This year, to complicate matters further for the benefit of incumbents and insiders, those insiders are politicizing the Federal Election Commission that is supposed to enforce all of these rules. The FEC has been left without a quorum indefinitely, thanks to a Democratic charade over one of President Bush's nominees.
Last year, Mr. Obama placed a hold on the nomination of Hans von Spakovsky, on grounds that he had once supported a voter ID law in Georgia. Last week, a 6-to-3 Supreme Court majority agreed with Mr. von Spakovsky on voter ID. But don't expect that to sway Senate Majority Leader Harry Reid, who still refuses to confirm Mr. von Spakovsky as part of a traditional FEC nominee group of bipartisan pairs, or even to confirm two other FEC nominees without him. How convenient. Blocking an FEC quorum opens up maneuvering room for Democrats in a year when they have the financial advantage. They can count on their inventive campaign tactics receiving adjudication around, say, 2011.
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The Founding Fathers would have had no trouble detecting the absurdity of having political actors determine what does or doesn't constitute free political speech. The First Amendment was written precisely to deny politicians such control. The Supreme Court has nonetheless upheld the idea of limiting campaign contributions on grounds that it would reduce "corruption." But after 30 years of contrary evidence, the Justices should revisit that fanciful notion. Money is required in modern America to amplify political speech. Attempting to limit or ban money merely gives the advantage to those best able to game the rules, or to the news media that can make nonfinancial "contributions" via endorsements.
If this campaign proves anything, it is that more reform on the post-Watergate model will only compound the McCain-Feingold-Clinton-Obama folly. The rules themselves are the scandal, empowering the powerful and making it harder for voters to judge the indebtedness of candidates to individuals or interest groups.
The better path is more simplicity and transparency, so office seekers can raise whatever amount they can from whomever they want so long as it is reported immediately on the Internet. It's time we reclaimed politics from the reformers who ruined it.
See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.
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Justices for Free Speech
June 28, 2008; Page A10
It has been a splendid week for the Bill of Rights at the Supreme Court. In addition to their landmark gun rights ruling, the same five Justices took another whack at Congress's attempts to limit political speech via campaign-finance limits. John McCain, call your office.
In Davis v. FEC, a 5-4 majority overturned a portion of the 2002 McCain-Feingold law that exempted the political opponents of rich candidates from the usual fund-raising limits in order to "level the playing field." Known as the Millionaire's Amendment, the law saddled wealthy, self-financing candidates with burdens designed to help their opponents. Millionaires had to report expenditures within 24 hours, while their opponents were allowed greater coordination with political parties and could raise three times the usual $2,300 limit on individual contributions. Naturally, this idea came from Congressional incumbents who hate wealthy challengers.
The case was brought by Jack Davis, a New York Democrat who twice ran a self-financed campaign to oust Congressman Tom Reynolds. Mr. Davis's spending triggered the millionaire limits, despite Mr. Reynolds's well-stocked campaign bank accounts. Though he lost both times, Mr. Davis was fined by the Federal Election Commission for failing to report expenditures in the 24-hour window.
Reformers justify the special rules for millionaires by crying fairness – an argument that Justice Samuel Alito dispatched in his majority opinion. "The argument that a candidate's speech may be restricted in order to 'level electoral opportunities' has ominous implications," he wrote, and is "antithetical to the First Amendment."
If Congress can massage the rules to level the playing field for candidates of differing personal means, what's to stop Congress from doing it for other reasons and in other ways? Some candidates are celebrities, others have famous political names, and still others may be adored by the local newspaper. Should Congress level the field for their opponents too? No prior Court opinions, Justice Alito added, support the notion that reducing the "natural advantage" of rich candidates is a legitimate government objective.
The ruling puts in jeopardy similar attempts to favor some candidates over others in such states as Arizona and Maine. More important, it signals that five Justices on the current Court view campaign-finance limits with increasing skepticism.
Sooner or later, they are likely to run up against the Court's own original sin in this area, Buckley v. Valeo, which in 1976 first allowed fund-raising limits. They should also revisit McConnell v. FEC, which in 2003 upheld most of McCain-Feingold. The arrival of Justice Alito has clearly changed the Court's approach to these cases, and there may now be a majority to reassert the Court's obligation to protect political speech in a democracy.
As for Mr. McCain, we assume his campaign-finance travails this year have been educational. He became a media fave by embracing fund-raising limits as a cause, only to watch as the media now drops him for Barack Obama, who refuses to adhere to the same limits and so will vastly outspend the Republican in the fall. Such are the rewards of pursuing liberal admiration.
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The Erosion of Free Speech
By Janet Levy
FrontPageMagazine.com | Friday, July 04, 2008
Although the headline of the June 8th article in the Daily Times of Pakistan read “Pakistan to ask EU to amend laws on freedom of expression,” the request from high-level government officials was in reality a threat. The six-person Pakistani delegation was set to deliver a warning that unless blasphemy against Islam stopped, terrorist attacks against European assets could escalate. Their cited example was the suicide bomb attack this June 2 on the Danish Embassy in Pakistan in which eight people died and 27 were injured as a result of possible renewed backlash to the 2005 publication of 12 editorial cartoons depicting the Islamic prophet Mohammed.
Islamabad informed the European Union countries that the backlash to perceived insults to the “religion of peace” could jeopardize “inter-religious harmony” and result in uncontrollable attacks on other diplomatic missions abroad. A high-level delegation representing the Pakistani government was to travel to Brussels to further warn EU officials of the liabilities of free expression.
This apocryphal grandstanding, in which Islamabad seeks to eradicate free speech and reclassify it as an offensive hate crime, is part and parcel of the insidious Islamic effort to establish a worldwide Islamic caliphate under shariah law. Paradoxically, in most of the Muslim world, the right of free speech is nonexistent. Verbal and physical attacks on non-Muslims are rampant, as is death for apostates, terrorism training for youth, hate indoctrination of non-Muslims in mosques and schools and the oppression of Christians, Hindus and Jews. But Muslims feel free to use democratic precepts in the service of their own radical ideology to, ultimately, overthrow liberty, eliminate individual rights and destroy freedoms in Western societies. They seek prohibitions on free expression to strengthen Islam, pave the way toward Islamization and keep the Western public ill informed and unaware of potential threats to the democratic way of life. By couching this effort as merely the elimination of offensive speech, they conceal their true goal of undermining the laws of Western societies, specifically the very foundation of democracy – free speech.
This goal was dramatically illustrated in March of 2008, when the 57 Muslim states that make up the Organization of Islamic Conference (OIC) struck a blow against free speech by successfully forcing through the United Nation’s Human Rights Council (UNHRC) an amendment to a resolution on Freedom of Expression. The amendment, requiring extensive changes to the Universal Declaration of Human Rights, officially characterizes as abuse and an act of religious discrimination any criticism of Islam. It also calls for the UN Special Rapporteur on Freedom of Expression to report any individuals and news media issuing negative comments about Islam.
In June, this limitation on free speech was further underscored when representatives of two non-governmental organizations sought to address stonings, honor killings and female genital mutilation sanctioned under shariah law. As part of the effort to mute criticism of Islam, the Egyptian UNHRC delegate demanded that the speakers be silenced, proclaiming, “Islam will not be crucified in this Council.”
Thus, banned from UNHRC sessions is criticism of shariah laws that oppress women, condemn homosexuals and threaten converts and non-Muslims. Also banned are statements against Islamic law-sanctioned child marriage, honor killings, the hanging of homosexuals and the murder of apostates.
The United Nations is not the only front where Islamic gag orders are in place. Canada’s Human Rights Act, which defines hate speech as any speech “likely to expose a person or persons to hatred or contempt,” was used against Ezra Levant, the former publisher of The Western Standard, who was charged by the Alberta Human Rights and Citizenship Commission with offending Muslims by reprinting in 2006 the Danish cartoons of Mohammed. Thus, Canada is increasingly regulating opinion and making it a crime to hurt someone’s feelings. The right of free speech is being replaced by the right not to be offended.
Also in Canada, author Mark Steyn and MacLean’s magazine were charged by the Canadian Human Rights Commission of “spreading hatred and contempt” for Muslims by publishing in 2006 an excerpt from Steyn’s book, “America Alone.” The Canadian Islamic Congress filed a complaint with the commission, seeking to ban opinions such as Steyn’s that they deem “Islamophobic.” Steyn was charged with hate speech for using the term “Mohammedan” to describe Muslims and for failing to incorporate differing points of view in his writing. Although charges were dismissed in June this year, if they had been found guilty, financial penalties could have been assessed against MacLean’s, which would dampened opinion journalism throughout Canada. Yet, a Canadian investigator in the Steyn/MacLean’s case, when asked about the importance of free speech in his considerations, remarked, “Freedom of speech is an American concept, so I don’t give it any value.”
In the United Kingdom, two Christian clerics were recently prohibited from preaching and handing out biblical tracts in a “Muslim area.” In an ironic twist, a Muslim police officer charged with upholding British law accused the ministers, technically agents of the Church of England, of perpetuating a hate crime by proselytizing. Thus, an officer charged with maintaining law and order in England prevented the preaching of the doctrine of the established faith of England. Curiously, this event occurred at a time in which the UK is accelerating the hiring of British police officers in Muslim areas in order to “build bridges” with the Islamic community.
Last month, when the Bishop of Rochester warned that Britain was developing “no-go zones” that are the exclusive province of Muslims, he was denounced as Islamophobic. His fellow bishops and government ministers denied the existence of such Muslim-only areas. The Bishop and his family were placed under police protection after receiving death threats at home warning that he would not “live long” if he continued to criticize Islam.
Yet, “no-go” zones do exist and are apparently being preserved by agents of the British state. They are areas where it is dangerous for non-Muslims to enter, as demonstrated in 2006, when former Home Secretary John Reid was heckled by Islamist Abu Izzadeen who cried, “How dare you come to a Muslim area.”
In January, 2007, the UK government again ignored its illustrious heritage of freedom of expression and undertook an investigation of a television broadcast of the documentary, “Undercover Mosque.” The program contained footage of radical imams in British mosques spewing hatred of Christians and Jews, advocating the subjugation and beating of women and praising Osama Bin Laden. Other footage included a Taliban who had killed a British soldier and Muslim clerics advocating Islamic supremacy, suggesting that homosexuals should be killed, calling for jihad and justifying the July 7th London bombings.
Instead of scrutinizing the mosques and calling for an end to such hateful and inflammatory rhetoric, British authorities, bowing to pressure from terrorist-sympathizing groups such as the Muslim Public Affairs Committee, the Muslim Council of Britain and others, denounced the program as “Islamophobic.” Local police solicited the services of the Crown Prosecution Services (CPS), which launched an extensive investigation of the network, scrutinizing 56 hours of media footage for possible prosecution under the Public Order Act of 1986: showing inflammatory material likely to stir racial hatred.
Eventually, the investigation concluded that, although the CPS believed that the editing process had “completely distorted” the sermons of the Muslim clerics, the police were advised to drop their criminal investigation due to insufficient evidence to substantiate charges of incitement.
Essentially, “Undercover Mosque” was an important story to potentially alert the British public to the threat of a fundamentalist ideology endemic throughout the British Islamic community. Unfortunately, it was discredited by the police who, in a misguided attempt to prevent Muslim backlash in the community, were placed in the untenable position of supporting radical Islamists and opposing British free speech.
Thus, as Islamic calls to prayer ring loudly throughout England from an ever-increasing number of imposing mosques, Christianity, individual freedom and the British identity are being marginalized while Islam is permitted free rein to fill the void.
Within the United States, important dialogue about the threat of radical Islam was silenced by the Department of Homeland Security and the State Department which issued a memo in May instructing bureaucrats on how to talk about the “war on terror.” The memo called for restrictions on terrorist-defining nomenclature in accordance with recommendations from American Muslims. Thus, definitive and descriptive words such as “jihad,” mujahadeen,” “Islamic terrorist,” “Islamist,” or “holy warrior” were to be avoided, even though Muslims and Muslim media worldwide use this very terminology.
The government memo also advised that the war on terror be renamed a “global struggle for security and progress.” This change, undertaken to avoid glamorizing the appeal of Islamist ideology and reduce terrorist recruitment, came about after the Secretary of Homeland Security solicited assistance from American Muslims. These newly proposed “speech codes” were advanced with the intent of eliminating the appeal of the virulent ideology of Islamism. Thus, the State Department and the DHS advanced the idea that terminology used by the government could fan the flames of radicalism, yet totally ignored the impact of violent rhetoric common in mosques across the country and on the Internet. Instead, the government focused on curtailing the speech of public servants charged with preserving our national security and accommodated the demands of Muslims. Lost was the opportunity for effective communication to inform and alert the American public of the Islamist threat.
Another instance of DHS curtailment and accommodation of Muslims, occurred when Muhammad Rana, a Pakistani Muslim and new DHS hire was being trained as an adjudication officer at the agency’s Federal Law Enforcement Training Center (FLETC). Rana participated in a seven week training course in which he claimed to have faced discrimination based on his religion and national origin. In a March 2005 complaint filed with the Equal Employment Opportunity Commission (EEOC), Rana said the instructional content of his classes contained “disparaging and factually inaccurate information about the Islamic faith and the Arabic people.” His in-class protests apparently prompted an instructor to recommend that Rana be investigated for possible terrorist ties. An administrative law judge ruling found that Rana had been subject to a hostile work environment and ordered $50,000 in compensatory damages, $6,195 in missed overtime, reimbursement for medical and prescription medication costs incurred as a result of the hostile work environment and, most significantly, the removal and destruction of and DHS memoranda regarding Rana’s potential ties to terrorist organizations. Ultimately, the course in question was discontinued by the DHS.
In these ways, our constitutional right to freedom of expression is being eroded and our democratic principles are being used against us to silence our concerns. With increasing frequency, free speech is being regulated, banned or categorized as a hate crime through intimidation tactics and apocryphal human rights concerns. We have come to the point where publishers have volunteered to pulp or alter the text of books to avoid lawsuits. Major newspapers freely chose not to publish the controversial Mohammed cartoons. Some organizations that have weathered costly slander lawsuits designed to silence them, have become cautious about weathering other suits that could cost them their insurance coverage.
None of this is coincidental. It is explained in “The Project,” a strategic planning document of the Muslim Brotherhood (MB) written in 1982 but captured in a raid in Switzerland in 2001. It describes a long-term plan to take over the West, a roadmap to defeating the West through propaganda, infiltration and jihad using intimidation, subterfuge and influence operations. The MB master plan calls for Muslims to take advantage of constitutional freedoms and societal openness and seek employment in every sector of American society, including sensitive civil institutions, law enforcement, politics, the media and others. In addition to individual Muslims, many seemingly mainstream and “respected” U.S. Muslim organizations, some active in America since the 1960’s, are affiliated with the Muslim Brotherhood and are actively involved in carrying out its mission of “destroying Western civilization from within and sabotaging its miserable house so that Allah’s religion is victorious over all other religions.”
Thus, the very nature of our republic is being challenged by a redefinition of our First Amendment to appease the demands of Islamists seeking to destroy us. Sadly, as we accommodate the Islamists, we are capitulating to their violent ideology and discriminatory religious practices and losing our precious rights and freedoms. In this way, we become partners in our own demise and hasten the downfall of the free societies we profess to cherish in the West.
Janet Levy is the founder of ESG Consulting, an organization that offers project management, fundraising, promotion, event organizing and planning services for conservative political causes and issues related to terrorism and national security.
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Islamists' Catch-22
By Frank J. Gaffney Jr.
FrontPageMagazine.com | Tuesday, July 08, 2008
Try a little thought experiment. What would have happened in this country during the Cold War if the Soviet Union successfully neutralized anti-communists opposed to the Kremlin’s plans for world domination?
Of course, Moscow strove to discredit those in America and elsewhere who opposed its totalitarian agenda – especially after Sen. Joseph McCarthy’s excesses made it fashionable to vilify patriots by accusing them of believing communists were “under every bed.”
But what if the USSR and its ideological soul-mates in places like China, North Korea, Cuba, Eastern Europe and parts of Africa had been able to criminalize efforts to oppose their quest for the triumph of world communism? What if it had been an internationally prosecutable offense even to talk about the dangers inherent in communist rule and the need to resist it?
The short answer is that history might very well have come out differently. Had courageous anti-communists been unable accurately and forcefully to describe the nature of that time’s enemy – and to work against the danger posed by its repressive, seditious program, the Cold War might well have been lost.
Flash forward to today. At the moment, another totalitarian ideology characterized by techniques and global ambitions strikingly similar to those of yesteryear’s communists is on the march. It goes by varying names: “Islamofascism,” “Islamism,” “jihadism” or “radical,” “extremist” or “political Islam.” Unlike the communists, however, adherents to this ideology are making extraordinary strides in Western societies toward criminalizing those who dare oppose the Islamist end-state – the imposition of brutal Shariah Law on Muslims and non-Muslims alike.
Consider but a few indicators of this ominous progress:
--In March, the 57 Muslim-state Organization of the Islamic Conference (OIC) prevailed upon the United Nations Human Rights Council to adopt a resolution requiring the effective evisceration of the Universal Declaration of Human Rights. Henceforth, the guaranteed right of free expression will not extend to any criticism of Islam, on the grounds that it amounts to an abusive act of religious discrimination. A UN Special Rapporteur on Freedom of Expression has been charged with documenting instances in which individuals and media organizations engage in what the Islamists call “Islamophobia.” Not to be outdone, the OIC has its own “ten-year program of action” which will monitor closely all Islamophobic incidents and defamatory statements around the world.
--Monitoring is just the first step. Jordan’s Prosecutor General has recently brought charges against Dutch Parliamentarian Geert Wilders. According to a lawsuit, “Fitna” – Wilders’ short documentary film that ties certain Koranic passages to Islamist terrorism – is said to have slandered and insulted the Prophet Mohammed, demeaned Islam and offended the feelings of Muslims in violation of the Jordanian penal code. Mr. Wilders has been summoned to Amman to stand trial and, if he fails to appear voluntarily, international warrants for his arrest will be issued.
Zakaria Al-Sheikh, head of the “Messenger of Allah Unites Us Campaign” which is the plaintiff in the Jordanian suit, reportedly has “confirmed that the [prosecutor’s action] is the first step towards setting in place an international law criminalizing anyone who insults Islam and the Prophet Mohammed.” In the meantime, his campaign is trying to penalize the nations that have spawned “Islamophobes” like Wilders and the Danish cartoonists by boycotting their exports – unless the producers publicly denounce the perpetrators both in Jordan and in their home media.
--Unfortunately, it is not just some companies that are submitting to this sort of coercion – a status known in Islam as “dhimmitude.” Western officials and governmental entities appear increasingly disposed to go along with such efforts to mutate warnings about Shariah law and its adherents from “politically incorrect” to “criminally punishable” activity.
For example, in Britain, Canada and even the United States, the authorities are declining to describe the true threat posed by Shariah Law and are using various techniques to discourage – and in some cases, prosecute – those who do. We are witnessing the spectacle of authors’ books being burned, ministers prosecuted, documentary film-makers investigated and journalists hauled before so-called “Human Rights Councils” on charges of offending Muslims, slandering Islam or other “Islamophobic” conduct. Jurists on both sides of the Atlantic are acceding to the insinuation of Shariah law in their courts. And Wall Street is increasingly joining other Western capital markets in succumbing to the seductive Trojan Horse of “Shariah-Compliant Finance.”
Let’s be clear: The Islamists are trying to establish a kind of Catch-22: If you point out that they seek to impose a barbaric, repressive and seditious Shariah Law, you are insulting their faith and engaging in unwarranted, racist and bigoted fear-mongering. On the other hand, pursuant to Shariah, you must submit to that theo-political-legal program. If you don’t, you can legitimately be killed. It is not an irrational fear to find that prospect unappealing. And it is not racist or bigoted to decry and oppose Islamist efforts to bring it about – ask the anti-Islamist Muslims who are frequently accused of being Islamophobes!
If we go along with our enemies’ demands to criminalize Islamophobia, we will mutate Western laws, traditions, values and societies beyond recognition. Ultimately, today’s totalitarian ideologues will triumph where their predecessors were defeated.
To avoid such a fate, those who love freedom must oppose the seditious program the Islamists call Shariah – and all efforts to impose its 1st Amendment-violating blasphemy, slander and libel laws on us in the guise of preventing Western Islamophobia.
Frank J. Gaffney, Jr. is the founder, president, and CEO of The Center for Security Policy. During the Reagan administration, Gaffney was the Assistant Secretary of Defense for International Security, the Deputy Assistant Secretary of Defense for Nuclear Forces and Arms Control Policy, and a Professional Staff Member on the Senate Armed Services Committee, chaired by Senator John Tower (R-Texas). He is a columnist for The Washington Times, Jewish World Review, and Townhall.com and has also contributed to The Wall Street Journal, USA Today, The New Republic, The Washington Post, The New York Times, The Christian Science Monitor, The Los Angeles Times, and Newsday.
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http://hotair.com/archives/2008/07/08/why-do-congressional-democrats-fear-free-speech/
Why do Congressional Democrats fear free speech?
POSTED AT 6:30 PM ON JULY 8, 2008 BY ED MORRISSEY
Efforts in both chambers of Congress have Republicans wondering why Democrats seem to fear free speech. Rep. Michael Capuano (D-MA) has proposed limitations on how Representatives can post information to the Internet in a time when we should be demanding more transparency, not less. According to a source in the Senate, Dianne Feinstein has begun her own campaign to force Senators to seek permission before communicating over the Internet.
Soren Dayton at The Next Right has the story from the House:
In typical fashion, House Democrats are trying to pass rules that stifle debate and require regulation. Rep. Michael Capuano (D-MA) sent a letter to the Chairman of the Committee on House Administration Robert Brady (D-PA). The letter is a response to a debate about whether the House should allow members to use YouTube, first raised by Rep. Kevin McCarthy back in April. …
Well, Capuano’s proposal is a disaster. It creates a list of sites, maintained by the Committee on House Administration that members are allowed to post material. Except, those sites have a caveat:
To the maximum extent possible, official content should not be posted on a website or page where it may appear with commercial or political information or any other information not in compliance with the House’s content guidelines.
In the Senate, the problem gets even worse. Feinstein (D-CA) would have the Rules Committee act as a censor board, forcing members to get approval for the act of communicating on external websites. Further, it would appear that the Feinstein proposal would attempt to exercise editorial control over these sites, at least indirectly.
As my source put it, these are the key issues:
Under their scheme, the Senate Rules Committee would become the Internet speech police for everyone in the Senate.
It will be up to the committee to “sanction” which websites and forms of communication they deem appropriate.
The Rules Committee thus gets to pick winners and losers among various websites in terms of which are appropriate for use.
The Rules Committee would get to regulate communication through any site not ending in “senate.gov,” which would include sites like YouTube, Facebook, and Twitter.
Further, this could jeopardize guest posts at sites like RedState and Townhall.
The Rules Committee would require senators to moderate “any public commentary” which would likely mean regulating comments on guest posts and YouTube videos, among other things.
It also raises a number of questions:
Would this rule extend beyond comments to posts on the site?
Would it affect Slatecard & BlogAds?
How about something like The Ed Morrissey Show, which has a live chatroom? Would that have to be moderated?
The Rules Committee would get to act as the “Content KGB” since it can require the removal of content in violation of Senate Rules. And who determines what’s in violation? The Rules Committee.
There are no similar controls on any other form of communication with the public, such as publishing op-eds in newspapers or appearing on radio or television.
The sudden interest in silencing Congress goes right along with the brand-new 9% approval rating the Democratic leadership has earned Congress. Imagine how much worse it will get when they gag their members and force an end to communication through policy sites, blogs, and Internet media.
Want to ask Feinstein what she’s thinking? Be sure to e-mail her through her website or call the Senate Rules Committee at 202-224-6352 to express your support for free speech and transparency. Ask them what they have to hide that the 9% of Americans who still support them shouldn’t find out.
Update: And let’s not forget Feinstein’s other policy goal — re-establishment of the Fairness Doctrine. Hmmmm. Can we detect a pattern here?
Update II: Soren had the identity of the House Administration Committee chair. It’s Robert Brady, not Kevin Brady, a Republican from Texas. I’ve updated the reference in the quoted material.
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I really hope they loose their tax exempt status
http://www.washingtonpost.com/wp-dyn/content/article/2008/09/07/AR2008090702460_pf.html
Ban on Political Endorsements by Pastors Targeted
By Peter Slevin
Washington Post Staff Writer
Monday, September 8, 2008; A03
CHICAGO -- Declaring that clergy have a constitutional right to endorse political candidates from their pulpits, the socially conservative Alliance Defense Fund is recruiting several dozen pastors to do just that on Sept. 28, in defiance of Internal Revenue Service rules.
The effort by the Arizona-based legal consortium is designed to trigger an IRS investigation that ADF lawyers would then challenge in federal court. The ultimate goal is to persuade the U.S. Supreme Court to throw out a 54-year-old ban on political endorsements by tax-exempt houses of worship.
"For so long, there has been this cloud of intimidation over the church," ADF attorney Erik Stanley said. "It is the job of the pastors of America to debate the proper role of church in society. It's not for the government to mandate the role of church in society."
Yet an opposing collection of Christian and Jewish clergy will petition the IRS today to stop the protest before it starts, calling the ADF's "Pulpit Initiative" an assault on the rule of law and the separation of church and state.
Backed by three former top IRS officials, the group also wants the IRS to determine whether the nonprofit ADF is risking its own tax-exempt status by organizing an "inappropriate, unethical and illegal" series of political endorsements.
"As religious leaders, we have grave concerns about the ethical implications of soliciting and organizing churches to violate core principles of our society," the clergy wrote in an advance copy of their claim obtained by The Washington Post.
The battle over the clergy's privileges, rights and responsibilities in the political world is not new. Politicians of all stripes court the support -- explicit or otherwise -- of religious leaders. Allegations surface every political season of a preacher crossing the line.
What is different is the Alliance Defense Fund's direct challenge to the rules that govern tax-exempt organizations. Rather than wait for the IRS to investigate an alleged violation, the organization intends to create dozens of violations and take the U.S. government to court on First Amendment grounds.
"We're looking for churches that are serious-minded about this, churches that understand both the risks and the benefits," Stanley said, referring to the chance that they could lose their coveted tax-exempt status or could set a precedent.
Stanley said three dozen church leaders from more than 20 states have agreed to deliver a political sermon, naming political names.
"The sermon will be an evaluation of conditions for office in light of scripture and doctrine. They will make a specific recommendation from the pulpit about how the congregation would vote," he said.
"They could oppose a candidate. They could oppose both candidates. They could endorse a candidate. They could focus on a federal, state or local election."
Such endorsements are prohibited by a 1954 amendment to the Internal Revenue Code that says nonprofit, tax-exempt entities may not "participate in, or intervene in . . . any political campaign on behalf of any candidate for public office."
In a Sept. 3 letter to two United Church of Christ pastors in Ohio who are organizing the challenge to the ADF, Stanley appealed to them, "as one Christian brother to another," to abandon their criticism. He asserted a "constitutional right to speak freely from the pulpit" and said IRS rules "stifle religious expression."
Former IRS lawyer Marcus S. Owens, however, opposes the ADF's strategy and its legal reasoning. Working with the Ohio-based clergy, he contends that the Supreme Court would be unlikely to overturn appellate court rulings on the issue or a related precedent of its own.
Owens also criticizes ADF and its lawyers for "actively advising churches and pastors that they should violate the tax law and offering to explain how to do that. The tax system would be shut down if you allowed attorneys to counsel people on how to violate the tax law."
Owens, a former director of the IRS office that regulates tax-exempt organizations, will ask the tax agency to investigate ADF lawyers for "this flagrant disregard of the ethical rules." He is joined by former IRS commissioner Mortimer M. Caplin and Cono R. Namorato, who headed the office of professional responsibility at the IRS until 2006.
The two Ohio pastors, the Rev. Eric Williams and the Rev. Robert F. Molsberry, have called for hundreds of clergy to preach on Sept. 21 about the value of the separation of church and state.
Joe Conn, a spokesman for Americans United for Separation of Church and State, calls "Pulpit Freedom Sunday" a "stunt" that is part of an effort by the religious right to build a church network that will "put their candidates into office. It's part of the overall game plan."
"This is an extraordinarily reckless scheme that they are promoting," Conn said. "The federal tax law is clear. Churches are charitable institutions that exist to do charitable things. That does not include politics. Political groups do politics."
The Alliance Defense Fund is a legal consortium that considers itself the antithesis of the American Civil Liberties Union. It spends more than $20 million a year to underwrite legal battles and train lawyers to push the country in socially conservative directions.
Founded in 1994 by Christian conservatives including James C. Dobson of Focus on the Family and William R. Bright, founder of Campus Crusade for Christ, the ADF has challenged same-sex marriage initiatives, stem cell research and rules that limit the distance protesters must keep from abortion patients. It helped the Boy Scouts ban gay Scout leaders.
Defining its latest mission, the ADF declared that pastors have "too long feared" the loss of tax exemptions.
"We're not encouraging any congregation to violate the law," Stanley said. "What we're encouraging them to do is exercise their constitutional right in the face of an unconstitutional law."
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"I really hope they loose (sic) their tax exempt status".
Although I can understand their emotion, I agree with you that tax money should not be used.
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Does Obama's church lose it's tax exempt status for "God damn America!" and other political sermons?
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GM,
If you endorse a candidate from the pulpit you should loose your tax-exempt status.
However I don’t think you should loose your tax-exempt status for either praying for or damning your country and its leaders. Why is praying for your country and its leaders less political than damning it. I do the morality of those two options to be very different. Did Obama’s former church ever endorse a politician from the pulpit. Abortion issues are political issues should religious organizations not be able to talk about them either?
I wouldn’t particular be sad if Obama’s former church lost its tax exempt status
In fact I could see value in changing the law so that all religious organizations loose their tax-exempt status even though I personally get a nice tax deduction for my contributions to my synagogue. Huge mega-church compounds having tax exempt status bothers me.
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I note that Obama's church had him and Louis Farrakhan on the cover of the church's magazine multiple times. That sure seems like political advocacy to me.
Imagine the army of IRS employees it would take to monitor the nation's religious institutions for signs of political advocacy.....
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Schumer’s Fairness Doctrine fatuity
Published by Briggs at 6:37 am under Philosophy, Politics
First listen to the appalling Chuck Schumer responding to a question about the proposed Fairness Doctrine (link from Unfair Doctrine):
[youtube]http://www.youtube.com/watch?v=htD_-A7pDhw&eurl=http://dogbrothers.com/phpBB2/index.php?topic=1718.0[/youtube]
Let’s summarize. He said:
I think we should all try to be fair and balanced, don’t you?
[Radio broadcasts]: It’s not like printing a broadside…Do you think we should allow people to put pornography on the air? Absolutely not.
The very same people who don’t want the Fairness Doctrine, want the FCC to limit pornography on the air.
But you can’t say “Government, Hands off” in one area to a commercial enterprise, “But you’re allowed to intervene in another.” That’s not consistent.
Schumer is treasure trove to people like me who are always on the lookout for examples of appallingly bad reasoning to use for teaching students logic. Almost any Schumer speech can be milked for at least one lesson—you could probably get half a semester from this bare minute.
Now, nobody knows what any new Fairness Doctrine might be since it is now in its “trial balloon” phase. But we can look to an earlier, abandoned incarnation of it for some clues. We can also glean hints from Schumer’s words.
Schumer thinks we should try to be “Fair & Balanced.” A fine thing, but not something that can be mandated. This is not a question of opinion or morality. For example, supposed on some matter the truth is A (where this is some argument or proposition about a decision we have to make). I set up a newspaper to tout A. Another group, unhappy with the reality of A, says “B is better because it shows we care.” But since A is true, it is absurd for me to publish anything else. It is even more absurd for the government to threaten me with criminal liability for my refusal to explain the merits of B.
Of course, we don’t often know the truth of some thing, but we can make a rational guess. It might be, conditional on some evidence, that A is nearly true, or more than likely true, and that every other alternative to A is less likely to be true. Again, it is absurd for me to publish anything else, and equally or more absurd for the government to intervene.
Can the government ban certain opinions from being published? The answer is yes. In certain circumstances, it is rational to proscribe behavior. Some examples: calls for armed insurrection, pleas for murder or other crimes, for sedition and so on. It is not only right the government should ban these, but it is its duty to do so. The exact limits of opinion that can and should be banned are, of course, unknown, and will be, in some cases, flexibly defined. But in no case does it make sense for the government to say, “Ok, make your plea for murdering the president, but you also have to allow Mr X 5 minutes to offer his counter opinion.” The ludicrousness of any such an argument is apparent. In short, either an idea is banned or it is allowable (a trivial tautology, but one that bears mentioning).
It does not follow that because the vast majority of Americans want to ban or limit pornography from being broadcast, that the government can ban, limit, or regulate any other opinion. Whether or not it is right to ban or limit certain opinions, or what constitutes the definition of those opinions, it does not follow—it is idiotic to propose—that the government should allow airing of the controversial opinion but then require the broadcaster provide time for counter opinions. If that were the case, then we could have a station air Deep Throat followed by a plea for proper dental hygiene.
Proper dental hygiene? Why not “The evils of pornography”? Why not, indeed. Now comes the easiest refutation of any implementation of a Fairness Doctrine. Suppose I say “A is true!” The government wants to say, “You may say A is true, but I mandate that you allow fair time for opponents of A. You shall also bear the expense of this.” Who are the legitimate opponents of A? Those that say B? C?, D, E, F…?
This is the meat of it, friends. Pay attention. In order to enforce any “Fairness” Doctrine, the government will be forced to define the opposite of A. Because, for any matter that is uncertain, there are an infinite or certainly an enormously huge number of alternatives to A. You cannot, in finite time, broadcast every alternative to A even if you wanted to. The only way to mandate broadcasting alternatives to A is by the government dictating—and dictating requires a dictator—what those alternatives are.
For example, in the earlier incarnation of this naked power grab, a prominent person who was “attacked” on the air was to be allowed time to offer his defense. What defines an “attack”? Does any negative opinion about the Great Leader in power constitute an “attack”? The Great Leader proposes a tax increase, and a broadcaster says, “This will negatively effect credit and so make it more difficult to get home loans.” Is this an “attack”? Who can say? The government wants to say. In fact, it must say.
There is no way around this fact: the government must get into the business of defining what an “attack” is, what are its limits, and so on. There is no alternative if you require a Fairness Doctrine. There must come into an existence an office to administer Fairness (I propose “Ministry of Truth”).
Of course, many, like Schumer, would like nothing better than to be in the business of defining what are the limits of opinion on political matters. The reason for this is obvious as it is odious.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It is impossible for any Fairness Doctrine to be consonant with those words. It is not a debatable point: it is logically impossible. Unless, as Schumer and other advocates of the “living constitution” want to do, you change the meaning of the plain-English words “Congress shall make no law prohibiting the free exercise of the press.” They must interpret this to mean “Congress shall make no law prohibiting the free exercise of the press unless that law allows us to respond to people who hurt our feelings or otherwise pick on us, or that the speech printed or broadcast is hateful.” This is so absurd that I am shocked that anybody but an academic could ever think it.
Well, that’s enough. I’m already sick of this. There are no subtleties involved in this argument, not anywhere. To see these power-hungry politicians licking their chops over the possibilities due to them because of their recent electoral victory is truly frightening.
Sigh. I didn’t even get to the obvious logical absurdity in Schumer’s phrase “But you can’t say…” I’ll leave that for homework.
http://wmbriggs.com/blog/2008/11/10/schumers-fairness-doctrine-fatuity/
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Schumer is an anus par excellence.
Looking at the bright side, if the Dems go for reimposing the FD, I think it is a really good issue for the Republicans , , , as long as we win on it. Losing on the FD would be bad, very bad.
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Most all of the bad decisions from the dems are problems, but survivable. The FD seriously threatens our core freedoms.
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The expression 'putting the toothpaste back into the tube' applies mostly to the difficulty of ending liberal programs (IMO) but I think it applies perfectly to reimposing 'the fairness doctrine'. I can't imagine that the most liberal of voters would now think they need to curtail the expression of dissenting views after such a big political win. Besides, it wouldn't work unless the internet was regulated as well. I think it would only raise their public importance if voices like Rush L. were banned from the airwaves to make room for elevator music and breaking news on the home and garden front.
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I would expect the net to be regulated as well.
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Is that even possible?
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China tries to do so with a degree of success (think Olympics and protest coverage), but it's a losing game over the long term. It'd be like the war on drugs 2.0: you criminalize a large portion of your population and drop a lot of your wealth into enforcement efforts. Not saying it couldn't happen, but the US would have to take the Orwellian turn the UK is flirting with and then widely deploy a lot of nanny state software and hardware.
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http://pajamasmedia.com/blog/will-media-freedom-suffer-under-dems/
- Pajamas Media - http://pajamasmedia.com -
Media Freedom to Suffer Under Dems
Posted By Bernard Chapin On November 3, 2008 @ 12:30 am In . Positioning, Blogosphere, Computers, Elections 2008, Free Speech, Internet, Media, Politics, Science & Technology, US News | 61 Comments
The main question in light of the coming election is “what will Barack Obama do?” Should he become president, great — and totally undesirable — change awaits America. Brian Anderson and co-author Adam Thierer in their newly released book, [1] A Manifesto for Media Freedom, answer this question. The authors elucidate the impact a Democrat-dominated government will have on our personal freedoms. The portrait they paint is reminiscent of Titian’s [2] Salome with the Head of John the Baptist — except the head of conservatism appears in John’s place. They warn that the damage to free speech arising from leftist domination of our government will be both severe and oppressive. Thankfully, Mr. Anderson found time to answer a few queries about our haunted future. Mr. Anderson is the editor of [3] City Journal, which is among the most insightful and generative of conservative publications. Previously, he wrote [4] Democratic Capitalism and Its Discontents and [5] South Park Conservatives: The Revolt Against Liberal Media Bias.
BC: Congratulations on the release of your new book, Mr. Anderson. It’s your second release in a year’s time. First off, what is the Fairness Doctrine and how close are we to its becoming viable?
Brian Anderson: Thanks, Bernard. The Fairness Doctrine was an old regulation of the Federal Communications Commission dating back in various forms to 1929 and officially codified in the late 40s. It would rule broadcast media until Ronald Reagan’s FCC got rid of it in 1987, seeing it as suppressing free speech. It required radio and later broadcast television stations to cover issues of interest to the community in which it could be heard or watched and to provide airtime to opposing viewpoints. Lack of compliance meant potential fines and ultimately loss of license.
When the Fairness Doctrine was gone, talk radio exploded — going from only 100 or so talk shows of any kind in the early 80s to the thousands that exist today and that draw big audiences. It turns out that the doctrine did suppress speech on the airwaves. Stations didn’t want the hassle of government regulators looking over their shoulder and so they shied away from controversial opinion. Adam Thierer and I show in the book how, from the outset, the Fairness Doctrine was used by politicians to harass their critics on radio and TV. It is a too-tempting power to abuse.
Its reintroduction — an idea supported enthusiastically by Democratic Party leaders, including Nancy Pelosi, John Kerry, and Al Gore — would destroy talk radio, the one medium that conservative and libertarian voices dominate. Obama claims not to want to restore it, but it is hard to imagine him vetoing a bill if Congress delivered him one. And the media reforms he does aggressively support, including imposing new local accountability measures on broadcasters, would amount to much the same thing. As sketched out by Democrats, stations would be subjected to renewing their license every two years, instead of eight, which is today the case, and would have to include in the re-licensing process the input of local community monitoring boards, which would swiftly be taken over by activists, since other people actually have to work.
BC: Is there a difference between the political left and the political right’s approach to free speech?
Brian Anderson: Conservatives have traditionally sought to suppress pornography and vulgarity, of course; the political left has done this too — one of the leading advocates of regulating the video game industry, for example, is Hillary Clinton — but it adds to that a scary desire to control political speech completely at odds with the ideals of the American Founders. Controlling political speech is to suppress criticism. A world in which conservative talk radio was a diminished presence would be a world in which liberals could enact their preferred legislation more easily, whether this was higher taxes, further restrictions on campaign finance — which John McCain has always promoted, but which the left has been the prime driver of — and on and on. A clampdown on talk radio would empower the unregulated print media, which leans left; there are many liberals today who long for the pristine time when all those nasty voices weren’t on the air and everyone got up and read their New York Times and had dinner with CBS News. There’s a play getting good reviews in New Jersey, Fair and Decent, which, believe it or not, is all about how the Fairness Doctrine was defeated, giving birth to what the playwright, Thomas Diggs, sees as a new dark era of Limbaughs and Hannitys.
BC: You’ve no doubt witnessed the tactics of the Obama campaign in relation to its foes. For example, they attempted to take Chicago talk show host Milt Rosenberg off the air when he dared to interview Obama critics David Freddoso and Stanley Kurtz — not to mention its ongoing and fervent war against Dr. Jerome Corsi. Has his strategy on the election trail foreshadowed what he’ll do should he get into office?
Brian Anderson: I think it very much does. When the NRA released some ads in Pennsylvania taking Obama to task for his gun voting record, his campaign’s lawyer fired off letters to the stations that carried the ad charging that they had violated public interest obligations. When a 527 group, the American Issues Project, released a commercial linking Obama to Bill Ayers, the campaign unsuccessfully complained to the Justice Department that AIP had broken campaign finance laws — and it spooked several stations away from carrying the spots. You’ll see lots, lots more of this radiating out of an Obama/Democrat-controlled Washington.
BC: Net neutrality sounds like a fair concept, but what are its actual effects? Is it an attempt to fix a problem that does not exist?
Brian Anderson: Mandated neutrality, which the Democrats embrace, is a very bad idea. What it would amount to is giving government overseers at the FCC the power to force Internet providers to treat equally all the traffic that moves through their conduits — the fiber optic cable, the phone lines, the wireless connections, and so on. Thus the provider couldn’t slow down or speed up any traffic — slow down the bandwidth hog downloading huge movie files, say, so as to let email users check their emails quickly. The provider certainly couldn’t offer new super-fast services for a fee, just as FedEx accelerates delivery of a package for a fee, or other services that might treat Internet users unequally. No digital discrimination! This makes zero economic sense — it is a kind of infrastructure socialism — in that we’re telling the firms actually building the bandwidth capacity of the future that they can’t run their own cables as they see fit. But why should they keep building it then? If they don’t build it, however, the Internet in the U.S. will slow as more and more information surges online, including massive visual files.
But our deeper worry is that once the Federal Communications Commission starts mucking about, talking about digital discrimination and equality, we’ll see the first steps toward establishing a Fairness Doctrine for web opinion sites. The FCC commissioner Robert McDowell recently warned of this possibility; an advisor to the Democrats on regulatory issues, Cass Sunstein, has in the past argued in favor of such a measure; the EU has looked at implementing it. This isn’t a science fiction scenario, though implementing it would generate a firestorm.
BC: What’s been the impact of the 2002 Bipartisan Campaign Reform Act?
Brian Anderson: What we show in the book is how campaign finance restrictions are beginning to encroach on the media. One example we discuss: when a conservative group tried to counter Michael Moore’s anti-Bush documentary Fahrenheit 9/11 back in 2004, the Federal Election Commission ruled that they couldn’t show or advertise it anywhere close to the election, lest penalties apply. Moore’s film — equally political, of course — got a pass because the commission viewed him as a legitimate filmmaker, not an activist. This is just crazy — we begin approaching a world of completely regulated politics. That’s wildly un-American.
BC: Where will the war on political speech end? How much can the First Amendment be distorted before it has no meaning whatsoever? Will the political left eventually attempt to control conservative publishing houses and all of our publications?
Brian Anderson: I worry deeply about how far this will go. Killing or reducing the influence of talk radio would actually harm conservative publishing, since talk radio is the number one way right-of-center authors can get the word out about something they have written. Our First Amendment jurisprudence would be hard for the Founders to recognize — finding protections for virtual kiddie porn but eroding the political speech rights that the Framers viewed as essential to a flourishing free society.
BC: Thanks so much for your time, Mr. Anderson.
Article printed from Pajamas Media: http://pajamasmedia.com
URL to article: http://pajamasmedia.com/blog/will-media-freedom-suffer-under-dems/
URLs in this post:
[1] A Manifesto for Media Freedom: http://www.amazon.com/gp/redirect.html?ie=UTF8&location=http%3A%2F%2Fwww.amazon.com%2FManifesto-
Media-Freedom-Brian-Anderson%2Fdp%2F1594032289&tag=pajamasmedia-20&linkCode=ur2&camp=178
9&creative=9325
[2] Salome with the Head of John the Baptist: http://en.wikipedia.org/wiki/Image:Titian-salome.jpg
[3] City Journal: http://www.manhattan-institute.org/html/anderson.htm
[4] Democratic Capitalism and Its Discontents: http://www.amazon.com/Democratic-Capitalism-Discontents-Brian-Anderson/dp/1933859245
[5] South Park Conservatives: The Revolt Against Liberal Media Bias: http://www.amazon.com/South-Park-Conservatives-Against-Liberal/dp/0895260190
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Mormon Outed by Campaign Finance Laws
Katherine Mangu-Ward | November 13, 2008, 12:35pm
When reason.tv spoke with former FEC head Brad Smith earlier this year, he offered this through-the-looking-glass take on campaign finance requirements:
Imagine if George Bush were to announce here in the fading twilight of his presidency that in order to prevent terrorists from infiltrating American political parties and thus asserting control of American government, we needed to introduce the PATRIOT II Act. And the PATRIOT II Act would require citizens to report to the government their political activities. And the government would keep that in a database, which by the way they would then make available to private individuals like employers or maybe groups that might want to protest outside your home...
You know what, we have that law already, and it's called campaign finance, it's called the Federal Election Campaign Act. Which requires you to report to the government, or requires the campaigns to report to the government people who give them money and the government keeps that in a database, and they make that available, anybody can go online and look that stuff up on the Internet.
Ta Da! Meet Scott Eckern, the Mormon artistic director of the California Musical Theater (take a second to ponder that combo) was forced to resign yesterday after activists mining campaign donations publicized the fact that he had given money to the effort to ban gay marriage in California.
It is, of course, the perfect right of the theater to send him packing for any reason, and I personally think anyone who gives money to oppose gay marriage sucks nuts.
But the whole episode is pretty unsavory. Eckern, who seems to have a decent relationship with his sister (a lesbian), and good relationships with his theater colleagues (lots of gay), was probably not spewing anti-gay bile at work. If he had been, it's hard to imagine he would have lasted for seven years in his current position.
Instead, Eckern's private, personal donation to a legal political cause he believes in was forced into the public eye by government-mandated disclosure. It seems unlikely that Eckern wanted the donation to be made public—he may not have even known that it would be. Though I hesitate to make this comparison for obviously reasons, Eckern was essentially outed by the state for his privately-held views.
But wait, The New York Times says "the swift resignation was not met with cheers by those on either side." Whew. At least everyone realizes that this is a forced error, that everyone has been put into a terrible position by forces outside of their control.
Or not. Marc Shaiman, the Tony Award-winning composer, told the Times that the entire episode left him "'deeply troubled' because of the potential for backlash against gays who protested Mr. Eckern’s donation." [itals mine]
"It will not help our cause because we will be branded exactly as what we were trying to fight," said Mr. Shaiman, who is gay.
At worst, those who forced out Eckern are guilty of failing to give him the benefit of the doubt, and perhaps (as Shaiman can't quite bring himself to admit) a little hypocrisy. Imagine the situation reversed: A small non-profit that focuses on, say, education and happens to be culturally conservative, discovers that an employee has given money to protect gay marriage and fires him.
But the real culprit here is campaign finance laws. Not all political actions should be public actions, and this case illustrates why minorities of all kinds occasionally need privacy to be full participants in political life.
http://www.reason.com/blog/printer/130073.html
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Amongst those first to be thanked for this odious piece of legislation is Senator John McCain.
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http://hotair.com/archives/2008/11/21/obamas-ag-choice-regulate-internet-communication/
Our new AG appointee: Not a big fan of the first or second amendments.
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Hillary Clinton had her silver screen moment in the Supreme Court on Tuesday, when the Justices heard a case that could determine the reach of campaign finance laws to control political advertising. The tone of the oral argument also hinted that five Justices on the Court may be increasingly leery of campaign-finance limits.
During the 2008 Presidential primaries, a nonprofit group called Citizens United produced a 90-minute documentary chronicling the exploits of then-Senator Clinton. Let's just say that "Hillary: the Movie" was not an endorsement. Because the film, and trailers for it, were scheduled to run in the heat of the race on cable TV, it ran afoul of campaign finance "reform" law.
Under the 2002 Bipartisan Campaign Finance Act, also known as McCain-Feingold, electioneering communications paid by corporations or unions that "expressly advocate the election or defeat of a candidate" cannot run within 30 days of a primary or 60 days of an election. Citizens United filed suit against the Federal Election Commission to assert its right to distribute the film.
In Citizens United v. Federal Election Commission, a federal district court agreed with the FEC that the ban on electioneering communications should just as reasonably apply to a 90-minute movie as to a two-minute advertisement. Writ large, that's scary news. According to Deputy Solicitor General Malcolm Stewart, who argued the case, the government could theoretically regulate other forms of pre-election corporate speech as well, including books and the Internet.
"That's pretty incredible," said Justice Samuel Alito. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" Yes, Mr. Stewart said, if a corporation or union were paying for it. It would be possible to "prohibit the publication of the book using the corporate treasury funds."
With Chief Justice Roberts, Justice Alito has previously taken a cautious, piecemeal approach to campaign finance law. But as the current case shows, McCain-Feingold is a blunt instrument that gives federal bureaucrats the power to decide what kind of campaign advertising is allowed during an election. If "Hillary: the Movie" isn't allowed, then Michael Moore's documentaries should be banned, and newspaper endorsements would also be suspect despite a specific carve-out in the law. If newspapers didn't have that carve-out, then maybe so many editors wouldn't cheerlead for this kind of law.
McCain-Feingold is a frontal assault on political speech, and President Bush's decision to sign it while claiming to dislike it was one of the worst moments of his eight years in office. Citizens United gives the Justices a new opportunity to chip away at this attack on the First Amendment, and even better if they use it to declare the whole thing unconstitutional.
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http://www.foxnews.com/politics/2009...t-free-speech/
http://www.govtrack.us/congress/bill.xpd?bill=h111-1913
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Crafty,
Think your first URL got truncated:
http://www.foxnews.com/politics/2009/04/30/social-conservatives-blast-hate-crime-saying-limit-free-speech/
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Thanks for the save. :-)
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From NEWS10 San Diego:
Couple: County Trying To Stop Home Bible Studies
SAN DIEGO -- A local pastor and his wife claim they were interrogated by a San Diego County official, who then threatened them with escalating fines if they continued to hold Bible studies in their home, 10News reported.
Attorney Dean Broyles of The Western Center For Law & Policy was shocked with what happened to the pastor and his wife.
Broyles said, "The county asked, 'Do you have a regular meeting in your home?' She said, 'Yes.' 'Do you say amen?' 'Yes.' 'Do you pray?' 'Yes.' 'Do you say praise the Lord?' 'Yes.'"
The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.
Broyles said a few days later the couple received a written warning that listed "unlawful use of land" and told them to "stop religious assembly or apply for a major use permit" -- a process that could cost tens of thousands of dollars.
"For churches and religious assemblies there's big parking concerns, there's environmental impact concerns when you have hundreds or thousands of people gathering. But this is a different situation, and we believe that the application of the religious assembly principles to this Bible study is certainly misplaced," said Broyles.
News of the case has rapidly spread across Internet blogs and has spurred various reactions.
Broyles said his clients have asked to stay anonymous until they give the county a demand letter that states by enforcing this regulation the county is violating their First Amendment right to freely exercise their religion.
Broyles also said this case has broader implications.
"If the county thinks they can shut down groups of 10 or 15 Christians meeting in a home, what about people who meet regularly at home for poker night? What about people who meet for Tupperware parties? What about people who are meeting to watch baseball games on a regular basis and support the Chargers?" Broyles asked.
Broyles and his clients plan to give the County their demand letter this week.
If the County refuses to release the pastor and his wife from obtaining the permit, they will consider a lawsuit in federal court."
My whole beef about this whole thing is the way the city of San Diego is using intimidation on an otherwise innocent gathering. I don't like the idea of
the city or govt. being able to potentially curtail our rapidly diminishing right of lawful assembly by misapplying their powers like this. Have you had any interface
with your city concerning something similar like this? I know SOG met at PG Ed's backyard and from what i gather, the group had more than ten members. This
is, perhaps, more troubling to me because it was a bible study in a PRIVATE home, not in a park or street.
What ever happened to freedom of religion? In their mind it probably should read "freedom FROM religion.
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from FOXNEWS
Texas Woman Told to Remove 'Offensive' American Flag From Office
Debbie McLucas comes from a patriotic family – her husband and both of her sons served in the U.S. military, and her daughter is currently deployed to Iraq on her second tour of duty as a combat medic.
So when McLucas arrived at work at a Texas hospital last Friday, she was stunned to be told that the Stars and Stripes she had hung in her office in advance of Memorial Day were offensive, and that the flag had been removed.
“I got into work, I was met by my supervisor and told that there had been multiple complaints, that people found the flag very offensive and it had been taken down," McLucas told FOXNews.com.
"I went to the office to retrieve it and found the flag wrapped around the pole, sitting in the corner on the ground. I was speechless."
McLucas, a supervisor at Kindred Hospital in Mansfield, Texas, had displayed the 3-by-5-foot flag in the office she shares with the hospital’s three other supervisors. McLucas said one of her colleagues, a woman who immigrated to the United States from Africa 14 years ago, complained about the flag to upper management, and the hospital decided to take down the flag.
"I was told that as long as my flag offended one person, it would be taken down," McLucas said.
She said the hospital told her that the American flag flying outside the building would have to suffice. "I was told, ‘There is a flag hanging out front, everyone can see that one. Is that not enough?’"
No, she said, that wasn't enough.
"It is more than I can even fathom, that you would find the American flag offensive, in America," McLucas said.
A Kindred Healthcare spokeswoman did not return calls for comment. Kindred issued a press release stating, “Kindred Hospital Mansfield has a great deal of appreciation for the service that many of our employees and their families have given to their country. We honor our veterans and active military through a variety of benefits and service programs. This was an isolated incident between two employees that we are working to resolve amicably.”
The statement went on to explain: “The disagreement was over the size of the flag and not what it symbolized. We have invited the employee to put the flag back up.”
And it will go back up and stay up, McLucas said.
"I do think they're trying to do the right thing. I have no reason to believe the flag won't remain there as long as I'm employed."
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Dispute over flag protest erupts in Wisc. village
AP
By ROBERT IMRIE, Associated Press Writer Robert Imrie, Associated Press Writer – Fri Jul 10, 2:44 pm ET
WAUSAU, Wis. – An American flag flown upside down as a protest in a northern Wisconsin village was seized by police before a Fourth of July parade and the businessman who flew it — an Iraq war veteran — claims the officers trespassed and stole his property.
A day after the parade, police returned the flag and the man's protest — over a liquor license — continued.
The American Civil Liberties Union of Wisconsin is considering legal action against the village of Crivitz for violating Vito Congine Jr.'s' First Amendment rights, Executive Director Chris Ahmuty said.
"It is not often that you see something this blatant," Ahmuty said.
In mid-June, Congine, 46, began flying the flag upside down — an accepted way to signal distress — outside the restaurant he wants to open in Crivitz, a village of about 1,000 people some 65 miles north of Green Bay.
He said his distress is likely bankruptcy because the village board refused to grant him a liquor license after he spent nearly $200,000 to buy and remodel a downtown building for an Italian supper club.
Congine's upside-down-flag represents distress to him; to others in town, it represents disrespect of the flag.
Hours before a Fourth of July parade, four police officers went to Congine's property and removed the flag under the advice of Marinette County District Attorney Allen Brey.
Neighbor Steven Klein watched in disbelief.
"I said, 'What are you doing?' Klein said. "They said, 'It is none of your business.'"
The next day, police returned the flag.
Brey declined comment Friday.
Marinette County Sheriff Jim Kanikula said it was not illegal to fly the flag upside down but people were upset and it was the Fourth of July.
"It is illegal to cause a disruption," he said.
The parade went on without any problems, Kanikula said.
Village President John Deschane, 60, an Army veteran who served in Vietnam, said many people in town believe it's disrespectful to fly the flag upside down.
"If he wants to protest, let him protest but find a different way to do it," Deschane said.
Congine, a Marine veteran who served in Iraq in 2004, said he intends to keep flying the flag upside down.
"It is pretty bad when I go and fight a tyrannical government somewhere else," Congine said, "and then I come home to find it right here at my front door."
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from FOX news 8:
High school officials vs. ACLU
"PACE, Fla. - Two Florida high school administrators accused of leading a prayer after a school luncheon appeared in court Thursday morning. Pace High School Principal Frank Lay and Athletic Director Robert Freeman are accused of criminal contempt.
Reverend Joseph Rogers of Pace Assembly of God knows Lay and Freeman, and he is very familiar with the situation the men are in. He says he and the rest of the Pace community are behind them in their battle against the ACLU.
"They've been here for years and years and years as individuals that have been strong people in our community, and of course, strong influences, men of great character and integrity," said Reverend Joseph Rogers.
Reverend Rogers says Lay and Freeman are very sincere about their Christian beliefs, and those beliefs have helped shape Pace High School into what it is today.
"Because of their integrity and the way they've conducted themselves, Pace High School is a champion school, it's an A+ school," said Reverend Rogers.
Rogers said Lay and Freeman understand the law inspired by the ACLU, which required school officials in Santa Rosa County to stop promoting their personal religious beliefs in public schools.
He says the men had no intentions of violating that law.
"I think that what took place was just part of who they are, with no ill intent and no desire to violate the law. However, with the ACLU and all that that has taken place, it has drawn attention there and I don't think that it was necessary for it to have escalated to this point of a criminal lawsuit," said Reverend Rogers.
Reverend Rogers says it's time that Americans follow Lay and Freeman in standing up for our Constitutional rights.
"In the time we're living in, it's important for people to stand up and speak up concerning their individual constitutional rights. And these men, along with everyone else, have the right to be able to have free speech. If we are going to criminalize prayer, we should start all the way at the top, and that would be a horrible atrocity to the United States Constitution, in my opinion," said Reverend Rogers.
Reverend Rogers says Principal Lay and Athletic Director Freeman are looking forward to their day in court, in hopes that the court will be able to understand their position.
You can help Lay and Freeman pay for their defense funds. If you would like to make a donation, click here . The website is also selling t-shirts, which depict children praying on the front side and the message "Frank-ly against the ACLU" on the back side. So far, $43,000 has been raised between the website and a recent fundraiser."
Incidentally, there were no students present at the time.
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The subject matter of this thread will now be handled in the "Issues in the American Creed" thread on the SCH forum.
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Thoughts?
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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dear Marc,
This is URGENT! Once again Congress is directly attacking our freedoms and liberties
by working to silence the voices of any who oppose them. We must respond quickly
and stop the Disclose Act dead in its tracks. Please call Jane Harman and urge her
to vote NO on the Disclose Act ASAP.
D.C. Phone: 202-225-8220
El Segundo Phone: 310-643-3636
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
From the American Grassroots Coalition ...
Will the First Amendment Survive the DISCLOSE Act?
Free speech is under attack! There is no time for rest, just as the summer is getting
started, Speaker Nancy Pelosi and Congress are trying to silence our free speech
and trample our First Amendment liberties.
In an effort to protect incumbents and to silence tea party and grassroots activists
groups across the country, Representative Chris Van Hollen (D-MD) introduced H.R.
5175 which is a direct response to Citizens United v. Federal Election Commission
- a First Amendment victory in which the Supreme Court overturned the prohibition
on corporations and unions using treasury funds for independent expenditures supporting
or opposing political candidates at any time of the year.
Simply put, this legislation is intended to make liberty loving organizations disclose
their donations and donors in an effort to overwhelm them, and thus silence them
so they will not engage in the political process. The Speaker and her Democratic
Congress are doing their best to make sure that this movement has no impact on the
November elections.
Once again, this is dirty politics, as usual!
Want more information? You will find the exact language of H.R. 5175 here.
[http://r20.rs6.net/tn.jsp?et=1103512229348&s=232&e=001XgGoWUPZSuFT783rGO3GNbBcianYq3GVL_m0yGCGsyOCUyHTKnnMJZa-tdYjU09IPFqnYKLWAH8U1AdEbBM1r9kWLbuBl9WeV6tmjxljyAlhOzDLnE4lGhq5uNlbLDZLpPMvck-RUem8XRPZRetO2w==]
You can watch a video that explains H.R. 5175 here
[http://r20.rs6.net/tn.jsp?et=1103512229348&s=232&e=001XgGoWUPZSuEHQWPGCK6W_Hpk-br31lAgCygGDTLRloFPg5G_YgweP1pz_lTcjpeiTGku_Sn24Jb3cjlutGS7pnM7yIt9Xj67xjldRs8nCbbmWOeEAr_jweB7b38CzccltEkoHBBWqgvXXAVYF87P_ltzKg-TrP2ivYwz94hnd2c8gjZ0OosgS8K0TQpdpZe039QHaGgrgQo=].
This legislation was supposed to be brought to the floor last week. On Friday morning,
Politico reported that Speaker Pelosi pulled the bill because of strong opposition
by the Blue Dog Democrats and the Congressional Black Caucus.
Politico reported, "The Blue Dogs are concerned that opposition from the Chamber,
National Federation of Independent Business, National Association of Realtors and
other business groups will damage their reelection prospects in the fall.
The Congressional Black Caucus, on the other hand, was unhappy about an exemption
to the bill granted to the National Rifle Association agreed to by Van Hollen. While
the exemption was later extended to other groups, the CBC remained concerned about
the bill's potential impact on the NAACP and other progressive groups."
The bottom line is that this legislation is bad for everyone and we must do everything
we can to pressure all Members of the House of Representatives to stop this legislation
NOW!
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Join Our Mailing List [http://visitor.constantcontact.com/email.jsp?m=1102694216715]
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Forward email
http://ui.constantcontact.com/sa/fwtf.jsp?m=1102694216715&ea=craftydog@dogbrothers.com&a=1103512229348
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I have just added the words "Free Speech" to the name of this thread to make it relevant not only to First Amendment issues (which also fit on the Constutitional Law thread on the SCH forum) but to the efforts to silence speech politically such as we now see coming out of the Left.
This is the thread for discussing such efforts.
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Accurately reporting what the left says=hate speech
http://pajamasmedia.com/ronradosh/2010/12/30/cloward-piven-strategy-for-today/?singlepage=true
The Second Time is Farce: Frances Fox Piven Calls for a new Cloward-Piven Strategy for Today
December 30, 2010 - by Ron Radosh
Writing in The Nation magazine on May 2, 1966, sociologists Richard Cloward and his wife Frances Fox Piven published what was to become in later years one of the most famous and influential of leftist articles. Titled “The Weight of the Poor: A Strategy to End Poverty,” the two socialist intellectuals developed a new so-called “crisis strategy” — that of trying to use the existing welfare system to create chaos that would weaken the corporate capitalist state and eventually foment revolution. “Discover the Networks” has a good summary of their thesis.
The two became the ideologists of a group formed to implement their strategy, called “The National Welfare Rights Organization,” or NWRO. As Stanley Kurtz explains in Radical-in-Chief: “the idea was to flood state and local welfare systems with more applicants than they could possibly afford to carry. Cloward and Piven believed that this ‘break the bank’ strategy would force President [Lyndon B.] Johnson and a liberal Democratic Congress to bail out overburdened state welfare systems with a federally guaranteed annual income.” This experience of activism by the poor would create a new anti-capitalist sentiment, and would stoke the poors’ “sense of entitlement and rage.” Later, the group’s mission would be carried on by ACORN, whose leaders endorsed and built upon Cloward and Piven’s strategy.
The idea was to consciously create a fiscal crisis of the state. ACORN’s chief strategist, Peter Dreier, explained this in an article, “The Case for Transitional Reform,” which appeared in the journal Social Policy in February 1979. Dreier called for injecting “unmanageable strains into the capitalist system, strains that precipitate an economic and/or political crisis,” producing a “revolution of rising entitlements” that “cannot be abandoned without undermining the legitimacy of the capitalist class.” Once a “fiscal crisis in the public sector” occurred, the movement could push for creation of “socialist norms” being advanced as the only possible solution.
A few decades have passed since this strategy was first announced. They had great hopes that when Bill Clinton became president, they could implement their strategy. But the Clinton administration — once seen potentially by the Left as a vehicle for fulfillment of its dreams — worked with Republicans in Clinton’s second term to pass meaningful and successful welfare reform. This was precisely the opposite of what the Left wanted and hoped for.
Now, as President Barack Obama is beginning the mid-point of his first and possibly only term in office, the Left is again trying to advance a new form of the old strategy. And the author of the new program is none other than Frances Fox Piven, the co-author with her late husband of the original 1966 article. Clearly, Piven looks back fondly with memories of what NWRO did in the 1970s. The New York Times reported on their tactics on September 22, 1970:
There have been sit-ins in legislative chambers, including a United States Senate committee hearing, mass demonstrations of several thousand welfare recipients, school boycotts, picket lines, mounted police, tear gas, arrests — and, on occasion, rock-throwing, smashed glass doors, overturned desks, scattered papers and ripped-out phones.
My friend Sol Stern, now with City Journal and the Manhattan Institute, explained how successful they were:
The flooding succeeded beyond Wiley’s wildest dreams. From 1965 to 1974, the number of households on welfare soared from 4.3 million to 10.8 million, despite mostly flush economic times. By the early 1970s, one person was on the welfare rolls in New York City for every two working in the city’s private economy.
Under the liberal administration of Mayor John Lindsay, welfare spending more than doubled, from $400 million to $1 billion a year. Money for the poor was now 28 per cent of the city’s budget, and New York almost collapsed as a result — precisely the hope of Cloward, Piven and George Wiley.
Now, as our national economy and many state and city budgets again are at the breaking point, Frances Fox Piven has issued a new call to repeat and build upon the ruinous strategies that she and her late husband advanced decades ago. And as in 1966, her vehicle is The Nation, the flagship magazine of the Left which today has a huge circulation and much greater influence than it had in the 1960s.
Writing in the current issue, Piven presents a clarion call for a new mass movement, one that the magazine publishes as an editorial statement representing its editors. (It is currently under the magazine’s firewall.) She begins by noting that nothing is taking place to deal with ending what she claims is an unemployment rate of 15 million people. To regain the 5 percent rate of 2007, she estimates there would have to be 300,000 jobs created each month for several years, something that is next to impossible.
Thus Piven asks a question: “So where are the angry crowds, the demonstrations, sit-ins and unruly mobs?” In other words, the kind of action her protégé George Wiley fomented in the 70s with the NWRO. She admonishes the Left not to wait for “the end of the American empire and even the end of neoliberal capitalism,” but to up the ante at present to pressure for “big new [government] initiatives in infrastructure and green energy” that could “ward off the darkness.” Her fear is that the new Congress, instead of moving in the direction she and the Left favors, will concentrate on “deficit reduction by means of tax cuts and spending cuts.” As for President Obama, she sees him as a new version of Herbert Hoover, who foolishly meets with corporate executives and seeks to placate them.
What is needed, she suggests, are “mass protests” that might influence Obama and press “him hard from his base.” To do that, however, she notes that they have to get past the many obstructions to mobilize the unemployed. This is especially the case that the unions today “do little for their unemployed,” who don’t pay dues and “are likely to be malcontents.”
Piven argues that their task is harder than it was in the past, because the unemployed are diverse, are not in one area of the country and have no common institutional setting. It is hard to bring people together, even in welfare and unemployment centers, she complains, since often administrators try to avoid long lines and crowded waiting areas, where organizers could proselytize and inflame the dissatisfied applicants.
But most important, she writes, “they have to develop a proud and angry identity and a set of claims that go with that identity. They have to go from being hurt and ashamed to being angry and indignant (my emphasis) …Losing a job is bruising; even when many other people are out of work, most people are still working. So, a kind of psychological transformation has to take place; the out-of-work have to stop blaming themselves for their hard times and turn their anger on the bosses, the bureaucrats or the politicians who are in fact responsible.”
They also need targets, which she sees as “the most difficult of the strategy problems.” Since she knows well that “local and state governments are strapped for funds,” the poor and the unemployed must demand “federal action.” It is, in other words, another “fiscal crisis of the state” that, as in the past, can be used to advance the radical goal. There first have to be local protests that have to “accumulate and spread,” then “become more disruptive” (my emphasis) in order to pressure our national political leaders. What does Piven mean when she calls for disruption? She is clear and up front about her intent:
An effective movement of the unemployed will have to look something like the strikes and riots that have spread across Greece in response to the austerity measures forced on the Greek government by the European Union, or like the student protests that recently spread with lightning speed across England in response to the prospect of greatly increased school fees. (my emphasis.)
What she is calling for is nothing less than the chaos and violence engulfing Europe. Disgruntled leftist unionists, students who expect an education without cost, and citizens of social-democratic states cannot accept that the old terms of the social contract they thought would last forever have worn out their welcome. The European welfare-state governments can no longer function with the kind of social programs that now far exceed their nation’s budgets and hence are moving their countries to the precipice of total collapse.
So Piven hopes that in our own country, “a loose and spontaneous movement of this sort could emerge,” spurred on, no doubt, by ideologues like Piven and the encouragement of the New York City leftists who run The Nation magazine. Perhaps on their next Carribbean cruise they can talk about it some more. Hence Piven hopes that young workers and students, “who face a future of joblessness, just might become large enough and disruptive enough to have an impact in Washington.”
Will it happen here? There is no exact science of protest movements, she notes. But who, she asks, “expected the angry street mobs in Athens or the protests by British students?” Living in the past, she looks hopefully at the strikes in 1934, and the civil rights movement of the1960s. Clearly no student of history, Piven fails to comprehend the very different circumstances that made these social movements have legs. All she can do is issue her hope that another “American social movement from the bottom” will emerge, and then the organized Nation left can “join it.”
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http://pajamasmedia.com/tatler/2011/01/23/more-ring-larderism/
More Ring Lardnerism
H/T to Powerline for this.
It seems Glenn Back, by accurately quoting Frances Fox Piven, has gored the Ruling Class ox again. Professor Piven wrote, and The Nation published, an article calling for violent, angry protest. In her piece in The Nation, Piven calls for:
An effective movement of the unemployed [that] will have to look something like the strikes and riots that have spread across Greece in response to the austerity measures forced on the Greek government by the European Union,[Emphasis mine.]
Beck and The Blaze have publicized the piece; Piven appears to have become something of a bête noire for Beck. (And yes, there’s no doubt that Beck does obsess about things sometimes.) But he’s neither misattributing the piece, nor taking it out of context; Piven is urging violence as what will be necessary to achieve her ends.
The reaction in the Times? Why obviously, to accuse Beck of fomenting threats against Piven. They quote in particular:
In response, a liberal nonprofit group, the Center for Constitutional Rights, wrote to the chairman of Fox News, Roger Ailes, on Thursday to ask him to put a stop to Mr. Beck’s “false accusations” about Ms. Piven.
“Mr. Beck is putting Professor Piven in actual physical danger of a violent response,” the group wrote.
Piven’s own response:
That is not a call for violence,” Ms. Piven said Friday of the references to riots. “There is a kind of rhetorical trick that is always used to denounce movements of ordinary people, and that is to imply that the massing of people itself is violent.”
No one notes, apparently, that there’s no such thing as a “nonviolent riot” and the riots in Greece in particular have been deadly.
According to the Times, the Center for Constitutional Rights says (find their full web article here):
t took exception to the sheer quantity of negative attention to Ms. Piven.
“We are vigorous defenders of the First Amendment,” the center said in its letter to Fox. “However, there comes a point when constant intentional repetition of provocative, incendiary, emotional misinformation and falsehoods about a person can put that person in actual physical danger of a violent response.” Mr. Beck is at that point, they said.
The puzzle, of course, is that Beck is repeating and truthfully quoting Piven — or, appears to be, unless Piven asserts the article published under her name wasn’t actually hers. The central point or the CCR’s complaint seems to be that while they’re all in favor of free speech, they don’t want too much of it.
In other words…
“Shut up he explained.”
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http://althouse.blogspot.com/2011/01/so-whos-inciting-violence-here.html
"So who’s inciting violence here?"
The Glenn Beck/Frances Fox Piven controversy.
ADDED: Do academics mean to have influence or not? Are we supposed to think of them as oversmart flakes who are tucked away in institutions where they won't screw up real life for the rest of us? Because that's the only way in which it makes sense to portray Glenn Beck as the villain. He took an academic seriously, as if she meant what she said and expected real people to hear and act.
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By JAMES TARANTO
In the olden days, Frances Fox Piven was a cutting-edge social theorist of the hard left. In a 1977 book, she and her husband, Richard Cloward, argued "that the poor and unemployed are so isolated from the levers of power in America that their greatest potential impact is to withhold 'quiescence in civil life: they can riot,' " as Stanley Kurtz reports in National Review Online:
At the heart of the book, Cloward and Piven luxuriously describe instances of "mob looting," "rent riots," and similar disruptions, egged on especially by Communist-party organizers in the 1930s. Many of those violent protests resulted in injuries. A few led to deaths. The central argument of Poor People's Movements is that it was not formal democratic activity but violent disruptions inspired by leftist organizers that forced the first great expansion of the welfare state.
Toward the end of the book, when Cloward and Piven describe their own work with the National Welfare Rights Organization, they treat the violent urban rioting of the Sixties as a positive force behind that era's expansion of the welfare state
Piven is now in the autumn of life, 78 and widowed nearly a decade. But she still dreams of revolution, as evidenced by this article in the Jan. 10 issue of the soft-core hard-left periodical The Nation:
Before people can mobilize for collective action, they have to develop a proud and angry identity and a set of claims that go with that identity. They have to go from being hurt and ashamed to being angry and indignant. . . .
An effective movement of the unemployed will have to look something like the strikes and riots that have spread across Greece in response to the austerity measures forced on the Greek government by the European Union, or like the student protests that recently spread with lightning speed across England in response to the prospect of greatly increased school fees.
The first paragraph of this passage could describe the Tea Party movement. But the Tea Party is nonviolent, and the second paragraph makes clear that is not what Piven has in mind. In fact, Piven has nothing but scorn for the Tea Party, which is the subject of a bigoted rant she delivered last month, which you can hear on Glenn Beck's site TheBlaze.com:
These voters . . . are older. . . . They're white, they're all white. . . . These are the people in American society--and you know, they are always there. . . . For them, change is for the worse. After all, there's an African-American in the White House. That's sort of beyond their cultural experience. The American population is darkening. That's also beyond their experience. . . . And you know, I don't have any data on this, but I am absolutely sure that sex is very important in what is happening to older people.
No doubt the Tea Party's individualistic orientation also makes it anathema to the superannuated socialist. Piven has gained a degree of notoriety of late thanks to Beck, who has frequently and harshly criticized her ideas on his radio and TV shows. In a Saturday news story, the New York Times reported that "her name has become a kind of shorthand for 'enemy' on Mr. Beck's Fox News Channel program."
A three-part, 15-letter, five-syllable name is "shorthand" for a five-letter word? As we shall see, that isn't the only thing the Times got backward about this story.
This passage in the Times story sums up the Piven-Beck ruckus:
Her assertions that "an effective movement of the unemployed will have to look something like the strikes and riots that have spread across Greece," and that "protesters need targets, preferably local and accessible ones," led Mr. Beck to ask on Fox this week, "Is that not inciting violence? Is that not asking for violence?" Videos of fires in Greece played behind him.
"That is not a call for violence," Ms. Piven said Friday of the references to riots. "There is a kind of rhetorical trick that is always used to denounce movements of ordinary people, and that is to imply that the massing of people itself is violent."
It must be said that the answer to Beck's question is no. Piven is not inciting violence.
YouTube/"Democracy Now"
Piven: "Sex is very important."
.The legal standard for incitement was spelled out by the U.S. Supreme Court in the 1969 case of Brandenburg v. Ohio. A local Ku Klux Klan leader was convicted of "criminal syndicalism" for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform."
Brandenburg had been filmed at a KKK rally, where he said: "We're not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." He also spoke of his desire to "return" blacks--to whom he referred by a now-unprintable six-letter slur--to Africa and Jews to Israel.
In a unanimous unsigned opinion, the justices overturned Brandenburg's conviction: "The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
There was no risk of imminent lawless action when Piven wrote her piece in The Nation. It is highly unlikely that the magazine's readers are numerous and energetic enough to stage an actual riot. Thus Piven, like Brandenburg, was merely advocating violence, not inciting it. She crossed no legal line.
She did, however, cross a moral line. In the past few weeks we've heard a lot, especially from the Times, about the dangers of violent rhetoric. Most examples of such "rhetoric" consist of innocuous metaphors: a political action committee's map of districts whose congressmen are targeted for defeat, or a representative's urging her constituents to be "armed" with information. Piven's statement that "protesters need targets," taken on its own, would fall into this category. But her endorsement of European-style riots constitutes actual violent rhetoric.
The Times, however, inverts the story. In the paper's telling, Piven, the advocate of violence, is the victim; Beck, her critic, is the villain. The headline reads: "Spotlight From Glenn Beck Brings a CUNY Professor Threats."
Podcast
James Taranto on Piven and the Times.
.Piven claims to have received at least three threatening emails, which an editorial in The Nation quotes (warning: obscene language at link). None include a direct threat, but all are hostile and offensive, and two wish her dead. It is wrong to send such foul communications, and if police conclude that any of these are true threats, the senders should be prosecuted. Neither the Times nor The Nation reports that such a determination has been made.
Years ago, we covered a Ku Klux Klan rally in New York. The 16 Klansmen who showed up were vastly outnumbered by the scores of police on the scene to protect them from thousands of angry counterprotesters. The event must have cost the taxpayers a bundle, but that is the price we pay for freedom of speech, even morally repugnant speech. If Piven is genuinely under threat, the New York City Police Department should provide her with extra protection.
But the idea that Beck is to blame for these alleged threats is baseless. That is why the Times makes this accusation only indirectly, through insinuation and innuendo, consistent with its recent journalistic modus operandi. Indeed, what exactly is Beck supposed to have done wrong here? There is no allegation that anything he has said about Piven or her ideas is untrue, save for her denial in the Times that she has advocated violence, which is contradicted by her own quote in the previous paragraph.
Nor is there any claim that Beck has advocated threats against Piven. Quite the contrary, the Times reports that his website has suppressed them:
One such threat, published as an anonymous comment on The Blaze, read, "Somebody tell Frances I have 5000 roundas ready and I'll give My life to take Our freedom back." (The spelling and capitalizing have not been changed.)
That comment and others that were direct threats were later deleted, but other comments remain that charge her with treasonous behavior.
Now, "treasonous behavior" is strong language, but it reminded us of something we read in 2009:
So the House passed the Waxman-Markey climate-change bill. In political terms, it was a remarkable achievement.
But 212 representatives voted no. A handful of these no votes came from representatives who considered the bill too weak, but most rejected the bill because they rejected the whole notion that we have to do something about greenhouse gases.
And as I watched the deniers make their arguments, I couldn't help thinking that I was watching a form of treason--treason against the planet.
That was Paul Krugman, star columnist of the New York Times. Glenn Beck's website enforces on its commenters a standard of civility comparable to the standard the Times imposes on staff columnists for its op-ed page. That may be an indictment of Beck, but it is not one that the Times can credibly hand up.
(We should note here that Beck's TV program appears on Fox News Channel, which, like The Wall Street Journal and this website, is owned by News Corp. His radio show and TheBlaze.com have no connection to News Corp.)
The Times story on the Beck-Piven conflict is in furtherance of a public relations campaign launched last week by a group styling itself the Center for Constitutional Rights. Its press release announcing the effort accomplishes a Times-like inversion in the very headline: "CCR Appeals to Fox News President for Help in Silencing Glenn Beck Misinformation Campaign Against Progressive Professor."
They may not agree with what you say, but they'll fight to the death for your right to remain silent.
And the New York Times will cheer them on in that fight. Why is a newspaper that has been posturing as the scourge of violent rhetoric now siding with a purveyor of such rhetoric, and blatantly slanting the news as it does so? Because her opponent is a prominent media figure from outside the old media establishment. Because Glenn Beck is a threat to the authority of the New York Times.
Don't Know Much About History
Last week was the 50th anniversary of the inauguration of John F. Kennedy. It was also the 70th anniversary of FDR's third inaugural, the 30th anniversary of Reagan's first, and the 10th anniversary of George W. Bush's first. But the JFK myth still looms large, especially since people who were children at the time of his assassination are now at the peak of their influence, so it's not surprising that the media would focus on his semicentennial.
Nor is it surprising, two weeks after the attempted assassination of a politician, that media figures would draw unwarranted parallels between JFK and Gabrielle Giffords, between 1963 and 2011. It's an easy, lazy thing to do.
NewsBusters.org criticizes ABC News's Christiane Amanpour for doing just that, but misses her worst howler, in a question to Jean Kennedy Smith, JFK's sister and only surviving sibling:
A family bound tightly together by power and later, grief. John F. Kennedy was assassinated less than three years after his inauguration, in November 1963. His brother, Bobby, in 1968. Two acts of political violence so traumatic that the country has never fully recovered. It's an episode eerily relevant today in the wake of the assassination attempt against Gabrielle Giffords less than two weeks ago. A congresswoman was targeted. No matter what the reason, how would you describe the atmosphere, the political atmosphere today in the country?
In truth, "the political atmosphere" in 1968--when Robert F. Kennedy became the last sitting member of Congress to be assassinated in the U.S.--was vastly different from that in 1963. The 4½ years between JFK's and RFK's assassinations had seen a series of momentous events: the passage of the Civil Rights Act, the rise of the New Right, Barry Goldwater's landslide defeat, the assassination of Malcolm X, the enactment of the Voting Rights Act, the creation of Medicare, the declaration of War on Poverty, the rise of the Black Power movement, the escalation of the Vietnam War, the rise of the antiwar movement, Lyndon B. Johnson's withdrawal from the 1968 presidential race, the assassination of Martin Luther King, race riots in various American cities.
No doubt this list is less than all-inclusive. Does Amanpour mean to suggest that the political climate today is similar to that in 1963 or 1968? That the distinction doesn't even seem to have occurred to her shows you just how lazy the parallel is.
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By JAMES TARANTO
(Best of the tube tonight: We'll be on Fox News Channel's "Hannity" tonight as part of the "Great American Panel." The program starts at 9 p.m. ET, and we'll be on in the latter half hour. A repeat airs at midnight ET.)
America's liberal left is preoccupied with salacious fantasies of political violence. These take two forms: dreams of leftist insurrection, and nightmares of reactionary bloodshed. The "mainstream" media ignore or suppress the former type of fantasy and treat the latter as if it reflected reality. This produces a distorted narrative that further feeds the left's fantasies and disserves those who expect the media to provide truthful information.
In a Los Angeles Times op-ed piece, socialist author Barbara Ehrenreich defends socialist sociologist Frances Fox Piven, who has recently been criticized, most prominently by Fox News Channel's Glenn Beck, for advocating violence in the service of left-wing aims.
Ehrenreich claims that Piven was merely urging "economically hard-pressed Americans" to "organize a protest at the local unemployment office." In fact, as we noted Monday, what Piven urged in the pages of The Nation was--these are her words--"something like the strikes and riots that have spread across Greece."
Glenn Reynolds has repeatedly reminded us what those Greek riots looked like, quoting a Wall Street Journal account from last May:
At the same time, tens of thousands of protesters marched through Athens in the largest and most violent protests since the country's budget crisis began last fall. Angry youths rampaged through the center of Athens, torching several businesses and vehicles and smashing shop windows. Protesters and police clashed in front of parliament and fought running street battles around the city.
Witnesses said hooded protesters smashed the front window of Marfin Bank in central Athens and hurled a Molotov cocktail inside. The three victims died from asphyxiation from smoke inhalation, the Athens coroner's office said. Four others were seriously injured there, fire department officials said.
Ehrenreich was writing for the L.A. Times's opinion page, and she is entitled to her opinion, but she is not entitled to her own facts. The heading "opinion" is not a license to tell outright lies.
The dishonesty of Ehrenreich's piece is shocking, but it isn't even the most bizarre thing about it. She begins by bemoaning the absence of grass-roots activism in America:
Why are Americans such wusses? Threaten the Greeks with job losses and benefit cuts and they tie up Athens, but take away Americans' jobs, 401(k)s, even their homes, and they pretty much roll over. Tell British students that their tuition is about to go up and they take to the streets; American students just amp up their doses of Prozac.
Ehrenreich's explanation is America has become "a tyranny of the heavily armed." Americans don't get politically involved because they're afraid of getting shot. The implication is that if only the government would take away Americans' guns, Americans would be able to grab their Molotov cocktails and rise up against the government, or for the government, or something.
But wait. How has it escaped Ehrenreich's notice that the past two years have seen the greatest flowering of grass-roots democracy in America since the civil rights movement? We refer, of course, to the Tea Party movement. To be sure, you won't see any Molotov cocktails at a Tea Party gathering. You may see some guns--a normal part of life in most of America--but they will be borne lawfully and not used violently.
Since the Tea Party advocates individualism and not socialism, we may assume that Ehrenreich strongly disapproves of it (as does her pal Piven). But to bemoan the dearth of grass-roots activism in America without even acknowledging the Tea Party's existence suggests a detachment from reality bordering on the clinical.
Even odder, many on the left have advanced a false narrative in which the Tea Party is violent. The New Yorker's Hendrik Hertzberg did so in a column last week, in which he was still trying to justify the media's falsely blaming the right for the attempted murder of Rep. Gabrielle Giffords.
Hertzberg claims that the shooting "took place amid a two-year eruption of shocking vituperation and hatred, virtually all of it coming from people who call themselves conservatives," and that "these realities, and not the malevolence of liberal opportunists, were why, in the immediate aftermath of the crime, the 'national conversation' focussed on the nation's poisonous political and rhetorical climate."
This is bunk. The "two-year eruption of shocking vituperation and hatred" is a media myth, promulgated in two primary ways:
Associated Press
Peace-loving Oregon leftists wish for Sarah Palin's death, April 24, 2010.
.The first is by seeking out the most extreme expressions by Tea Party activists and sympathetic politicians and portraying them as if they were typical. This is in sharp contrast to the way left-wing political rallies are covered. Extreme and violent rhetoric is at least as easy to find there if you look--Michael Bowers has put together a photo gallery of "Left-Wing Hatred"--but the mainstreamers seldom look. During the Bush years, "antiwar" rallies were routinely depicted as nothing more than forums for wholesome, patriotic dissent.
The second is by presenting innocuous rhetoric from the right as if it were something sinister or dangerous. The most famous example--cited by Hertzberg, naturally--is the SarahPAC map of targeted districts, including Giffords's, which many on the left hoped had incited the man who shot her. Palinoiacs denounced the map as "violent" when it first came out last March, notwithstanding that the visual metaphor of a target is about as common in political campaigns of both parties as cartoons on the pages of Hertzberg's magazine.
Similarly, as we noted Jan. 12, Paul Krugman, the New York Times's most dishonest columnist, characterized as "eliminationist rhetoric" Rep. Michele Bachmann's comment that she wanted her constituents to be "armed and dangerous." In context, it turned out that she wanted them to be "armed" with information--a poor choice of words, but no more eliminationst than Barack Obama's comment in June 2008: "If they bring a knife to the fight, we bring a gun." At the time, the New York Times characterized this part of "Mr. Obama's efforts to show he can do more than give a good speech."
Hertzberg is saying no more than that liberal journalists like himself are justified in perpetuating the myth of conservative violence because they promulgated it in the first place.
Perhaps he is right that it is not the product of opportunism but rather of sincerely held prejudice. But would it be a defense of, say, Theodore Bilbo or Joseph McCarthy to say that they sincerely believed the prejudices and falsehoods they espoused? What's more, Bilbo and McCarthy were politicians. Why is it so hard for journalists to remember that their job is to tell the truth?
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Comedy Central funnyman Stephen Colbert, like most of his friends and allies on the left, thinks that last year's Supreme Court ruling in Citizens United v. FEC is, literally, ridiculous. To make his case that the ruling invites "unlimited corporate money" to dominate politics, Mr. Colbert decided to set up a political action committee (PAC) of his own. So far, though, the joke's been on him.
The hilarity began last month, when Mr. Colbert began to have difficulty setting up his PAC, which is a group that can raise money to run political ads or make contributions to candidates. So he called in Trevor Potter, a former Federal Elections Commission (FEC) chairman who is now a high-powered Washington lawyer.
Mr. Potter delivered some unfunny news: Mr. Colbert couldn't set up his PAC because his show airs on Comedy Central, which is owned by Viacom, and corporations like Viacom cannot make contributions to PACs that give money to candidates. As Mr. Potter pointed out, Mr. Colbert's on-air discussions of the candidates he supports might count as an illegal "in-kind" contribution from Viacom to Mr. Colbert's PAC.
All was not lost, however. As Mr. Potter explained, the comedian might still be able to set up a "Super PAC," a group that can raise unlimited sums of money as long as it spends it only on independent ads, without donating at all to candidates. Super PACs exist because of another case that proponents of campaign-finance law despise, SpeechNow.org v. FEC.
So the newly dubbed "Colbert Super PAC" was off to the races. Mr. Colbert could finally show us how amusing it is to raise unlimited corporate dollars and spend them on political ads.
View Full Image
Getty Images/FilmMagic
Stephen Colbert in Washington, D.C., last year.
.Or so it seemed. On May 11, Mr. Potter returned with more bad news: Viacom didn't like Mr. Colbert's plan because his on-air commentary might still amount to a contribution from Viacom to his Super PAC. It's difficult to place a dollar value on airtime, so a reporting mistake could put both Viacom and Mr. Colbert in legal hot water. Isn't campaign-finance law funny?
"Why does it get so complicated to do this? I mean, this is page after page of legalese," Mr. Colbert lamented. "All I'm trying to do is affect the 2012 election. It's not like I'm trying to install iTunes."
Well, that's pretty much what the nonprofit group Citizens United said to the Supreme Court in the case that Mr. Colbert is trying so hard to lampoon.
Campaign-finance laws are so complicated that few can navigate them successfully and speak during elections—which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created "71 distinct entities" that "are subject to different rules for 33 different types of political speech." The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean. "Legalese" doesn't begin to describe this mess.
So what is someone who wants to speak during elections to do? If you're Stephen Colbert, the answer is to instruct high-priced attorneys to plead your case with the FEC: Last Friday, he filed a formal request with the FEC for a "media exemption" that would allow him to publicize his Super PAC on air without creating legal headaches for Viacom.
How's that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.
Of course, there's nothing new about the argument Mr. Colbert's lawyers are making to the FEC. Media companies' exemption from campaign-finance laws has existed for decades. That was part of the Supreme Court's point in Citizens United: Media corporations are allowed to spend lots of money on campaign speech, so why not other corporations?
Whether Mr. Colbert understands that he has made the Supreme Court's point is anyone's guess. But there's nothing funny about what he has had to go through to set up a PAC, because real people who want to speak out during elections face these confounding laws all the time. And as his attempt at humor ironically demonstrates, the laws remain byzantine and often impossible to navigate, even after Citizens United.
There's a joke in here somewhere, but it isn't on the Supreme Court.
Messrs. Simpson and Sherman are attorneys at the Institute for Justice, which represented the plaintiffs in SpeechNow.org v. FEC.
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Anti-Religious Speech Police in America
by Newt Gingrich
Can you imagine high school administrators being threatened with jail if their students said any of the following words? "Prayer," "stand," "bow your heads," or "amen"?
Can you imagine a graduation ceremony in which the word "invocation" was replaced with "opening remarks" and "benediction" was replaced with "closing remarks"—by order of a federal judge? Or a judge declaring that such an order would be "enforced by incarceration or other sanctions for contempt of Court if not obeyed?"
This sounds like a scenario that might occur under a dictatorship, but it happened earlier this month in the Medina Valley Independent School District near San Antonio, Texas. It is just one recent example of how anti-religious many on the Left have become.
It is bad enough that NBC revealed its anti-religious bias by editing out "under God" from the Pledge of Allegiance last weekend.
It is bad enough that President Obama has skipped the phrase "our Creator" at least four times when citing the Declaration of Independence, even when the teleprompter read that we are "endowed by our Creator."
At least neither NBC nor President Obama threatened to put anyone in jail.
Federal District Judge Fred Biery issued the order to stop the school's valedictorian from saying a prayer as part of her graduation speech. He did so in the name of the First Amendment, which is supposed to prevent government prohibitions of the free exercise of religion and protect the freedom of speech.
Judge Biery's decision clearly is not about defending the Constitution. It is the anti-religious judicial speech police at work here in America.
It is time for Americans who are fed up with this kind of repression by an anti-religious judiciary to act decisively. Judge Biery’s decision is so outrageous that the American people should not accept his continued employment on the federal bench.
The Federalist Papers and
a Limited Judicial Branch
The Founders never intended for judges to have free reign to interpret the Constitution according to their own ideological purposes. In fact, Alexander Hamilton is quite clear in the Federalist No. 78 that judges who conduct themselves like Biery will have short tenures.
"The judiciary," Hamilton writes, "...will always be the least dangerous to the political rights of the Constitution, because it will be least in capacity to annoy or injure them." Among the three co-equal branches of government (each of which is charged with interpreting and upholding the Constitution), he writes that the judiciary "can never attack with success either of the other two."
Hamilton's description of a judiciary subordinate in power to the president and the Congress is a long way from the modern doctrine of judicial supremacy, by which the judiciary has asserted itself as the supreme authority for Constitutional interpretation.
By Hamilton's standard, at least, Judge Biery has clearly failed to avoid the kind of offenses that should rightly provoke attacks by the legislative and executive branches.
In the Hamiltonian spirit, then, I would like to offer a simple solution to the problem.
Judge Biery, Meet Thomas Jefferson
President Thomas Jefferson—who, together with his Secretary of State James Madison, knew more than a little about the Constitution—had a solution for dealing with out-of-control federal judges: he abolished the judgeships of 18 out of 35 of them.
That's right. In the Judiciary Act of 1802, Jefferson eliminated more than half the sitting federal judges.
As a first step toward reining in an out-of-control, anti-religious bigotry on the bench, let's start with this modest suggestion: Judge Biery's office should be abolished by Congress. He should go home.
The American people would be better off without a judge whose anti-religious extremism leads him to ban a high school valedictorian from saying even the word "prayer."
A Nation Like No Other
In my new book, A Nation Like No Other: Why American Exceptionalism Matters, I discuss the basis of Jefferson's concern about the judiciary, and especially about its claim to supremacy as "the ultimate arbiter of all constitutional questions." The idea that unelected and unaccountable judges would dictate to the people the meaning of the Constitution, he wrote in an 1820 letter to William Jarvis, was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."
Jefferson was adamant that the Constitution had not established a "single tribunal" to interpret its meaning specifically because the Founders understood that any group to whom alone that power was confided "would become despots."
Instead, the branches of government were created to be co-equal, each itself charged with interpreting the Constitution and "responsible to the people in [its] elective capacity."
"The exemption of the judges from that [accountability] is quite dangerous enough," Jefferson wrote. "I know of no safe depository of the ultimate powers of society, but the people themselves."
This challenge to judicial supremacy is intimately connected to the heart of what makes America exceptional. As I write in A Nation Like No Other, the final power in America lies not with judges or presidents or bureaucrats, but with the American people. We loan power to the government. And as Jefferson demonstrated dramatically when he abolished eighteen federal judgeships, we can take it back when it is abused.
Few things exhibit the danger of judicial abuse more clearly than when judges like Biery use their positions to advance agendas so far out of the mainstream that they end up dictating word choice at a local high school graduation.
In Biery's case, the order was so extreme that thankfully it was stayed by the appeals court just hours before the graduation.
The broader encroachment of the anti-religious judiciary, however, has taken place below the radar of most Americans. It has proceeded, as Jefferson wrote of the branch in another letter, "like gravity, ever acting, with noiseless foot, unalarming advance, gaining ground step by step, and holding what it gains...engulfing insidiously the special governments into the jaws of that which feeds them."
Thomas Jefferson was right. When judges are policing graduation speeches for religious content, the judiciary has clearly advanced too far. It is time for the American people to reassert their authority.
They can start in the U.S. District Court for Western Texas.
Your Friend,
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Feds crack down on campus flirting and sex jokes
By: Michael Barone | Senior Political Analyst Follow Him @MichaelBarone | 06/21/11 8:05 PM
When I was growing up it was widely believed that colleges and universities were the part of our society with the widest scope for free expression and free speech. In the conformist America of the 1950s, the thinking ran, few people dared to say anything that went beyond a broad consensus. But on campus anyone could say anything he liked.
Today we live in an America with enormous cultural variety in which very few things are considered universally verboten. But on campus it's different. There saying something considerably milder than some of the double entrendres you heard in cable news coverage of the Anthony Weiner scandal can get you into big trouble.
These reflections are inspired by a seemingly innocuous 19-page letter on April 4 from the Department of Education's Office of Civil Rights to colleges and universities. The letter was given prominence by Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has done yeoman work opposing restrictive speech codes issued by colleges and universities.
OCR's letter carries great weight since there are few things a university president fears more than an OCR investigation, which can lead to loss of federal funds -- which amount to billions of dollars in some cases.
The OCR letter includes a requirement that universities adopt a "preponderance of the evidence" standard of proof for deciding cases of sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.
That's far short of the requirement in criminal law that charges must be proved beyond a reasonable doubt. And these disciplinary proceedings sometimes involve charges that could also be criminal, as in cases of alleged rape.
But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).
All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can't be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?
Given the prevailing attitudes among faculty and university administrators, it's not hard to guess who will be the target of most such proceedings. You only have to remember how rapidly and readily top administrators and dozens of faculty members were ready to castigate as guilty of rape the Duke lacrosse players who, as North Carolina Attorney General Roy Cooper concluded, were absolutely innocent.
What the seemingly misnamed Office of Civil Rights is doing here is demanding the setting up of kangaroo courts and the dispensing of what I would call marsupial justice against students who are disfavored by campus denizens because of their gender or race or political attitude. "Alice in Wonderland's" Red Queen would approve.
As Lukianoff points out, OCR had other options. The Supreme Court in a 1999 case defined sexual harassment as conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." In other words, more than a couple of tasteless jokes or a moment of elevator eyes.
Lukianoff and FIRE have an admirable record of defending students' and faculty members' free speech regardless of their point of view, but anyone familiar with their work knows that the most frequent targets of campus disciplinary groups are male, conservative, religious or some combination thereof.
I wonder whether there is some connection between this and the dwindling percentage of men who enroll in and graduate from college. Are we allowing -- and encouraging -- our university administrators to create an atmosphere so unwelcoming and hostile to males that we are missing out on the contributions they could make with a college or graduate degree?
Education Secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and marsupial justice on campuses across the country.
Michael Barone, The Examiner's senior political analyst, can be contacted at mbarone@washingtonexaminer.com. His column appears Wednesday and Sunday, and his stories and blog posts appear on ExaminerPolitics.com.
http://washingtonexaminer.com/politics/2011/06/feds-crack-down-campus-flirting-and-sex-jokes
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I took Doug's repsonse from the cognitive dissonance of Republicans to this thread:
"Campaign finance reform was lambasted by the..." ... [first amendment]
Without a law degree I will do my best to interpret the situation. Campaign finance reform was brought to the Supreme court in a case suggesting that it would obstruct the free speech right of the Constitution. The majority opinion of the Justices was that it would so it was struck down.
Am I correct to assume that the issue before the Court was this "Constitutional" in that it does not interfere with the people's right to free speech? If that is the situation the issue before the Court is to address this and not really any other.
I was reading an article from someone with both a law and medical degrees. He claims that doctors think in systems taking into account all the issues involved while lawyers think in a linear fashion addressing only the more narrow question.
That said the Court would not have considered the issue of ethics or morality involved of wealthy people having unfair access to politicians and influencing their legislative decisions with the ability to provide money and other less overt benefits to their political campaigns. Worse is the issue of the revolving door of government appointed and hired and elected officials have going in and out of the private sector. Worse than that is the families and friends of these people who use their family and business ties to influence these others. (Think the Pelosi mafia like mob).
Now GM will rightly point out that less wealthy people can band together and form conglomerates that together can raise money to compete with the bigger wealthier interests.
One could argue that evens the playing field. To some degree it does though obviously no one would say it can be leveled without the help of big donors in most cases/circumstances.
In the end I can agree up to this point about it being logically acceptable albeit far from perfect situation.
But where it crosses the line in my thinking is that the influence the wealthy are having on elected officials either directly or through intermediaries (lobbyists of ex gov officials) (elected officials most of whom are lawyers and promptly go into the DC legal community becoming instant partner because of their contacts with legislators) is that their influence is to get legislators to spend not their personal money but publically taxes (people's money if you will).
This is where the line has to be drawn. And this is what I think people from both the left and right political spectrums can agree that this is totally corrupt and illegitimate and got to stop. This is the "establishment" both sides are sick of>
You know what Joe Scarborough this may be how DC works, and yes I know there have been those who have many times campaigned on changing this only to later find out they are running up against interests that are just to powerful they cannot do what they wanted. But Joe, this is exactly why people are frustrated and disgusted and from both left and right looking for someone different - not another good ole boy like Romney who simpoly knows how the system works. The system is broken.
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The smaller the federal gov't, the less the stakes and the lesser impact DC has on everyone. Now, when DC has a hand in every aspect of every American's life, like healthcare, then it's a diferent story, isn't it?
Rather than the attempts to cutail speech, which are immediately worked around anyway, would it not be better to return the federal gov't to it's constitutionally mandated duties alone and let the 10 Amd. work as was intended?
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"Rather than the attempts to cutail speech"
I don't buy that bribing our gov officials is free speech. Yet it is the opinion of the Supreme Court because essentially that is what is happening. They are ruling on a narrow line of thinking which is their job. I am not saying they are wrong, but we still have a big problem.
I think what you are saying is that we can't stop bribery of government people so the best option is just limit their function overall?
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I think what you are saying is that we can't stop bribery of government people so the best option is just limit their function overall?
Pretty much. You'll never entirely purge corruption from power, but you can work to supress it and mitigate the potential harm. Like why are we funding fcking car companies? I missed that part in the constitution.
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"Like why are we funding fcking car companies?"
Yes my head is exploding with the outrage of how are money is wasted.
Well this goes to the heart of the problem. What *are* tax payers funding and why and who is benefitting. The whole system is in question. The business of pork and every spending scheme has got to be more transparent and we the darn voters need to know who is voting for what legislation and why.
Like the mocking of Cain's tax plan as being "too simple". As though a two thousand page health care bill that I can guarantee Brock had no idea what was in it is better? The more complicated the more we can be manipulated.
Cain has served us more than any other candidate so far.
Perry is coming out with a simple tax plan I think. Romney is too establishment to get it or care.
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Last week, a story came across my desk that seemed to suggest that a blogger had been unfairly nailed with a $2.5 million defamation award after a judge refused to give her standing as a journalist. A businessman who was the target of the blogger’s inquiries brought the suit.
I went to work on a blog post, filled with filial umbrage, saddened that the Man once again had used a boot heel to crush truth and free speech. But after doing a little reporting, I began to think that what scanned as an example of a rich businessman using the power of the courts to silence his critic was actually something else: a case of a blogger using the Web in unaccountable ways to decimate the reputation of someone who didn’t seem to have it coming.
The ruling on whether she was a journalist in the eyes of the law turned out to be a MacGuffin, a detail that was very much beside the point. She didn’t so much report stories as use blogging, invective and search engine optimization to create an alternative reality. Journalists who initially came to her defense started to back away when they realized they weren’t really in the same business.
On the surface, it seemed that the blogger, Crystal Cox, was doing the people’s work. A blogger and real estate agent in Montana who spent a lot of time fighting with the National Association of Realtors, Ms. Cox took an interest a few years ago in the bankruptcy of Summit Accommodators, an intermediary company in Bend, Ore., that held cash to complete property exchanges. The company went belly up and Federal prosecutors indicted three senior executives — a fourth pleaded guilty — charging them with conspiring to defraud clients of millions.
Kevin D. Padrick, a lawyer in Oregon, was appointed as trustee in the case after the company entered bankruptcy. Prompted by the postings of someone whom Mr. Padrick was going after to recover assets — the daughter of one of the men who was indicted — Ms. Cox began suggesting in her blog posts that Mr. Padrick had used inside information and illegal measures to take control of the remaining assets and enrich himself.
In a long-running series of hyperbolic posts, she wrote that Mr. Padrick and his company, the Obsidian Finance Group, had engaged in bribery, tax fraud, money laundering, payoffs and theft, among other things. Her one-woman barrage did not alter the resolution of the Summit affair, but it was effective in ruining Mr. Padrick.
In a phone interview, he told me his business as a financial adviser had dropped by half since Ms. Cox started in on him, and any search of his name or his company turned up page after page on Google detailing his supposed skullduggery, showing up under a variety of sites, including Bend Oregon News, Bankruptcy Corruption, and Northwest Tribune.
As it turned out, all of the allegations and almost all of the coverage in the case were coming from Ms. Cox, who churned URL’s and cut-and-pasted documents to portray Mr. Padrick as a “thug,” and a “thief” who “committed tax fraud” and who may have “hired a hit man” to kill her while engaging in “illegal and fraudulent activity.”
Here’s the problem. None of that was ever proved, nor was it picked up by other mainstream media outlets.
Even a broken clock is right twice a day, but there is nothing in Mr. Padrick’s professional history or the public record that I found to suggest he is any of those things. He was appointed as a trustee by the court, he was subjected to an F.B.I. background check, and there have been no criminal investigations into his conduct. About 85 percent of the funds have been returned to the creditors, which seems to be a good result.
Annie Buell, the chairwoman of the Official Unsecured Creditors Committee who was appointed by the United States Trustee’s Office, said in an interview by phone that there was no basis in fact for Ms. Cox’s scabrous postings about Mr. Padrick.
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(Page 2 of 2)
“He did a very good job for the creditors,” she said. “He was above board, had all of his cards on the table and was competent and fair. If I ever was in the same situation again, he would be my first choice.” Lawyers I spoke with who had done business with Mr. Padrick used similar adjectives to describe him.
Mr. Padrick, a lawyer who is a member of the bar in four states and has never been disciplined or investigated from anything I could find, said he spent a lot of sleepless nights wondering how he ended up as Ms. Cox’s bête noire.
“A woman who I did not know, who had no connection to me or my company or with this case she has been making statements on, has turned my business life and personal life upside down,” he said. “Companies who are considering doing business with us do a routine search on Google and there is page after page of these allegations. If it can happen to me, it can happen to anybody.”
And it has. Ms. Cox, who calls herself an “investigative blogger,” has a broad range of conspiratorial/journalistic interests. She has written that Bruce Sewell, the general counsel of Apple, “aids and abets criminals,” that Jeffrey Bewkes, the chief executive of Time Warner, is “a proven technology thief,” and that various Proskauer Rose lawyers have engaged in a pattern of “conspiracy.” And don’t get her started on the local officials in and around her hometown, Eureka, Mont.
When she gets in a fight with someone, she frequently responds by creating a domain with their name, some allegation of corruption, or both. Many of the negative posts about Mr. Padrick appeared on obsidianfinancesucks.com and there are many more like it. In order to optimize visibility to Web crawlers, she often uses the full name and title of her target, and her Web sites are filled with links to her other sites to improve their search ranking. She has some 500 URLs at her disposal and she’s not afraid to use them.
“I have a gift for getting on top of search engines and I want to give voice to victims of the corrupt judicial system,” she said in an interview by phone. “The system wants to shut me up and they have been trying to for years.”
“I’m glad I lost the case, because it gives attention to what I have been doing,” she added, saying she doesn’t have money to hire an attorney — she represented herself in the defamation case — let alone $2.5 million to pay in damages. She plans to appeal.
She said she remained convinced that Mr. Padrick would be indicted, “even if I have to stay on it for the next decade.” But, as Forbes first pointed out following the verdict, she had been willing to negotiate a cease-fire.
“At this Point in my Life it is Time to Think of Me,” she wrote in a letter to Mr. Padrick’s lawyer, David Aman. “So I want to Let you know and Obsidian Finance that I am now offering PR Services and Search Engine Management Services starting at $2500 a month,” she wrote to promote “Law Firms” and “Finance Companies” and “to protect online reputations and promote businesses.”
What looked to be an unsubtle offer to holster her gun in exchange for a payoff was signed, “In Love and Light, Crystal Cox.”
Ms. Cox said she sent that note in response to a request from Mr. Padrick’s attorney — Mr. Aman said he made no such inquiry — and that she was “not on trial for writing e-mails.”
In the pre-Web days, someone like Ms. Cox might have been one more obsessive in the lobby of a newspaper, waiting to show a reporter a stack of documents that proved the biggest story never told. The Web has allowed Ms. Cox to cut out the middleman; various blogs give voice to her every theory, and search algorithms give her work prominence.
Mr. Padrick, who had never met Ms. Cox and had no idea why she seemed intent on destroying him, sued her last January. Judge Marco Hernandez of United States District Court in Portland, Ore., threw out most of his claims of defamation, ruling that Ms. Cox’s posts were so over-the-top that no reasonable reader would conclude she was making allegations of fact.
But Judge Hernandez did allow that a single post published on Christmas Day in 2010 charging all manner of criminal conduct could be read as containing “provable assertions of fact.” A one-day trial took place on Nov. 29 and after deliberating for 75 minutes, the jury awarded Obsidian $1 million and Mr. Padrick $1.5 million.
“I view our case as a blow for the First Amendment,” said Mr. Padrick. “If defamatory speech is allowed just because it is on the Internet, it cheapens the value of journalism and makes it less worthy of protection.”
Mr. Padrick signed off by reminding me that those who have been in conflict with Ms. Cox frequently find their names showing up in newly registered Web addresses. I’m thinking of buying RottenScoundrelDavidCarr.com as soon as I’m done typing.
Then again, I’ve got some institutional muscle when it comes to how I’m perceived on the Web. All Mr. Padrick had was his good reputation. Too bad there’s no algorithm to measure truth.
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It was a banner day for religious freedom yesterday as the Supreme Court ruled that government can't tell religious institutions whom they can hire and fire as "ministers." The unanimous decision was a crushing rebuke to the Obama Administration, which had taken the radical position that churches are little different from any other employer in job disputes.
In the High Court's latest support for the First Amendment, all nine Justices upheld what's known as the "ministerial exception" in employment disputes, recognizing a healthy degree of autonomy for churches, synagogues and other houses of worship.
In Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission (EEOC), Cheryl Perich had worked as a religiously affiliated or "called" teacher at the Lutheran school, teaching math and music as well as leading students in prayer. In 2004, she took a medical leave for narcolepsy, a sleep disorder. When she sought to return, the school declined, and she was eventually voted out by the church congregation. Ms. Perich and the federal EEOC sued for backpay, reinstatement and damages.
Writing for the Court, Chief Justice John Roberts explained that the Constitution's Free Exercise and Establishment clauses both bar the government from interfering with a church's decision to fire a minister. To do so, he writes, "intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs" as well as "the right to shape its own faith and mission through its appointments."
The Court rejected the EEOC's argument that in order to qualify as a minister, an employee should have to spend a certain amount of her time on religious duties. Under such a system, church employees would presumably be required to clock in and out of different responsibilities within their jobs, lending an artificial and secular overlay on the nature of their work.
The Justices also didn't spare their disdain for the position advanced by the Obama Administration. The Justice Department argued that the same First Amendment analysis should apply to churches as to social clubs. The Court called that argument "hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers." Ouch.
Also notable is a concurring opinion written by the unlikely duo of Justices Samuel Alito and Elena Kagan—think judicial cats and dogs living together—who add their belief that religious organizations should be protected in staffing decisions regardless of whether or not those groups "ordain" their ministers under the traditional understanding of that practice.
Justice Clarence Thomas filed a separate concurrence arguing for an even broader interpretation of the ministerial designation than is suggested by Justice Roberts's opinion. Justice Thomas reasonably argues that no outside body should be given power to overrule the church on any grounds in designating ministers.
The decision closes off new avenues for employment lawsuits that would have been opened by Ms. Perich's position. All 12 federal appellate-court circuits have adopted some form of ministerial exception over the years, but that failed to dissuade the Justice Department from claiming that giving churches discretion in hiring decisions would undermine the Americans with Disabilities Act.
As in so many of its policies, the Obama Administration's position reflected both its default preference for government control and its secular indifference to American religious sensibilities. This has become obvious in the contraceptive and surgical sterilization mandates the Administration is trying to impose on Catholic charities and hospitals. In this case the Justice Department's opinion was so radical that it might have provoked the broad and unanimous Court ruling.
Hosanna-Tabor is an important reminder that the core religious freedoms guarded by the First Amendment were not to protect the public from religion, but to protect religion from government. The case is arguably among the most important religious liberty cases in a half century, and the concurrence of Justices across the ideological spectrum will be felt for years. Hallelujah.
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Sacred beliefs in Afghanistan and America
by Newt Gingrich
Dear Fellow Conservative,
The Obama administration may have adopted a formula that will come back to haunt it.
In an effort to appease religious elements in Afghanistan it has established a standard that could become a major defeat for secular extremists here in America.
In response to Afghan outrage over the inadvertent Koran burnings by the U.S. Military in February, the Obama Defense Department created a mandatory training for military service members in the region. It is entitled, "Proper handling and disposal of Islamic Religious Materials: Service Members/Civilian Training."
You can read the 11 slides in the briefing here.
The most fascinating slide is the last one. There the Obama administration asserts: "We will hold sacred the beliefs held sacred by others."
Apparently to President Obama, the sacred beliefs of Islam in Afghanistan must be held sacred by the U.S. government, but Christianity in America is a nuisance to be reshaped by ObamaCare, the courts and the bureaucracy with no regard for its beliefs.
Americans are noticing. Consider this protest from a Catholic group as reported to me by my friend and co-author Bill Forstchen:
"Without doubt the most powerful ad, aimed straight at Catholics, to take a political stand based upon our most basic beliefs. This one is incredible and you know I rarely forward such things."
You can see the video here.
The ObamaCare war against religious liberty extends far beyond Catholics. As the president of Louisiana College, a Baptist college dedicated to right-to-life principles told me, "If Obamacare forces us to violate our religious beliefs we will close the college."
Let's challenge President Obama's assertion that "We will hold sacred the beliefs held sacred by others".
If we must hold sacred Korans being used by Afghan terrorists to pass messages back and forth, then certainly we can hold sacred religious symbols held sacred by law-abiding Americans here in the United States. We can put back up the crosses and the Ten Commandments courts have forced us to take down--right?
If President Obama doesn't object to Afghan children praying five times a day in school (he cited his own childhood memories of studying the Koran at school in Indonesia and hearing the call to prayer), why isn't he open to allowing American school children to pray once a day, if they choose?
By its own words the Obama administration has set the test for defining itself.
Is Obama prepared to "hold sacred the beliefs held sacred by others" if those others are Americans?
Congress should put President Obama to the test and him to his new rule--first by passing legislation overriding the Health and Human Services Mandate that was an overt attack on the Catholic Church.
Come to GingrichProductions.com/ReligiousLiberty and let me know if you agree.
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Woof,
Cyber law is just starting.
Presented By "Liking" Something on Facebook Not Protected by First Amendment
FacebookTweet Share Print article Share on emailEmail article Comments Connor Simpson 571 Views 3:30 PM ET
It should go without saying that you should be careful of what you "like" on Facebook. You should try not to "like" anything embarrassing or incriminating, lest it come back to bite you. A judge has ruled that "liking" something on Facebook doesn't protect you under the First Amendment, which is bad news for at least one man in Virginia.
Six people sued Sheriff B. J. Roberts in Hampton, Virginia after he fired them. They say they were fired for supporting his opponent in his bid to be reelected, which would be a violation of their First Amendment rights. One of the six fired, Daniel Ray Carter, "liked" the Facebook page of Roberts' opponent. Roberts claims they were either fired for poor performance, or because supporting his opponent "hindered the harmony and efficiency of the office."
Judge Raymond A. Jackson acknowledged that other cases involving written messages on Facebook protected the speaker with the First Amendment, clicking the "like" button is different and doesn't warrant protection.
A lawyer for the defense has already said they'll appeal the decision. This seems to be similar to the debate over whether or not Retweets are endorsements on Twitter, which leads to a lot of journalists including lines like "RTs do not equal endorsements" in their bio. Not everyone agrees the endorsement is necessary, and the debate can get a little ridiculous. The notion of a "like" implies an endorsement, but it's also the only way to subscribe to the updates from a particular page. Hopefully this won't lead to people writing that "Likes don't equal endorsements" in their profiles.
Want to add to this story? Let us know in comments or send an email to the author at connorbsimpson@gmail.com. You can share ideas for stories on the Open Wire.
Topics: First Amendment, Facebook
P.C.
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In a rare event, the POTH editorial board and I are in agreement:
The Right to RecordPublished: May 20, 2012
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The Civil Rights Division of the Justice Department took an important stand last week, declaring that citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.
Related in Opinion
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.The Justice Department made the statement in a federal lawsuit brought against the Baltimore Police Department by Christopher Sharp, who used his cellphone to take video of the police arresting and beating a friend at Pimlico on the day of the 2010 Preakness. The officers took Mr. Sharp’s cellphone while he was recording and wiped the phone clean of all videos before returning it to him.
The Courts of Appeals for the First and Seventh Circuits have wisely found that the Constitution protects the right to videotape police officers while they perform official duties. The video taken by another witness of the beating at Pimlico shows that the right to record is crucial to holding police accountable for their actions.
Mr. Sharp sued for damages to his personal property and for injunctive relief in the form of a clear policy on videotaping consistent with the Constitution and also training for the police. The judge hearing the case arranged a settlement conference for May 30, though the case is far from being settled.
Last November, the Police Department issued an order paying lip service to the right of citizens to make “video recording of police activity.” But the day after that order became public, as The Baltimore Sun reported, police officers were caught on video threatening to arrest for loitering a man who was recording them as they surrounded and held someone on the ground.
It is essential that the Justice Department and federal courts make clear that police departments will be held liable for violating this constitutionally protected right.
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http://pjmedia.com/blog/making-reporters-use-government-equipment-to-write-about-jobs-numbers/?singlepage=true
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Free Speech for Computers?
By TIM WU
Published: June 19, 2012
DO machines speak? If so, do they have a constitutional right to free speech?
This may sound like a fanciful question, a matter of philosophy or science fiction. But it’s become a real issue with important consequences.
In today’s world, we have delegated many of our daily decisions to computers. On the drive to work, a GPS device suggests the best route; at your desk, Microsoft Word guesses at your misspellings, and Facebook recommends new friends. In the past few years, the suggestion has been made that when computers make such choices they are “speaking,” and enjoy the protections of the First Amendment.
This is a bad idea that threatens the government’s ability to oversee companies and protect consumers.
The argument that machines speak was first made in the context of Internet search. In 2003, in a civil suit brought by a firm dissatisfied with the ranking of Google’s search results, Google asserted that its search results were constitutionally protected speech. (In an unpublished opinion, the court ruled in Google’s favor.) And this year, facing increasing federal scrutiny, Google commissioned Eugene Volokh, a law professor at the University of California, Los Angeles, to draft a much broader and more elaborate version of the same argument. As Professor Volokh declares in his paper: “Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers.”
To a non-lawyer the position may sound bizarre, but here is the logic. Take a newspaper advice columnist like Ann Landers: surely her answers to readers’ questions were a form of speech. Likewise, when you turn to Google with a question, the search engine must decide, at that moment, what “answers” to give, and in what order to put those answers. If such answers are speech, then any government efforts to regulate Google, like any efforts to bowdlerize Ann Landers, must be examined as censorship.
And that’s where theory hits reality. Consider that Google has attracted attention from both antitrust and consumer protection officials after accusations that it has used its dominance in search to hinder competitors and in some instances has not made clear the line between advertisement and results. Consider that the “decisions” made by Facebook’s computers may involve widely sharing your private information; or that the recommendations made by online markets like Amazon could one day serve as a means for disadvantaging competing publishers. Ordinarily, such practices could violate laws meant to protect consumers. But if we call computerized decisions “speech,” the judiciary must consider these laws as potential censorship, making the First Amendment, for these companies, a formidable anti-regulatory tool.
Is there a compelling argument that computerized decisions should be considered speech? As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.
It is true that the First Amendment has been stretched to protect commercial speech (like advertisements) as well as, more controversially, political expenditures made by corporations. But commercial speech has always been granted limited protection. And while the issue of corporate speech is debatable, campaign expenditures are at least a part of the political system, the core concern of the First Amendment.
The line can be easily drawn: as a general rule, nonhuman or automated choices should not be granted the full protection of the First Amendment, and often should not be considered “speech” at all. (Where a human does make a specific choice about specific content, the question is different.)
Defenders of Google’s position have argued that since humans programmed the computers that are “speaking,” the computers have speech rights as if by digital inheritance. But the fact that a programmer has the First Amendment right to program pretty much anything he likes doesn’t mean his creation is thereby endowed with his constitutional rights. Doctor Frankenstein’s monster could walk and talk, but that didn’t qualify him to vote in the doctor’s place.
Computers make trillions of invisible decisions each day; the possibility that each decision could be protected speech should give us pause. To Google’s credit, while it has claimed First Amendment rights for its search results, it has never formally asserted that it has the constitutional right to ignore privacy or antitrust laws. As a nation we must hesitate before allowing the higher principles of the Bill of Rights to become little more than lowly tools of commercial advantage. To give computers the rights intended for humans is to elevate our machines above ourselves.
Tim Wu, a law professor at Columbia, is the author of “The Master Switch: The Rise and Fall of Information Empires.”
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California's Ninth Circuit suffered another Supreme Court rout Thursday, which must mean the ultra-liberal appellate judges are aiming for an historic reversal record. In this latest act of judicial hygiene, the High Court protected the First Amendment right not to be forced by the government to contribute to union spending on politics.
In Knox v. Service Employees International Union, the Court scrutinized a union organizing rule known as an "agency shop." In states without right-to-work laws, non-union members must still pay dues related to collective bargaining. The Court's precedents have been ambivalent on this point, preserving such coercion only in the name of "labor peace" and to prevent free-riding in the labor negotiations that supposedly benefit all employees.
But to protect democratic dissent, public-employee unions since 1977 have been required to provide a so-called "Hudson notice" allowing workers to opt out of funding political activities. Agency shops in government raise particular First Amendment trouble because they force individuals to support unions as a condition of employment by the state.
The California SEIU local attempted to end run these protections in a special 2005 election and the midterms in 2006, amid a furious debate about union government perks. The SEIU joined a "Political Fight-Back Fund" to defeat two propositions that would have given then-Governor Arnold Schwarzenegger the ability in some cases to modify salaries, benefits and pensions. To fund this advocacy, the SEIU imposed a temporary 25% hike in union dues, never providing its 28,000 non-union members the Hudson notice that would have let them opt out.
The SEIU argued that lobbying against the ballot initiatives was really work on behalf of all workers. Yet that would erase the legal distinction between politics and collective bargaining. These activities may be especially fungible in public employee practice already, but this was too much even for liberal Justices Sonia Sotomayor and Ruth Bader Ginsburg, who concurred with the majority on the narrow if obvious grounds of technical precedent.
Writing for a five-member majority, however, Justice Samuel Alito raises larger questions about compulsory union dues and individual rights. Shouldn't the people who choose not to join a union, he asks, have to opt into political and ideological activities that they may presumably dispute—rather than opt out? "Which side should bear the risk?" he continues. "The answer is obvious: the side whose constitutional rights are not at stake."
Thus Knox may provide an opening to revisit some of the Court's precedents that force people to subsidize political views or escapades contrary to their values—not to mention the First Amendment. Stay tuned.
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http://www.openmarket.org/2012/07/06/maryland-court-dissolves-injunction-against-blogger-massachusetts-judge-orders-blogger-to-take-down-blog-posts/
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http://www.theblaze.com/stories/no-amendment-is-absolute-chuck-schumer-complains-about-the-first-amendment-on-senate-floor/
‘No Amendment is Absolute’: Chuck Schumer Complains About the First Amendment on Senate Floor
Posted on July 17, 2012
)Chuck Schumer is the last person in the United States Senate who you would expect to denounce the first amendment, especially considering the length his speeches usually get to. However, that’s exactly what Mr. Schumer did today, taking to the Senate floor to support the draconian campaign finance law known as the DISCLOSE Act with a speech that included the following very odd statement:
Here‘s the transcript of Schumer’s remarks, from RealClearPolitics:
SEN. Chuck Schumer (D-NY) on the DISCLOSE Act: “I believe there ought to be limits because the First Amendment is not absolute. No amendment is absolute. You can’t scream ‘fire’ falsely in a crowded theater. We have libel laws. We have anti-pornography laws. All of those are limits on the First Amendment. Well, what could be more important than the wellspring of our democracy? And certain limits on First Amendment rights that if left unfettered, destroy the equality — any semblance of equality in our democracy — of course would be allowed by the Constitution.”
“And the new theorists on the Supreme Court who don’t believe that, I am not sure where their motivation comes from, but they are just so wrong. They are just so wrong.”
Now, let’s parse some of this, because Schumer is disguising a non sequitur as an argument. And as it happens, he gets only one thing right in this speech – namely, that there are limits on the First Amendment. Justices from Antonin Scalia on backwards have all accepted that the Founders never meant for that concept to be applied with absolute force, though there is also the matter that the Founders expected states to decide what forms of speech were and weren’t acceptable, not the Federal government. However, it is still technically true that the exceptions Schumer describes exist.
But are they actually part of the Constitution, or were they intended? Debatable. Anti-obscenity laws (the “anti-pornography laws” to which Schumer refers) have yet to be litigated before the Supreme Court at the Federal level, and the same goes for defamation (“libel”) laws, which are also enforced on a state-by-state basis. So those two exceptions don‘t particularly help Schumer’s case for campaign finance, because they would have been irrelevant to the Founders’ concept of Federal power, and don’t implicate questions of Federal power even today.
But what about the “fire in a crowded theater” exception? Technically, that does refer to a question of Federal power, but once you hear what that Federal power is, you‘ll wish it didn’t. The example of yelling fire in a crowded theater was first invoked by Supreme Court justice Oliver Wendell Holmes in the 1917 case Schenck v. U.S., in a case questioning whether the Federal government could enforce a piece of legislation called the “Anti-Espionage Act” against a socialist agitator named Charles Schenck.
However, Schenck wasn‘t today’s variety of socialist. In fact, he was arguing for something rather akin to what Tea Partiers might be seen as doing by the extreme Left today – that is, asserting one’s rights against an oppressive Federal mandate. That mandate, in this case, was the wartime draft of World War I, instituted by (who else) President Woodrow Wilson. Naturally enough, Wilson‘s government didn’t take kindly to Schenck distributing pamphlets urging citizens to resist the draft, and so they had him arrested. Schenck cried foul and appealed to the Court. This was where Holmes, one of the Court’s noted progressives, came in, writing:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Now, not only was this standard nowhere in the Constitution, but Holmes didn’t do a particularly strong job of tying the idea of yelling fire in a crowded theater as a First Amendment exception to the idea that speaking against the government in wartime is equivalent. Nevertheless, Holmes was joined in this opinion by the rest of the Court, and so far, this remains the only exception ever granted to the Federal Government regarding when it can step on the First Amendment.
So does Schumer have a leg to stand on comparing this to campaign finance? Definitely not. Not only is he reaching to an insane degree when complaining that “equality” and “democracy” are destroyed by corporate money, but he’s bringing up concerns that never motivated the Founders when they drafted the document. There was no concern on the part of the Founders that people exercise their First Amendment Rights to an equal degree, nor that everyone should even have equal political rights. In fact, this last part is especially true since, as we have repeated ad nauseam, America was never intended to be a democracy, and property owners were originally the only people who could vote.
Which, come to think of it, sounds rather like Schumer’s nightmare dystopia where those with the most property have the loudest voice. Some might consider it highly revealing when a leader of a major political party does not wish to abide by the political system originally envisioned by his country’s Founding Fathers, but as for us, we couldn’t possibly comment.
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http://www.nybooks.com/articles/archives/2012/jun/07/should-hate-speech-be-outlawed/?pagination=false
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In celebration of the First Amendment, today is Chick-Fil-A Appreciation Day
Restaurant Locator: http://www.chick-fil-a.com/Locations/Locator
http://www.powerlineblog.com/archives/2012/08/its-chick-fil-a-appreciation-day.php
Enjoy a little lunch or dinner with your freedom of speech.
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The Denny family will be dining there this evening :-D
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McGurn: The Chick-fil-A War Is Back On Welcome to the new intolerance.
By WILLIAM MCGURN
Sometimes there comes along an idea so wrongheaded that even Michael Bloomberg and the American Civil Liberties Union can't support it.
So it was this summer, when the Democratic mayors of Boston and Chicago declared Chick-fil-A unwelcome in their cities because the mayors disagree with CEO Dan Cathy's support for "biblical marriage." New York Mayor Bloomberg called the threats "inappropriate." A spokesman for the Illinois ACLU suggested that they were unconstitutional to boot.
Now the controversy is back, after a Chicago alderman announced that Chick-fil-A had agreed to stop supporting "antigay organizations." After two days of confusion, Mr. Cathy this weekend said Chick-fil-A had "made no such concessions." No matter who is telling the truth, this much we know: The targeting of Chick-fil-A is but one front in an ugly campaign where the goal isn't so much to prevail in a political argument as to buffalo opposing voices into silence.
We saw this in California recently, when individuals who had contributed to Proposition 8—a ballot initiative backing traditional marriage—found gay-rights activists pressuring their employers. We saw it in the campaign to get corporations to withdraw from the American Legislative Exchange Council, a pro-market organization of state legislators that found itself branded racist for supporting state voter-ID and stand-your-ground laws. We saw it even earlier, in 2005, when the Schwab financial services firm came under fire for supporting the libertarian Cato Institute and Social Security privatization—not to mention similar efforts to get corporations to withdraw from the U.S. Chamber of Commerce.
In one sense, these examples are all different. In the Proposition 8 case, activists targeted individuals; the Chick-fil-A matter, by contrast, involves a private company threatened by government officials, while the attacks on Schwab and ALEC zero in on the donations of large, publicly traded companies.
In the most critical sense, however, the goal is the same. Whether the means involve Federal Election Commission disclosure requirements, Securities and Exchange Commission rules on shareholder resolutions, or simply tagging those with opposing views as "hate groups," the object is clear: to limit debate by forcing one side off the playing field.
For a long time, the prevailing idea was that you encourage free speech with regulations ensuring full transparency. While this may sound fine in theory, in practice these requirements can conflict with the right of people to come together in free association. Certainly that was the Supreme Court's understanding in 1958, when it rejected the state of Alabama's demand that the National Association for the Advancement of Colored People turn over its membership list.
In like manner, Bradley A. Smith says that what he saw as head of the Federal Election Commission under George W. Bush led him to conclude that some of our government requirements limit rather than encourage free speech. "Today we have too many people saying not only 'I disagree with you,' but 'I hate your message and you shouldn't be allowed to say it,'" notes Mr. Smith, who now runs the Center for Competitive Politics. "The more ruthless then use disclosure laws to seek out and target those who hold contrary views."
Mr. Smith says that many Americans who favor disclosure do not perceive that these requirements might make them targets. For example, if you were a gay-marriage supporter working in the midst of an evangelical Christian business in a deep-red state, would you want your boss and co-workers to know you gave $100 for a gay-rights referendum? Obversely, if you were a young professor at Harvard up for a tenure vote, how comfortable would you be with your colleagues' knowing you had contributed to a tea-party initiative?
At the corporate level, the browbeating takes a different form. In general the idea is to manipulate whatever levers are available (e.g., shareholder resolutions) to expose, isolate and demonize some recipient of the company's giving. Each time a company cries "Uncle!," you trumpet the news—"Six More Companies Dump ALEC" read a recent headline on a website supporting such tactics—to make the remaining supporters feel isolated and vulnerable.
In other words, the Supreme Court in Citizens United may have upheld the speech rights of corporations in law, but these assaults on corporate giving seek to deny anyone who speaks up for smaller and more limited government the funding and wherewithal necessary to mount a public argument.
In short, under the false flag of better governance, the activists are working hard to impose standards and codes that would make it impossible for American business—and individuals—to support any but the most politically correct causes. For all the lofty words about accountability, did the drafters of our public-disclosure laws really intend them to be used by activist groups to get people fired for holding unfashionable views?
Welcome to the new intolerance. Chick-fil-A is only the beginning.
Write to MainStreet@wsj.com
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http://www.pjtv.com/?cmd=mpg&mpid=113&load=7574
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http://www.nytimes.com/2012/10/25/opinion/feigning-free-speech-on-campus.html?nl=todaysheadlines&emc=edit_th_20121025
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Second post:
http://blogs.wsj.com/law/2012/10/25/sixth-circuit-michigan-can-ban-anti-islam-ads-from-buses/
October 25, 2012, 1:00 PM.Sixth Circuit: Michigan Can Ban Anti-Islam Ads from Buses.
By Joe Palazzolo
An advertisement in the New York Subway by the American Freedom Defense InitiativeDoes First Amendment protect our right to say what we want in advertisements on the side of a city bus?
Yes and no.
A federal appeals court ruled Thursday that a Michigan transit authority could bar from the side of its buses an advertisement that read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com”
The group behind the ads is the the American Freedom Defense Initiative, which describes its mission as acting “against the treason being committed by national, state, and local government officials, the mainstream media, and others in their capitulation to the global jihad and Islamic supremacism.”
The group had sought in 2010 to place the ads on the buses in Michigan’s four southeastern-most counties, but the authority refused, on the grounds that the ads violated a policy against political advertisements and offensive speech.
AFDI sued, claiming First Amendment violations, and won. A federal district judge ruled in March 2011 that the ad policy gave inadequate guidance on what was permissible. The court noted, for instance, that the authority had allowed an atheist group to advertise on the buses.
The U.S. Court of Appeals for the Sixth Circuit said Thursday said that the side of the bus, in this case, wasn’t a public forum because the transit authority – Suburban Mobility Authority for Regional Transportation, or SMART – rejected all political advertisements. The state never opened the space for discourse.
Once SMART established that the space on the buses was a nonpublic forum, it could ban political speech, as long as it did so in a “reasonable and viewpoint neutral” way. The Sixth Circuit held that it did.
In recent months, federal district courts have ruled that transit authorities in New York and Washington, D.C., violated AFDI’s First Amendment rights by refusing to put up an ad that reads: “In any war between the civilized man and the savage, support the civilized man.”
In the New York case, U.S. District Judge Judge Paul A. Engelmayer ruled that the exterior of buses was a public space, because the New York Metropolitan Transit Authority accepted both political and commercial advertising. Thus, MTA couldn’t restrict AFDI’s political speech.
Update 4:25 p.m.
SMART send us this statement from General Manager John C. Hertel.
SMART is very pleased with the unanimous decision of the U.S. Court of Appeals for the Sixth Circuit in recognizing that SMART did not violate AFDI’s First Amendment rights and in establishing that SMART does not arbitrarily determine who can and cannot advertise on our buses. SMART is first and foremost dedicated to providing good, reliable and safe public transportation and is not a public forum for political discourse.
In an email, Pamela Geller, AFDI’s executive director, called the opinion “tortured and twisted.” Ms. Geller said the ad was religious, not political, in nature. The group plans to ask the Sixth Circuit to rehear the case, Ms. Geller added.
Moreover, this is just a preliminary ruling and not a final ruling on the merits. We intend to engage in aggressive discovery to demonstrate on a complete record that SMART’s speech restriction was arbitrary and ultimately unconstitutional. This case is not over.
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http://www.theblaze.com/stories/school-forces-child-to-remove-god-from-veterans-day-poem-separation-of-church-state/
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There is quite a bit here that is specious and glib IMHO, but nonetheless it seeks to grapple with interesting questions and so I share it.
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http://www.nytimes.com/2012/12/23/opinion/sunday/american-christianity-and-secularism-at-a-crossroads.html?nl=todaysheadlines&emc=edit_th_20121223&_r=1&
One Nation Under God?
By MOLLY WORTHEN
Published: December 22, 2012
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THIS week millions of “Chreasters” — Americans who attend church only on Christmas and Easter — will crowd into pews to sing carols and renew their vague relationship with the Christian God. This year, there may be fewer Chreasters than ever. A growing number of “nones” live in our midst: those who say they have no religious affiliation at all. An October Pew Research Center poll revealed that they now account for 20 percent of the population, up from 16 percent in 2008.
Valero Doval
Avoiding church does not excuse Americans from marking the birth of Jesus, however. Most of us have no choice but to stay home from work or school — and if you complain about this glaring exception to the separation between church and state, you must be a scrooge with no heart for tradition. Christmas has been a federal holiday for 142 years.
Yet Christianity’s preferential place in our culture and civil law came under fire this year, and not simply because more Americans reject institutional religion. The Obama administration subtly worked to expand the scope of protected civil rights to include access to legal marriage and birth control. Catholic bishops and evangelical activists declared that Washington was running roughshod over religious liberty and abandoning the country’s founding values, while their opponents accused them of imposing one set of religious prejudices on an increasingly pluralistic population. The Christian consensus that long governed our public square is disintegrating. American secularism is at a crossroads.
The narrative on the right is this: Once upon a time, Americans honored the Lord, and he commissioned their nation to welcome all faiths while commanding them to uphold Christian values. But in recent decades, the Supreme Court ruled against prayer in public schools, and legalized abortion, while politicians declared “war on Christmas” and kowtowed to the “homosexual lobby.” Conservative activists insist that they protest these developments not to defend special privileges for Christianity, but to respect the founders’ desire for universal religious liberty — rooted, they say, in the Christian tradition.
The controversial activist David Barton has devoted his career to popularizing this “forgotten history” through lectures, books and home-school curriculums. Mr. Barton insists that “biblical Christianity in America produced many of the cherished traditions still enjoyed today,” including “protection for religious toleration and the rights of conscience.”
Bryan Fischer, spokesman for the American Family Association, told me that he saw the “nones” as proof that “the foundations of our culture are crumbling.” The Pew poll, he said, “is one of the signs.” A couple of weeks after we spoke, he told a radio audience that God did not protect the children killed in the Newtown, Conn., massacre because of the Supreme Court decisions banning prayer and Bible reading in public schools. “God is not going to go where he is not wanted,” Mr. Fischer said.
How accurate is this story of decline into godlessness? Is America, supposedly God’s last bastion in the Western world, rejecting faith and endangering religious liberty?
The truth is that “nones” are nothing new. Religion has been a feature of human society since Neanderthal times, but so has religious indifference. Our illusions of the past as a golden age of faith tend to cloud our assessment of today’s religious landscape. We think of atheism and religious apathy as uniquely modern spiritual options, ideas that Voltaire and Hume devised in a coffee house one rainy afternoon sometime in the 18th century. Before the Enlightenment, legend has it, peasants hurried to church every week and princes bowed and scraped before priests.
Historians have yet to unearth Pew studies from the 13th century, but it is safe to say that we frequently overestimate medieval piety. Ordinary people often skipped church and had a feeble grasp of basic Christian dogma. Many priests barely understood the Latin they chanted — and many parishes lacked any priest at all. Bishops complained about towns that used their cathedrals mainly as indoor markets or granaries. Lest Protestants blame this irreverence on Catholic corruption, the evidence suggests that it continued after Martin Luther nailed his theses to the Wittenberg church door. In 1584, census takers in Antwerp discovered that the city had a larger proportion of “nones” than 21st-century America: a full third of residents claimed no religious affiliation.
When conservative activists claim that America stands apart from godless Europe, they are not entirely wrong. The colonies were relatively unchurched, but European visitors to the early republic marveled at Americans’ fervent piety. Alexis de Tocqueville wrote in 1840 that the absence of an established state church nurtured a society in which “Christian sects are infinitely diversified and perpetually modified; but Christianity itself is a fact so irresistibly established that no one undertakes either to attack or to defend it.”
De Tocqueville visited during a wave of religious revival, but he underestimated the degree to which some Americans held Christianity at arm’s length: the “infidel” Abraham Lincoln declined to join a church, and his wife invited spiritualists to hold séances in the White House.
Nevertheless, America’s rates of church affiliation have long been higher than those of Europe — perhaps because of the First Amendment, which permitted a religious “free market” that encouraged innovation and competition between spiritual entrepreneurs. Yet membership, as every exasperated parson knows, is not the same as showing up on Sunday morning. Rates of church attendance have never been as sterling as the Christian Right’s fable of national decline suggests. Before the Civil War, regular attendance probably never exceeded 30 percent, rising to a high of 40 percent around 1965 and declining to under 30 percent in recent years — even as 77 percent still identify as Christians and 69 percent say they are “very” or “moderately” religious, according to a 2012 Gallup survey.
We know, then, that the good old days were not so good after all, even in God’s New Israel. Today’s spiritual independents are not unprecedented. What is new is their increasing visibility. “I like the fact that we’re getting more ‘nones’ because it helps Christians realize that they’re different,” Stanley Hauerwas, a Protestant theologian at Duke Divinity School, said when I asked for his thoughts on the Pew poll. “That’s a crucial development. America produces people that say, ‘I believe Jesus is Lord, but that’s just my personal opinion.’ ”
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The temple of “my personal opinion” may be the real “established church” in modern America. Three decades ago, one “none” named Sheila Larson told the sociologist Robert Bellah and his collaborators that she called her faith “Sheilaism. Just my own little voice.” Americans are drifting out of the grip of institutionalized religion, just as they are drifting from institutional authority in general.
THIS trend, made famous by books like Robert Putnam’s “Bowling Alone,” has encouraged both the theological mushiness of those who say they are “spiritual, not religious” as well as the unfiltered fury that has come to characterize both ends of the political spectrum. “It seems like we live in a Manichaean universe, with vitriolic extremes,” said Kathryn Lofton, associate professor of American studies and religious studies at Yale. “That’s not unrelated to the lack of tempering authority. ‘Religious authority’ is no longer clergy in the pulpit saying ‘Vote for Eisenhower,’ but forwarded URL links or gossip exchanges in chat rooms. There is no referee.”
For a very long time, Protestant leaders were those referees. If individual impiety flourished in centuries past, churches still wielded significant control over civic culture: the symbols, standards and sexual mores that most of the populace respected in public, if not always in private. Today, more and more Americans openly accept extramarital sex, homosexuality and other outrages to traditional Christian morality. They question the Protestant civil religion that has undergirded our common life for so long.
The idea of Protestant civil religion sounds strange in a country that prides itself on secularism and religious tolerance. However, America’s religious free market has never been entirely free. The founding fathers prized freedom of conscience, but they did not intend to purge society of Protestant influence (they had deep suspicions of Catholicism). Most believed that churches helped to restrain the excesses of mob democracy. Since then, theology has shaped American laws regarding marriage, public oaths and the bounds of free speech. For most of our history, the loudest defenders of the separation of church and state were not rogue atheists, but Protestants worried about Catholics seeking financing for parochial schools or scheming their way into public office to take orders only from mitered masters in Rome.
Activists on both the left and the right tend to forget this irony of the First Amendment: it has been as much a weapon of religious oppression as a safeguard for liberty. In the 19th and early 20th century, when public school teachers read from a Protestant translation of the Bible in class, many Americans saw benign reinforcement of American values. If Catholic parents complained, officials told them that their Roman dogma was their own private concern. The underlying logic here was not religious neutrality.
The Protestant bias of the American public sphere has mellowed over time, but it still depends on “Christian secularism,” said Elizabeth Shakman Hurd, a political scientist at Northwestern University. This is a “political stance” premised on a “chiefly Protestant notion of religion understood as private assent to a set of propositional beliefs,” she told me. Other traditions, such as Judaism and Islam and to some degree Catholicism, do not frame faith in such rationalist terms, or accept the same distinction between internal conviction and public argument. The very idea that it is possible to cordon off personal religious beliefs from a secular town square depends on Protestant assumptions about what counts as “religion,” even if we now mask these sectarian foundations with labels like “Judeo-Christian.”
Conservative Christian activists hold those sectarian foundations more dearly than they admit, and they are challenging the Obama administration’s efforts to frame access to contraception and same-sex marriage as civil rights immune to the veto of “private” conscience. Alan Sears, president of the legal advocacy organization Alliance Defending Freedom, sees an unprecedented threat to religious liberty in the harsh fines facing employers who refuse to cover contraception in their insurance programs. “It is a death penalty. It is a radical change,” he told me. “It’s one thing when you’re debating about public space, but it’s another when you say, if you don’t surrender your conscience, you’re out of business.”
Barry Lynn, the director of Americans United for Separation of Church and State (an organization that until 1972 was named, tellingly, Protestants and Other Americans United for Separation of Church and State), sees things differently. He worries about what might happen if an unpredictable Supreme Court agrees to hear conservative Christians’ challenges to the contraception mandate, or their pleas for exemptions for charities that accept federal grants but discriminate on the basis of religion in hiring. “The court could create something vastly more dangerous than corporate free speech: a ‘corporate conscience’ claim,” Mr. Lynn, a lawyer and an ordained minister, told me. “These cases could become as significant for the redefinition of religious liberty as Roe v. Wade was a rearticulation of the right to privacy.”
These legal efforts are less an attempt to redefine religious liberty than a campaign to preserve Christians’ historic right to police the boundary between secular principles and religious beliefs. Only now that conservative Christians have less control over organs of public power, they cannot rely on the political process. Now that the “nones” are declaring themselves, and more Americans — including many Christians — see birth control as a medical necessity rather than a sin, Mr. Sears sees a stark course of action for the Catholic and evangelical business owners he represents: “Litigation is all that our clients have.” Their problem, however, is more fundamental than legal precedent. Their problem is that America’s Christian consensus is fragmenting. We are left groping for something far messier: an evolving, this-worldly, compromise.
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http://www.stanfordlawreview.org/online/privilege-belfast-project
To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died.[1]
More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.
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http://www.youtube.com/watch?v=nKjy0PDlKV4
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http://www.youtube.com/watch?v=nKjy0PDlKV4
http://www.volokh.com/2012/03/16/the-federal-restricted-buildings-and-grounds-improvement-act-of-2011/
The Federal Restricted Buildings and Grounds Improvement Act of 2011
Eugene Volokh • March 16, 2012 7:35 pm
Andrew Napolitano condemns this recently enacted statute:
Last week, President Obama signed into law the Federal Restricted Buildings and Grounds Improvement Act of 2011. This law permits Secret Service agents to designate any place they wish as a place where free speech, association and petition of the government are prohibited. And it permits the Secret Service to make these determinations based on the content of speech.
Thus, federal agents whose work is to protect public officials and their friends may prohibit the speech and the gatherings of folks who disagree with those officials or permit the speech and the gatherings of those who would praise them, even though the First Amendment condemns content-based speech discrimination by the government. The new law also provides that anyone who gathers in a “restricted” area may be prosecuted. And because the statute does not require the government to prove intent, a person accidentally in a restricted area can be charged and prosecuted, as well....
This abominable legislation enjoyed overwhelming support from both political parties in Congress because the establishment loves power, fears dissent and hates inconvenience, and it doesn’t give a damn about the Constitution. It passed the Senate by unanimous consent, and only three members of the House voted against it. And the president signed it in secret. It is more typical of contemporary China than America. It is more George III than George Washington.
One can reasonably criticize the law, but this strikes me as rather excessive.
1. The law doesn’t seem to apply to “a person accidentally in a restricted area,” since it’s limited to people who act “knowingly.” In particular, the provision criminalizing “knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so” would likely be read as requiring knowledge that the building is restricted. (See, e.g., Liparota v. United States (1985).)
2. The law applies only to (A) the White House and its grounds and the Vice President’s official residence and its grounds, (B) buildings or grounds where the President or another person protected by the Secret Service is or will be visiting, and (C) buildings or grounds “restricted in conjunction with an event designated as a special event of national significance.” The first two categories are pretty narrow, and my sense is that giving the Secret Service the power to control who goes onto such buildings or grounds is necessary for them to effectively protect the people they are trying to protect.
The “special event of national significance” category is potentially broader, and I can certainly imagine how this might be abused. But I don’t think it really quite “permits Secret Service agents to designate any place they wish” as such an event. While I haven’t found any regulations or cases on the subject, I suspect that courts would read this as limited to a relatively narrow class of events, such as party conventions and the like.
3. What’s the basis for complaining that “the president signed [the bill] in secret”? There is no requirement that the President sign bills in a public ceremony, and to my knowledge there is no tradition of signing all bills — even slight ones such as this — publicly.
4. Also, as best I can tell the new law is a slight modification to the existing 18 U.S.C. § 1752. Indeed, the broadest provision in the law — the special event of national significance provision — was added to the statute in 2006. Now it may well be that the law was a bad idea even then, but it strikes me as worth noting that the law has been in place for six years, through two administrations, without (to my knowledge) a vast amount of abuse.
Now perhaps the reference to “special event of national significance” is too vague. Perhaps the phrase “restricted in conjunction with” such an event is too vague and too broad, because at least in theory it might allow the Secret Service to cordon off too wide a radius around the event. Perhaps there are ways to let the Secret Service do its job while that would still robustly protect speech in the place where the Secret Service is doing that job. Or perhaps there are problems with some of the other provisions of the law, such as the ban on “knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engag[ing] in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official function” (though I think that this language will likely be read as applicable only to conduct that is physically disruptive and not to conduct that disrupts because of its offensive content).
Still, the potential problems strike me as considerably less dramatic than Mr. Napolitano’s column suggests. This strikes me as a slight extension of a modest regulation that is hardly “abominable” or China-like. Thanks to Peter Jensen for the pointer.
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Good addition to the conversation GM.
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Eugene Volokh is a smart guy. I like to check his position on legal issues.
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And Napolitano can hyperventilate at times-- hence the question mark I put in the header.
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This is another thing with which GM and I agree.
Eugene Volokh is a smart guy. I like to check his position on legal issues.
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http://www.youtube.com/watch?v=DOhU0ow0LLY
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http://hotair.com/archives/2013/02/02/college-president-fined-over-free-speech-violation/
College president fined over free speech violation
posted at 4:01 pm on February 2, 2013 by Jazz Shaw
An interesting story of free speech on America’s college campuses comes to us this week from College Insurrection. Back in 2007, the president of Valdosta State University was pushing a proposal for a new campus construction project. When the plan drew criticism from one student on environmental and political grounds (from a decidedly liberal perspective) in the form of a Facebook post, President Ronald Zaccari had Hayden Barnes kicked out of school. After many years of court wrangling, Mr. Barnes appears to have prevailed.
Absurdly declared a “clear and present danger” and kicked off of campus in 2007 because of his opposition to a parking garage project that former president Zaccari saw as part of his “legacy,” Barnes filed a federal lawsuit against Zaccari and his employer in 2008…
Zaccari appealed this finding, and it went all the way to the United States Court of Appeals for the Eleventh Circuit, where Zaccari lost. When the appeals were finished and the case came before a jury, the jig was up: Zaccari personally owes Barnes $50,000—and the court has not even assessed attorneys’ fees yet.
The details of the construction project in question make the case even more bizarre.
Barnes’ ordeal began in the spring of 2007, when he protested Zaccari’s plan to construct two new parking garages on campus at a cost of $30 million. By posting flyers and sending emails to Zaccari, student and faculty governing bodies, and the Board of Regents of the University System of Georgia, Barnes expressed his concerns and proposed what he saw as environmentally friendly alternatives. Barnes also penned a letter to the editor of the VSU student newspaper about the proposed parking garage plans and wrote to Zaccari to ask for an exemption from the mandatory student fee designated for funding the construction.
In response to Barnes’ activism, Zaccari personally ordered that he be “administratively withdrawn” from VSU in May of 2007, ignoring the concerns raised by members of his administration.
You can find a .pdf file of the Facebook post which kicked all of this off here. Aside from the obvious “no blood for oil” and green warrior bias, I’m not sure what got everyone so upset about it. (Of course, the resolution isn’t that great, so maybe I’m missing something.) Agree or disagree with the posting, though, the actions of the college president clearly seemed heavy handed. A $50K smackdown will probably send a significant message here.
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http://www.breitbart.com/InstaBlog/2013/02/02/White-House-Warns-Don-t-Photoshop-Obama-Gun-Pic
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FORBES: America’s new government-imposed religion
‘Wall of separation’ is blocking practice of faith
By Rep. J. Randy Forbes
Friday, February 8, 2013
Catholic adoption agencies have been forced to close their doors in Illinois, Massachusetts and Washington, D.C., because their religious beliefs about marriage were deemed unacceptable by their jurisdictions.
A graduate student in Michigan was expelled from a counseling program because her religious beliefs about marriage were deemed unacceptable by school officials.
Christian pharmacists in Illinois were told to find other professions because their religious beliefs regarding when life begins were deemed unacceptable by the state.
Private business owners are facing enormous fines because their beliefs about when life begins have been deemed unacceptable by the federal government.
Pastor Louie Giglio did not deliver the closing prayer at President Obama’s inauguration ceremony because his religious beliefs about marriage were deemed unacceptable by the administration.
In January, our nation celebrated Religious Freedom Day, commemorating the anniversary of the passage of the Virginia Statute for Religious Freedom, in which Thomas Jefferson wrote, “Be it enacted by the General Assembly, that no man shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.”
Compared with others around the world, people of faith in America enjoy extraordinary freedoms. Our lives are not in danger. We do not face imprisonment or torture for holding unpopular convictions.
Yet when people of faith are restricted from fully participating in society — owning businesses, entering the medical profession or providing much-needed charitable services — an intolerable trade-off has occurred. The government has exceeded its boundary, and the figurative wall between church and state must be strengthened.
Our government is powerless without “the consent of the governed.” This uniquely American design, explicit in the founding document of the United States, was devised in part to ensure that unless an individual consents, the government may not force him to violate the sacred relationship between him and his God. This freedom of conscience was secured in the First Amendment, guaranteeing that Americans could exercise their faith without government interference.
What resulted was an unprecedented melting pot of thoughts, beliefs and ideas. The success of the American experiment was evidenced by the immigrants drawn to our shores in search of this shining beacon of tolerance, this refuge where individuals could freely live out their convictions without fear of government retribution.
Thomas Jefferson recognized the sacrosanct relationship between God and man when he penned a letter to the Danbury Baptists in 1802, coining the “wall of separation between Church and State.” The Baptists had written to the newly elected president expressing concern that religious freedoms were being treated by the state of Connecticut “as favors granted, and not as inalienable rights.”
Jefferson’s response fell wholly on the side of religious freedom: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”
Two hundred years later, this important concept has been distorted into a tool used to sanitize school classrooms, war memorials and courtrooms of references to faith. Its misapplication has led the public to believe that Jefferson’s intent was to confine religion to the four walls of the church. Context reveals, however, that Jefferson’s wall actually was meant to constrain the government, ensuring religious freedoms are treated as “inalienable rights” rather than “favors granted.”
The tide has turned, and we have begun to see the emergence of a state-created orthodoxy. It deems support for traditional marriage unacceptable. It discredits those who believe that life begins at conception. It disfavors their faith — held for centuries by their predecessors — and creates a regulatory framework to prevent them from fully participating in the public square.
When the government says, “You can believe whatever you want, but you will be penalized if you exercise those beliefs,” we have entered dangerous territory. We cannot allow a religious litmus test to determine who may participate in American life. We must defend the Constitution not only in form, but also in effect.
Rep. J. Randy Forbes is a Virginia Republican.
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Campus Clampdowns on Free Speech Flunk Their Legal Tests A federal jury holds a former public-university president liable for unfairly expelling a student critic of his policies..
WSJ
By GREG LUKIANOFF In a case that may help end the decades-long scandal of speech codes on college campuses, a federal jury in Georgia this month held the former president of a public university personally liable for violating the basic rights of one of his students.
In 2007, Valdosta State University President Ronald Zaccari expelled student Hayden Barnes after Mr. Barnes protested Mr. Zaccari's plan to construct two new parking garages on campus. Mr. Barnes believed that the university should pursue more environmentally friendly alternatives, and he let the campus community know his opinion through a determined yet civil campaign, including posting flyers around campus, writing to the campus newspaper, and contacting fellow students and other members of the university community. One flyer pointed out that the estimated $30 million cost of the garages could provide 2,940 full scholarships for students at the school.
Valdosta State University
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Mr. Zaccari apparently began looking for a reason to expel this meddlesome student. He settled upon a collage that Mr. Barnes had posted on Facebook FB -0.63%that referred to the construction project as a "memorial" parking garage, a joke on the president's belief that the garage would be part of his legacy. Mr. Zaccari, alleging that the use of the word "memorial" constituted a threat on his life, threw Mr. Barnes out of school, despite objections by his own staff and statements from multiple psychologists that the student (a believer in nonviolence and a decorated emergency medical technician) wasn't a threat to anyone.
Mr. Barnes filed suit in 2008, enlisting the help of First Amendment attorney Robert Corn-Revere. This month a federal jury found against Mr. Zaccari and awarded $50,000 in compensatory damages to Mr. Barnes. Mr. Zaccari (who announced his retirement in the fall of 2007) may also be held liable for Mr. Barnes's legal fees.
Presidents of public universities would normally be protected from such a decision by "qualified immunity," a legal principle that shields state employees from personal liability for constitutional violations while carrying out their job duties. However, this immunity can be pierced when a state official is found to have abused his legal authority and done something he either knew or should have known violated clearly established constitutional rights. Here, Mr. Zaccari ignored Mr. Barnes's constitutional right to due process.
Unfortunately, there remains a real possibility that Valdosta State University—that is, Georgia taxpayers—will end up paying both Mr. Zaccari's legal expenses and Mr. Barnes's. Georgians shouldn't take this without a fight.
The state should no more pay to defend a university president who ignored the Constitution than it should pay to defend a university president who committed a crime. The point of being able to pierce qualified immunity is to deter state employees from knowingly ignoring the fundamental rights of citizens.
The number of public university employees who do so is staggering. Since the 1980s, campuses across the country have maintained dramatic restrictions on speech. There are "free speech zones" like the University of Cincinnati's, which—until a court ruling last summer—restricted student protest to .1% of the space on campus. And there are definitions of "academic abuse" like that of Auburn University at Montgomery, Ala., which blocks professors from making students "feel insignificant or inferior" and from "making judgments." Since grading is a form of judgment, it is hard to understand how any university administrator could think such a policy belongs in an academic environment.
Such restrictions on campus speech are consistently defeated in court—but only when challenged, which is not nearly often enough. According to the most recent annual study conducted by my organization, the Foundation for Individual Rights in Education, nearly 63% of more than 400 of America's largest and most prestigious colleges maintain policies that seriously violate First Amendment principles.
More than a dozen major court rulings have forced public universities to end unconstitutional restrictions on speech. My organization has given hundreds of top colleges notice that their policies would likely be similarly struck down by courts. Because the law regarding student First Amendment rights is so clearly established, when public universities are proved guilty of enforcing unlawful speech codes anyway, administrators should be held personally liable. Taxpayers shouldn't be forced to continue to bail out those who strip their sons and daughters of their most basic rights.
It would be best if universities chose on their own to make themselves safe places for students to discuss ideas, question sacred cows and even be politically incorrect. But universities have had decades to create such environments, and yet speech codes remain in place on hundreds of campuses. Perhaps the only way to force schools to follow the law is to launch more lawsuits and hold more administrators personally liable. If so, campus administrators have no one to blame but themselves.
Mr. Lukianoff is president of the Foundation for Individual Rights in Education and author of "Unlearning Liberty: Campus Censorship and the End of American Debate" (Encounter, 2012).
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Imagine if we honored the other clauses of the constitution (like the second amendment) with this kind of no-exceptions consistency.
http://www.nytimes.com/2013/04/10/opinion/in-the-jana-winter-case-a-debate-over-protecting-news-sources.html?_r=1&
A Killer’s Notebook, a Reporter’s Rights
By THEODORE J. BOUTROUS Jr.
Published: April 9, 2013
SHOULD a journalist be punished for revealing a murderer’s secrets?
Jana Winter, a reporter at Fox News, covered the shooting rampage that killed 12 people and injured 58 others at a movie theater in Aurora, Colo., on July 20, 2012. Five days after the attack, she reported that James E. Holmes, who has been charged with committing the massacre, had sent a notebook to a psychiatrist before the attack.
On July 25, Ms. Winter quoted two unnamed law enforcement sources as saying that Mr. Holmes had “mailed a notebook ‘full of details about how he was going to kill people’ to a University of Colorado psychiatrist before the attack.” According to her reporting, the notebook contained “drawings of what he was going to do,” including sketches of “gun-wielding stick figures blowing away other stick figures.”
Mr. Holmes’s lawyers are now trying to compel Ms. Winter to disclose her sources, who spoke to her on a confidential basis and possibly violated a court-imposed order that was intended to restrict public access to materials in the case so as to ensure a fair trial. The defense lawyers say the information is relevant because it speaks to the credibility of law enforcement officers who, under oath, have denied leaking the information.
Lawyers for Ms. Winter and Fox News have moved to quash the subpoena, asserting that under the First Amendment and Colorado’s “shield law,” which protects reporters, she is not required to disclose her sources. On Monday, the judge in the Holmes case, Carlos A. Samour Jr., put off a decision on the motion, saying he needed to first decide whether the notebook was even relevant to the criminal proceeding.
But the case is clear-cut.
If Ms. Winter were compelled to reveal her sources — or found in contempt of court and fined or jailed for refusing to do so — it would have a chilling effect on journalists and their ability to gather information in the public interest. This should be an open-and-shut case, but it comes at a time when the Obama administration, despite its commitment to transparency, has pursued a record number of criminal prosecutions against whistle-blowers for leaking information to the press, even if the disclosures were done out of an honest desire to serve the public interest.
Colorado, like 39 other states and the District of Columbia, has a “shield law” specifically designed to protect journalists from having to disclose their sources. In Colorado, before requiring a reporter to testify about confidential sources, a court must be convinced that the information is “directly relevant to a substantial issue in the proceedings.” In this case, the identity of Ms. Winter’s sources has no bearing on whether Mr. Holmes is guilty or innocent in the movie-theater massacre. It seems like nothing more than a sideshow, a tactic by the defense lawyers to intimidate the leakers and divert attention from the criminal trial.
Over the last 40 years, courts around the nation have repeatedly recognized the strong First Amendment interest in protecting confidential news sources. One federal appellate court ruled that jeopardizing a journalist’s ability to protect the confidentiality of sources would “seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public.”
There is no question that Ms. Winter’s article was of public interest and concern: By reporting on the mental health of an alleged mass murderer and his apparent statements to a psychiatrist, she shed light on the dilemma mental health professionals often face in balancing confidentiality obligations and public safety concerns. (In this case, the notebook did not ever reach the psychiatrist to whom it was sent; its existence was only uncovered after the attack.)
Mr. Holmes’s lawyers argue that his notebook cannot be used as evidence against him because it is protected by Colorado’s psychotherapist-patient privilege, which prohibits the disclosure of “knowledge gained” from patients without their consent. (While Colorado law recognizes that a psychotherapist may have a duty to disclose a “threat of imminent physical violence against a specific person or persons,” it is not clear whether that duty would have applied in this case.)
This form of privilege is recognized nationally and the implications go well beyond Aurora; these issues are also central to the ongoing national debate over gun control since the elementary school shootings last December in Newtown, Conn.
If a litigant’s mere desire to punish a confidential source were enough to force a reporter to disclose the source’s identity, then journalism would be seriously jeopardized and laws protecting it would be gutted.
This seems to already be happening to Ms. Winter. “Because my sources have been intimidated by the specter of the Holmes subpoena,” she wrote in an affidavit, “reports have gone unwritten and I have been thwarted in my news-gathering.”
The case of Ms. Winter, a young reporter, has not gotten as much attention as battles over confidential sources that involve national security matters, but, given the increasing prominence of mass shootings in America and the complicated role that mental illness has played in many of these cases, her case is a pivotal one for journalists and for any American who cares about freedom of the press.
Theodore J. Boutrous Jr. is a partner at the law firm Gibson, Dunn & Crutcher, focusing on appellate and constitutional law.
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Texas teen points to heavens, gets 4×100 relay squad banned from state championships
By Cameron Smith | Prep Rally – 8 hours ago
Derrick Hayes, left, and his 4x100 teammates were disqualified for a finger gesture — YouTubeDerrick Hayes, left, and his 4x100 teammates were disqualified for a finger gesture — YouTube
Of the likely places for a debate over religious free expression to erupt, a Texas high school track and field meet probably wasn’t high on the list.
Remarkably, that’s precisely where one athlete’s reactionary gesture has led to a broader discussion about what is appropriate at public school events, after a Columbus (Texas) High relay team was disqualified for one of their member’s heavenward gesture. The incident occurred in Columbus, where the track and field team was hosting a meet with the goal of qualify athletes for the state championship meet later in May.
As first reported by Houston CBS affiliate KHOU, the school’s 4x100-meter relay squad achieved just that in winning its race decisively. The anchor of that 4x100 squad was junior Derrick Hayes, who ran a particularly blazing split and celebrated the team’s state qualification with a simple finger point to the heavens.
The gesture is a common one in sports -- remember Sammy Sosa or Barry Bonds after breaking the single season home run record? -- but on this occasion, it was deemed to have run afoul of a University Interscholastic League (UIL) regulation barring excessive celebration.
Once officials at the Columbus meet determined that Hayes had violated the excessive celebration rules, the entire 4x100-meter squad was disqualified and effectively barred from the state championships. The team will not get another chance to qualify for the meet.
“He put his hand by his ear and pointed to the heavens,” Hayes’ father, KC Hayes, told KHOU. “It was a reaction. You’re brought up your whole life that God gives you good things, you’re blessed.”
While there appears to be little recourse for the runners to be reinstated in the state championships, that hardly means that the surprising disqualification is a closed issue. Instead, residents around the area have spoken up in support of the teen athlete and questioning the wisdom of any UIL rule that would prohibit a form of religious free expression.
“I don’t see what the big deal is,” Columbus resident Laporchia Miller told KHOU. “When people are thanking God, he’s the reason we live.”
Added Weimar resident Steve Williams, when the station told him that it was policy to bar any hand gestures under the excessive celebration rules:
“Well, then it’s not a good policy.”
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Greg Lukianoff: Feds to Students: You Can't Say That
The Justice and Education departments issue a dangerous new speech code for colleges.
By GREG LUKIANOFF
The scandals roiling Washington over the past two weeks involve troubling government behavior that had been hidden—the IRS targeting of conservative groups and the Justice Department's surveillance of the Associated Press, among others. Largely overlooked amid the histrionics has been a shocker hiding in plain sight. Last week, the Obama administration moved to dramatically undermine students' and faculty rights at colleges across the country.
The new policy was announced in a joint letter from the Education Department and Justice Department to the University of Montana. The May 9 letter addressed the results of a year-long joint investigation by the departments into the school's mishandling of several serious sexual-assault cases. The investigation determined that the university's policies addressing sexual assault failed to comply with Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.
But the joint letter, which announced a "resolution agreement" with the university, didn't stop there. It then proceeded to rewrite the federal government's rules about sexual harassment and free speech on campus.
If that sounds hyperbolic, consider the letter itself. The first paragraph declares that the Montana findings should serve as a "blueprint for colleges and universities throughout the country." After outlining the specifics of the case, the letter states that only a stunningly broad definition of sexual harassment—"unwelcome conduct of a sexual nature"—will now satisfy federal statutory requirements. This explicitly includes "verbal conduct," otherwise known as speech.
The letter rejects the requirement, established by legal precedent and previous Education Department guidance, that sexual harassment must be "objectively offensive." By eliminating this "reasonable person" standard—which the Education Department has required since at least 2003, and which protects the accused against unreasonable or insincere allegations—the right not to be offended has been enshrined in a federal mandate.
The letter further states that campuses have "an obligation to respond to student-on-student harassment" even when that harassment occurs off-campus. In some circumstances, the letter says, universities may take "disciplinary action against the harasser" even "prior to the completion of the Title IX and Title IV investigation/resolution." In plain English: Students can be punished before they are found guilty of harassment.
Given that the letter represents an interpretation of federal law by major federal agencies, most colleges will regard it as binding. Noncompliance threatens federal funding, including Pell grants and Stafford loans.
The implications for professors and students are enormous. An unsuccessful request for a date, or even assigning a potentially offensive book like "Lolita," could now be construed as harassment. As attorney and civil libertarian Wendy Kaminer commented on The Atlantic's website this week: "The stated goal of this policy is stemming discrimination, but the inevitable result will be advancing it, in the form of content-based prohibitions on speech."
This attack on campus free speech follows the Education Department's directive two years ago requiring every college in the country that receives federal funds to lower the standard of evidence in sexual-harassment cases. The "preponderance of the evidence," the judiciary's lowest standard of proof, became the required standard. (Many institutions had previously used the "clear and convincing" standard.) As former Dean of Harvard CollegeHarry Lewis has noted, the "preponderance of evidence" mandate means "more convictions—of both guilty and innocent individuals," which is a troubling result "in a society that values individual rights."
Last week's letter is part of a decades-long effort by anti-"hate speech" professors, students, activists and administrators to classify any offensive speech as harassment unprotected by the First Amendment. Such speech codes reached their height in the 1980s and 1990s, but they were defeated in federal and state court and came in for public ridicule.
Despite these setbacks, harassment-based speech codes have become the de facto rule. Earlier this year, my organization, the Foundation for Individual Rights in Education, published a study that looked at 409 colleges and found that 62% maintain codes that violate First Amendment standards.
The stifling effect of these codes isn't theoretical. In 2011, the University of Denver suspended a professor and found him guilty of sexual harassment because his class discussion on sexual taboos in American culture (in a graduate-level course) was considered too racy. Last year, Appalachian State University suspended a professor for creating a "hostile environment" after she criticized the university's treatment of sexual-assault cases involving student-athletes and screened a documentary critical of the adult-film industry.
Recent history gives no reason to expect that the government's new directive on "verbal conduct" will remain confined to sexual speech. At Tufts in 2007, a conservative student publication was found guilty of harassment for criticizing Islam. The same happened to a professor at Purdue University at Calumet in 2012, who faced a four-month investigation.
An obsession with political correctness and the expansion of bureaucracy on campus are key factors in the proliferation of such free-speech abuses. But the hidden force that pushes schools to overreact to offensive, or merely dissenting, speech is fear of liability and the federal government. A growing "risk-management" industry—complete with regular conferences, conventions and consultants—has arisen from efforts by university administrators trying to avoid being sued for discrimination or harassment, and to avoid the costly investigations in which the Education Department's Office for Civil Rights specializes.
All of this effort and expense ought to be unnecessary. The Supreme Court already did the work in Davis v. Monroe County Board of Education (1999). Recognizing that workplace standards for harassment were inappropriate for educational institutions, in Davis the court offered a clear, narrow, workable definition of harassment as a targeted pattern of serious and ongoing discriminatory behavior.
Adopting this standard would have solved—and would still solve, if implemented—universities' liability panic, while allowing real harassers to be punished and avoiding serious threats to freedom of speech. But the Education and Justice departments apparently don't want to embrace the Supreme Court's solution. In their letter, they explicitly reject (and misquote) the court's thoughtful analysis in Davis, deeming it inapplicable for the agencies' "purposes of administrative enforcement."
When the Education Department lowered the standard of evidence for harassment accusations in 2011, some college administrators complained, but most meekly accepted the federal mandate. They may be regretting that submission, now that the government is pushing for even lower standards. Unless we decide that college should primarily be a social institution devoted to preventing offense, it is time for universities—as well as state governments, alumni, students, parents, faculty and citizens—to fight back.
Mr. Lukianoff is the author of "Unlearning Liberty: Campus Censorship and the End of American Debate" (Encounter, 2012) and the president of the Foundation for Individual Rights in Education.
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David Rivkin and Lee Casey: The IRS and the Drive to Stop Free Speech
Such a scandal was bound to happen after the government started trying to rule the expression of political views.
By DAVID B. RIVKIN JR. AND LEE A. CASEY
The unfolding IRS scandal is a symptom, not the disease.For decades, campaign-finance reform zealots have sought to limit core political speech through spending limits and disclosure requirements. More recently, they have claimed that it is wrong and dangerous for tax-exempt entities to engage in political speech.
The Obama administration shares these views, especially when conservative, small-government organizations are involved, and the IRS clearly got the message. While the agency must be investigated and reformed, the ultimate cure for these abuses is to unshackle political speech by all groups, including tax-exempt ones, from arbitrary and unconstitutional government regulation.
Beginning in March 2010, the IRS engaged in an unprecedented campaign of harassment against conservative groups, either through denials or delays in approving their tax-exempt-status applications, or through endless and burdensome audits.
In notable contrast, liberal and "progressive" organizations got approvals with remarkable speed. The most conspicuous example involves the Barack H. Obama Foundation, which was approved as tax exempt within a month by the then-head of the IRS tax-exempt branch, Lois Lerner. From media reports and firsthand accounts, we also know that the IRS disproportionately audited donors to conservative causes and leaked confidential tax information concerning conservative groups in violation of federal law.
This IRS politicization is not an isolated problem. It is an inevitable result of the broader efforts to regulate and, in fact, suppress political speech.
The IRS crackdown on tax-exemption approvals for conservative groups was directed at nonprofit social-welfare groups, often called 501(c)(4)s after the Internal Revenue Code section granting them tax-exempt status. Such groups do not have to disclose their donors and are exempt from most taxation, although donations to them generally aren't tax deductible.
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Corbis
Social-welfare organizations are permitted to engage in a range of political activities promoting their causes or beliefs, so long as these activities aren't their "primary purpose." This has been generally understood to mean that they must spend less than 50% of their total resources on political activities.
The IRS had little interest in 501(c)(4) political activities until the 2002 McCain-Feingold campaign-finance reform. That law barred dedicated political-advocacy groups from soliciting and spending soft money—funds that aren't subject to tight federal campaign-contribution limits and are used for issue advocacy and party-building.
This IRS restraint was doubtless reinforced by the fact that virtually all politically active (c)(4)s, mostly labor and environmental groups, were ideologically liberal and their activities were not attacked in the mainstream media or by the political establishment. Meanwhile, Republicans financed their political activities largely through candidate-specific campaigns and party and congressional committees.
Yet McCain-Feingold had the unintended effect of making 501(c)(4) political activities far more important than they had been, since the law's ban on soft money doesn't apply to such groups. Thus, it prompted the creation of conservative 501(c)(4)s—although there is little hard evidence of improper political activities by any such groups, whether liberal or conservative.
The Supreme Court's 2010 decision in Citizens United further increased the importance of the groups by invalidating the restrictions against much political speech by corporations. This freed 501(c)(4) groups, which ordinarily are organized as corporations, to engage in the express advocacy of political causes and candidates.
The Obama administration made clear its deep dislike of Citizens United and of the various new conservative groups spawned by the "tea party" movement. The IRS bureaucrats took the hint. No express order from senior administration officials would have been necessary. Like other federal enforcement agencies, the IRS has always been well-attuned to even subtle guidance from the White House, Congress and the political establishment.
Thus, the IRS crackdown on conservative organizations was a direct and inevitable consequence of political and policy messaging by the Obama administration, and by the campaign-finance reformers who share these views. Congressional Democrats are also to blame, since many of them have publicly—as with Max Baucus, chairman of the Senate Finance Committee, which oversees the IRS—or privately urged the IRS to go after conservative tax-exempt organizations.
Ignoring their own share of responsibility, campaign-finance reformers and their allies are now pressing to broaden the IRS crackdown to apply to all tax-exempt organizations. In their view, the problem is not only with express political advocacy, but with all tax-exempt activities that might have political overtones, or be related to political issues. Indeed, many argue that such organizations should be conspicuously apolitical.
This is wrong as a matter of law and policy. Congress doesn't have to provide tax-exempt status to social-welfare organizations, but having done so it cannot discriminate by the kind of advocacy in which such groups engage. To say that such activities can have no political implications is an insult to common sense. In a vibrant democracy, every major policy debate has political implications.
The spirited debate about policy issues should be at the core of social-welfare organizations. Politics is how we govern ourselves and political speech is essential to self-governance. The fact that 501(c)(4) group contributors aren't subject to campaign disclosure requirements is a good thing.
There is nothing inherently evil about anonymous political speech. It is firmly anchored in our political and legal culture and was used by the Framers during the founding. Hamilton, Madison and Jay published their Federalist Papers under a pseudonym. The fact that the IRS was able to target conservative donors—similar to the way donors to the NAACP were targeted at the height of the civil-rights battles—shows how disclosure can lead to speech-suppressing government actions.
The courts have long held that the IRS cannot use subjective, "value-laden" tests in administering nonprofit status. As the Court of Appeals for the D.C. Circuit stated in one leading case, Big Mama Rag, Inc. v. United States (1980): "although First Amendment activities need not be subsidized by the state, the discriminatory denial of tax exemptions can impermissibly infringe free speech."
The proper lessons of the unfolding IRS scandal are twofold. First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts. Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.
Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.
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One of my favorite opinion journalists, James Taranto, editor of the WSJ online editorial page, published his own college story about his not-politically-correct decision to re-publish a UCLA cartoon mocking affirmative action in his own college newspaper. The issue, as I read it, was whether students writing a college newspaper have first amendment rights. At the end he won his $93 back in settlement and declined to take a degree from his anti-mentors.
Long piece, a very readable story, except that Taranto has a goofy trademark of writing about himself in first person plural.
This was the 1987 cartoon that set off huge controversies:
(http://si.wsj.net/public/resources/images/OB-XP204_botwt0_F_20130523203224.jpg)
http://online.wsj.com/article/SB10001424127887324216004578479410300334682.html?mod=WSJ_Opinion_MIDDLETopOpinion
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http://reason.com/blog/2013/05/27/high-school-teacher-faces-discipline-for
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http://www.sodahead.com/united-states/hillary-clinton-pushes-to-make-criticism-of-islam-a-crime-in-the-us/question-2333671/
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http://dailycaller.com/2012/06/15/mcconnell-obama-seeking-to-change-first-amendment-an-act-of-radicalism-video/
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http://www.bizpacreview.com/2013/07/24/unprecedented-ordinance-bans-christians-from-serving-on-city-council-80264
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http://www.offthegridnews.com/2013/07/25/freedom-of-speech-tested-in-kentucky-for-journalist-john-rosemond/#
Separately IIRC Bush did something similar:
http://www.libertynews.com/2013/07/wait-what-students-wearing-tea-party-shirts-banned-from-public-obama-event-because-of-security-concerns/
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http://www.theblaze.com/stories/2013/08/07/political-sign-posted-inside-pub-draws-tab-of-31000-in-municipal-fines-so-why-does-the-owner-keep-the-sign-up/
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Regardless of one's position on gays marrying, this is wrong.
http://freedomoutpost.com/2013/08/christian-air-force-sergeant-phillip-monk-fired-for-homosexual-marriage-stance/#Lm4VeZTj1WlyY7Hf.01
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http://www.foxnews.com/opinion/2013/08/30/btodd-american-dispatchb-feds-forced-churches-to-get-baptism-permits/
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Bradley Smith: The Supreme Court and Ed Corsi's Life of Political Crime
How one Ohio man's blog on politics got him in trouble with campaign-finance law.
By BRADLEY A. SMITH
WSJ
Columbus, Ohio
In the winter of 2008, Ed Corsi decided that he was tired of stewing about the politics in his home of Geauga County, Ohio, and the country at large. He started a website, put Thomas Jefferson's quote, "The price of freedom . . . constant vigilance" at the top, dubbed the site "Geauga Constitutional Council," and set about blogging his thoughts on local and national politics. So began his life of political crime.
Over the next two years, Mr. Corsi and a few friends would sometimes gather to talk politics. He occasionally sponsored meetings featuring speakers (not political candidates) on public policy issues (not elections), and charged a nominal fee for seating to offset his costs. He and two friends passed out political pamphlets they made at the Geauga County Fair.
Mr. Corsi spent $40 a month to maintain his website, and perhaps a couple hundred dollars a year in other expenses. According to the state of Ohio, however, these activities are illegal under campaign-finance laws because Mr. Corsi did not first register with the state, report to the state on his activities, and subject himself to the regulations governing the operation of a state political action committee.
When he was summoned to a hearing before the Ohio Elections Commission in April 2011, Mr. Corsi asked, "Do I have to hire a lawyer to [do] these things?" Commission Chairman Bryan Felmet replied, "Yeah, I guess so. I think that it's very complicated without going to those lengths." The commission ordered Mr. Corsi to register and report his activities to the state.
When the Supreme Court reconvenes in October, the big campaign-finance case will be McCutcheon v. Federal Election Commission, which nervous censors have dubbed "the next Citizens United." McCutcheon deals with the ability of affluent Americans to contribute to political parties and candidates. Never mind that the candidates and causes these people support represent the views of millions of citizens. "Reformers" argue, and many Americans seem to agree, that "big money" in politics must be regulated.
It is inconceivable, however, that America's founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to such complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.
The "big money" in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics—the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. The IRS targeting scandals are merely the most prominent example of the way these laws are used by those in power to harass their opposition.
On his blog, Mr. Corsi was critical of Ed Ryder, the chairman of the Geauga County Republican Party and a member of the county Board of Elections, and of various officials and candidates supported by Mr. Ryder. The initial complaint against Mr. Corsi was filed by Mr. Ryder, who admitted spending two months to find out who constituted the "Geauga Constitutional Council," so he could file a complaint against Mr. Corsi.
In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.
In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote "no" on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.
Most state statutes now simply ignore the Supreme Court and require that two or more citizens who spend even nominal amounts on politics to register and report to the government. Even printing yard signs or running an email list can trigger these requirements. In Ohio, a single dollar in expenditures will do, so be careful if you talk politics over a cup of coffee.
As a former commissioner at the Federal Election Commission, I have seen the effects these laws have on citizen participation and civic-mindedness. I have read the plaintive letters from citizens who could not afford a lawyer, and could not believe their government was fining them for political activity.
In the past, both liberals and conservatives on the Supreme Court were sensitive to this problem. Liberal Justice William Brennan wrote the majority opinion in the Massachusetts Citizens for Life case. But that sensitivity appears to be vanishing.
Forty-seven years ago, in Mills v. Alabama, the court struck down a lawprohibiting election-day newspaper editorials, noting, "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs."
Is that still true? Will the court leave millions of Americans who want to engage in politics at risk of prosecution? Will it leave Mr. Corsi hanging?
Mr. Smith, a former chairman of the Federal Election Commission, is a law professor and chairman of the Center for Competitive Politics, which is representing Mr. Corsi at the Supreme Court.
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http://www.breitbart.com/Big-Government/2013/09/07/1-Year-After-Alderman-s-War-on-Chick-fil-A-Site-Sits-Vacant-200-Jobs-Lost
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September 19, 2013
Obamacare Anti-Conscience Mandate Loses in Another Court: Another Win for Free Exercise
by Elizabeth Slattery, Senior Legal Policy Analyst
This week, yet another district court halted the Obama Administration from forcing its anti-conscience mandate to provide coverage for abortifacients and contraceptives on unwilling employers. Many employers—religious, secular, nonprofit, and for-profit—believe it violates the free exercise of their faith to comply with this mandate.
This decision brings the scorecard of for-profit cases to 29–5, strongly favoring the free exercise of religion.
The plaintiff in this case is Cherry Creek Mortgage, a family-run home loan provider with 730 employees operated by evangelical Christians according to their faith. Cherry Creek sued the government in March 2013, arguing that the anti-conscience mandate violates the Religious Freedom Restoration Act (RFRA) and the First Amendment guarantee of the free exercise of religion.
The court initially denied Cherry Creek’s request for a preliminary injunction to stop the mandate while the case
was pending. But in June, the Tenth Circuit found that Hobby Lobby—another for-profit corporation that challenged the anti-conscience mandate—was likely to succeed on the merits of its RFRA claim, stating that “religious conduct…can be communicated by individuals and for-profit corporations alike.”
The Third Circuit disagreed, so now the anti-conscience mandate is likely heading to the Supreme Court.
Cherry Creek asked the court to reconsider in light of the Hobby Lobby decision, and yesterday the judge agreed. In granting a preliminary injunction, the judge found that Cherry Creek is faced with a “Hobson’s Choice between a continuing infringement of religious freedom or potentially crippling monetary penalties.” The judge noted that “each day that Cherry Creek is forced to provide the objectionable coverage their sincerely held religious beliefs are violated.” Now Cherry Creek does not have to comply with the anti-conscience mandate while its case is pending.
As the counsel for Cherry Creek stated, “People of faith in this nation, including business owners, have the constitutionally protected freedom to live and do business according to their faith.
The Obama administration should not be attempting to deprive Americans of this cherished liberty.” Yesterday’s order is another blow to the anti-conscience mandate and a step in the direction of safeguarding Americans’ first freedom.
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Former Heritage president Ed Feulner: "[T]he Founders' attitude toward religion is widely misunderstood. A major source of confusion is the phrase 'separation of church and state,' used by President Thomas Jefferson in an 1802 letter to the Danbury Baptist Association of Connecticut. Many have interpreted this phrase to mean that religion should be entirely personal, kept out of schools and other public institutions. However, as Heritage scholar Jennifer Marshall has argued, this interpretation is incorrect: 'Jefferson wanted to protect states' freedom of religion from federal government control and religious groups' freedom to tend to their internal matters of faith and practice without government interference generally.' America's Founding Fathers did not want the government to impose a government-sponsored church on all Americans. Neither did they seek to confine religion to a separate, private sphere of life. On the contrary, they believed that religion had a vital and enduring role to play in the public affairs of the new American Republic."
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http://www.mercatornet.com/articles/view/a_declaration_of_tolerance
A declaration of tolerance
In 313 Christians finally won their place in the ancient world with the Edict of Milan.
Mike Aquilina | 25 October 2013
comment 2 | print |
Edict of Milan
This year marks the 1700th anniversary of the Edict of Milan, by which the Emperors Constantine the Great and Licinius established tolerance for Christianity in the Roman Empire. MercatorNet asked Mike Aquilina, an expert in the early history of Christianity, how this momentous step came about, and what relevance it has for the debate on religious freedom today.
MercatorNet: Celebrations have been rather low-key, but this year is the 1700th anniversary of the Edict of Milan in 313. What’s it all about?
Mike Aquilina: What we’re really celebrating is the first appearance of the notion of religious liberty. The so-called Edict -- it may have been a letter -- marked the agreement between Constantine I, who ruled the western lands, and Licinius, who controlled much of the East, to put a stop to the persecution of Christians. They could have presented this in many ways, but they chose to speak in terms of widespread tolerance. "We have also conceded to other religions the right of open and free observance of their worship for the sake of the peace of our times, that each one may have the free opportunity to worship as he pleases. This regulation is made that we may not seem to detract from any dignity of any religion." It's safe to say that these were revolutionary ideas, and their influence, at least in Western Christian lands, has been profound.
What was the situation before the Edict?
For two and a half centuries, Christians had endured intermittent persecution, which was occasionally quite intense. Sometimes there were long stretches between the imperial crackdowns. But, even in times of peace, Christians lived with the memory of persecution as a recent unpleasantness. They knew that there was substantial legal precedent for the suppression of the Church and the making of martyrs. They knew that anti-Christian violence, outside the law, probably wouldn’t be punished. In the years leading up to the Edict, the Church had endured the empire’s most thoroughgoing persecution to that point in history.
What motivated Licinius and Constantine to take such a momentous step?
If they’d had Facebook accounts, they could honestly have said, “It’s complicated.” Both men had many motives for their action, and their motives were mixed. Both had family members who were practicing Catholics, and both seem to have had some level of personal interest in the faith, but at this remove it’s hard to say how far that went. They also were shrewd politicians, and they could see which way the wind was blowing. The sociologist Rodney Stark, in his book Cities of God, has demonstrated that, by the time of the Edict, all the empire’s major urban centers had majority- or plurality-Christian populations. The research of Thomas A. Robinson seems to indicate that the rural populations had been similarly Christianized. In every sector of society — military, education, commerce, government — Christians were present and making great contributions. In pragmatic terms: persecution was counter-productive. Why did Constantine and Licinius do what they did? We’ll probably never know. But their reasons were many, varied and, I think, sound.
One of Constantine’s court intellectuals, Lactantius, wrote eloquently in defence of religious freedom – “Torture and piety are quite different things; truth cannot be joined to force or justice to cruelty.” Was he an important influence in shaping religious toleration?
Probably. He was Constantine’s advisor. He tutored Constantine’s son. And he was a bestselling author. He was raised in the traditional Roman religion and served as an advisor to the emperors. Lactantius converted to Christianity as an adult, during a time of persecution, and he suffered for his decision. By the time Constantine raised him from obscurity, he was a respected Christian thinker, an old man who had earned a hearing and could make a sound and sympathetic case for tolerance. His placement seems -- frankly, providential.
So the Edict of Milan didn’t actually make Christianity the religion of the Roman Empire?
No, that came later with Theodosius — in less tolerant times and less tolerant terms.
Afterwards Julian the Apostate tried to reverse the policy of toleration? Did that shape subsequent views of religious freedom?
It certainly shaped subsequent history. Julian banned Christians from teaching in the universities. He used the imperial treasury to bankroll a pagan religion he created in the image and likeness of the Christian Church. It had a hierarchy, Scriptures, liturgy, and institutional charities — all hallmarks of Catholicism. His project failed, as he died young on the battlefield. His successors were Christians who were determined not to let such backsliding happen again. They relied, however, on the methods of Julian rather than Constantine, imposing unity and uniformity by coercive means.
Did the early Fathers of the Church grasp the importance of religious freedom?
They were all over the map. The early apologists argued for it, because they were misunderstood and marginalized. They just wanted a fair hearing. Some later Fathers, in the wake of Julian, wanted to shore up the Church’s position, and so they threw their support behind coercive measures that favored Christianity.
After such a promising start, how did Europe revert to coercion of dissenters and heretics?
Again, it’s complicated. As the first millennium came to an end, the western lands watched with alarm as the east fell to Islam. Western leaders, in Church and state, placed a premium on unity against a common enemy. Muhammad himself was viewed by the Fathers as a Christian heretic, and they make a persuasive case.
Also, as the Empire fell apart, the Church, in many places, became the state. It was the only cultural force with the vision, means, and motives to establish and maintain order. Thank God someone was there to do the job — but it did blur a lot of lines. The west had avoided some of the temptations of the east. In Constantinople, for example, the patriarchs were too often willing instruments of the emperors. In the west, perhaps too often the bishops were the governors — and, as time wore on, the governors became the bishops.
Do you think that the Edict of Milan has any relevance to contemporary debates over the notion of religious freedom?
Peter Leithart argues that Constantine’s view is actually healthier than the Enlightenment and post-Enlightenment schemes, which sometimes display shocking intolerance as they demand the suppression of distinctive doctrines and practices. Constantine’s later edicts -- to the Palestinians and to the Eastern Provincials -- show even more mature doctrine, put sometimes in poetic terms. “Let no one disturb another. Let each man hold fast to that which his soul wishes. Let him make full use of this.”
The truth is that the modern world makes more Christian martyrs per year than the Roman Empire ever did. And even modern democracies are growing increasingly hostile to any religious expression that dissents from government-imposed standards.
I’m watching for the next Lactantius.
Mike Aquilina is a popular author working in the area of Church history, especially patristics, the study of the early Church Fathers. He blogs on early Christianity at FathersOfTheChurch.com
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Obama's AFA Oath Omissions
The End Run on Faith in the Military
By Mark Alexander • October 31, 2013
"While we are zealously performing the duties of good citizens and soldiers, we certainly ought not to be inattentive to the higher duties of religion. To the distinguished character of Patriot, it should be our highest glory to add the more distinguished character of Christian." --George Washington's General Orders (1775)
Officer's Commissioning Bible
Editor's Note: This column is a substantial update on The Patriot Digest report last week regarding the Obama administration's effort to remove "So help me God" from all military oaths.
I began this week as I usually do, with a Monday morning visit to my 90-year-old father, a retired naval aviator and member of the Greatest Generation. He's always interested in current events, especially the latest on what he accurately labels "Obama's socialist effort to nationalize healthcare."
In a discussion with him about my column topic, the real story behind an effort to remove "So help me God" from an oath at the Air Force Academy, he smiled and said, "I have something for you." He disappeared for a minute and returned with a small pocket Bible, which was presented to him at his naval commissioning ceremony 70 years ago. He had come across this little New Testament while cleaning out a drawer, and he set it aside knowing I would appreciate it.
And appreciate it I do.
On a dedication page prior to the title page, there was a printed inscription from Franklin D. Roosevelt:
"As Commander-in-Chief, I take pleasure in commending the reading of the Bible to all who serve in the armed forces of the United States. Throughout the centuries men of many faiths and diverse origins have found in the Sacred Book words of wisdom, counsel and inspiration. It is a fountain of strength and now, as always, an aid in attaining the highest aspirations of the human soul."
Indeed.
This past weekend, you may have heard news reports about the Air Force Academy being pressured to remove "So help me God" from its Cadet Honor Oath.
What you have not heard is that on the page facing the Honor Oath in "Contrails," the Academy's official handbook, "So help me God" has already been removed from the more important Cadet and Officer oaths. (Click to View)
As I first reported last May in "Obama's Frontal Assault on Faith," until 2011, the AFA handbook contained "So help me God" in bold letters after the Cadet and Officer oaths. However, under the watch of former AFA Superintendent, Lt. Gen. Mike Gould (who retired in July 2013), those words were removed from the Class of 2015 handbooks, and are absent in all subsequent year editions of Contrails. (Last we checked, the cadet and officer oaths at the Naval Academy and West Point had not been altered.)
In 2012, when I asked the AFA's Public Affairs Office who had ordered the removal and why, the PAO dodged the question for two days, then on the third request responded tersely that I could file a "Freedom of Information Act" request if I wanted to know anything more. In other words: "Take a hike." (An FOIA for all communications related to this omission is being processed.)
The current challenge to the Cadet Honor Oath wording was filed by ultra-leftist Michael Weinstein by way of his so-called "Military Religious Freedom Foundation" (MRFF). Ostensibly, Weinstein's objection relates to a complaint about a poster that listed the Cadet Honor Oath with its closing words, "So help me God."
But Weinstein's target is much bigger than the AFA Honor Oath. Read on...
Weinstein, who was tapped by Obama earlier this year to "consult" with DoD on faith expression in the military, is little more than a proxy for the Obama regime, a surrogate doing the bidding of the most faith-intolerant administration in the history of our Republic. According to the Washington Post, Weinstein claimed that Christian "proselytizing" is a "national security threat," adding, "What is happening is a spiritual rape. ... It is sedition and treason. It should be punished." 1.
Of course, if any military officer publicly suggested that this all-out attack on religious faith was part of his commander in chief's agenda, they would face a court-martial. However, off the record, I have spoken to many command-level officers who believe this is precisely Obama's aim.
Weinstein, himself an AFA graduate (Class of '77), and author of "One Man's War Against an Evangelical Coup in America's Military," has been an enemy of public faith expression for his whole career. He first sued the Air Force in 2005 for failing to prevent "religious proselytizing," claiming:
"What you've got is a lusty and thriving religious intolerance that is objectively manifesting itself in prejudice and discrimination and is obliterating the First Amendment, civil rights and the US Constitution. There are senior people that view evangelical Christianity at the Air Force Academy the way that you and I would view gravity. Pick up a pen and drop it and it falls on the desk. Well, it just exists, it's gravity."
But U.S. District Judge James Parker dismissed the case, noting:
"No Plaintiff claims to have personally experienced any of the things described under 'Factual Allegations' ... while at the Academy or after leaving the Academy. Not a single Plaintiff has alleged any personal factual situation that has allegedly impinged on that Plaintiff’s constitutional rights since the Plaintiff left the Academy."
Weinstein got little traction for his faith persecutions until Obama's election in 2008, which paved the way for him to become the primary nemesis of faith expression in the military.
Within a month of Obama's inauguration in 2009, Weinstein met with Air Force Chief of Staff Norton A. Schwartz, who was confirmed by the Democrat-controlled Senate on August 12, 2008 (and served until August 10, 2012, when he was replaced by Gen. Mark A. Welsh). Weinstein said that Schwartz "acknowledged that there [was] a problem" regarding religious freedom in the military.
To get a sense of the depth of Weinstein's hatred of our military's faith traditions, later in 2009 he blamed the Fort Hood massacre by Islamist Nidal Malik Hasan on proselytizing by "fundamentalist Christians."
In 2010, the year "So help me God" was removed from the AFA Officer and Cadet oaths, Weinstein said he had developed a cozy relationship with then-AFA
Superintendent Lt. Gen. Mike Gould. Weinstein claimed he and Gould devised a secret codeword to ensure he could have quick access to Gould at any time. "We have our own bat-signal," he boasted. (For the record, I have met Mike Gould through several national security briefings and would have a difficult time believing that he and Weinstein were in collusion.)
That was also the year Weinstein applauded Obama's repeal of "Don't Ask, Don't Tell," which significantly constrained any religious views to the contrary. 2.
In 2011, Weinstein demanded and received an apology from AFA Commandant of Cadets Brig. Gen. Richard Clark for authorizing cadet support of "Operation Christmas Child," which assembles and fills millions of shoeboxes with toys, school supplies and other gifts for impoverished children in 130 countries. Weinstein objected because OCC places a Christian tract in those boxes.
In 2012, Weinstein pressed the Pentagon to end the sale of military-themed Holman Christian Standard Bibles, claiming they were a "national security threat."
Clearly, Weinstein and the MRFF are dedicated to freedom from religion, not our constitutionally enshrined freedom of religion.
So, what is the Obama/MRFF strategy at the Air Force Academy?
Given that AFA administrators have already removed "So help me God" from the cadet and officer oaths in 2011 -- for reasons the AFA will not disclose -- if Weinstein pursues legal action, it will be difficult for the AFA to argue for retaining "So help me God" in any oath. And, if Weinstein "wins" a legal challenge against the AFA, he will undoubtedly pursue "domino effect" rulings to amending oaths in the other Service Academies -- which will inevitably cascade throughout the service branches.
My colleague, Lt. Gen. (Ret.) William "Jerry" Boykin, says of the administration's effort to oppress religious expression, "The very troops who defend our religious freedom are at risk of having their own taken away. The worst thing we can do is stop Soldiers, Sailors, Airmen and Marines, especially the chaplains, from the free exercise of their faith."
At present, AFA leadership is attempting to sidestep Weinstein's complaint by suggesting the inclusion of "So help me God" in the Honor Code will be voluntary. Lt. Gen. Michelle D. Johnson, Academy Superintendent, stated:
"We work to build a culture of dignity and respect, and that respect includes the ability of our cadets, Airmen and civilian Airmen to freely practice and exercise their religious preference -- or not. So, in the spirit of respect, cadets may or may not choose to finish the Honor Oath with 'So help me God.'"
But Weinstein is not content with that solution, and responded:
"The Air Force Academy is a constitutional train wreck when it comes to religious rights and freedoms. We wouldn't trust them to get the word out on an organizational picnic, much less something of this magnitude. [Tying the oath] to a religious test violates the no-establishment clause of the Constitution."
But the fact is, "So help me God" is already elective in all military and civilian oaths. While 5 U.S.C. § 3331 specifies the inclusion of those words, it is understood that this inclusion is subordinate to our Constitution's Article VI prohibition of any religious test for public office. However, it is no longer elective in the AFA Cadet and Officer oaths because the words have already been omitted!
Dr. Hans Mueh (Brig. Gen., Ret.), who was tasked in 1984 with formulating the Honor Oath, said, "To add more seriousness to the oath, we decided to mirror the commissioning oath and add the words, 'so help me, God.'" But again, the words have already been omitted!
However, according to the most recent Air Force Instruction issued by the Secretary of the Air Force, section 1.4. Oath, subsection 1.4.1 Enlistment Oath and 1.4.2 Oath of Office (Commissioning Oath) both specify "So help me God." Further, the SecAF orders, "Compliance with this publication is mandatory."
At best, the AFA is not in compliance with the SecAF's mandate regarding oaths, and any military officers who approved the oath alterations are likely subject to prosecution under the Uniform Code of Military Justice, Article 92 (IX), "Violation of a Lawful General Regulation/Order."
At worst, somebody has provided Weinstein with a layup, a legal "gimme," which he can ultimately parlay into the removal of "So help me God" from every military oath.
So the question remains, who ordered the removal of "So help me God" from the 2011 cadet handbook, and why?
The Patriot is pursuing an answer to that question -- and we will not back off until we get the truth.
Obama's surrogates may attempt to pin blame on a committee of AFA officers and cadets that reviews Contrails each year for any minor changes to protocol or training, but there is little chance that a major change such as the altering of the officer and cadet oaths would have been the work of this committee -- or that the PAO would have deferred to an FOIA -- or that AFA leadership would be addressing "So help me God" in the Honor Oath without noticing its absence in the Officer and Cadet oaths.
Frankly, AFA leadership may have been waiting -- and hoping -- for a third-party objection in order to avoid rebuke from their CINC. If so, their wait is over.
In the meantime, Obama and his Leftist cadres should heed this formative advice from President George Washington: "Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths..."
1. (Under the pretense of "religious tolerance," Barack Obama's administration has been quietly advancing his mandate to remove all expression or manifestation of faith, particularly Christianity, from government forums -- first and foremost, the U.S. military, where he has the most direct authority. His civilian "leaders" at DoD have ramped up that eradication, even threatening UCMJ charges against military personnel whose expression of faith might be interpreted as "proselytizing." Eradicating references to God in military oaths is part of Left's larger objective to replace Rule of Law with the rule of men -- because the former is predicated on the principle of Liberty "endowed by our Creator." Obama's administrators constantly look for ways to undermine Rule of Law by driving wedges between our Liberty and its inherent foundational endowment.)
2. (One of Obama's earliest campaign promises was to repeal the "Don't Ask, Don't Tell" proscription against open homosexuality in the military ranks. On December 22, 2010, Obama signed that repeal after it had been passed by his outgoing NeoCom House majority and seconded by his Demo-controlled Senate, just weeks before Tea Party Republicans, who decimated the Democrats in the 2010 midterm elections, took over the House. At the signing, Obama declared, "This law will strengthen our national security and uphold the ideals that our fighting men and women risk their lives to defend.")
Pro Deo et Constitutione — Libertas aut Mors
Semper Vigilo, Fortis, Paratus et Fidelis
Mark Alexander
Publisher, The Patriot Post
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George Will: http://www.washingtonpost.com/opinions/george-f-will-the-judiciary-and-free-speech/2013/10/30/1da4119c-40bb-11e3-9c8b-e8deeb3c755b_story.html?wprss=rss_george-will
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THE FOUNDATION
"Let it simply be asked, where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths…" George Washington
NATIONAL SECURITY
Another Victory for Liberty
Earlier this week, we reported on the third instance in which military training curriculums identified Christians and Tea Party organizations as "hate groups." Once is an isolated incident and twice might be coincidence, but three times is a pattern.
However, we note that these briefings were not DoD-authorized briefs, but prepared by local personnel who obviously are Obamaphiles.
One of those briefings took place at Fort Hood, where, as you'll recall, Islamist Nidal Malik Hasan murdered 13 people and an unborn child while yelling "Allahu Akbar." As Hasan aptly demonstrated, there is a need for legitimate "terrorist profiling."
The Ft. Hood briefer targeted such "radical" Christian groups as the American Family Association -- a pro-family group that only the most jaded Obamaphile would describe as "radical," or someone too ignorant to distinguish the fact that the AFA is not a "domestic hate group." The information on AFA was from the ultra-Leftist Southern Poverty Law Center, which lists most pro-family Christian groups under its "hate" umbrella.
Fortunately, it did not take long for some briefing attendees, who were smart enough to recognize that AFA is not a terrorist group, to expose this nonsense.
Responding to objections to this and other briefings targeting conservative and Christian groups as a threat, the Department of Defense quickly issued a halt to the use of SPLC information, issuing a directive to restrain its security briefers and "Emphasize that neither DoD nor the Army maintain or publish any centralized list of specific organizations considered to be extremist in nature or in opposition to the Army's core values."
No sooner had that fire been contained than word arrived on a 600 page Defense Equal Opportunity Management Institute training manual that "healthy, white, heterosexual, Christian" men -- members of what the text calls the "White Male Club" -- hold an unfair advantage over other service members. "Simply put, a healthy, white, heterosexual, Christian male receives many unearned advantages of social privilege, whereas a black, homosexual, atheist female in poor health receives many unearned disadvantages of social privilege."
Meanwhile, The Patriot is still aggressively pursuing answers about the removal of "So help me God" from Cadet and Officer oaths at the Air Force academy, an apparent subterfuge by the Obama administration to provide a proxy, Michael Weinstein, with a layup, a legal "gimme," which he can ultimately parlay into the removal of "So help me God" from every military oath.
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http://www.theblaze.com/stories/2013/11/26/supreme-court-orders-obama-admin-to-respond-to-german-homeschooling-familys-deportation-appeal/
http://www.glennbeck.com/2013/11/26/texas-ends-the-war-on-christmas/?utm_source=Daily&utm_medium=email&utm_campaign=2013-11-26_281133&utm_content=5054942&utm_term=_281133_281141
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Corporations and Religious Freedom
The Supreme Court takes on faith-based objections toObamaCare's contraception coverage mandate.
By David Skeel
Dec. 1, 2013 6:43 p.m. ET
Stephen Colbert recently treated his viewers to a funny spoof of the claim that for-profit corporations may have religious-freedom rights. Corporations "follow the one true profit," his joke went. Mr. Colbert was responding to a federal appellate court ruling that the contraception-coverage mandate in the Affordable Care Act violated the religious freedom rights of Hobby Lobby, a crafts store that objected to covering contraceptives that would prevent the implantation of a fertilized egg.
The appellate courts are deeply divided on corporate religious freedom. The Supreme Court has now agreed to review two cases—Hobby Lobby Stores, Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius, which reached the opposite conclusion—to resolve the latest health-care imbroglio. The idea that for-profit corporations have religions-freedom rights is less silly than it may sound, but it also is not likely to start an avalanche of exemptions.
The corporations in these cases both sued under the Religious Freedom Restoration Act, which Congress enacted in order to expand religious freedom rights after the Supreme Court had restricted them in a 1990 case, and under the First Amendment's Free Exercise Clause. The central question is whether a corporation can be a "person" for the purposes of the Religious Freedom Restoration Act, and whether the Free Exercise Clause applies to for-profit corporations.
Although the Supreme Court has never directly confronted the question of whether ordinary corporations can have religious-freedom rights, it is quite likely to conclude they can. Corporations often are treated as "persons" for legal purposes; indeed, many laws explicitly define "person" to include corporations as well as individuals. This doesn't mean corporations are persons for all purposes, as a California driver found out last year when he tried to get out of a ticket for driving in a high-occupancy-vehicle lane by pointing to the corporation documents in the passenger seat. But for some purposes they are.
The courts that have rejected corporate religious freedom point out that corporations like Hobby Lobby or Conestoga "do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors," as the trial court in the Hobby Lobby case had put it. But one can say the same thing about churches and other religious organizations, which are usually organized as corporations.
Bypassing the corporate freedom issue, some argue that any religious freedom rights simply "pass through" the corporation to the shareholders. After all, with both Hobby Lobby and Conestoga, the corporation's stock is held by a single family of devout Christians. But the corporation is the one that is required to satisfy the mandate that its health-care plan cover the objectionable contraceptives or that it pay a very stiff fine ($1.3 million per day for Hobby Lobby).
The federal appellate court in Washington, D.C., recently tried another tack, holding that corporations lack religious freedom rights, but that the health-care law's mandate infringed the shareholders' rights in that case. But this conclusion was backward. The real harm was to the corporation; any harm to the shareholders was indirect.
Although some might worry that a massive wave of corporate religious freedom claims would follow a Supreme Court ruling, this is unlikely. Hobby Lobby would probably qualify, since its statement of purpose affirms the Green family's commitment to "honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles." But a corporation whose managers happen to be religious, but which lacks a similarly clear policy, would not.
As cases arise in the future, courts would need to determine whether the corporation does in fact operate on religious principles. But the same question arises when an individual asserts religious-freedom rights, and sincerity is much easier to determine with a corporation than with an individual, since there is no need to look inside the heart of a corporation. If a corporation's certificate of incorporation requires that it be operated in accordance with religious principles, or if its board of directors has established a clear and explicit practice of pursuing religious objectives, it would qualify. Otherwise it would not. Among large corporations, perhaps Chick-fil-A would satisfy such a test, but very few others would.
Religious freedom rights also would not protect a corporation from every law that offends the corporation's principles. The Supreme Court held in 1982 that an Amish business could not forgo making Social Security contributions, despite the owner's sincerely held religious objections, because an exemption would undermine the overall system. The government would still be free to make this kind of argument in defense of subjecting religious for-profit corporations to the health-care act's contraception mandate.
Corporations are not like other people. They are persons for the purposes of some rights but not others. In the coming months, there is a very good chance the Supreme Court will conclude that one of the rights that some for-profit corporations do enjoy is a right to religious freedom.
Mr. Skeel, a visiting professor at New York University School of Law, is the author of "The New Financial Deal: Understanding the Dodd-Frank Act and Its (Unintended) Consequences" (Wiley, 2011)
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http://www.addictinginfo.org/2013/12/06/oklahoma-satanic-temple-piece/
From the article:
Okla., thanks to its argument for religious monuments on public display, now must accept the Satanic Temple and their memorial. The law allows them to put it right next to the 10 Commandments, if they so desire. Next week, who knows, perhaps the Satanic Temple will get the opportunity to name a new public school.
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1) I've seen the display of the Ten Commandments pass judicial muster on the basis of their being historical basis for our law, but don't know whether that applies to this case here.
2) I suspect our FF had this in mind when they said the system they designed was for a virtuous and god-respecting people
3) The article makes the usual misinformed argument about wall of separation of church and state (i.e. Thomas Jefferson's letter in 1823 IIRC, written and to be understood in the context of the Bill of Rights applying at the time only to the Federal government) and the exclusion of God from the public sphere-- which is readily refuted by looking at State constitutions and practices at the time.
4) It will be interesting to see how this case develops.
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On Friday, Administrative Law Judge Robert N. Spencer ruled that the owner of Masterpiece Cakeshop near Denver must bake for and sell cakes to homosexual couples for their same-sex ceremonies. Last year, the Christian bakery owner turned away two men who "married" in Massachusetts but wanted a reception in Colorado. FRC's Tony Perkins offers this rebuttal: "The President's HHS mandate insists on the same kind of viewpoint capitulation. ... Americans are being required to do something the Founders never intended: separate their values from their vocations. If Jack Phillips, Barronelle Stutzman, Elaine Huguenin, or Hobby Lobby want to serve the Lord full time, the First Amendment encourages it. What it doesn't encourage are judges like Spencer, who trample Americans' rights as a way of inventing others."
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On Friday, Administrative Law Judge Robert N. Spencer ruled that the owner of Masterpiece Cakeshop near Denver must bake for and sell cakes to homosexual couples for their same-sex ceremonies. Last year, the Christian bakery owner turned away two men who "married" in Massachusetts but wanted a reception in Colorado. FRC's Tony Perkins offers this rebuttal: "The President's HHS mandate insists on the same kind of viewpoint capitulation. ... Americans are being required to do something the Founders never intended: separate their values from their vocations. If Jack Phillips, Barronelle Stutzman, Elaine Huguenin, or Hobby Lobby want to serve the Lord full time, the First Amendment encourages it. What it doesn't encourage are judges like Spencer, who trample Americans' rights as a way of inventing others."
As I said before same sex marriage is just cover for using the force of law to punish those that disagree with the radical homosexual agenda.
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http://www.theblaze.com/stories/2013/12/11/mike-lee-authors-bill-to-protect-churches-from-being-pressured-into-recognizing-gay-marriage/
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Little Sisters of the Government
A revealing case about the Administration and religious conscience.
Jan. 3, 2014 6:24 p.m. ET
This week Justice Sonia Sotomayor issued an unusual injunction merely hours before the Affordable Care Act's birth-control mandate was supposed to apply to an order of Catholic nuns. The Justice Department replied on Friday, and the Administration's disdain for religious conscience still retains the power to shock.
Later this term the Supreme Court will hear arguments related to the ObamaCare requirement that all employer health plans must furnish contraception or else pay a tax penalty, but those cases involve corporations. The Little Sisters of the Poor run a nonprofit Colorado nursing home and hospice and therefore ought to be exempt under what the White House calls its "accommodation" for religiously affiliated institutions like parochial schools, hospitals and charities.
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Mother Patricia Mary walks in the chapel at the Mullen Home for the Aged, run by Little Sisters of the Poor, in Denver, Colo., Thursday Jan. 2, 2014. Associated Press
The problem is that to qualify under the "accommodation," religious organizations must sign a legal contract with their insurer certifying that the religious organizations refuse to subsidize contraceptive services. "This certification is an instrument under which the plan is operated," the contract notes, then informs the insurer of its "obligations" under the rules.
Those include a command that the insurer "shall provide" contraception to all enrollees, supposedly independently and for free. The political point of the accommodation was to pretend that the costs of contraception or abortifacients are nominally carried by a third-party corporation, but the insurers are really only the middle men. The Little Sisters thus argue that signing the certification contract directs others to provide birth control in their place and makes them complicit.
Boiled down, the Justice Department's legal response on Friday was: Shut up and sign the form. Solicitor General Donald Verrilli argues the Sisters' claims have "no legal basis."
His reason is the idiosyncratic insurance situation of the Little Sisters. They belong to a special type of insurance collective known as a church plan, also run by a Christian order. This plan will itself also qualify for the accommodation, in the same way as a Christian soup kitchen.
The Administration never envisioned that a religiously affiliated organization would contract with a religiously affiliated insurer, probably because there are so few church plans. They promised in a lower court to close the loophole in a future rule-making. But for now, the double accommodation means that in practice the church plan will not be required to cover and pay for birth control on behalf of the Little Sisters.
For that reason, the Administration should have simply let Justice Sotomayor's injunction stand. The Administration could have honored the Little Sisters' belief that they are harmed because empowering a third party to provide contraception is the sin. Then it could later close the loophole.
But the White House wants to make an ideological statement, and so Mr. Verrilli is in effect telling the nuns that they don't understand their own church teachings and that signing the contract doesn't really tread upon their religious beliefs.
The Little Sisters have another option, Mr. Verrilli continues. Employers "are not required to offer group health plans in the first place." They are afforded "a 'choice' between two legal options: provide a group health plan or risk payment of the tax." This is a baleful echo of Chief Justice John Roberts's constitutional reasoning in the ObamaCare cases last year, but for the Little Sisters it would mean cancelling their plan or paying out an annual $2.5 million fine—more than a third of their budget.
Perhaps such coercion is why Justice Sotomayor, who fields petitions from the Colorado federal court system, issued her writ. Injunctions from the High Court are rare, all the more because both the district court and the Tenth Circuit Court of Appeals denied emergency relief. Justice Sotomayor will now decide whether to extend or vacate her temporary order, or to bring the case to the full Court. A ruling could also apply to the dozens of religious plaintiffs that don't use church plans.
This case is simply a raw assertion of state power directing the religious to follow orders. Thus ObamaCare forces women who have taken a vow of chastity and minister for the dying to implicate themselves in what they consider to be grave moral wrongs.
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http://www.nytimes.com/2014/01/12/us/bloggers-incarceration-raises-first-amendment-questions.html?hpw&rref=us&_r=0
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Censors on Campus
Hundreds of colleges have unconstitutional speech codes.
WSJ
Jan. 17, 2014 6:44 p.m. ET
Here's a less than enthusiastic word of thanks to America's college administrators. Close to 60% of campuses in 2013 substantially abridged the First Amendment rights of faculty and students. But at least that's an improvement from 75% in 2007—the year the Foundation for Individual Rights in Education (Fire) produced its first comprehensive assessment of the state of free speech on campus.
Related Video
Assistant books editor Sohrab Ahmari on a new report that shows a majority of America's colleges abridge First Amendment rights. Photo: Getty Images
The foundation's latest report shows how elusive the promise of open inquiry remains for most American students. Fire surveyed 427 public and private four-year colleges and says it found 250 speech codes that are facially unconstitutional. These campus policies take such a broad view of speech as "harassment" that any controversial viewpoint is potentially punishable.
Alabama's Troy University, a public institution, is one of two schools that earned the dubious honor of having promulgated Fire's 2013 "Speech Codes of the Year." (The other is Virginia State University.) Troy's code of conduct prohibits "any comments or conduct consisting of words or actions that are unwelcome or offensive to a person in relation to sex, race, age, religion, national origin, color, marital status, pregnancy, or disability or veteran's status."
Note how this definition of offensiveness hinges solely on an accuser's subjective feeling, though the First Amendment doesn't distinguish between offensive and inoffensive speech. Many schools also limit student expression to laughably small "free-speech zones," which often must be reserved weeks or months in advance and after navigating labyrinthine rules.
Some schools even make it difficult for students to learn what their speech-related policies are. Fire reports that Texas Tech University's Acceptable Use Policy, governing the use of campus IT systems such as email, is password-protected. At Connecticut College, prospective parents and students wishing to learn how the school handles so-called bias incidents will have to wait until enrollment, since the school's "Bias Incident Protocol" is hidden behind a login page—as is the Student Handbook.
Colleges ought to be beacons of free inquiry, but too many continue to punish politically incorrect speech.
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http://www.theblaze.com/stories/2014/01/20/state-rules-oregon-bakery-that-refused-to-make-a-gay-wedding-cake-violated-lesbian-couples-civil-rights/
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A Victory for the Little Sisters
The Supreme Court suspends ObamaCare's birth-control mandate.
Jan. 26, 2014 5:45 p.m. ET
The New Year's Eve emergency injunction protecting the Little Sisters of the Poor from ObamaCare's birth-control mandate was unusual enough. The Supreme Court rarely grants such relief, and the order was issued by liberal Justice Sonia Sotomayor. But the permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still—and a rebuke to the Obama Administration's bullying conception of religious liberty.
The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.
The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.
The High Court's order bars the Administration from imposing fines on any nonprofit that declares a religious identity and objects to the mandate. It doesn't go to the merits or relate to the separate contraceptive mandate cases that the Court will hear in March. Yet the fact that such an extraordinary intervention was necessary speaks volumes about the Administration's ideological intolerance.
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Lee E. Goodman: The Feds Flirt With Reining in TV Talk
A TV station invites two candidates to debate. Has it made an illegal contribution to their campaigns?
By Lee E. Goodman
Feb. 4, 2014 7:25 p.m. ET
David Gregory and George Stephanopoulos should be concerned. The same Federal Election Commission that represented to the Supreme Court that it could ban books now claims the authority to censor Sunday-morning news programs.
This startling assertion of government power became public in December when the FEC released an enforcement file in the case of a Boston television station's regular Sunday-morning news program, "On the Record." The station, WCVB, had invited two congressional candidates (a Democrat and a Republican) into its studio to appear on "On the Record" in the weeks leading up to the 2012 election and formatted the joint appearance as a 30-minute debate.
Another candidate (a libertarian) who was not invited filed a complaint alleging that the value of WCVB's production costs and airtime constituted unlawful corporate contributions to the two candidates who were invited. Corporate contributions to federal candidates are illegal and people who make them face stiff fines, injunctions, and can even go to prison.
The Federal Election Campaign Act, which established the FEC, regulates money in federal campaigns to protect American citizens from corrupt politicians. It also expressly forbids the agency from regulating the press. Congress enacted this "press exemption" to protect the profoundly important First Amendment right of the press to inform the public about campaigns and candidates without government interference.
WCVB invoked the First Amendment and the campaign act's press exemption. When the FEC considered the matter in November 2013, the staff recommended that the agency disregard both. The FEC proceeded to sit in judgment of the news directors' editorial criteria for choosing the candidates to appear to debate on the station's Sunday morning program. Ultimately the FEC decided that the editorial criteria were sufficiently objective and thus the station had not made an unlawful corporate contribution. It dismissed the case.
Based on this outcome, Messrs. Gregory and Stephanopoulus might rest easy. They shouldn't, which is why I took issue with the FEC's ostensible beneficence. A decision to approve implies the power to disapprove. And in the case of FEC regulatory authority over corporate contributions, the power to investigate, punish and even enjoin is the power to censor news programs like "On the Record," "Meet the Press" and "This Week." The upshot of the WCVB decision is that every television newsroom must look over its shoulder whenever it invites two or more candidates to a joint appearance.
Tellingly, Congress forbade even the Federal Communications Commission, an agency expressly empowered to regulate broadcast television stations, to dictate such news judgments. But the FEC appears to be intent upon meddling in TV newsrooms.
History is rife with government efforts to disrupt, investigate and even silence dissenting published opinion. From early colonial times when royal governments punished and shuttered printers critical of royal governors, to film-review-board censorship, attempts to enjoin the printing of the Pentagon Papers and, more recently, government prying into journalists' telephone records, government power has proved to be a dangerous threat to freedom of the press.
The judgments of six FEC commissioners—who are by law appointed by partisan affiliation—can be biased too. A few examples from recent years (several predating current commissioners' tenures) are revealing. The FEC voted unanimously in 2008 to recognize a technology company's (Melothe Inc.) right to launch a new Web campaign channel devoted exclusively to pro-Democratic coverage, endorsements of Democratic candidates and even solicitations for contributions on behalf of Democratic candidates. Six commissioners also voted to recognize former Democratic Sen. Jean Carnahan's right to launch an online publication in 2005 devoted exclusively to pro-Democratic commentary free from regulation.
But in 2010, three commissioners voted to find that "The Sean Hannity Show" violated the law when the radio program endorsed a Republican candidate for Congress and emailed its endorsement and a solicitation of support to the show's distribution list.
Likewise, there were six unanimous votes in 2004 on the commission to dismiss complaints against Michael Moore, Harvey Weinstein and their production companies for expending corporate funds to produce, advertise and exhibit the anti-Bush editorial film "Fahrenheit 9/11," but only four votes in 2010 to recognize the press rights of Citizens United to make conservative documentary films. Also in 2010, the commission deadlocked three to three when filmmaker RG Entertainment Ltd. sought to advertise and distribute the conservative documentary "I Want Your Money."
The point is that government officials cannot be trusted to regulate journalists fairly and without bias. For precisely that reason, Congress prohibited the FEC from regulating the news media's exercise of editorial discretion—and that manifestly includes any attempt to second-guess a TV news program's criteria for hosting two candidates for elective office to debate.
While some in the media advocate more aggressive enforcement of campaign-related speech, they should pay close attention to what aggressive FEC regulation of WCVB's "On the Record" signifies for their own First Amendment rights.
Mr. Goodman, a Republican, was appointed to the Federal Election Commission in October 2013 and elected as chairman in December. The opinions expressed do not necessarily represent the views of the FEC.
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By Peter Berkowitz
Feb. 7, 2014 6:19 p.m. ET
On Feb. 13 in St. Paul, Minn., the Eighth Circuit Court of Appeals will hear arguments in Wagner v. Jones. The appeal is procedurally complex. But the legal question at the heart of the original case has potentially far-reaching implications for public and private legal education. To wit, whether a state law-school may deny employment to faculty candidates because of their political beliefs.
In a trial concluded 15 months ago, Teresa Wagner accused the University of Iowa College of Law of violating her First Amendment right of free expression and 14th Amendment right of equal protection under the law when the school's dean, Carolyn Jones, refused to hire her for its legal analysis, writing and research program.
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University of Iowa College of Law University of Iowa
Ms. Wagner was hired initially in August 2006 and was serving on a part-time basis as the associate director of the law school's writing center when two full-time positions for legal-writing instructors opened up that fall. She became one of the two finalists for the openings.
She had impressive qualifications. Ms. Wagner had taught legal writing at George Mason University Law School in Virginia, edited three books, practiced as a trial attorney in Iowa, and written several legal briefs, including one in a U.S. Supreme Court case, Stenberg v. Carhart (2000), which struck down a Nebraska law criminalizing partial-birth abortions. The faculty-appointments committee at the University of Iowa College of Law enthusiastically recommended her appointment as a full-time instructor.
There was a catch, however. Teresa Wagner is a pro-life conservative. Her résumé showed prior employment with the National Right to Life Committee and the Family Research Council, both socially conservative organizations in Washington, D.C.
The University of Iowa's law-school faculty, like most law-school faculties, is overwhelmingly liberal. When Ms. Wagner was considered for the job, the law school had only one Republican on its 50-member faculty, according to party registration records obtained from the Iowa Secretary of State, and he had joined the faculty 25 years earlier.
In deciding whether to hire Ms. Wagner, neither her politics nor those of the law school's faculty should have been relevant. Yet the day after the law-school faculty voted to reject Ms. Wagner, in January 2007, Associate Dean Jon Carlson wrote to Dean Jones in an email, "Frankly, one thing that worries me is that some people may be opposed to Teresa serving any role, in part at least because they so despise her politics (and especially her activism about it)." The dean generally follows the results of an all-faculty vote, but precedent at the law school shows that the dean has the discretion to set it aside.
Other than by looking to politics, it is difficult to explain the law school's efforts to avoid hiring Ms. Wagner. One of the full-time legal-writing instructor positions for which she applied went to the other finalist, Matt Williamson, a self-described "off the charts liberal" with one semester of law-school teaching experience, no legal publications and no experience practicing law. He requested to leave his new job at mid-year, but Dean Jones persuaded him to stay. He quit after one year of full-time teaching.
The law school struggled to fill the second instructor vacancy with adjuncts, preferring over Ms. Wagner a former research assistant originally hired fresh out of law school. The research assistant had worked for Prof. Randall Bezanson, a former law clerk to Harry Blackmun at the time Justice Blackmun wrote the decision in Roe v. Wade. Mr. Bezanson (who passed away recently) led the opposition to Ms. Wagner.
She sued in federal court in January 2009. At the trial three years later, the law school's principal defense was that Ms. Wagner had "flunked" her interview when she refused to teach the "analysis" component of the class, which involves methods of legal reasoning. Ms. Wagner disputed the allegation. But the law school destroyed the videotape of her job interview, as court testimony confirmed, within a month of its decision not to hire her.
Faculty emails also contradicted the law school's allegations about her poor interview. For example, shortly after Ms. Wagner's job talk, Prof. Sheldon Kurtz, respected for his work on trusts and estates, emailed Mark Janis, chairman of the faculty-appointments committee: "Great. Lets [sic] hire her." Nevertheless, more than a dozen law professors who took the stand supported the law school's story.
Ms. Wagner convinced the jury that her rights had been violated. After the trial, on Nov. 20, 2012, the jury foreman told the Des Moines Register, "Everyone in that jury room believed she had been discriminated against." But after three days of deliberation, the jury could not agree on whether to hold Dean Jones exclusively responsible.
Presiding Judge William Pratt and his magistrate, Thomas Shields, phoned counsel to say the jury was hung and the case would be retried. However, according to court records, after thanking and discharging the jury, Mr. Shields, in an extraordinary move, called jurors back from the coatroom. Despite the trial having ended, he instructed the foreman to sign a verdict form that next to Count 1 had an "X," indicating that Dean Jones was not liable for a First Amendment violation. Later, Judge Pratt dismissed Count II, the 14th Amendment violation.
Now, with her appeal next week, Ms. Wagner is asking the Eighth Circuit to grant her a new trial.
Since the lawsuit, the law school has hired at least four faculty members who are Republicans, including former Congressman James Leach and the Republican governor's chief legal counsel, Brenna Findley, who was appointed as an adjunct professor. The hirings perhaps gave the school cover from charges of ideological bias during the Wagner affair, but taking such steps just perpetuates the idea that it's proper to subject job candidates to a political litmus test.
Instead, state boards of regents and state legislatures have a responsibility to ensure that their law-school faculties do not discriminate on the basis of political persuasion. Procedural transparency in hiring practices would be a help, beginning with the retention for a reasonable period of all relevant documents, including video recordings of interviews. Private university trustees should implement the same safeguards at their institutions.
Hiring decisions should be based on candidates' merits, including their ability to vigorously present in the classroom and criticize conservative as well as progressive views. If the Eighth Circuit protects Teresa Wagner's constitutional rights, the court will also bolster legal education in America by promoting its depoliticization.
Mr. Berkowitz, a senior fellow at Stanford's Hoover Institution, is author of "Constitutional Conservatism: Liberty, Self-Government and Political Moderation" (Hoover Institution Press, 2013).
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http://www.telegraph.co.uk/news/religion/10619538/Head-of-Mormon-church-Thomas-Monson-summoned-by-British-magistrates-court-over-Adam-and-Eve-teaching.html
Head of Mormon church Thomas Monson summoned by British magistrates' court over Adam and Eve teaching
Thomas S Monson, president of the Church of Jesus Christ of Latter-day Saints, ordered to appear before British magistrates' court amid claims that the organisation's teaching amounts to 'fraud'
Thomas S Monson is the worldwide leader of the Mormon church Photo: 2009 Getty Images
By John Bingham, Religious Affairs Editor
2:26PM GMT 05 Feb 2014
A British magistrate has issued an extraordinary summons to the worldwide leader of the Mormon church alleging that its teachings about mankind amount to fraud.
Thomas S. Monson, President of the Church of Jesus Christ of Latter-day Saints has been ordered to appear at Westminster Magistrates’ Court in London next month to defend the church’s doctrines including beliefs about Adam and Eve and Native Americans.
A formal summons signed by District Judge Elizabeth Roscoe warns Mr Monson, who is recognised by Mormons as God’s prophet on Earth, that a warrant for his arrest could be issued if he fails to make the journey from Salt Lake City, Utah, for a hearing on March 14.
In one of the most unusual documents ever issued by a British court, it lists seven teachings of the church, including that Native Americans are descended from a family of ancient Israelites as possible evidence of fraud.
It also cites the belief that the Book of Mormon was translated from ancient gold plates revealed to the church’s founder Joseph Smith by angels and that Adam and Eve lived around 6,000 years ago. The document suggests that asking members of the church to make contributions while promoting theological doctrines which “might be untrue or misleading” could be a breach of the Fraud Act 2006.
The Church dismissed the summons as containing “bizarre allegations” and signalled that Mr Monson has no plans to attend.
It was issued in response to a private prosecution attempt by Tom Phillips, a disaffected former Mormon who now runs MormonThink a website highly critical of the church.
Under little-used legal procedures, people who say they have evidence that someone has committed a crime can ask a magistrate to issue a summons requiring them to attend a court hearing. The district judge would then decide whether or not to proceed with a case or dismiss it. Similar procedures were used by Palestinian activist in 2009 to have an arrest warrant issued against the Israeli justice minister Tzipi Livni, leading to an international diplomatic incident.
Two virtually identical summonses were sent to Mr Monson naming Stephen Bloor, a former Mormon bishop, and Christopher Denis Ralph, another former convert, as victims of the alleged fraud. It argues that by being persuaded to pay a tithe to the church on the basis of teachings which might not be true, the president could have committed fraud. Among teachings it singles out as suspect are the assertion that the Book of Mormon was “translated from ancient gold plates by Joseph Smith [and] is the most correct book on Earth and is an ancient historical record” and that the Mormons’ Book of Abraham, was translated from Egyptian papyri by Joseph Smith. Other beliefs cited include the assertion that “Native Americans are descended from an Israelite family which left Jerusalem in 600 BC” and that “all humans alive today are descended from just two people who lived approximately 6,000 years ago.”
The document then demands that Mr Monson appears in court number six at Westminster Magistrates’ Court on Marylebone Road at 10am on March 14 or face arrest.
Malcolm Adcock, the church’s public affairs director for Europe, said: “The Church occasionally receives documents like this that seek to draw attention to an individual’s personal grievance or embarrass church leaders. These bizarre allegations fit into that category.”
But Mr Phillips said: “The head of the Mormon Church has been summoned to a court to answer allegations of fraud – I don’t think a judge at Westminster Magistrates’ Court would sign off on ‘bizarre allegations’ – I certainly hope they never would. This has been a very serious matter that has been looked at in extreme detail.”
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LDS are a popular target. I guess the outrageous claims found in the Koran are up next on the docket, right?
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Obama vs. First Amendment
By DICK MORRIS
Published on TheHill.com on February 18, 2014
Printer-Friendly Version
The Federal Communications Commission is about to launch a direct assault on the freedom of the media to cover news as it chooses. The program, called the Multi-Market Study of Critical Information Needs, involves requesting information from all radio and TV stations, as well as newspapers, about how they cover news, who decides what gets covered, and what criteria they use in the decision. The FCC will also conduct a "content analysis" of one week's coverage to decide whether each of eight "critical" categories of news is being given adequate attention.
While the results of the study will not impose mandatory changes on the media's news decisions, the "recommendations" from the FCC will carry the weight of law because all radio and television stations must come up for license renewal every eight years. Newspapers, which are clearly outside the jurisdiction of the FCC, are under no such constraint, but will be evaluated anyway.
The study is in response to another study, conducted by the Annenberg School for Communication and Journalism at the University of Southern California, which found that minorities were not being adequately served by media news and that critical areas were being under covered.
No surprise, the "critical areas" include such liberal topics as the environment and economic opportunity.
The first market to undergo a grilling will be Columbia, S.C., but all areas of the country are slated for scrutiny
Surveys will be distributed to reporters, news editors, assignment editors, publishers, owners, on-air reporters, film editors and other station or newspaper staff. These are the questions they will ask:
• What is the news philosophy of the station?
• Who else in your market provides news?
• Who are your main competitors?
• How much news does your station air every day?
• Is the news produced in-house or is it provided by an outside source?
• Do you employ news people?
• How many reporters and editors do you employ?
• Do you have any reporters or editors assigned to topic "beats"? If so, how many and what are the beats?
• Who decides which stories are covered?
• How much influence do you have in deciding which stories to cover?
• How much influence do reporters and anchors have in deciding which stories to cover?
• How much does community input influence news coverage decisions?
• How do you define critical information that the community needs?
• How do you ensure the community gets this critical information?
• Have you ever suggested coverage of what you consider a story with critical information for your customers (viewers, listeners, readers) that was rejected by management? If so, can you give an example? What was the reason given for the decision? Why do you disagree?
These intrusive questions, which pry into station politics and policies, can only send a chilling message to radio and television outlets.
If radio and television stations do not do a good job of reporting news, their ratings will suffer. If they do not do a good job of reporting the news the government wants them to report, that's none of the government's business.
The day is long gone when communities were dependent on one radio or one television station or one newspaper for their news. The Internet and cable television have changed all that. But the FCC acts as if the new age had not dawned.
Is it that they don't know? Or is it, more likely, that they want to push the media to cover the Obama administration agenda?
As this project goes forth, Sen. Bernie Sanders (I-Vt.) is circulating a petition in Congress to urge the networks to devote more time to covering climate change.
The First Amendment is under attack!
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second post
http://www.theblaze.com/stories/2014/02/19/child-services-files-contempt-charges-against-father-who-broke-gag-order-to-tell-story-of-daughter-kept-in-hospital-against-parents-will-source/#
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The 'Heckler's Veto'
On Cinco de Mayo 2010, a number of students at a California school came to
class wearing American flag apparel. Citing a history of conflict between
Anglo and Latino students, however, the school cracked down on the Anglos,
demanding that they cover up the flags or go home. On Thursday, a three-judge
panel of the Ninth Circuit Court ruled unanimously that the school did not
violate students' free speech rights. The ruling is a "classic 'heckler's
veto,'" says legal blogger Eugene Volokh
(http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/27/not-safe-to-display-american-flag-in-american-high-school/),
"because behavior that gets rewarded gets repeated. The school taught its
students a simple lesson: If you dislike speech and want it suppressed, then
you can get what you want by threatening violence against the speakers."
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http://www.hollywoodreporter.com/thr-esq/hollywood-experts-divided-implications-muslims-684607
The Jay Dougherty quoted herein is a buddy from law school.
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http://object.cato.org/sites/cato.org/files/pubs/pdf/sba-list-merits-filed-brief.pdf
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http://object.cato.org/sites/cato.org/files/pubs/pdf/sba-list-merits-filed-brief.pdf
Steven Hayward called it the "Best. Supreme Court. Brief. Ever."
http://www.powerlineblog.com/archives/2014/03/best-supreme-court-brief-ever.php
Steven Driehaus is the sore-loser Democrat who is suing Susan B. Anthony List for independent ads they ran in the election that cost Driehaus his Ohio congressional seat. I can’t imagine he has much of a case, but it’s made it to the high court anyway. O’Rourke and his co-authors, which include the Cato Institute’s Ilya Shapiro, defend the idea that opinionated speech is not only protected under the First Amendment, but essential to democracy. Such as:
After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular- humanist professors of Chicano studies. . .
While President Obama isn’t from Kenya, he is a Keynesian—so you can see where the confusion arises.
Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer- funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.
See also: http://www.georgescoville.com/2014/03/p-j-orourke-ilya-shapiro-cato-institute-amici-curiae-brief-susan-b-anthony-list-v-driehaus/
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http://www.theblaze.com/stories/2014/03/28/teachers-stunning-response-to-5-year-olds-endearing-act-has-these-outraged-parents-strongly-considering-homeschooling/
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RIGHT ANALYSIS
Freedom of Religion Is Still in the First Amendment
George Washington, a devoted Episcopalian, wrote that, should we want our Liberty secure and freedom to endure, we must "acknowledge the providence of Almighty God, obey his will, be grateful for his benefits, and humbly implore his protection and favors." He also said of faith and the American experiment, "The Hand of providence has been so conspicuous in all this, that he must be worse than an infidel that lacks faith, and more than wicked, that has not gratitude enough to acknowledge his obligations."
John Adams likewise wrote, "[R]eligion and virtue are the only foundations, not of republicanism and of all free government, but of social felicity under all government and in all the combinations of human society."
So why is it so appalling to today's crop of leftists that a city council might follow this great American tradition and begin its session with prayer? Or that students speaking at a graduation might wish to acknowledge the role of God in their lives? Whatever the reason, the public expression of faith is a key battle in our culture.
In fact, prayer before legislative sessions is at the core of numerous legal battles around the country. On Monday, just four days after the National Day of Prayer, the Supreme Court ruled that prayer before a city council meeting in Greece, New York, is constitutional. Five justices agreed that such prayers do not violate the First Amendment prohibition against the establishment of religion, and are an important part of American tradition dating all the way back to our Founders. The Court ruled similarly in another case 30 years ago.
Unfortunately, four justices agreed with the plaintiffs -- two women claiming offense because praying clergy are predominantly Christian in a predominantly Christian town. And the decision itself overturned a Second Circuit ruling in favor of the plaintiffs.
Writing for the Court's minority, Obama appointee Elena Kagan insisted that any public prayer must be completely nonsectarian and generic. Generally worthless, in other words. But worse, her proposed tectonic shift in constitutional interpretation would essentially require that politicos pre-approve prayers to ensure compliance with leftist political correctness.
That political correctness, says columnist Bill Murchison, is central to "progressive" philosophy. "The secularism of the Western cultural and political left -- its persistent indifference to religious faith -- may be its most conspicuous attribute. Having written off God for most worldly purposes, liberals can proceed to the construction of their own snug, secure, non-religious vision of human affairs and relationships. No unchangeable realities, no moral systems; just good old free-floating politics, founded on polls, warm thoughts and law review articles."
Justice Anthony Kennedy addressed Kagan's nonsense in his majority opinion, writing, "The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian."
Kennedy also wrote, "As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society." Heaven knows we could use a bit more of that. Furthermore, Kennedy said, "That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."
Indeed, public prayer didn't create a constitutional crisis for those who wrote and ratified it. That should tell us all we need to know.
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A Republican trying to silence Drudge and Hannity? Wow. Is this an example of the Washington "Establishment" steamrolling conservatives OR just Democrat politics?:
http://www.fec.gov/members/goodman/goodman_bio.shtml
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Free Speech MovementFree Speech Movement
A federal court blows up Wisconsin's campaign-finance rules.A federal court blows up state campaign-finance limits.
May 15, 2014 7:29 p.m. ET
Harry Reid on Thursday began the Senate Democratic push to rewrite the First Amendment to limit political speech. That display couldn't be more out of step with federal judges, who late Wednesday declared much of Wisconsin's campaign-finance law to be unconstitutional. This is a big win for open political debate.
We've been reporting how prosecutors in Wisconsin have abused campaign-finance law to silence conservative issue-advocacy groups, and we are winning that battle in court. But Wednesday's ruling, by a unanimous panel of the Seventh Circuit Court of Appeals, takes apart root and branch the regulations that the prosecutors claim as their justification.
In Wisconsin Right to Life v. Barland, Judge Diane Sykes writes for the court that the state's "labyrinthian" speech regulation "violates the constitutional limits on the government's power to regulate independent political speech." The 88-page opinion, joined by Judges Richard Posner and Joel Flaum, is a tour de force that instructs state regulators in Supreme Court precedents holding that "ordinary political speech about issues, policy, and public officials must remain unencumbered."
Wisconsin's speech police have a long history of overreach despite periodic brush-backs by the courts, including decisions in 1999 and 2002 striking down the state's regulation of issue ads. Yet in 2010 the state Government Accountability Board wrote a new rule to treat any ad that mentioned a candidate within 30 days of a primary election or 60 days of a general election as express advocacy. That definition improperly regulated many independent groups as though they were political action committees.
Wisconsin Right to Life sued to challenge those and other rules with the help of lawyer James Bopp. Among the laws struck down on Wednesday are the state's ban on corporate political spending (still on the books despite the Supreme Court's 2010 Citizens United decision), the cap on how much money a corporation can spend on fundraising for a related political committee, and the requirement for lengthy disclaimers on independent political ads.
The ruling makes clear that the indecipherable morass of Wisconsin campaign law is itself a burden to free speech, inhibiting in particular the small players who can't afford campaign-finance lawyers. Judge Sykes goes out of her way to tell lawmakers to get with the program because Wisconsin law is "in serious need of legislative attention to account for developments in the Supreme Court's jurisprudence protecting political speech."
Lawmakers had the opportunity to fix the mess last summer but backed off under pressure from the busy-bodies at the Government Accountability Board. That's an odious coincidence since we now know the GAB has been assisting prosecutors in their secret investigation of independent conservative groups. Judge Sykes's opinion specifically mentions that Milwaukee County District Attorney John Chisholm is a named defendant in Wisconsin Right to Life and thus subject to its injunction. Mr. Chisholm has been leading the illegal harassment of conservative groups.
Governor Scott Walker and his fellow Badger State Republicans have been notably timid in defending the free-speech rights of their conservative allies. They should take a sip of courage from Judge Sykes's opinion and cashier their campaign laws that have become excuses for inhibiting political speech that politicians don't like.
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The Democratic Assault on the First Amendment
Congress has too much power already; it should not have the power to silence citizens.
By Ted Cruz
WSJ
June 1, 2014 6:35 p.m. ET
For two centuries there has been bipartisan agreement that American democracy depends on free speech. Alas, more and more, the modern Democratic Party has abandoned that commitment and has instead been trying to regulate the speech of the citizenry.
We have seen President Obama publicly rebuke the Supreme Court for protecting free speech in Citizens United v. FEC; the Obama IRS inquire of citizens what books they are reading and what is the content of their prayers; the Federal Communications Commission proposing to put government monitors in newsrooms; and Sen. Harry Reid regularly slandering private citizens on the Senate floor for their political speech.
But just when you thought it couldn't get any worse, it does. Senate Democrats have promised a vote this year on a constitutional amendment to expressly repeal the free-speech protections of the First Amendment.
You read that correctly. Forty-one Democrats have signed on to co-sponsor New Mexico Sen. Tom Udall's proposed amendment to give Congress plenary power to regulate political speech. The text of the amendment says that Congress could regulate "the raising and spending of money and in-kind equivalents with respect to federal elections." The amendment places no limitations whatsoever on Congress's new power.
Two canards are put forth to justify this broad authority. First, "money is not speech." And second, "corporations have no free speech rights."
Neither contention bears even minimal scrutiny. Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine's "Common Sense" required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.
As for the idea that the Supreme Court got it wrong in Citizens Unite d because corporations have no First Amendment rights, that too is demonstrably false. The New York Times NYT 0.00% is a corporation. The television network NBC is a corporation. Book publisher Simon & Schuster is a corporation. Paramount Pictures is a corporation. Nobody would reasonably argue that Congress could restrict what they say—or what money they spend distributing their views, books or movies—merely because they are not individual persons.
Proponents of the amendment also say it would just "repeal Citizens United" or "regulate big money in politics." That is nonsense. Nothing in the amendment is limited to corporations, or to nefarious billionaires. It gives Congress power to regulate—and ban—speech by everybody.
Indeed, the text of the amendment obliquely acknowledges that Americans' free-speech rights would be eliminated: It says "[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press." Thus, the New York Times is protected from congressional power; individual citizens, exercising political speech, are not.
If this amendment were adopted, the following would likely be deemed constitutional:
Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians' records on the Second Amendment.
Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.
Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.
Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.
Congress could criminalize pastors making efforts to get their parishioners to vote.
Congress could punish bloggers expending any resources to criticize the president.
Congress could ban books, movies (watch out Michael Moore ) and radio programs—anything not deemed "the press"—that might influence upcoming elections.
One might argue, "surely bloggers would be protected." But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not "covered journalists."
One might argue, "surely movies would be exempt." But the Citizens United case—expressly maligned by President Obama during his 2010 State of the Union address—concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.
One might argue, "surely books would be exempt." But the Obama administration, in the Citizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.
The contemplated amendment is simply wrong. No politician should be immune from criticism. Congress has too much power already—it should never have the power to silence citizens.
Thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There's no chance that Sen. Udall's amendment will clear either hurdle. Still, it's a reflection of today's Democratic disrespect for free speech that an attempt would even be made. There was a time, not too long ago, when free speech was a bipartisan commitment.
John Stuart Mill had it right: If you disagree with political speech, the best cure is more speech, not less. The First Amendment has served America well for 223 years. When Democrats tried something similar in 1997, Sen. Ted Kennedy was right to say: "In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start."
Mr. Cruz, a Republican senator from Texas, serves as the ranking member on the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights.
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second post
Supreme Court Rejects Appeal From Reporter Over Identity of Source
The Supreme Court on Monday turned down an appeal from James Risen, a New York Times reporter facing jail for refusing to identify a confidential source.
The court’s one-line order gave no reasons but effectively sided with the government in a confrontation between what prosecutors said is an imperative need to secure evidence in a national security prosecution and what journalists said is an intolerable infringement of press freedom.
The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of his 2006 book “State of War.”
READ MORE »
http://www.nytimes.com/2014/06/03/us/james-risen-faces-jail-time-for-refusing-to-identify-a-confidential-source.html?emc=edit_na_20140602
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https://www.facebook.com/photo.php?v=776770305687998&set=vb.178081365556898&type=2&theater
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http://hotair.com/archives/2014/07/14/department-of-justice-now-involved-in-story-of-man-who-built-obama-mocking-parade-float/
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http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/30/u-s-commission-on-civil-rights-member-on-university-speech-codes/
Civil rights?
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https://www.youtube.com/watch?v=NXAYFzhNhQg
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Liberals attack First Amendment in Wisconsin, Illinois, Texas and Idaho
Published by: Dan Calabrese
Speech isn't free if politicians don't like it.
The Wall Street Journal has lately been performing a real public service by chronicling the efforts of Wisconsin lawmakers, prosecutors and some judges to basically obliterate the First Amendment as it pertains to political speech. No one has passed a law saying you can be arrested for what you say. The usurpation of liberty never works like that. Rather, a complicated web of bureaucracies and legal authorities have established regulations in the name of "fairness" or "good goverment" or "transparency" or what-have-you.
The real-life impact is set traps for advocacy groups who aren't trying to do anything but speak and be heard, and in the process are liable to find themselves in trouble with the law because they failed to follow a Byzantine set of rules and restrictions established by the very politicians who don't want them speaking too effectively - or spending too much of their own money to advocate things that might not be in these politicians' best interests.
The particular rules in play here concern "collaboration" between independent advocacy groups and political candidates. To a normal person, that's the simple exercise of your free-speech rights. To the political class, that's cause for a jailin':
It’s important to understand that this political attack on “coordination” is part of a larger liberal campaign. The Brennan Center—the George Soros-funded brains of the movement to restrict political speech—issued a report this month that urges regulators to police coordination between individuals and candidates as if it were a crime.
The report raises alarms that independent expenditures have exploded since the Supreme Court’s 2010 Citizens United decision, as if trying to influence elections isn’t normal in a democracy. The political left wants to treat independent expenditures as a “contribution” to candidates limited under campaign-finance law to $2,600 per election. That would essentially ban independent issue advocacy, since you can’t buy much air time for $2,600.
Such regulation is also an assault on freedom of association. If like-minded people can’t pool resources to influence elections, they are essentially shut out of modern political debate.
All the more so if citizens who do join together can be harassed by regulators or prosecutors. That’s clearly the intention of the Brennan speech enforcers, who survey state efforts to regulate speech and urge others to pick up the truncheon.
By the way, lest you try to blame Gov. Scott Walker for this, be aware that his allies have been the fattest targets for Democrat prosecutors trying to use these regulations to control who can say what in Wisconsin.
But Wisconsin is far from the only state where politicians are trying this gambit. IllinoisPolicy.org reports that politicians in their state are taking direct aim at the First Amendment, under the guise of limiting evil corporate spending on political races:
On Thursday, the Illinois Senate’s Executive Committee passed a resolution by a vote of 11-4 that calls for a constitutional convention to amend the U.S. Constitution to overturn the Supreme Court’s decision in Citizens United v. Federal Election Commission.
The Citizens United decision simply held that the First Amendment prohibits the government from limiting anyone’s independent political speech. The court held that, although the government can place certain limits on campaign contributions, it cannot limit how much someone spends independently to speak (or write) about a candidate or political issues.
And that makes perfect sense. If the right to free speech means anything, it must mean that you are free to speak as much as you want, as long as you’re spending your own money.
Incumbent officeholders don’t like that, though, because they would rather not face unlimited criticism.
This sentiment is shared by party leaders on both sides of the aisle in Illinois. This week alone, Senate President John Cullerton co-sponsored the Senate resolution, while House Minority Leader Jim Durkin lashed out against independent groups and said they should face greater legal restrictions.
It’s not surprising that Cullerton and Durkin in particular would feel that way. Along with House Speaker Mike Madigan and Senate Minority Leader Christine Radogno, they are the only people in the state who are legally allowed to direct as much money as they want to the political campaigns of their choosing, through the political parties and “legislative caucus committees” they control. Everyone else in Illinois is limited in how much they can give by the campaign-contribution caps the General Assembly passed in 2009.
Meanwhile, as we told you yesterday, Christian pastors in C'oeur D'Aline, Idaho are being threatened with fines and jail time unless they agree to perform gay "weddings." Once again, no one is going to pass a law outlawing Christianity. They know they can't get away with that. Instead, they impose requirements - ostensibly in opposition to "discrimination" or whatever - that threaten you with sanctions if you run your business in a way that actually adheres to your faith. The impact is the same. You have freedom to practice religion in theory, but in reality you can only practice it to the extent that the state deems acceptable.
And of course, in Houston, the city is attempting to subpoena the sermons of local pastorslest they find they criticized the lesbian mayor or a "human rights ordinance" the mayor favored. This is ostensibly about enforcing election laws in relation to churches' tax exemptions, but that's a crock. It's about outlawing speech politicians don't like.
All of this is the inevitable result of a government that grows in scope and influence because a majority of the electorate expects it to solve every problem that ever existed, even if the problems only affect politicians.
If politicians don't like others spending money to criticize them, too bad. If a Christian wedding chapel doesn't want to perform a gay "wedding," then the homosexuals need to go ask someone else. (And the same applies to bakers, florists, photographers, etc.) We don't need a system in which they react to such a rebuke by complaining to authorities. If pastors encourage people to vote in a certain way, then they do. No one needs to do anything about it.
Of course, the tax code becomes an issue here. The tax code is so onerous that organizations like churches can't hope to survive unless they get an exemption, and applying for the exemption gives the IRS de facto control over how they operate. The solution is not to change the rules governing exemptions. It's to throw out the entire tax code and adopt a new, simple, non-oppressive one that doesn't require anyone to get an exemption.
The bottom line is this: A government so big that it can provide you with everything puts you in a position where you need things from government, and then you're at the mercy of your provider to set rules you can live with. A government that thinks it's responsible for solving every problem will go ahead and "solve" the "problem" presented by your exercise of your rights.
It used to be that liberals claimed to love the First Amendment, but that was before it threatened their power. People of faith especially threaten their power because we answer to a power higher than them, so they try to use their rule-making authority to bring us under control.
If the First Amendment is a casualty, well, that was only valuable to them when it was useful to them. And when you think about it, the same is true of you.
You know, you just might like Dan's books too! Go here to get his series of Christian spiritual thrillers - Powers and Principalities, Pharmakeia and Dark Matter - in print or e-book form, or read his teaching on spiritual matters. You can follow all of Dan's work by liking his page on Facebook.
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How to Fight the Campus Speech Police: Get a Good Lawyer
That’s what student Daniel Mael had to do after Brandeis charged him with ‘harassment’ in a dispute over Israel.
By Sohrab Ahmari
Jan. 2, 2015 6:34 p.m. ET
411 COMMENTS
Rolling Stone magazine in November published a 9,000-word account of a horrific gang rape alleged to have occurred in 2012 at a University of Virginia fraternity. The story triggered a national outcry. UVA administrators pre-emptively suspended all fraternal activities on campus, effectively tarring an entire class of students for maintaining a culture of rape and impunity.
Then the original story collapsed. The confusion and anger that followed was a teachable moment about campus frenzies and baseless moral panic. But the episode also threw into high relief another facet of modern higher education: university administrators who, in their eagerness to mollify critics, trample students’ rights and in the process lives and reputations.
Often students from unpopular groups and those who hold unpopular views find themselves alone, facing zealous administrators at closed-door disciplinary hearings. In these places the basic rights of Americans—including the right to counsel, due process, the presumption of innocence and even free speech—don’t apply.
That was the predicament faced by Daniel Mael, a senior majoring in business at Brandeis University near Boston. The 22-year-old native of Newton, Mass., is on the honor roll and has immersed himself in student life, intramural sports and Brandeis’s Orthodox Jewish community. As a student journalist, he has published articles in national outlets.
The problem: Mr. Mael is a pro-Israel man of the right on a campus increasingly hostile to conservatism and the Jewish state. The other problem: The Brandeis administration, as at so many colleges, is more committed to shielding students’ political sensitivities from “harassment” than challenging their minds. Brandeis administrators define harassment so broadly that almost any student could be guilty at any time.
Speaking by phone while on winter vacation in Israel this week, Mr. Mael says: “They try to intimidate students into being silent, in the interest of people’s feelings not being hurt, rather than encourage debate.”
In fall 2013, a public dispute about Israel broke out between Mr. Mael and Eli Philip, another Brandeis student and a leader of the campus affiliate of J Street, an advocacy outfit that describes itself as “pro-Israel, pro-peace.” In the course of the debate Mr. Philip’s feelings were hurt—“then all hell broke loose,” Mr. Mael says. The result was a yearlong disciplinary saga that would threaten his future.
Yet unlike many students in this situation, Mr. Mael fought back, eventually retaining top-shelf legal counsel. The legal record generated by the case, now exclusively obtained by the Journal, shines a rare light on the hidden realm of campus discipline.
Like most harassment claims, the one Mr. Philip brought against Mr. Mael arose from actions and counteractions over which the two parties disagree. On Oct. 14, 2013, two campus pro-Israel organizations, the Brandeis Israel Public Affairs Committee and Stand With Us, hosted Barak Raz, a former spokesman for the Israel Defense Forces, or IDF.
As he wrote in a contentious Facebook exchange with Messrs. Mael and Raz and other students the next day, Mr. Philip, then a junior, said he “did walk in late, and did not hear the beginning and framing” of Mr. Raz’s lecture. Then Mr. Philip posed a question about the checkpoints the IDF operates in the Palestinian territories. “Motivated by deep frustration, the question was not asked calmly,” Mr. Philip would write in an op-ed about the incident published more than a month later in the Jewish Exponent, a Philadelphia periodical. (Mr. Philip didn’t respond to an email request for comment.)
Mr. Mael, also a junior at the time, says Mr. Philip was “particularly obnoxious” and “disrespectful” toward the speaker, behavior that Mr. Mael says continued online the next day, when, during the same Facebook exchange, Mr. Philip accused Mr. Raz of having “lie[d] to a roomful of students.” Mr. Mael says he decided to hold his political opponent accountable by challenging him in the university’s marketplace of ideas, including by publishing articles and circulating petitions.
Mr. Philip interpreted this as harassment, and in a Dec. 9, 2013, complaint to Brandeis administrators, he presented charges under the university code of conduct. Mr. Philip said in his written complaint that at a lunch meeting two days after the IDF event, Mr. Mael “accused me of behavior unfitting a Jewish soul” and of harboring “deep-seated ‘evil inclinations.’ ” Mr. Mael, Mr. Philip went on, “informed me that I damaged the Jewish community, that I should resign from my position as student leader, and that he must take action to restore the Jewish community.”
Mr. Mael says his words were misquoted and taken out of context, but that’s beside the point. Religious-oriented conversations, however passionate, don’t amount to harassment, a principle that the U.S. Equal Opportunity Commission has set forth regarding workplaces and one even more relevant on college campuses, where philosophical disputation is supposed to be part of the air students breathe. Nor did the encounter amount to conduct with “the purpose or effect of unreasonably interfering” with Mr. Philip’s “education or work performance,” as the Brandeis student code defines harassment. The students, after all, were having lunch.
Mr. Philip’s filing also complained that Mr. Mael attended J Street meetings. “His presence, sitting in the back of the room and typing notes after each comment, was uncomfortable and intimidating.” Blaming Mr. Mael’s influence, Mr. Philip noted that “the Orthodox community stopped speaking to me and routinely ignored me.” Also: “Getting lunch and dinner at the kosher section in Sherman dining hall became an uncomfortable experience.”
A responsible university administrator might have counseled Mr. Philip to take a deep breath and develop thicker skin for the slings and arrows of adult life. But on Dec. 5, 2013, Dean of Students Jamele Adams summoned Mr. Mael to his office, without informing him about the purpose of the meeting, the student says: “I was handed a copy of the Rights and Responsibilities handbook and told to familiarize myself with it because Eli was considering certain actions.”
Mr. Mael says he was also advised to avoid using social media—an odd discouraging of his free-speech rights and a hint of what lay ahead as the administration picked sides in the dispute.
For months, though, nothing happened. Mr. Philip went to Morocco for a semester abroad, and during that period Mr. Mael recalls he had “nothing to do with the dean.” He pressed on with his campus activism, helping to draw national attention to the Brandeis decision in April to withdraw its offer of an honorary doctorate to human-rights activist Ayaan Hirsi Ali.
Then, three months ago, almost a year since the original incident, Mr. Adams re-entered Mr. Mael’s life. Again he was summoned to the dean’s office without knowing the Oct. 8 meeting’s purpose. “I’m told that there are charges against me under bullying, harassment and religious discrimination,” Mr. Mael recalls. “And I’m told that I have to give a response—guilty or not guilty—ideally within 48 hours.” A guilty determination could have led to his suspension or expulsion from school. Since this was around the Jewish holiday of Sukkot, Mr. Mael was given about a week to reply.
Crucially, Mr. Mael wasn’t allowed to keep a copy of the complaint. Dean Adams told him that this was routine “procedure,” Mr. Mael says. “How am I supposed to tell my parents that I’m being brought to court and by the way I don’t know what the charges are?” Mr. Mael recalls thinking. “This is antithetical to the values of our Constitution.”
In a panic after the meeting with Dean Adams, Mr. Mael consulted his friend Noah Pollak, of the Washington-based Emergency Committee for Israel, which retained the Covington & Burling law firm to act on his behalf. Yet when Mr. Mael’s lawyer initially corresponded with university counsel, he was informed that “parties involved in the conduct process are not permitted to engage legal counsel to act or speak on their behalf.”
Covington & Burling paid no heed. With the deadline approaching and still without a copy of the complaint, Mr. Mael opted to plead not guilty and request a full hearing before a jury of his fellow students.
A ndrew Flagel, Brandeis’s senior vice president for students and enrollment, wouldn’t discuss the Mael case, citing federal privacy regulations, but said there is no university policy to advise students to curtail their speech online while a disciplinary case is pending. Mr. Flagel added that it is university practice not to provide the accused with a copy of a complaint but added that this is “one of the things we’ve been evolving.” Regarding the right to counsel, Mr. Flagel said: “This is not a legal proceeding, so your assumption that there is a right is not in evidence.”
By the end of October, Mr. Mael was finally provided a copy of the charges he would face. And Covington & Burling submitted to Brandies two lengthy legal memoranda blasting violations of Mr. Mael’s rights. One letter concluded: “We reserve all rights on behalf of Mr. Mael, including the right to assert claims for the reputational and other harms caused by the baseless allegations at the heart of this proceeding.” In other words: See you in court.
On Oct. 27 Dean Adams informed Mr. Mael via email that the “allegations against you will not be adjudicated through our Student Conduct Board. The accuser has withdrawn from the option to do so and therefore this case should be considered closed and without determination of fault or sanction. . . . Thank you for your cooperation.”
Thus closed a window on life at American universities, where administrators are only too happy to indulge the objections of students whose feelings are bruised in the combat of ideas. Mr. Mael considers himself fortunate not to be facing expulsion. “It’s imperative to understand that if I didn’t have extremely qualified counsel,” he says, “I would be under duress.”
As it happens, Brandeis University is named for the U.S. Supreme Court Justice Louis Brandeis, a free-speech champion and ardent Zionist.
Mr. Ahmari is a Journal editorial-page writer based in London.
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Justice Ginsburg’s Religious Flip
Freedom of conscience for prisoners, but not business owners.
Jan. 20, 2015 8:15 p.m. ET
A unanimous Supreme Court on Tuesday ruled in favor of a Muslim convict who wanted to keep a half-inch beard on religious grounds in violation of an Arkansas prison rule, and at least the conservative Justices were principled.
Recall that five Justices voted in favor of religious liberty in last year’s Hobby Lobby case on ObamaCare. The four liberals dissented, with Justice Ruth Bader Ginsburg railing that forcing religious-minded business owners to offer insurance for abortifacients was no violation of their religious liberty under the law. Justice Ginsburg joined the majority in this case, writing in a brief concurrence that the beard wouldn’t “detrimentally affect others who do not share” the convict’s beliefs. We couldn’t find that distinction in the statute at issue, but Justice Ginsburg had to say something to rebut the appearance of political, er, judicial hypocrisy. Justice Samuel Alito wrote both opinions, showing admirable consistency.
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Leftist hacks gonna be leftist hacks.
Anyone shocked?
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The Assassin’s Veto
USA Today finds a deadly common ground.
By
James Taranto
Jan. 23, 2015 3:57 p.m. ET
280 COMMENTS
(Note: We’ll be off Monday, returning Tuesday.)
“Common ground” is vastly overrated as a political virtue, and USA Today demonstrates why. In a pair of the paper’s recent op-eds one finds common ground between an Islamic supremacist and the dean of an American journalism school. Both men agree that free speech should be severely curtailed in a way that would empower violent extremists.
Iraqis burn the French flag. ENLARGE
Iraqis burn the French flag. Photo: Associated Press
Two weeks ago this column faulted USA Today for its choice of writer to rebut the paper’s pro-free-speech editorial the day after the Charlie Hebdo massacre. The “opposing view” came from Anjem Choudary, described in his shirttail bio as “a radical Muslim cleric in London and a lecturer in sharia.”
Many of our readers supported USA Today’s editorial decision on the ground that it is a public service to inform readers of the true attitudes of Islamic radicals, too often whitewashed by the media and political leaders. We acknowledged the next day that they had a point.
But what can one say about this week’s column by DeWayne Wickham, dean of Morgan State University’s School of Global Journalism and Communication in Baltimore? Choudary and Wickham make nearly identical arguments. Their columns are titled, respectively, “People Know the Consequences” and “ ‘Charlie Hebdo’ Crosses the Line.” Neither man expressly endorses the terrorists’ actions, but both strongly imply the victims had it coming because they offended their killers’ religious sensibilities.
Choudary: “Because the honor of the Prophet is something which all Muslims want to defend, many will take the law into their own hands, as we often see. Within liberal democracies, freedom of expression has curtailments, such as laws against incitement and hatred. . . . So why in this case did the French government allow the magazine Charlie Hebdo to continue to provoke Muslims, thereby placing the sanctity [sic] of its citizens at risk?”
Wickham: “If Charlie Hebdo’s irreverent portrayal of Mohammed before the Jan. 7 attack wasn’t thought to constitute fighting words, or a clear and present danger, there should be no doubt now that the newspaper’s continued mocking of the Islamic prophet incites violence. And it pushes Charlie Hebdo’s free speech claim beyond the limits of the endurable.”
Oddly, Wickham frames his argument in terms of First Amendment law, which, as he acknowledges, doesn’t apply in France. “Given the possible ripple effects of Charlie Hebdo’s mistreatment of Islam’s most sacred religious figure,” he writes, “at least people in this country should understand the limits America’s highest court has placed on free speech.”
To which one might add: especially people in this country who take it upon themselves to educate their fellow citizens, whether on campus or in the pages of a national newspaper. Wickham knows something about First Amendment law—but only enough to make an embarrassing show of how much he doesn’t know.
Wickham’s argument rests on two doctrines from early-20th-century First Amendment law: “clear and present danger” (Schenck v. U.S., 1919) and “fighting words” (Chaplinsky v. New Hampshire, 1942). It is ludicrous to suggest that either doctrine would justify censoring a magazine’s irreverent depictions of Muhammad.
It is doubtful that Schenck is even good law anymore. “The Supreme Court hasn’t used the ‘clear and present danger’ test for First Amendment cases in decades,” notes HotAir.com blogger “AllahPundit”:
The test now for inflammatory speech is the Brandenburg test, a strciter [sic] standard that allows the state to criminalize incitement only in narrow circumstances—when the speaker intends to incite violence and violence is likely to quickly result. Charlie Hebdo’s Mohammed cartoons may have met the “likely” prong of that test but they sure didn’t meet the “intent” part.
We discussed Brandenburg v. Ohio (1969) in last Friday’s column. There are additional reasons to think the Brandenburg doctrine would be inapplicable in defending a hypothetical effort to censor Charlie Hebdo. Brandenburg dealt with speech that advocated violence, something Charlie Hebdo has never to our knowledge done. And the incitement whose prospects the justices weighed and dismissed was of violence by supporters of the speaker—in Brandenburg, a Ku Klux Klan leader—not of an angry or violent reaction from opponents of his viewpoint.
The fighting-words doctrine, which is still good law, would be inapplicable for overlapping reasons. Fighting words have in common with incitement that a necessary element of their definition is the instantaneity of their effect. In Chaplinsky, Justice Frank Murphy defined fighting words as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The key words here are “utterance” and “immediate.” To put it in laymen’s terms, if you encounter a stranger on the street and insult him—in Chaplinsky’s case by shouting, “You are a goddamned racketeer!”—you can’t escape prosecution by claiming you were just exercising your right to free speech and he started it by throwing the first punch.
One can imagine a case in which a Charlie Hebdo caricature would constitute fighting words (albeit of a symbolic nature): if, say, a latter-day Chaplinsky taunted a Muslim on the street by waving a copy of the magazine and a fight ensued, both men could be booked for a breach of the peace. But the publication of offensive words or images is not fighting words. In fact, Chaplinsky had been handing out leaflets whose substantive message was similar to the insult he uttered (“denouncing all religion as a ‘racket’ ”). He was cited only for the spoken provocation.
The massacre at Charlie Hebdo was nothing at all like a street fight or a riot. It was a carefully premeditated act of mass murder. To cite it as a justification for censorship is not just misguided but monstrous. In the months after 9/11 it became a cliché that if the government took this or that action in an effort to counter terrorism, “the terrorists will have won.” In this case, if Choudary and Wickham had their way the terrorists really would win—which is to say that they would succeed in their goal of suppressing by force criticism of or irreverence toward Islam.
Call it the assassin’s veto. And there is no principled basis to apply such a doctrine only in cases of Islamic supremacist violence. Martin Luther King and other civil-rights leaders were assassinated by white supremacists angry over the things the victims had said. By Wickham’s logic, that would have justified government censorship of speech in favor of civil rights. If the courts adopted the Wickham doctrine, extremists of all stripes would have a powerful incentive to kill.
There’s more. In citing the outdated clear-and-present-danger doctrine, Wickham does not specify its object—i.e., the answer to the question: Clear and present danger of what? In Schenck, Justice Oliver Wendell Holmes did not limit the answer to violence, or to panic (Wickham tiresomely cites Holmes’s dicta about falsely shouting “Fire” in a crowded theater).
Here is the relevant passage in full: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” That is sweeping enough to include speech encouraging the violation of any valid law.
In Schenck, the “substantive evil” in question was the evasion of the military draft during World War I. The case upheld the conviction of a Socialist Party official for sending antiwar leaflets through the mail. If the clear-and-present-danger doctrine applied today—or at the time of the civil-rights movement—it would justify arresting and convicting people for encouraging, even indirectly, nonviolent civil disobedience or other unlawful protest tactics.
Perhaps one can mount a defense of the Wickham piece similar to the one our readers offered of the Choudary one. If one takes Wickham’s views as representative of the attitudes of American academia—a proposition that may be too sweeping but is not altogether outlandish—then it is in the public interest to expose them. Perhaps the debate we ought to be having is whether there is any reason for journalism schools to exist if they’re run by people with so little regard for free expression.
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http://www.redflagnews.com/headlines-2015/sad-day-in-america-supreme-court-affirms-ruling-that-displaying-us-flag-is-disruptive
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Notable & Quotable: George Will
Free speech has never been, in the history of our republic, more dangerously threatened than it is now.
April 20, 2015 8:08 p.m. ET
From columnist George F. Will’s keynote address at the inaugural Disinvitation Dinner, hosted in New York City on April 15 by the William F. Buckley, Jr. Program at Yale to honor those whose invitations to speak at U.S. universities were retracted because of their views:
Free speech has never been, in the history of our republic, more comprehensively, aggressively and dangerously threatened than it is now. The Alien and Sedition Acts arose from a temporary, transitory fever and were in any case sunsetted and disappeared. The fevers after and during the First World War and in the early culture war era also were eruptions of distemper rooted in local conditions and local issues bound to disappear, which they did.
Today’s attack is different. It’s an attack on the theory of freedom of speech. It is an attack on the desirability of free speech and indeed if listened to carefully and plumbed fully, what we have today is an attack on the very possibility of free speech. The belief is that the First Amendment is a mistake. . . .
Yesterday the Democratic Party, the oldest political party in the world, the party that guided this country through two world wars and is more responsible than any other for the shape of the modern American state—the Democratic Party’s leading and prohibitively favored frontrunner candidate for the presidential nomination announced four goals for her public life going forward, one of which is to amend the Bill of Rights to make it less protective. It’s an astonishing event. She said that she wants to change the First Amendment in order to further empower the political class to regulate the quantity, content and timing of political speech about the political class—and so far as I can tell there’s not a ripple of commentary about this on the stagnant waters of the American journalistic community.
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Wisconsin’s attempt to criminalize political speech is destined to become a case study on the use of election law to silence political opponents. Whether it is a cautionary tale or a blueprint for nationwide imitation is now up to the Supreme Court.
On Friday the Justices will consider whether to hear O’Keefe v. Chisholm, a Section 1983 civil-rights lawsuit brought by Wisconsin Club for Growth director Eric O’Keefe against Milwaukee District Attorney John Chisholm and other prosecutors. The suit charges the prosecutors with a multi-year campaign to silence and intimidate conservative groups whose political speech they don’t like.
The Supreme Court has made great strides in restoring First Amendment protections, and the Wisconsin case will test whether citizens can seek federal recourse when they are targeted and investigated for exercising those rights.
In 2012 Mr. Chisholm and, later, special prosecutor Francis Schmitz began investigating the Wisconsin Club for Growth and dozens of other conservative outfits based on a theory that the groups had illegally coordinated during the 2011 and 2012 recall campaigns against Governor Walker and state legislative leaders. Mr. O’Keefe’s group ran no advertising to advocate for candidates, but prosecutors claimed its independent issue advocacy should be counted as an in-kind contribution to politicians who share their views.
The theory was rejected by Wisconsin Judge Gregory Peterson but not before state law enforcement blanketed conservatives with subpoenas, raided their homes and put the targets under a gag order. For months following the subpoenas and the investigation’s leak to the press, conservative political advocates went silent lest they anger the prosecutors targeting them.
In May 2014, federal Judge Rudolph Randa found in favor of Mr. O’Keefe, writing that the prosecutors are wrong about campaign-finance law. The prosecutors are pursuing criminal charges against the groups, Judge Randa wrote, “for exercising issue advocacy speech rights that on their face are not subject to the regulations or statutes the defendants seek to enforce.”
The Seventh Circuit Court of Appeals dismissed the case on appeal, but not because it disagreed with Judge Randa on the merits. Acknowledging that the subpoenas were alarmingly broad, the three-judge panel wrote that the Anti-Injunction Act prevents federal courts from intervening in a state criminal investigation due to vague principles of “equity, comity, and federalism.” Judge Frank Easterbrook cast the court’s decision as a victory for state’s rights, but his opinion misjudged the precedents and the investigation’s nasty violation of Mr. O’Keefe’s rights.
Those rights can’t be easily vindicated within the context of Wisconsin law that allows these secret proceedings, and this is where federal relief comes in. Section 1983 was written to allow citizens to enforce federal law when their rights are violated by state officials.
If further evidence were needed that prosecutors mean to stack the deck against conservatives, consider their recent petition seeking the recusal of as many as four of the Wisconsin Supreme Court’s conservative justices from the appeal of Judge Peterson’s ruling. The case continues to meander through the notoriously slow Wisconsin appellate courts, chilling political speech even as elections pass.
Specific injustices aside, the U.S. Justices should also hear the case because it is part of a larger legal effort to subvert their 2010 Citizens United ruling. The game is to use the theory of “coordination,” which allows vast investigations to be instigated on the thinnest evidence, to sweep issue speech back into the regulatory umbrella of campaign-finance law.
The liberal Brennan Center for Justice is pushing regulations coast to coast that would reduce protections for issue speakers and encourage “coordination” probes. The Wisconsin case is an opening for the Court to tell prosecutors and regulators they must tread carefully when rights of free association are involved.
Wisconsin’s prosecutorial machinery has abused the law to silence disfavored political speech. This one is made to order for Supreme Court review.
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Roberts’s Rules for Judges
Special limits on political speech for ‘the brotherhood of the robe.’
April 29, 2015 7:26 p.m. ET
WSJ:
The John Roberts Supreme Court has tended to champion free speech, expanding political debate and participation. What a pity, then, that the Chief Justice on Wednesday joined the four liberals to make an exception for judicial elections.
The 39 states where the public votes for judges usually impose speech and fund-raising restrictions on judges and candidates, and 30 prohibit them from personally soliciting campaign funds. In a 2009 Florida primary, Tampa-area lawyer Lanell Williams-Yulee challenged a sitting district judge chosen by a “nonpartisan” judicial selection committee. She lost, likely in part because this process is designed to favor incumbents.
The Florida Bar sanctioned Ms. Yulee anyway. Her crime? Mailing a letter to voters that explained her qualifications and the legal philosophy she would observe as a judge, and asking for donations. In Williams-Yulee v. Florida Bar, she argued the First Amendment vindicates her right to request funds, since the government cannot regulate the content of speech like her letter.
The High Court has long recognized that core political speech—debate about public issues and candidates during elections—deserves the highest protection under the Constitution. Chief Justice Roberts claims to apply such strict scrutiny. But his 5-4 opinion creates a new double standard, because he says “judges are not politicians, even when they come to the bench by way of the ballot.”
Thus the Chief blesses what he concedes is “regulation of speech” to serve the state interest in maintaining public confidence in an impartial judiciary. His conceit is that campaign donations are more compromising to the independence of judges—or to the appearance thereof—than for politicians, even if the Chief admits that “judicial integrity does not easily reduce to precise definition.”
The Florida law is even less coherent than the Chief’s opinion. Judicial candidates are allowed to form committees to solicit donations on their behalf and also to write personal thank-you notes. Why is the wink and nod of fundraising by proxy followed by a private expression of gratitude less a quid pro quo than a general public request like a mass mailer or website?
In a ferocious dissent, Justice Antonin Scalia clobbers the Chief’s judges-are-different sentimentality. He writes that the majority seems to find judicial elections and “the (shudder!) indignity of begging for funds” distasteful, and thus undermines free speech merely to preserve the “saintliness” and “oracular sanctity of judges.” Justice Scalia concludes, “The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.”
Judicial elections will no doubt continue as a policy debate. But free societies are supposed to be able to choose how to hold officials accountable, and states have used the ballot box to do so for judges since 1812. As long as there are elections, there will be campaigns, which require financing to promote ideas and candidates.
Rules like Florida’s appeal to liberals and lawyers because they suppress political competition in the name of “ethics.” Only those inducted into this self-selecting clerisy can take part, denying voters their right to a robust debate. The outsiders who lack connections would most benefit from personal fundraising. Chief Justice Roberts’s bathos about his caste will harm democracy and public confidence in the judiciary for years to come.
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http://www.theblaze.com/stories/2015/05/18/court-sides-with-youtube-on-anti-muslim-film-that-sparked-violence-in-the-middle-east/?utm_source=Sailthru&utm_medium=email&utm_term=Firewire_Morning_Test&utm_campaign=Firewire%20Morning%20Edition%20Recurring%20v2%202015-05-19
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http://www.thedailybeast.com/articles/2015/06/25/how-the-feds-asked-me-to-rat-out-commenters.html
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http://mediatrackers.org/wisconsin/2015/07/02/sen-baldwin-1st-amendment-doesnt-apply-individuals
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The Washington Redskins may eke out a playoff appearance even with a mediocre record, but fans and all Americans have another reason to cheer this week: A federal court robustly defended the First Amendment right to speak freely, striking down part of a law used to revoke the NFL team’s much-maligned trademark.
On Tuesday the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. ruled 9-3 that the government can’t deny trademarks—an advertising slogan, a team name—that the feds deem offensive. The case involved a dance-rock band denied a trademark for “The Slants” because the slur might offend Asian-Americans. The band members, Asian-Americans, intended to be provocative.
The court invalidated part of the 1946 Lanham Act that allowed the U.S. Patent and Trademark Office to reject trademarks that might disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” Courts have heretofore propped up this censor-approving language by arguing that rejected applicants can still express themselves freely, albeit without a trademark.
“It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys,” Judge Kimberly A. Moore wrote in her opinion for the majority. “That principle governs even when the government’s message-discriminatory penalty is less than a prohibition.”
As anyone who has worked for a company, bought jerseys from a favorite team, or eaten at a chain restaurant understands: Trademarks are speech that convey information about a brand’s identity. The Lanham Act intended to shield consumers from deceptive products and protect intellectual property, not to play the feelings police in the marketplace of ideas.
The law also hands the Patent Office capricious power to determine what is offensive. Judge Moore found no shortage of arbitrary illustrations: The office wouldn’t countenance “Have You Heard Satan Is A Republican” but didn’t mind “The Devil Is A Democrat.”
Here’s why the Redskins have reason for a little dancing in the end zone: The judge who in July ruled against the franchise’s trademark for offending Native Americans relied on the same section of the Lanham Act. The legal tussling continues, and the case sits before the appellate court for the Fourth Circuit. The Supreme Court may weigh in eventually.
The Fourth Circuit should consider that the significance of such cases extends beyond band names and mascots: The First Amendment is meaningless if citizens are silenced or punished when they offend. Washington’s appeals court deserves credit for protecting this principle even when it isn’t fashionable.
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http://dailysignal.com/2016/01/21/california-joins-the-effort-to-persecute-suppress-scientific-dissent-on-climate-change/?utm_source=heritagefoundation&utm_medium=email&utm_campaign=morningbell&mkt_tok=3RkMMJWWfF9wsRovvajLZKXonjHpfsX56ewsWa+wlMI%2F0ER3fOvrPUfGjI4ASMRkMa+TFAwTG5toziV8R7jHKM1t0sEQWBHm
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https://pjmedia.com/homeland-security/2016/06/29/obama-appointed-prosecutor-chills-free-speech-in-idaho-migrant-sex-assault/?singlepage=true
Watch what you say.
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Unfgbelievable!!!
FEC votes 3-3 to punish FOX for having undercard debate!
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repost from constitutional issues thread
https://www.conservativereview.com/commentary/2016/08/muslim-flight-attendant-controversy-reveals-the-lefts-ignorance-of-religious-liberty
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There are no permanent victories in politics, but the U.S. Supreme Court came as close as we’ll get Monday by rejecting the request by Wisconsin prosecutors to resurrect their abusive, secret campaign against Governor Scott Walker’s political allies.
You may have thought this campaign against free speech had died in July 2015 when the Wisconsin Supreme Court ruled that the probe was “unsupported in either reason or law” and later fired Special Prosecutor Francis Schmitz. But Milwaukee District Attorney John Chisholm couldn’t accept his humiliation, and he and his media allies ginned up a campaign to beseech the U.S. High Court to hear the case.
The effort included the not-so-coincidental recent leak of some 1,500 pages of documents to the Guardian purporting to show scandal when there was none. On cue, the cause was picked up by the herd of independent minds at the Brennan Center for Justice, the New Yorker and New York Times.
The appeal was a long shot because the case concerned a matter of Wisconsin law. But the relentless persistence of the left in trying to prosecute political speech shows what could happen if the U.S. Supreme Court gets a five-judge liberal majority. The progressive censors will gin up cases to overturn legal precedents like Citizens United and SpeechNow v. FEC that have made it harder for government to regulate who can join with allies to influence elections.
As for Mr. Chisholm’s Wisconsin targets, they can now stop paying defense lawyers. One of those targets, Wisconsin Club for Growth Director Eric O’Keefe, went on the record with us from our first editorial in November 2013 reporting on the dawn raids and intimidation tactics. He took a risk in doing so because state law then barred targets from even speaking about their predicament.
With the Wisconsin press in the pocket of prosecutors, we were happy to help Mr. O’Keefe and the other targets fight back. The resulting legal challenges shut the probe down, and the state legislature has since rewritten its John Doe law to make such abuses less likely. Sometimes the good guys still win.
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and anytime to say whatever you like.
"My right to free speech"
What ????
What has that got to do with singing the national anthem which is what you were hired to do?
No one has the right not to be fired from their job because in the middle of their job they get up and start grandstanding on company time their political views.
Add the NBA to the NFL to my no longer watch list:
http://www.breitbart.com/big-government/2016/10/12/singer-takes-knee-performing-national-anthem-nba-game/
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and anytime to say whatever you like.
"My right to free speech"
What ????
What has that got to do with singing the national anthem which is what you were hired to do?
No one has the right not to be fired from their job because in the middle of their job they get up and start grandstanding on company time their political views.
Add the NBA to the NFL to my no longer watch list:
http://www.breitbart.com/big-government/2016/10/12/singer-takes-knee-performing-national-anthem-nba-game/
I have taken a knee when it comes to the NFL. Never really watched the NBA anyway.
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https://www.facebook.com/?ref=tn_tnmn
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https://www.nytimes.com/2017/06/19/us/politics/supreme-court-trademarks-redskins.html?emc=edit_na_20170619&nl=breaking-news&nlid=49641193&ref=cta&_r=0
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(https://static.pjmedia.com/instapundit/wp-content/uploads/2017/09/iowahawk_shapiro_9-14-17-1.jpg)
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http://www.capoliticalreview.com/capoliticalnewsandviews/sen-feinstein-opposes-a-free-press/
I suppose the counter argument is that if there is a shield law, there must be a definition of whom it covers , , ,
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http://thehill.com/homenews/administration/355051-trump-news-network-licenses-must-be-challenged-and-if-appropriate?rnd=1507767656
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In Wedding-Cake Case, Supreme Court Weighs Clash Between Gay Rights and Religious Views
Spotlight turns to Justice Anthony Kennedy as justices challenge both sides
Baker Jack Phillips working at Masterpiece Cakeshop in Lakewood, Colo., in this undated photo.
Baker Jack Phillips working at Masterpiece Cakeshop in Lakewood, Colo., in this undated photo. Photo: eric baradat/Agence France-Presse/Getty Images
By Jess Bravin and
Brent Kendall
Updated Dec. 5, 2017 2:13 p.m. ET
812 COMMENTS
WASHINGTON—Supreme Court justices wrestled with competing visions of individual rights Tuesday, vigorously debating a legal collision between a baker whose Christian faith condemns same-sex marriage and a state law requiring him to sell wedding cakes without regard to sexual orientation.
The case was the first major dispute to reach the high court in the wake of its 2015 ruling extending same-sex marriage nationwide, forcing the justices to evaluate that decision’s impact on private parties who, typically for religious reasons, remain opposed to the practice.
While federal law doesn’t explicitly protect gay couples from discrimination, more than 20 states and hundreds of local jurisdictions outlaw discrimination based on sexual orientation, much as they forbid bias against customers for reasons of race, sex, religion, disability and other attributes.
Neither side’s attorneys yielded ground during the arguments, which left little clear other than the court’s recognition that both Jack Phillips, the Lakewood, Colo., baker, and the Denver couple he refused to serve, Charlie Craig and David Mullins, have significant rights at stake.
In a nod to the complexity of the case, several justices challenged lawyers representing the side they were expected to sympathize with.
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Justice Neil Gorsuch, a Donald Trump appointee championed by conservatives, suggested that the administration’s argument favoring Mr. Phillips could open the door to wider discrimination. And liberal Justice Stephen Breyer voiced concern that Colorado had been too cavalier in its treatment of the vendor’s religious views.
But empathy rarely is enough to move justices off their ideological ground, leaving the spotlight on Justice Anthony Kennedy, the maverick conservative who embodies the legal conflict within the case.
Over the past two decades, Justice Kennedy has joined, and led, the court’s liberal wing in expanding gay rights, culminating in a 2015 decision extending same-sex marriage nationwide. But Justice Kennedy also has joined fellow conservatives in easing the strict separation of church and state that had been charted by precedents dating from the 1960s.
On Tuesday, he pressed both sides toward the uncomfortable extremes their arguments could portend.
The Trump administration joined the case on the side of the baker, and the U.S. solicitor general argued on his behalf at the court Tuesday. That marked another occasion when the administration has sided with social conservatives on a high-profile issue reversing a position taken by the Obama White House.
U.S. Solicitor General Noel Francisco, making his first argument as the Trump administration’s high-court advocate, suggested that regardless of antidiscrimination laws, the First Amendment’s free-speech guarantee should allow businesses to reject any customer seeking their product or services for “an expressive event like a marriage celebration to which they’re deeply opposed.”
“If you prevail, could the baker put a sign in his window, ‘We Do Not Bake Cakes for Gay Weddings’?” Justice Kennedy asked. “And would you not think that an affront to the gay community?”
“I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here, too,” Mr. Francisco said.
When Frederick Yarger, the Colorado solicitor general, took the lectern, Justice Kennedy upbraided the state with equal force. “Counselor, tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual,” he said. “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”
Where Justice Kennedy questioned Mr. Francisco over the possibility of a nationwide campaign pressuring bakers to refuse service to gay couples, he told Mr. Yarger that “accommodation is quite possible” because “other good bakery shops” presumably would welcome business from engaged couples of the same sex.
The dispute arose in 2012, when Messrs. Craig and Mullins came to Mr. Phillips’s Masterpiece Cakeshop, only to be turned away within moments of expressing their interest in a wedding cake. The couple filed a complaint with the Colorado Civil Rights Division, where an administrative law judge and then a seven-member commission found the bakery must offer wedding cakes to same-sex couples on the same terms as other customers.
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http://www.nationalreview.com/article/455470/nifla-becerra-supreme-court-case-religious-freedom-free-speech?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-01-16&utm_term=NR5PM%20Actives
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http://www.nationalreview.com/article/455601/trump-administration-pro-life-free-speech-case-dangerous?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-01-19&utm_term=NR5PM%20Actives
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Looking for a good summary of "public square" doctrine -- seems relevant to the Google/FB stranglehold on the public square of cyberspace , , ,
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https://patriotpost.us/articles/56162-trolling-judge-blocks-trump-from-blocking-twitter-trolls?utm_medium=email&utm_source=pp.email.3507&utm_campaign=digest&utm_content=body
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Supreme Court Sides With Baker Who Turned Away Gay Couple
Image
Jack Phillips, owner of Masterpiece Cakeshop, exits the Supreme Court in December.CreditZach Gibson for The New York Times
By Adam Liptak
June 4, 2018
WASHINGTON — The Supreme Court sided with a Colorado baker on Monday in a closely watched case pitting gay rights against claims of religious freedom.
Justice Anthony M. Kennedy, writing for the majority in the 7-2 decision, relied on narrow grounds, saying a state commission had violated the Constitution’s protection of religious freedom in ruling against the baker, Jack Phillips, who had refused to create a custom wedding cake for a gay couple.
“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
The decision, which turned on the commission’s asserted hostility to religion, left open the possibility that other cases raising similar issues could be decided differently.
“The outcome of cases like this in other circumstances must await further elaboration in the courts,” Justice Kennedy wrote, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, arose from a brief encounter in 2012, when David Mullins and Charlie Craig visited Mr. Phillips’s bakery, Masterpiece Cakeshop, in Lakewood, Colo. The two men were going to be married in Massachusetts, and they were looking for a wedding cake for a reception in Colorado.
Mr. Phillips turned them down, saying he would not use his talents to convey a message of support for same-sex marriage at odds with his religious faith. Mr. Mullins and Mr. Craig said they were humiliated by Mr. Phillips’s refusal to serve them, and they filed a complaint with Colorado’s civil rights commission, saying that Mr. Phillips had violated a state law barring discrimination based on sexual orientation.
Mr. Mullins and Mr. Craig won before the Colorado civil rights commission and in the state courts.
The Colorado Court of Appeals ruled that Mr. Phillips’s free speech rights had not been violated, noting that the couple had not discussed the cake’s design before Mr. Phillips turned them down. The court added that people seeing the cake would not understand Mr. Phillips to be making a statement and that he remained free to say what he liked about same-sex marriage in other settings.
Gay rights groups argued that same-sex couples are entitled to equal treatment from businesses open to the public. A ruling for Mr. Phillips, they said, would undermine the Supreme Court’s 2015 ruling guaranteeing a constitutional right to same-sex marriage, marking the unions of gay couples second-class marriages unworthy of legal protection.
Religious groups responded that the government should not force people to violate their principles in order to make a living. The Supreme Court has long recognized a First Amendment right not to be forced to speak, they said. In 1977, for instance, the court ruled that New Hampshire could not require people to display license plates bearing the state’s motto, “Live Free or Die.”
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With emphasis on "narrow grounds".
"the government should not force people to violate their principles in order to make a living"
Amen. However... the government forces all day long to violate our principles!
The Supreme Court got one right. Narrow grounds is also right. Justice Kennedy exercised his opportunity to leave his mark and balance his checkered record. I hope he feels a sense of completion and closure and heads off into the sunset of living, retired Justices of the Supreme Court with Stevens, Souter and Sandra Day O'Connor. )
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https://www.nationalreview.com/2018/06/masterpiece-cakeshop-setback-liberty/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-06-05&utm_term=NR5PM%20Actives
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https://www.nationalreview.com/2018/08/supreme-court-decisions-clarify-campus-free-speech-protections/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-08-14&utm_term=NR5PM%20Actives
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https://www.nationalreview.com/news/virginia-teacher-fired-after-refusing-to-call-trans-student-by-preferred-pronoun/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-12-07&utm_term=NR5PM%20Actives
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https://www.nationalreview.com/news/virginia-teacher-fired-after-refusing-to-call-trans-student-by-preferred-pronoun/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-12-07&utm_term=NR5PM%20Actives
Dissent from the LGBTP party line will not be tolerated!- The tolerant left.
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https://www.nationalreview.com/2018/12/founders-protected-religious-freedom-first-amendment-natural-rights/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-12-07&utm_term=NR5PM%20Actives
https://www.nationalreview.com/2018/10/supreme-court-judicial-philosophy-constitutional-system/
https://www.nationalreview.com/2018/12/antonin-scalia-decision-religious-freedom-correct/
https://lawandreligionforum.org/2016/09/06/munoz-justice-scalia-was-right-about-religious-free-exercise/
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https://www.adflegal.org/brush-and-nib-story?sourcecode=10002211&utm_source=facebook&utm_medium=ad&utm_campaign=830-31433&utm_content=Brush_and_Nib&fbclid=IwAR1znLFSnV1GkN65KiCaaKuzhOy_YB9hNWAlD0kvgk4caq6MzqbIvrdeLzE
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https://www.adflegal.org/brush-and-nib-story?sourcecode=10002211&utm_source=facebook&utm_medium=ad&utm_campaign=830-31433&utm_content=Brush_and_Nib&fbclid=IwAR1znLFSnV1GkN65KiCaaKuzhOy_YB9hNWAlD0kvgk4caq6MzqbIvrdeLzE
Funny how fast the left moves from "tolerance" to "compliance at government gunpoint".
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https://www.nationalreview.com/2018/12/constitution-free-speech-clause-supreme-court-interpretation/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-12-31&utm_term=NRDaily-Smart
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https://www.dailysignal.com/2019/02/21/3-recent-libel-suit-outcomes/?mkt_tok=eyJpIjoiT0dWbE5qSTFabUl6TnpsayIsInQiOiJiekppeDZ1STRiUjg4c05walZsYTNvSTB5RnNcL2JaUjhJMW01M1wvaTA5TVZOdWFIenVZNlhsSDQrRldibmhMTjN1RFJOYUJzK1hEVlY0Q280UFE4TDNBM3FBN0RmcGVYUE82b215RXNsNm5ZQmlCbURHQWs5azgwOU81elI4WlRWIn0%3D
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https://www.economist.com/international/2019/08/15/the-global-gag-on-free-speech-is-tightening?cid1=cust%2Fdailypicks1%2Fn%2Fbl%2Fn%2F20190815n%2Fowned%2Fn%2Fn%2Fdailypicks1%2Fn%2Fn%2Fna%2F294306%2Fn&fbclid=IwAR0aoNaEDfoe-V6x4Mjnj5PIutcqpMlbiqytgBqvZI_7cz-yjZV27qhJmTM
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https://www.theepochtimes.com/trump-campaign-sues-the-new-york-times-over-russia-opinion-article_3251933.html?ref=brief_BreakingNews&utm_source=Epoch+Times+Newsletters&utm_campaign=eed80ec7a3-EMAIL_CAMPAIGN_2020_02_26_06_46&utm_medium=email&utm_term=0_4fba358ecf-eed80ec7a3-239065853
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https://www.gatestoneinstitute.org/16520/cnn-lawsuit-dershowitz
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The Censorship Party
House Democrats use a hearing to target conservative media.
By The Editorial Board
Feb. 25, 2021 6:46 pm ET
Imagine if a pair of Donald Trump’s allies in Congress had sent a letter to cable company CEOs in 2017 blasting CNN and other progressive media outlets and asking why their content is still broadcast. Then imagine that a GOP-run committee in Congress staged a hearing on the societal menace of fake news and the need for government and business to rein in the hostile press.
The media would have treated that as a five-alarm political fire, an existential threat to a free press, the First Amendment and political norms, and a step toward authoritarian rule. “Democracy dies in darkness,” and all that. Yet that’s exactly what Democrats in Congress did this week, targeting conservative media outlets, but the media reaction has been silence or approval.
On Monday Democrats Anna Eshoo and Jerry McNerney sent letters pressing 12 cable and tech CEOs to drop contracts with right-of-center media outlets including Fox News. Two days later the Energy and Commerce Committee held a hearing about “disinformation and extremism” in conservative media. The only notable extremism on display was the majority party’s appetite for regulating and policing the free press.
Rep. Mike Doyle, chair of the subcommittee on communications and technology, declared in opening remarks that “it is the responsibility of this subcommittee to hold these institutions”—meaning press outlets he doesn’t like—“to a higher standard.” He said later that “more free speech just isn’t winning the day over the kind of speech that we’re concerned about.”
Democrats chose witnesses to lay the rhetorical foundation for press restrictions. One was Kristin Urquiza, whose father died of coronavirus and who spoke at the Democratic convention against Donald Trump. She said “the media didn’t pull the trigger” in her father’s death, “but they drove the getaway car,” because he watched and listened to news that downplayed the virus.
Rep. Eshoo bristled at Republican concerns about government officials investigating broadcast media with the aim of deplatforming disfavored networks. “I call them lies,” she said of the content described by Ms. Urquiza. “I don’t know what you call them. You call that the open market, something that’s competitive?” Rep. Marc Veasey said he saw a tension between “the freedom of speech versus other peoples’ safety.”
Chairman Rep. Frank Pallone generously conceded that the First Amendment protects speech that is “controversial” but distinguished “misinformation that causes public harm.” Apparently Mr. Pallone wants someone, perhaps the government, to determine what constitutes public harm and when speech causes it. Would two years of false Democratic narratives about Russian collusion with Mr. Trump qualify as public harm? How about apologias for riots in the streets last summer?
Progressives seem to believe that they are in a position to dictate the terms of what is acceptable speech in a more controlled media environment. As committee witness Emily Bell of Columbia Journalism School put it, “there has to be a will among the political elite and the media elite and the technology elite to actually do the right thing, as it were.” That means tightening speech restrictions. To borrow another progressive cliche, this is a dog whistle for tech companies and other businesses to censor or block conservatives if government can’t.
This thinking is dangerous at any time, but especially so now as the Democratic Party runs both Congress and the executive branch with the power to punish companies that don’t oblige. The danger is worse since most of the media are abdicating their role as defenders of the free press because they aren’t the political targets. The First Amendment dies in media darkness.
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‘Just Asking’ for Censorship
Democrats expand their effort to shut down speech by targeting newsrooms.
By Kimberley A. Strassel
Feb. 25, 2021 6:27 pm
The Democratic House majority this week put on a bold demonstration of its newest governing strategy—one it continues to perfect. Call it the “Just Asking” tactic.
The exhibit took place at Wednesday’s House Energy and Commerce subcommittee hearing on “disinformation and extremism in the media.” While lawmakers have spent years fretting over “disinformation” on social media, this was the first time they used a hearing to accuse news outlets of deliberately fomenting it.
The precursor to the hearing was a revealing letter sent Monday by two California Democrats, Reps. Anna Eshoo and Jerry McNerney. The duo demanded the CEOs of a dozen cable, satellite and broadband providers explain what “response” they intended to take to the “right-wing media ecosystem” that is spreading “lies” and “disinformation” that enable “insurrection” and provokes “non-compliance with public health guidelines.” Specifically they asked each CEO: “Are you planning to continue carrying Fox News, Newsmax and OANN . . .? If so, why?”
Just asking.
When Republican members of the committee and outside groups shouted censorship, Ms. Eshoo shrugged. “The First Amendment, my friends, starts with four words: Congress shall make no laws,” and she, Anna Eshoo, had no intention of enacting a law to shut down conservatives. She was merely asking “strong, important questions”—i.e., whether private regulated companies understand that (if they know what’s good for them) they’ll do the dirty work for her, thereby saving her the hassle of complying with the Constitution. She was just asking.
And why wouldn’t she? It’s been working so well for Democrats in other areas. Left-wing activists and politicians spent four years “just asking” social media companies what they intended to do about “disinformation”—today’s code word for conservative ideas. An emboldened left-leaning Silicon Valley is now happily doing Democrats’ bidding, censoring like mad. Twitter, Facebook and others are banning prominent conservatives from their platforms. Twitter locked the account of a newspaper (the New York Post) for the sin of accurately reporting unflattering news about the Democratic presidential nominee’s son. Google and Apple dropped Parler from their app stores. Amazon this week jumped into the virtual book-burning business, purging “When Harry Became Sally” by Ryan T. Anderson, a three-year-old book that addresses tough questions about gender identity.
“Right now, the greatest threat to free speech in this country is not any law passed by the government—the First Amendment stands as a bulwark,” says Federal Communications Commissioner Brendan Carr. “The threat comes in the form of legislating by letterhead. Politicians have realized that they can silence the speech of those with different political viewpoints by public bullying.”
What was new this week was Democrats’ brazenness: their shocking and open targeting of news organizations. The left has long worked to shut down speech with which it disagrees, but officials in the past did it with more subterfuge. It came via legislation for “campaign finance reform,” or via their successful effort to push the IRS to target conservative nonprofits; or via Sen. Dick Durbin’s campaign to pressure companies out of funding free-market nonprofits. Liberal activists have honed intimidation campaigns, threatening boycotts and other actions against companies that advertise on disfavored platforms or donate to right-leaning groups.
Congress’s engagement this week is an acknowledgment of the limits of that activist effort. As Angelo Carusone, president of the left-wing outfit Media Matters keeps noting, activists have discovered that their campaign against Fox’s advertisers isn’t enough, since Fox gets much of its revenue from subscription fees. So the only way to kill it off is to bully cable companies into dropping the network. Activists began a grassroots effort to do that last year but haven’t made headway. Enter Ms. Eshoo and Mr. McNerney. (Disclosure: Fox’s and the Journal’s parent companies share common ownership, and I am a Fox News contributor.)
Democrats may have a harder time bending these providers to their demands than they did Big Tech. Carriage decisions are governed by contract law; disappearing a cable channel isn’t as easy as disappearing a Twitter account. And customers would likely revolt, with financial implications for providers.
There’s also growing political risk from the other side. The GOP finally understands what is happening and is beginning to counter it. Gov. Rick DeSantis’s vow to protect Florida’s citizens from Big Tech overreach is a shot across the censors’ bows. There’s also this week’s letter to cable providers from West Virginia’s Republican Attorney General Patrick Morrisey urging them to think “very carefully” about how they respond to Democratic pressure, given any wide deplatforming of conservative channels could very easily raise questions of “collusive, coordinated and anticompetitive behavior.”
But don’t doubt that Democrats will escalate their overt demands that companies act as their political enforcers, outsourcing the censorship the Constitution forbids. And don’t buy the excuse that this is “oversight.” As law professor Jonathan Turley told Ms. Eshoo at the hearing: “Making a statement and putting a question mark at the end of it doesn’t change the import of the statement.” This isn’t just asking. It’s an order.
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https://www.dailymail.co.uk/news/article-9382047/Federal-judge-issues-scathing-dissent-accusing-media-liberal-bias.html
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https://www.gatestoneinstitute.org/17206/new-york-times-v-sullivan
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https://www.breitbart.com/clips/2021/03/25/dem-rep-schakowsky-were-going-to-regulate-tech-companies-and-there-must-be-limitations-on-user-content/
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https://www.nytimes.com/2021/04/16/us/patricia-lio-milton-police-assault.html
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https://www.theepochtimes.com/mkt_morningbrief/biden-supports-big-tech-cracking-down-on-disinformation-white-house-says_3805123.html?utm_source=Morningbrief&utm_medium=email&utm_campaign=mb-2021-05-07&mktids=6a9e235df516cfbc92413d9ea6bb2f08&est=KnNraX8V6i7NJs0sKQS9gCOBvVarYLh9CB7ZARKrz%2F9pSL%2FXHMjwiNA5rP2Gqn3GzKTh
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A fine piece of analysis!
https://www.nationalreview.com/2021/07/its-past-time-to-strengthen-our-free-exercise-muscles/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Saturday%20New%202021-07-10&utm_term=NRDaily-Smart
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Ministry suing over ‘hate group’ listing, urges Supreme Court to revisit ‘malice’
BY MARK A. KELLNER THE WASHINGTON TIMES
An evangelical Christian ministry is asking the Supreme Court to take up its 4-year-old defamation lawsuit against the Southern Poverty Law Center, arguing that the “actual malice” standard established in the court’s landmark New York Times v. Sullivan case should be tossed.
D. James Kennedy Ministries, the namesake of the late pastor of Coral Ridge Presbyterian Church in Fort Lauderdale, Florida, sued the SPLC in 2017 after the Birmingham, Alabama-based organization designated the media ministry as a “hate group.”
The ministry says it is far from a hate group and preaches biblical messages, including the tenet that marriage was created to be between a man and a woman.
Lower courts, citing the 1964 actualmalice standard set in Sullivan, have rejected the ministry’s claims. The Sullivan decision states that public figures must prove such malice for a defamation case to proceed.
D. James Kennedy Ministries says it’s time for that standard to be changed. It notes that several current justices have questioned the ruling.
“We think the importance of this case rests on the fact that the Southern
Poverty Law Center’s approach of creating their own definition of what constitutes a ‘hate group’ is in itself, a denial of due process,” ministry President Frank Wright said in a telephone interview. “The malice standard is literally unprovable. You can’t look into the soul of someone and say that you’ve seen that they did this act with malice.”
Attorneys for the ministry said in the court filing that the Sullivan decision creates “a more-often-than-not insurmountable bar for a public figure to plead and prove a defamation claim” that goes against “the correct, original understanding of the First Amendment.”
In New York Times v. Sullivan, the Supreme Court ruled in 1964 that “actual malice” is established when a defendant knowingly makes a defamatory statement that is false or makes the statement with a reckless disregard to its accuracy. The decision was made in the appeal of the case in which L.B. Sullivan, the police commissioner of Montgomery, Alabama, successfully sued The Times over an error-filled ad in 1960 that criticized the police force for mistreating civil rights protesters.
Republican-appointed Justices Clarence Thomas and Neil M. Gorsuch have written that it’s time for the Supreme Court to revisit Sullivan. Also taking the position were Chief Justice John G. Roberts Jr. “when he was working within the government” and Obamaappointed Justice Elena Kagan when she was a law professor, said attorney David Gibbs III, whose National Center for Life & Liberty represents D. James Kennedy Ministries.
“I believe our case is a perfect opportunity for them to make a decision. … We believe that being called a hate group is absolutely contrary to both what we are and the teaching of the Bible and the doctrines of the church and the ministry,” Mr. Gibbs said.
Mr. Wright, a veteran of Christian broadcasting and a former president of the Washington-based National Religious Broadcasters trade group, said he hopes a Supreme Court consideration of the ministry’s case will lead to a more equitable standard for defamation cases.
“In a system of laws like ours, there ought to be a remedy for those who rampantly, willfully, deliberately try to destroy those with whom they disagree,” he said. “That’s a public statement made by the president of the SPLC, [who] said, ‘We’d like to destroy every group listed on our hate map.’” A spokeswoman for the Southern Poverty Law Center did not respond to repeated requests for comment.
D. James Kennedy Ministries and the Coral Ridge church received threats after the SPLC designation. The church had to spend “probably hundreds of thousands of dollars” on enhanced security, Mr. Wright said. The broadcast ministry is a separate corporation from Coral Ridge, he said, but the groups share a campus.
“We’ve had to remove all signage. The church has had to pay for a police officer to be posted at the church every day,” Mr. Wright said.
He said Coral Ridge operates a 900-student Christian academy across the street from the church campus and is concerned that the SPLC designation could attract “perhaps unstable minds” who would want to harm the facility or its people.
That concern is not without precedent. In August 2012, Floyd Lee Corkins II shot a security guard at the Washington headquarters of the conservative Family Research Council. Corkins said he was influenced by the SPLC’s designation of the Family Research Council as a “hate group.” A federal judge sentenced Corkins to 25 years in prison
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Government Can’t Censor the Truth About Judges
A well-intentioned bill to protect their privacy and safety runs afoul of the First Amendment.
By Thomas Berry
Dec. 26, 2021 4:57 pm ET
Can the government censor you for tweeting happy birthday to a judge? The Senate Judiciary Committee recently voted 21-0 to advance a bill that would allow exactly that. If it is enacted, every American could face mandatory take-down orders for posting basic facts online about federal judges, including birth dates, spouses’ jobs and the colleges attended by their children. Because the bill stifles access to relevant information about public officials and arbitrarily limits its restrictions to the internet but not other media, it would violate the First Amendment.
The impetus for the proposed legislation was a tragic event: the murder last year of Daniel Anderl, son of Judge Esther Salas, at their home. Here’s how the Daniel Anderl Judicial Security and Privacy Act would work. If you post “covered information” about a federal judge online, that judge (or a designated federal official) can send you a written request to take it down. If you don’t comply within 72 hours, the judge can sue you. If you lose, you have to take down the information and pay the judge’s legal fees and court costs.
The bill’s “covered information” includes facts often found in public directories, like the judge’s home phone number and address. It includes biographical details such as “full date of birth,” identification of minor children, and any school or employer of immediate family. The bill would thus allow significant government censorship of truthful speech about federal judges.
The Supreme Court has repeatedly struck down laws that prohibit the publication of sensitive but true personal information. In Smith v. Daily Mail (1979), the court explained that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” In Florida Star v. B.J.F. (1989), the court held that punishments for publishing lawfully obtained truthful information may be imposed “only when narrowly tailored to a state interest of the highest order.”
To escape the force of these precedents, the bill provides an exception for covered information that “is relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.” Because the Supreme Court’s precedents dealt with “truthful information about a matter of public significance,” defenders of the bill argue that this exception saves its constitutionality. It doesn’t.
Federal judges are public figures. Truthful information about them can facilitate speech on matters of public concern, even when that truthful information is not itself posted as part of a commentary or news story. The Wall Street Journal recently published an investigative report revealing dozens of judicial conflict-of-interest violations. The investigation looked at the stock held not only by judges, but also by their spouses and minor children. If online encyclopedias and databases were no longer allowed to publish the employers of a judge’s family or even the names of a judge’s children, such investigations would be seriously hampered.
Loss of access to truthful information about public officials can mean loss of the ability to produce news and commentary. The bill’s limited exception for information “relevant to and displayed as part of” a news or commentary article doesn’t sufficiently address that fundamental problem.
Nor is the bill “narrowly tailored.” It applies only to information published on the internet, not in print, television or radio. That underinclusiveness is fatal. As the justices wrote in Florida Star, “when a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.”
Applying this principle, a federal court in 2017 preliminarily enjoined a California privacy law that similarly limited its restrictions to the internet. Remarkably, Sens. Tom Cotton (R., Ark.), Ted Cruz (R., Texas), and Alex Padilla (D., Calif.) at the committee hearing for the federal bill praised it as explicitly modeled on California’s law, without even mentioning that adverse decision.
If passed, a federal “judicial privacy” law would likely suffer the same fate as the many similar state laws that have been struck down by the courts. Securing the safety of the federal judiciary is a worthy goal, but it’s one that can be achieved without banning truthful speech.
Mr. Berry is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and managing editor of the Cato Supreme Court Review.
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https://www.theblaze.com/news/whole-foods-argues-it-has-a-constitutional-right-to-ban-its-employees-from-wearing-black-lives-matter-masks?utm_source=dlvr.it&utm_medium=facebook
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https://www.youtube.com/watch?v=x0Lc5b8Flto
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https://alexberenson.substack.com/p/twitter-suffers-a-devastating-9th/comments?token=eyJ1c2VyX2lkIjo1ODg4MTI0MCwicG9zdF9pZCI6NDk3NTAyNzEsIl8iOiI5UmZmVCIsImlhdCI6MTY0NjQzMTg5NywiZXhwIjoxNjQ2NDM1NDk3LCJpc3MiOiJwdWItMzYzMDgwIiwic3ViIjoicG9zdC1yZWFjdGlvbiJ9._VwRhdqq5_p4UYFtWvjpht14WuDp1cF9E7V2B4ECEiQ&s=r
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Back to the Sedition Act of 1798
Jeffrey A. Tucker
Jeffrey A. Tucker
May 2, 2022 Updated: May 2, 2022biggersmaller Print
Commentary
For years we were told that social media is privately owned so its curation cannot be called censorship; it’s just management. Then we found out that they were working hand-in-glove with government, so the problem became murkier.
Now the next step is in place: the federal government has created Disinformation Governance Board operating out of the mega-bureaucracy Department of Homeland Security and headed by an ideological fanatic who loves lockdowns and loathes free speech.
Will the office be political? That’s the whole point. We know this from U.S. history.
The U.S. Constitution was ratified in 1789, complete with a first amendment to guarantee the right of free speech. You might think that would be the end of the story. In fact, only nine years later, the very idea of free speech got its first test with the Alien and Sedition Acts of 1798.
For all the tendencies these days to celebrate (or condemn) the Framers’ devotion to human liberty, there were always splits and splits within them. It proved too tempting for even many among them to use violence to crush dissent with brazen attacks on free speech.
Under the guise of stopping enemies and shoring up the authority of the federal government, the Sedition Act in particular said:
And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
Two years in prison for criticizing the president? It happened. It was the law. You might have thought that such an action would be impossible given how fresh were the words of the First Amendment. But the impulse of people in power to crack down and stop the free flow of ideas is endemic to statecraft.
Do you notice that the law does not make it illegal to criticize the Vice President? That’s because he was Thomas Jefferson, the biggest critic of the Federalists.
The law also provoked public fury that ended up in a surprise victory for Jefferson as president in 1800. The laws were allowed to expire. And the anti-Federalists who were more friendly to trade and limits on government came to power while the centralists and speech controllers were held at bay for another 60 years, until the new challenge came. Then another and another. A new Sedition Act was imposed in 1918 during wartime and so on it goes.
Under this 1798 law today, probably most of social media would be illegal. Most books on politics would not be published at all. And yet it happened anyway. And yes, people were prosecuted, almost entirely the newspapers opposed to the ruling party (attacks on free speech are always a partisan matter).
Most of us were raised to believe that free speech is one of the most settled principles of law and public policy. We have recoiled at censorships of the past. We acknowledge the freedom to speak as an essential human right. We are taught the legend and lore of the struggle for it in all our years in school.
And all of this is fine… until it is actually exercised, as it is today, thanks to the mass distribution of communication technology. We are finally getting what we always wanted—the universal right and opportunity to reach the universe of humanity in an instant with thoughts of our own choosing.
And it turns out lots of people don’t like it.
It’s utterly bizarre but true that vast numbers have lost the conviction that freedom for all is better than the attempt to control. We once believed that freedom creates conditions under which truth stands a chance to emerge from the clamor, while the attempt to control ends up politicizing what we are and are not permitted to hear. Yes, freedom does not guarantee any particular result, but it does give good results a fighting chance while reinforcing other important things like human rights.
These days, that’s not good enough for some people.
What’s so striking about these debates is that censorship has never been less viable than it is today. Try to suppress access in one venue and it immediately pops up on another one. Make it clear that some ideas are not welcome here, and you inspire an invisible army of champions of that idea to build yet another venue. You can block, ban, and exclude through known technologies only to have the same pop up in another technology you didn’t know about.
And herein lies the brilliance of a decentralized and highly competitive system of information-sharing and distribution. Consider this: from the end of World War II through the Reagan presidency, there prevailed only three television networks. The government itself exercised the primary influence over the content. These networks began to think of themselves as public utilities, a ruling class, a protected elite, and they dispensed canons of the civic religion on a daily basis.
All of that was blown up in the 1990s. The cartel crumbled, creating an avalanche of speech that only grows in power today despite every attempt to crush it. Now the mainstream big media take up only a small percentage of people’s attention relative to the millions of other possible venues. Not even totalitarian regimes have successfully stopped it.
A certain group out there continues to believe that the free-wheeling world of information is the cause of the astonishing election results of 2016. Following 18 full months of dismissing and denouncing the eventual winner, while predicting the certainty of an outcome that did not happen, the public credibility of the old-line establishment news source hit new lows.
The revanchists in our midst still want to settle scores and are prepared to do that by shredding the First Amendment. The takeover of Twitter by Elon Musk, not to mention the multiplicity of alternative venues threatens that scheme. Also it is very possible that the latest and most brazen attempts to shut down debate will lead to a public backlash as they did in 1800.
Mill was as correct about free speech as he was about pandemic controls. No authority can substitute for the activity, creativity, and adaptability of the human mind. We need systems that celebrate that, and not attempt surreptitious methods for imposing Orwellian-style thought control.
Ideas are more powerful than armies, and the urge to censor is an implicit recognition of that. Still, it didn’t work in 1798 and it surely cannot work in 2022.
From the Brownstone Institute
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
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second
Say what you will about the current Supreme Court, and many critics are never happy, but the Roberts Court has been sonorous on religious liberty. The Justices provided another bell-ringer Monday in a 9-0 decision.
Hundreds of times, the city of Boston has let private groups hoist their flags for a few hours in the square outside City Hall. It denied zero requests until it refused an applicant asking to fly a Christian flag with a cross. The U.S. Court of Appeals for the First Circuit upheld its denial, saying Boston “engages in government speech when it raises a third-party flag,” and lifting a Christian banner “could signal the City’s embrace of that religion.”
That argument persuaded zero Justices, for good reason. The city had allowed its flagpole to host the gay pride flag, the flag of Ethiopia, and a flag of the Metro Credit Union. If that was all government speech, what message was Boston supposedly sending?
The majority opinion in the case, Shurtleff v. Boston, speaks for six Justices, three liberal and three conservative. Justice Stephen Breyer writes for the majority that Boston didn’t have a set policy on which flags to permit, and in practice it took all comers. The city employee handling applications said he typically never reviewed the flags. In effect, the pole was a public forum, and Justice Breyer says Boston unconstitutionally “discriminated based on religious viewpoint.”
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Three Justices agreed with that result but found its reasoning less than airtight. Justice Samuel Alito writes in a concurrence, joined by Justices Clarence Thomas and Neil Gorsuch, that “government speech occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf.”
Even if Boston actively regulated which private flags could rise outside City Hall, it wouldn’t make them Boston’s speech. Whether a “reasonable” person would mistakenly attribute the flag to the city is also beside the point.
Justice Gorsuch digs into that last issue in a concurrence joined by Justice Thomas. The “reasonable observer” standard, he says, is rooted in the Court’s 1971 precedent of Lemon v. Kurtzman, which created a nebulous three-part test for disputes about the Constitution’s ban on the establishment of religion. The result, he adds, is that judges started to imagine how a “lazy,” “uninformed” and “irritable” onlooker might react to a flag or Christmas scene. “Just ask him,” Justice Gorsuch writes, “if he feels it ‘endorses’ religion. If so, game over.”
The Supreme Court hasn’t applied the Lemon test for “nearly two decades,” he says. Yet the First Circuit cited the precedent. “Our Constitution was not designed to erase religion from American life; it was designed to ensure ‘respect and tolerance,’” he concludes. “This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.”
Permanently pulping a rotten Lemon is a worthy goal, and we await the day the Court finds a chance to do it.
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https://nypost.com/2022/06/27/clarence-thomas-wants-to-make-it-easier-to-sue-media-companies-for-libel/
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https://www.zerohedge.com/political/fauci-other-us-officials-served-lawsuit-over-alleged-collusion-suppress-free-speech?utm_source=&utm_medium=email&utm_campaign=801
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https://alexberenson.substack.com/p/the-white-house-privately-demanded?utm_source=email
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https://www.theepochtimes.com/over-50-biden-administration-employees-12-us-agencies-involved-in-social-media-censorship-push-documents_4704349.html?utm_source=Goodevening&utm_campaign=gv-2022-09-01&utm_medium=email&est=OvxVjW%2Fn0rrn%2BFmk1DqKXkoMlb2u7a%2FvmWun2Ey9vD4gFY9fKKlLqq1dD3O3hH8IcV3a
https://twitchy.com/sarahd-313035/2022/09/01/siren-damning-emails-show-deep-collusion-between-facebook-and-the-biden-admin-on-vast-censorship-enterprise/
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https://www.theepochtimes.com/court-rules-against-social-media-companies-in-free-speech-censorship-fight_4737140.html?utm_source=News&utm_campaign=breaking-2022-09-17-3&utm_medium=email&est=2iFNODLJq0qQ6xJMKc5rZta5W15TDmVJTUs8JAJAVQp16sImpTRyZythBO97sm3rurKp
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second
https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pdf
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not sure where I sit on this "issue"
but if a liberal Democrat operative is against the decision I would start with the position I am for it:
https://www.theatlantic.com/ideas/archive/2022/09/netchoice-paxton-first-amendment-social-media-content-moderation/671574/
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IMHO the article raises some deep and fair questions, but utterly blows off the reality of political censorship, as well as the relevance of common carrier doctrine.
The passage about the law now being different in Texas blah blah misses the point that this is what allows happens when a circuit court rules-- its decision is controlling only in its circuit-- duh!
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New York State Wants to Conscript Me to Violate the Constitution
A new law requires me to post a policy for dealing with ‘hate speech’ in comments on my blog.
By Eugene Volokh
Dec. 1, 2022 6:54 pm ET
New York politicians are slapping a badge on my chest. A law going into effect Saturday requires social-media networks, including any site that allows comments, to publish a plan for responding to alleged hate speech by users.
The law blog I run fits the bill, so the law will mandate that I post publicly my policy for responding to comments that “vilify, humiliate, or incite violence against a group” based on “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” It also requires that I give readers a way to complain about my blog’s content and obligates me to respond directly.
I don’t want to moderate such content and I don’t endorse the state’s definition of hate speech. I do sometimes delete comments, but I do it based on my own editorial judgment, not state command. Still, I’m being conscripted. By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment.
The Supreme Court has carved out several narrow categories of unprotected speech, but hate speech isn’t one of them. Speech is protected except in the case of fighting words, true threats, defamation or incitement, and these exceptions are applied without regard to whether the speech in question is hateful. The court has wisely recognized that each of us has a different idea of what constitutes good or bad speech—and we can’t trust the government to decide which viewpoints are too hateful to merit legal protection.
But that’s not stopping New York from trying. The new law would force me to act on the state’s disdain for online speech that someone, somewhere believes can “vilify, humiliate, or incite violence against” groups based on protected class, even if that speech is protected by the First Amendment.
Does speech by Richard Dawkins comparing George W. Bush’s faith to that of Osama bin Laden’s vilify conservative Christians? Does speech condemning trans athletes who join women’s sports teams vilify or humiliate based on gender identity? Do harsh criticisms of Israelis or Palestinians vilify those groups? Do some feminist comments criticizing patriarchy humiliate men? Can your comment on any of the blogs, news sites or social-media platforms swept up in New York’s law be defined as hateful conduct?
Nobody knows. But New York is imposing legal obligations on me and other platforms to pressure us to censor such speech. And though the New York law doesn’t itself require the removal of such speech, that may be the ultimate goal. Such censorship fits neatly within Attorney General Letitia James’s recent report that calls for sweeping regulations compelling further restrictions on speech the state considers hateful.
This is wrong, regardless of the viewpoint the state wants to eradicate. A law mandating a mechanism to report comments that vilify or humiliate the police, military or ordinary civilians would be similarly unconstitutional. Politicians can’t conscript private individuals into a state-mandated, viewpoint-based complaint system, especially for protected speech.
That’s why I am joining with the Foundation for Individual Rights and Expression to sue New York and defend our right to speak freely online. Online platforms Rumble and Locals are also joining the lawsuit.
The law was passed in response to the Buffalo white-supremacist mass shooting. It’s understandable to want to do something—anything—to prevent another horrific crime, but solutions must be effective and constitutionally valid. This law fails on both counts.
I started the Volokh Conspiracy to share interesting and important legal stories, not to police readers’ speech at the government’s behest. By challenging this law, I hope I can put down the badge and go back to my keyboard—because legislators can fight crime and respond to hate without violating the First Amendment or drafting me into the speech police.
Mr. Volokh is a co-founder of the Volokh Conspiracy blog and a law professor at the University of California, Los Angeles.
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Democrats Propose Constitutional Amendment to Overturn First Amendment Decision
By Chase Smith
January 19, 2023Updated: January 20, 2023
Democrats in the House of Representatives have introduced a constitutional amendment to overturn the Supreme Court’s controversial Citizens United v. FEC decision made in 2010.
The court ruled 5–4 that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations and overruled an earlier decision that banned corporations from making “electioneering communications.”
Rep. Adam Schiff (D-Calif). said in a press release he and Democrat colleagues introduced the “Democracy For All Amendment” to “overturn legal precedents that have allowed unrestrained campaign spending and dark money to corrupt American democracy.” He has introduced the constitutional amendment every year since 2013, according to the release.
“The flow of unrestricted corporate and dark money into our elections has dangerously eroded the American people’s faith in our democracy, and in our government’s ability to deliver for them and their families,” Schiff said in a press release. “Citizens United was one of the most egregious enablers of special interest money, but it was only the latest in a long line of Supreme Court cases that opened the floodgates. To truly rein in dark money, we must amend our Constitution.”
Schiff said the amendment would close “legal loopholes” that he said allows “wealthy megadonors, corporations, and special interest groups” to exploit the political system.
Citizens United v. Federal Election Commission
Schiff said the move comes before the 13th anniversary of the decision on Jan. 21, which the Associated Press said came from a “bitterly divided U.S. Supreme Court.”
The AP said the decision “vastly increased the power of big business and labor unions to influence government decisions by freeing them to spend their millions directly to sway elections for president and Congress.”
The Federal Election Campaign Act prohibited corporations and labor unions from using general funds to make election communications or speech that expressly advocated for a candidate in a federal election, including broadcasts, cable or satellite communication that is publicly distributed within 30 days of a primary or 60 days of a general election, according to the FEC.
Epoch Times Photo
Demonstrators march in the snow through Lafayette Park, outside the White House, during a rally against the Supreme Court’s decision in 2010 favor of Citizens United, which allows private citizens and corporations to make unlimited donations for political campaigns, in Washington, DC on Jan. 21, 2015. (Nicholas Kamm/AFP via Getty Images)
In January 2008, Citizens United, a non-profit organization, released a film about then-Senator Hillary Clinton, prior to the Democratic Party’s 2008 primary elections.
The group wanted to pay cable companies to make the film available for free through video-on-demand services. It planned to make the film available within 30 days of the primaries, but feared it would be covered by the Act’s ban, according to the FEC, which could have subjected them to civil and criminal penalties.
The group sought declaratory and injunctive relief against the FEC arguing the Act was unconstitutional. The District Court denied the preliminary injunction and granted the Commission’s motion for summary judgment.
The Supreme Court noted jurisdiction and found that they were “required to consider the facial validity” of the Act’s ban in regard to freedom of speech.
The Court held the Act was a ban on speech and “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”
It held disclaimer and disclosure requirements are “constitutional as applied to both the broadcast of the film and the ads promoting the film itself, since the ads qualify as electioneering communications.”
Additional Democrat Support
Schiff proposed the amendment alongside Rep. Dean Phillips (D-Minn.), Pramila Jayapal (D-Wash.), and Jim McGovern (D-Mass.).
A press release said the amendment would also “address the fundamental flaws underlying the Court’s reasoning in that and an entire line of cases dating back to the 1976 Buckley v. Valeo decision, which prevented meaningful regulation of campaign expenditures by corporations and special interest groups.”
“Thirteen years after the Supreme Court handed down the Citizens United decision, we are still feeling its disastrous effects–and they’re getting worse,” said Tiffany Muller, President of End Citizens United/Let America Vote Action Fund. “Each year, we see more and more dark corporate money pouring into our elections, letting billionaires and corporate America buy influence and power in Washington.”
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https://thehill.com/opinion/judiciary/3843751-congress-is-set-to-expose-what-may-be-the-largest-censorship-system-in-u-s-history/
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Good to have Prof Turley weighing in on this.
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https://www.nytimes.com/2023/02/10/us/politics/ron-desantis-news-media.html?unlocked_article_code=D6W3_EwVcUzvW8d5bGmsUn_6w1QyZy9S3qCe3AXepSjtiE1dZ37I5o8-jlDydGbA6zZeuJVFLgyy1R6wk_ZkgxZUNzhtLWjxOlxY7QvfGlEPPLTgnvuot-rq8iNqpKNl4jV3_3UwEpZebGYnaZkS9-B-74kxVWe8YM3VmTkq3z6tqYOVEwmOVB9-wtaFn9TWBTJSL3WmUyPFOZ_tIcDNQHn2u7n3hoKxOCp7msEd-5VgQ4cLygI262nwkbmCtILI9FYA0NrBXE728clZMSpy8kVIEwdT6HG8KH4aBH7nIjzve1qUjWensR-9Lss9Ee9gcFzePBLTtU08c9meZNfnkgXD9lYb&smid=nytcore-ios-share&referringSource=articleShare
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https://www.newsmax.com/newsfront/supreme-court-social-media/2023/02/19/id/1109238/
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for the Democrat Party only :
https://www.breitbart.com/politics/2023/02/21/far-left-aclu-encouraging-illegal-aliens-to-stay-in-u-s-plainly-protected-by-first-amendment/
ok to encourage people to commit crimes
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https://www.zerohedge.com/political/we-are-restricting-freedom-common-good-irish-green-party-calls-limiting-free-speech?utm_source=&utm_medium=email&utm_campaign=1587
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https://www.zerohedge.com/political/wearing-shirt-saying-there-are-only-two-genders-not-protected-speech-rules-obama?utm_source=&utm_medium=email&utm_campaign=1591
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Land of the free!
https://www.zerohedge.com/political/wearing-shirt-saying-there-are-only-two-genders-not-protected-speech-rules-obama?utm_source=&utm_medium=email&utm_campaign=1591
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https://www.washingtontimes.com/news/2023/jun/30/supreme-court-rules-designer-who-doesnt-want-make-/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=fd%2B7Jl3QGIjo%2BPDRjKaz9AQsSwRE1ftPLcQBB0AJV%2Fu%2ByoaDWEuFM%2BoJXC%2BnfFDD&bt_ts=1688135048043
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NRO
Supreme Court Rules in Favor of Designer Who Refuses to Make Same-Sex Wedding Websites
By JEFF ZYMERI
June 30, 2023 10:12 AM
The Supreme Court ruled Friday that an evangelical Christian web designer cannot be compelled to create a wedding website for a gay couple.
Lorie Smith, a graphic designer who wanted to expand into wedding websites, sought a ruling that Colorado could not enforce its anti-discrimination law against her. Smith opposes same-sex marriage on religious grounds and wanted to post a message on her page indicating that she would not design websites for same-sex couples.
“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” Justice Gorsuch wrote for the 6-3 majority in 303 Creative LLC v. Elenis.
The Court held that the web designer’s work constitutes speech and the state of Colorado cannot force her to express herself in a way that violates her deeply held beliefs.
“Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience,” Gorsuch wrote.
“Colorado is trying to force me to promote ideas inconsistent with my faith and the core of who I am,” Smith said on the steps of the Supreme Court following Friday’s announcement.
Meanwhile, Justice Sonia Sotomayor, writing for the dissent, strongly disagreed with the majority opinion arguing that the ruling was part of a broader pattern witnessed undermining minority rights.
“Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.”
“New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims,” Sotomayor wrote.
The glaring gap between the majority and dissenting opinions was even highlighted by Justice Gorsuch in his closing remarks.
“It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws,” Gorsuch writes, “and the strides gay Americans have made towards securing equal justice.”
“And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”
“When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom,” Gorsuch wrote.
The website designer lost in both district and circuit court before petitioning the Supreme Court. While the Tenth Circuit Court of Appeals found that Smith’s craft was “pure speech” and that Colorado was compelling speech through its anti-discrimination law, the judges in the majority argued that granting Smith an exemption “would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.”
While Smith asked the justices to consider both a free speech claim and a free exercise claim, only the former was reviewed by the high court. The Biden administration sided with Colorado in an amicus brief, arguing Smith’s case does not belong in the same category as other cases involving compelled speech.
The facts of the case bear a close resemblance to Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Supreme Court ruled in favor of a baker, Jack Phillips, who had objected to making custom cakes for same-sex couples.
In a 7-2 opinion penned by then-justice Anthony Kennedy, the Court held that by punishing Phillips, Colorado had violated his free exercise of religion. Kennedy explained that the commission had engaged in overt hostility towards Phillips’s religious beliefs in the process. The narrow ruling left major free-speech questions unanswered.
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If you don't have the freedom of association, then do any of the other freedoms even matter?
https://www.washingtontimes.com/news/2023/jun/30/supreme-court-rules-designer-who-doesnt-want-make-/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=fd%2B7Jl3QGIjo%2BPDRjKaz9AQsSwRE1ftPLcQBB0AJV%2Fu%2ByoaDWEuFM%2BoJXC%2BnfFDD&bt_ts=1688135048043
=========================
=========================
NRO
Supreme Court Rules in Favor of Designer Who Refuses to Make Same-Sex Wedding Websites
By JEFF ZYMERI
June 30, 2023 10:12 AM
The Supreme Court ruled Friday that an evangelical Christian web designer cannot be compelled to create a wedding website for a gay couple.
Lorie Smith, a graphic designer who wanted to expand into wedding websites, sought a ruling that Colorado could not enforce its anti-discrimination law against her. Smith opposes same-sex marriage on religious grounds and wanted to post a message on her page indicating that she would not design websites for same-sex couples.
“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” Justice Gorsuch wrote for the 6-3 majority in 303 Creative LLC v. Elenis.
The Court held that the web designer’s work constitutes speech and the state of Colorado cannot force her to express herself in a way that violates her deeply held beliefs.
“Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience,” Gorsuch wrote.
“Colorado is trying to force me to promote ideas inconsistent with my faith and the core of who I am,” Smith said on the steps of the Supreme Court following Friday’s announcement.
Meanwhile, Justice Sonia Sotomayor, writing for the dissent, strongly disagreed with the majority opinion arguing that the ruling was part of a broader pattern witnessed undermining minority rights.
“Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.”
“New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims,” Sotomayor wrote.
The glaring gap between the majority and dissenting opinions was even highlighted by Justice Gorsuch in his closing remarks.
“It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws,” Gorsuch writes, “and the strides gay Americans have made towards securing equal justice.”
“And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”
“When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom,” Gorsuch wrote.
The website designer lost in both district and circuit court before petitioning the Supreme Court. While the Tenth Circuit Court of Appeals found that Smith’s craft was “pure speech” and that Colorado was compelling speech through its anti-discrimination law, the judges in the majority argued that granting Smith an exemption “would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.”
While Smith asked the justices to consider both a free speech claim and a free exercise claim, only the former was reviewed by the high court. The Biden administration sided with Colorado in an amicus brief, arguing Smith’s case does not belong in the same category as other cases involving compelled speech.
The facts of the case bear a close resemblance to Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Supreme Court ruled in favor of a baker, Jack Phillips, who had objected to making custom cakes for same-sex couples.
In a 7-2 opinion penned by then-justice Anthony Kennedy, the Court held that by punishing Phillips, Colorado had violated his free exercise of religion. Kennedy explained that the commission had engaged in overt hostility towards Phillips’s religious beliefs in the process. The narrow ruling left major free-speech questions unanswered.
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"If you don't have the freedom of association, then do any of the other freedoms even matter?"
Christopher Caldwell has a book that dives deep into the tensions between anti-discrimination laws and the freedom of association.
https://en.wikipedia.org/wiki/The_Age_of_Entitlement:_America_Since_the_Sixties
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You can only have a constitutional republic/first world standard of living when you have an educated population with an IQ that averages around 100 or more.
"If you don't have the freedom of association, then do any of the other freedoms even matter?"
Christopher Caldwell has a book that dives deep into the tensions between anti-discrimination laws and the freedom of association.
https://en.wikipedia.org/wiki/The_Age_of_Entitlement:_America_Since_the_Sixties
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the gay couple may not have existed!!!
[BS
of course they did]
https://www.yahoo.com/news/gay-couple-cited-by-christian-web-designer-who-won-supreme-court-case-may-not-exist-164940986.html
oh the lying left will stop on nothing.
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https://www.theepochtimes.com/judge-delivers-major-blow-to-biden-admin-in-social-media-censorship-case_5373891.html?utm_source=News&src_src=News&utm_campaign=rtbreaking-2023-07-04-1&src_cmp=rtbreaking-2023-07-04-1&utm_medium=email&est=DbENSGDaSXqu0cRgQCOdZ52dUYYAp0rQDhQupk8D2QN2ZILpc7WCywqYRRqHKE0aWK2%2B
https://www.nationalreview.com/news/federal-judge-blocks-biden-officials-from-coordinating-censorship-with-social-media-companies/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=31990572
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https://fee.org/articles/why-the-paradox-of-tolerance-is-no-excuse-for-attacking-free-speech/?fbclid=IwAR2A67DVIVwKgzsweiUk9S6Yqzty4LxJEVoe4UMvQWQinDpxS63rlVgSOvQ
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In Blow to Academic Freedom, Court Rules Universities Can Punish Faculty for ‘Lack of Collegiality’
On the campus of North Carolina State in Raleigh, N.C., August 7, 2020(Jonathan Drake/Reuters)
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By JEFF ZYMERI
July 7, 2023 8:33 PM
The Fourth Circuit Court of Appeals ruled Thursday that a public-university faculty member can be punished for the “lack of collegiality” he purportedly showed when he criticized a higher-ed-degree program for prioritizing social justice over scholarship.
To academic-freedom advocates, the decision is a blow, and there are fears the “collegiality” rationale could chill unpopular speech at universities throughout the country.
By a vote of 2-1 in Porter v. Board of Trustees of North Carolina State University, the court ruled against professor Stephen Porter of NCSU, who had been removed from a degree program for complaints he made during a 2016 department meeting, in a spring 2018 email to colleagues, and in a personal blog post written that fall.
According to Porter, “the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” He also called an academic conference in his field a “woke joke.”
Porter was accused of “bullying” his colleagues, and it was suggested he leave the degree program in question. The professor was soon forcibly removed. Porter also claimed his colleagues were making it impossible for him to recruit new doctoral advisees, jeopardizing his tenure.
In Garcetti v. Ceballos, the Supreme Court held that “when public employees speak pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, the Court made the exception for public-faculty speech “related to scholarship or teaching.”
The Fourth Circuit held on Thursday that comments and critiques of shared institutional governance and decision-making are not protected under the First Amendment.
Judge Julius Richardson dissented, writing: “Contrary to the majority’s terse conclusions, each one of Porter’s three speech instances . . . constitutes protected speech. That is because, in each instance, he was speaking as a citizen on a matter of public concern.”
Richardson wrote that there has unquestionably been a growing and wide-ranging public debate about how colleges ought to emphasize diversity, equity, and inclusion.
The judge also found it was clear that Porter’s colleagues had retaliated against him.
“For those who disagree with Stephen Porter’s message, he might indeed sound like an unpleasant agitator, disturbing the peace. But transgressions of tone tend to ring loudest when we disagree with the speaker’s views,” wrote Richardson, adding that the majority should have recognized that this case was not a “close call.”
“[Professors] saying unpopular things at department meetings could be severely sanctioned or even fired. Write that ‘dear colleague’ email at your own peril,” Princeton University politics professor Keith Whittington wrote on Twitter.
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https://ij.org/press-release/louisiana-man-arrested-for-making-a-joke-about-covid-19-and-zombies-wins-appeal/
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https://lists.youmaker.com/archive/1Gencyql26/5kdG8QBtO/kMkRvdu2ns4m
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second
A Rebuke to Biden-Tech Censorship
The Fifth Circuit issues a landmark on collusion against free speech.
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Sept. 11, 2023 6:38 pm ET
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The Fifth Circuit Court of Appeals ruled Friday against federal officials for colluding with tech platforms to suppress speech, but you’d hardly know it from the limited press coverage. The decision in Missouri v. Biden deserves more attention because it defines the constitutional limits to coordination between government and private actors and may be headed to the Supreme Court.
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Missouri and Louisiana—joined by individuals whose posts opposing government views on Covid were censored—sued various federal officials for violating their First Amendment rights. Federal Judge Terry Doughty ruled against the government on nearly all points. The three-judge Fifth Circuit panel largely upheld his findings of fact and law while narrowing his injunction.
The unsigned 74-page opinion begins by detailing the unprecedented coordination during the pandemic between government agencies and social-media platforms. Tech employees “attended regular meetings” with government officials and “seemingly stepped-up their efforts” to remove content to appease them, the decision explains.
Platforms “gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users,” the opinion says. And they “changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials.”
The Biden Administration argued that the tech platforms acted independently, and that communications by federal officials are protected “government speech.” The Fifth Circuit disagreed, holding that officials crossed the First Amendment line by coercing platforms with threats of antitrust action and legal liability for user content under Section 230.
A private party “is ‘not ordinarily constrained by the First Amendment,’” the Fifth Circuit explains. “That changes, though, when a private party is coerced or significantly encouraged by the government to such a degree that its ‘choice’” if “made by the government would be unconstitutional.” The court calls this the “close nexus test.”
Its decision analyzes in depth how government actions violate the First Amendment under this test. “Significant encouragement requires ‘omething more’ than uninvolved oversight from the government,” the ruling says, citing the Supreme Court’s Blum (1982) precedent. Yet federal officials were far from “uninvolved” in content decisions.
The Fifth Circuit distinguishes the complaints in Missouri from Robert F. Kennedy Jr.’s lawsuit against Sen. Elizabeth Warren for asking Amazon to modify its algorithms to make his book harder to find. The Ninth Circuit Court of Appeals rejected that suit this year. Unlike the facts in this case, Ms. Warren’s letter was framed as a “request rather than a command” and she “lacked regulatory authority” over Amazon. The Senator’s letter also “contain[ed] no explicit reference” to “adverse consequences,” and “there was no indication that Amazon perceived the message as a threat.”
The nuanced opinion dismisses complaints against Anthony Fauci and other National Institutes of Health officials because they had merely “promoted the government’s scientific and policy views and attempted to discredit opposing ones—quintessential examples of government speech that do not run afoul of the First Amendment.”
The Fifth Circuit also narrows Judge Doughty’s injunction by spelling out how government officials can communicate with platforms without violating the First Amendment. For instance, they could ask social media companies to “Be on The Lookout” for certain posts provided there’s no intimidation.
The careful, detailed opinion sets the case up well for a Supreme Court appeal if the Biden Administration has the nerve. It may prefer to quit while it’s behind. In either case the ruling is a landmark that protects free speech from the government’s current method of laundering its censorship through private platforms.
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https://www.dailymail.co.uk/news/article-12655433/Supreme-Court-lifts-restrictions-Joe-Bidens-administration-pushing-removal-controversial-Facebook-X-posts-COVID-election-security.html
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I thought we were tying to avoid a (second) civil war.
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Turley explores the free speech of disallowing Trump to speak of Justice Department weaponization during trials many think wouldn’t occur if not for said weaponization, among other issues:
https://jonathanturley.org/2023/10/20/the-trump-gag-order-should-be-struck-down/
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https://americanwirenews.com/alito-blisters-scotus-over-highly-disturbing-ruling-allowing-biden-regimes-social-media-censorship/?utm_campaign=james&utm_content=10-24-23%20Daily%20AM&utm_medium=newsletter&utm_source=Get%20response&utm_term=email
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https://www.youtube.com/watch?v=shHYzSZp9Qc
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Josh Hawley’s Unoriginal Constitution
The Missouri Senator wants to rewrite Citizens United and the First Amendment.
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The Editorial Board
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Nov. 6, 2023 6:24 pm ET
Since the Supreme Court unleashed independent political spending in 2010’s Citizens United v. FEC, progressives have forecast the ruin of American politics by corporate spending. More than a decade on, elections are competitive and no doom has come to pass, but the same false alarm is now making the rounds on the political right.
Missouri Republican Sen. Josh Hawley has introduced legislation to reverse Citizens United as a way to punish corporations whose progressive politics he dislikes. He told RealClearPolitics that his “goal is to get corporate money out of our politics,” and to stop companies from “controlling our elections.”
So big government to the rescue. The Ending Corporate Influence on Elections Act would ban contributions or donations by publicly traded corporations. That includes donations to political committees, independent expenditures and any “disbursement for an electioneering communication.”
The bill proposes no changes to the political activities of labor unions, which also had their speech rights affirmed by Citizens United. That’s a telling omission that suggests Mr. Hawley is looking for allies on the left. Mr. Hawley knows the bill has little chance of becoming law in the current Congress and that the Supreme Court wouldn’t look fondly on this rewrite of the First Amendment. But the current Court majority may not last, as Justices Samuel Alito and Clarence Thomas are both in their 70s.
Mr. Hawley’s exercise aligns with the progressive notion that money is corrupting and that too much of it rigs elections and leads hapless voters to the wrong decision. In April 2022, Sen. Sheldon Whitehouse (D., R.I.) tweeted that Citizens United “super-charged the schemes of big corporate and right-wing donors to rig our government in their favor.”
The Supreme Court addressed that conceit directly in Citizens United. In his majority opinion, Justice Anthony Kennedy wrote that “when Government seeks to use its full power . . . to command where a person may get his or her information, or what distrusted source he or she may not hear, it uses censorship to control thought.” That’s “unlawful” because the First Amendment “confirms the freedom to think for ourselves.”
Mr. Hawley says he’s the real constitutional “originalist” because he believes there is no independent personhood for corporations. That was the argument made in the Citizens United partial dissent by liberal Justice John Paul Stevens. He wrote that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires” and that corporate personhood is a “legal fiction.”
It’s not that simple. Corporations are made up of citizens, as Justice Antonin Scalia noted in his Citizens United concurrence. The Framers guaranteed free speech for individuals, Justice Scalia wrote, but “the individual person’s right to speak includes the right to speak in association with other individual persons,” and that is as true for a corporation as for a political party. Corporations are assemblies of employees and shareholders who share an interest in political decisions that could harm their business.
Mr. Hawley knows this, but he is picking up the issue because he also knows corporations are unpopular these days. Some corporations have rightly earned conservative disdain, but there are other ways to pick a fight with woke America than by selling out basic conservative values such as free speech and the First Amendment’s explicit right to “petition the government for a redress of grievances.”
Mr. Hawley wants to deny corporations their right to influence laws or regulations that affect them. Bernie Sanders goes to sleep at night dreaming of such a political world.
Campaign spending is a form of political speech, as the Supreme Court has ruled in multiple cases. The left wants to rewrite the First Amendment so it can limit who can speak. “If speech can be prohibited because, in the view of the Government, it leads to ‘moral decay’ or does not serve ‘public ends,’” Justice Scalia wrote, “then there is no limit to the Government’s censorship power.”
This is the philosophy that Josh Hawley now embraces.
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Emails Show Surgeon General and Facebook Coordinating Covid Censorship
We received 14 pages of emails between U.S. Surgeon General Vivek Murthy and top Facebook executives in 2021 regarding the censorship of user posts about Covid controversies. The emails show Facebook leadership seeking to “better understand the scope of what the White House expects from us on misinformation going forward.”
These emails confirm that Facebook censored Americans at the direction of the Biden White House and Biden’s Surgeon General’s political operation. This is a massive violation of the First Amendment.
We received these emails in response to our January 13, 2023, FOIA lawsuit (Judicial Watch, Inc. v. U.S. Department of Health and Human Services (No. 1:23-cv-00113)) for:
All records, including, but not limited to, electronic mail, texts, memoranda, and handwritten notes, of, regarding, referring, or relating to any efforts of Vice Admiral Vivek H. Murthy, MD, MBA, U.S. Surgeon General, to contact any employee of Facebook, Twitter, TikTok, Instagram, Snapchat, Reddit, YouTube, LinkedIn, Tumblr, and Pinterest concerning COVID-19 or COVID-19 vaccines.
On July 15, 2021, Murthy issued “Confronting Health Misinformation,” a 22-page document addressing his concerns in multiple areas. These included social media, for which it offered a number of suggestions to address misinformation:
[M]ake meaningful long-term investments … including product changes. Redesign recommendation algorithms to avoid amplifying misinformation, build in “frictions”—such as suggestions and warnings—to reduce the sharing of misinformation, and make it easier for users to report misinformation.
***
Platforms should also address misinformation in live streams, which are more difficult to moderate due to their temporary nature and use of audio and video.
***
Prioritize early detection of misinformation “super-spreaders” and repeat offenders. Impose clear consequences for accounts that repeatedly violate platform policies.
***
Amplify communications from trusted messengers and subject matter experts. For example, work with health and medical professionals to reach target audiences. Direct users to a broader range of credible sources, including community organizations.
The newly obtained records show that on July 16, 2021, the next day, Nick Clegg, vice president of Communications and Global Affairs at Facebook, emails Murthy:
Dear Vivek,
Reaching out after what has transpired over the past few days following the publication of the misinformation advisory, and culminating today in the President's remarks about us. I know our teams met today to better understand the scope of what the White House expects from us on misinformation going forward.
In our previous conversations I've appreciated the way you and your team have approached our engagement, and we have worked hard to meet the moment - we've dedicated enormous time and resources to fighting this pandemic and consider ourselves to be partners in fighting the same battle. Certainly we understand (and have understood for some time) that there is disagreement on some of the policies governing our approach and how they are being enforced - even as your team has acknowledged the unprecedented scale of our efforts to provide authoritative information to millions of Americans and to help them get vaccinated. But I thought the way we were singled out over the past few days has been both surprising and misleading, and I believe unproductive to our joint efforts too.
I would appreciate the opportunity to speak directly to discuss a path forward with you and how we can continue to work toward what I sincerely believe are shared goals.
Murthy responds on July 19:
Thanks for reaching out and for sharing your concerns. I know the last few days have been challenging. I'd be happy to speak directly about how we move forward. Let me know the best way to schedule some time later this week and we'll make it happen.
On July 23, Brian Rice, director of public policy for Facebook, emails Clegg and Murthy:
Including this week's updated report here. Look forward to scheduling our next working session. As always please let us know if you have any questions.
Also on July 23, Clegg writes to Murthy:
Dear Vivek (if I may),
Thanks again for taking the time to meet earlier today. It was very helpful to take stock after the past week and hear directly from you and your team, and to establish our next steps.
We talked about the speed at which we are all having to iterate as the pandemic progresses. I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation, as well as steps taken to further address the “disinfo dozen”: we removed 17 additional Pages, Groups, and Instagram accounts tied to the disinfo dozen (so a total of 39 Profiles, Pages, Groups, and IG accounts deleted thus far, resulting in every member of the disinfo dozen having had at least one such entity removed).
We are also continuing to make 4 other Pages and Profiles, which have not yet met their removal thresholds, more difficult to find on our platform. We also expanded the group of false claims that we remove, to keep up with recent trends of misinformation that we are seeing.
We hear your call for us to do more and, as I said on the call, we're committed to working toward our shared goal of helping America get on top of this pandemic. We will reach out directly to DJ to schedule the deeper dive on how to best measure Covid related content and how to proceed with respect to the question around data. We'd also like to begin a regular cadence of meetings with your team so that we can continue to update you on our progress. You have identified 4 specific recommendations for improvement and we want to make sure to keep you informed of our work on each.
I want to again stress how critical it is that we establish criteria for measuring what's happening on an industry-wide basis, not least to reflect the way platforms are used interchangeably by users themselves. We believe that we have provided more transparency, both through CrowdTangle (the flaws of which we discussed in some detail) and through our Top 100 report, than others and that any further analysis should include a comprehensive look at what's happening across all platforms--ours and others - if we are going to make progress in a consistent and sustained manner.
Finally, we will be sending you the latest version of our Top 100 report later today, per our regular schedule. Brian will do the honors this week as it will likely be completed at our end later today East Coast time. We really do hope that we can discuss our approach to this data set in greater detail during our next session with DJ, as we genuinely believe it is an effective way of understanding what people are actually seeing on the platform.
Once again, I want to thank you for setting such a constructive tone at the beginning of the call. We too believe that we have a strong shared interest to work together, and that we will strive to do all we can to meet our shared goals.
On October 28, 2021, Clegg writes to Murthy with the subject line “Our announcement:”
Dear General Murthy,
I hope you are well. It's been a while since we connected. I know our teams have remained in close contact with respect to our work to provide authoritative information about the vaccine and we are working on how we can partner in this next push to vaccinate children. We appreciate the opportunity to partner with your team.
***
I also recognize the intense debate that's been prompted by the documents that have been disclosed by a former employee. You and I have touched on the subject of wellbeing in our previous conversations and I know it's an area of concern for you and for the White House. I would welcome the opportunity to meet again to hear from you and to address the claims that have been made against the company.
This is an apparent reference to France Haugen, a pro-censorship former Facebook product manager.
On March 3, 2022, Max Lesko, the surgeon general’s chief of staff, emails Clegg and others, “Please see the attached letter from the U.S. Surgeon General for Mark Zuckerberg.” The letter is not included in the documents Judicial Watch received. He continues by asking Clegg and Rice to let him know how he can be helpful with respect to the “Request for Information” which had been sent to the Federal Register.
Some of the subject matter in these documents is discussed in the Fifth Circuit Court of Appeals case Missouri v. Biden, Murthy, et al. (No. 23-30445), which the Biden administration lost. The case is now before the U.S. Supreme Court as Murthy, et al. v. Missouri, et al. (No. 23A243).
In April 2023, we filed two lawsuits against the U.S. Department of Justice and other federal agencies for communications between the agencies and Facebook and Twitter regarding the government’s involvement in content moderation and censorship on the social media platforms.
In June 2023, we sued DHS for all records of communications tied to the Election Integrity Partnership. Based on representations from the EIP (see here and here), the federal government, social media companies, the EIP, the Center for Internet Security (a non-profit organization funded partly by DHS and the Defense Department) and numerous other leftist groups communicated privately via the Jira software platform developed by Atlassian.
In February 2023, we sued the U.S. Department Homeland Security (DHS) for records showing cooperation between the Cybersecurity and Information Security Agency (CISA) and social media platforms to censor and suppress free speech.
In January 2023 we sued the DOJ for records of communications between the Federal Bureau of Investigation (FBI) and social media sites regarding foreign influence in elections, as well as the Hunter Biden laptop story.
In September 2022, we sued the Secretary of State of the State of California for having YouTube censor a Judicial Watch election integrity video.
In May 2022, YouTube censored a Judicial Watch video about Biden corruption and election integrity issues in the 2020 election. The video, titled “Impeach? Biden Corruption Threatens National Security,” was falsely determined to be “election misinformation” and removed by YouTube, and Judicial Watch’s YouTube account was suspended for a week. Judicial Watch continues to post its video content on its Rumble channel (https://rumble.com/vz7aof-fitton-impeach-biden-corruption-threatens-national-security.html).
In July 2021, we uncovered records from the Centers for Disease Control and Prevention (CDC), which revealed that Facebook coordinated closely with the CDC to control the Covid narrative and “misinformation” and that over $3.5 million in free advertising given to the CDC by social media companies.
In May 2021, we revealed documents showing that Iowa state officials pressured social media companies Twitter and Facebook to censor posts about the 2020 election.
More documents on this dangerous censorship are being processed now by Judicial Watch so expect more revelations soon!
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https://notthebee.com/article/liberal-media-is-shocked-because-speaker-mike-johnson-actually-understands-what-separation-of-church-and-state-means?utm_source=Not+The+Bee+Newsletter&utm_medium=email&utm_campaign=11162023
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https://www.washingtonexaminer.com/opinion/nikki-haleys-dangerous-idea
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IIRC from law school (over 40 years ago) the C'l standard is imminence of the words turning to deeds.
It would seem Haley is missing this by quite a bit.
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https://dailycaller.com/2023/11/18/this-supreme-court-term-will-have-big-implications-for-the-first-amendment/?utm_source=piano&utm_medium=email&utm_campaign=29912&pnespid=sbRpFidFaKlBhePL_T_1DZeHpwixD4dpLLanm_hjt0Jm5KoQZqRV8vKauFuQR0ERfStmRNiR
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Volokh does a fine job of threading this needle:
https://reason.com/volokh/2023/12/06/should-universities-ban-advocacy-of-genocide/
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2nd post.
I confess I’m enjoying the opprobrium and resulting squirming occurring in the wake sundry vile anti-Israeli & Semitic protests on college campuses and the resulting rush by university administrators up to and including their presidents to throw shade to their DEI fellow travelers, with much of that shade and the “protests” themselves glaringly antithetical to the rumored ideals of higher ed.
With that said, as fun as it is to watch inconsistent nitwits twist in the wind as all given hoist by their petard rains down on them, at the end of the day, as this piece argues an institutional commitment to free expression ought to be the end:
https://reason.com/volokh/2023/12/07/this-will-not-end-well-fire-on-penn-presidents-backtracking-on-free-speech/
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And a 3rd.
Some great writing and thinking is emerging from the current college speech debates:
https://davidlat.substack.com/p/against-free-speech-hypocrisy
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Some quick off the cuff thoughts:
a) Mein Kampf should not be banned from bookstores, nor should Adolph Hitler or his equivalent be hired to teach by American Universities.
b) Universities, especially elite ones, select their students and have standards they must meet. Advocating genocide should be a no-no.
c) Threats and ideas are not the same thing, even though the former may contain the latter. Mobs chanting for genocide have an inherently intimidating effect upon those in the vecinity whose demise is advocated.
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https://dailycaller.com/2023/12/09/opinion-can-universities-facing-antisemitism-lawsuits-hide-behind-the-first-amendment-alan-dershowitz/?utm_source=piano&utm_medium=email&utm_campaign=29912&pnespid=56V6AnlCOKoAy6CcpCu0Q5XVsxC3CoZlIOigwrRmoBBmgsmWsaHdcm4glOzEQuo7kJKCYpGk
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Accustomed to being able to parrot the Progressive position without undue opprobrium, colleges find themselves between a rock and a hard place where the “river to the sea” sentiment is concerned and thus spout wholly inconsistent free speech BS.
https://thehill.com/opinion/education/4321195-universities-must-quit-with-the-bs/
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https://greglukianoff.substack.com/p/yes-the-last-10-years-really-have
HT BBG
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A pleasant surprise to see that this prof is from Columbia.
Is There Any Remedy When You’re Censored?
The Supreme Court has three opportunities this term to give teeth to the First Amendment.
By Philip Hamburger
Feb. 25, 2024 3:33 pm ETA
It’s said that for every right there’s a remedy. Three cases before the Supreme Court will test whether that’s true for the freedom of speech.
In National Rifle Association v. Vullo, a New York state official took aim at gun advocacy by threatening regulatory hassle for bankers and insurers that continued to do business with the NRA. Recognizing the threat, they dumped the organization. Now that the official, Maria Vullo, is being sued, she claims that under the qualified-immunity doctrine, she can’t be ordered to pay damages.
Qualified immunity broadly protects officials from liability, so most plaintiffs who are censored don’t bother seeking damages for past suppression. Instead they seek injunctions against future censorship. In Murthy v. Missouri, however, the Biden administration is trying to foreclose that remedy, too.
Although the government pressured social-media platforms to censor users, it now claims the plaintiffs shouldn’t get an injunction because they can’t show that they are likely to be censored again. They also want injunctive protection for their ability to read other authors, but again the government objects. More seriously, even if the court sustains the injunction in Murthy, it won’t be sufficient, as it doesn’t bar the full breadth of the current censorship. Injunctions will always be inadequate in the face of secret suppression. In this case, because the government kept its role secret, it has taken more than half a decade to get an injunction against the censorship.
Americans are thus in a strange predicament. Under Supreme Court doctrine, they can’t be confident of getting either damages for past censorship or a prompt and effective injunction against future censorship. And it gets worse. In NetChoice v. Paxton, in which the justices hear oral arguments on Monday, there’s a danger the court will strike down Texas’ free-speech statute. That law treats the dominant social-media platforms as common carriers and bars them from discriminating on the basis of viewpoint.
This sort of antidiscrimination law is the only effective remedy for the current regime of government censorship. It’s unlikely that federal law will adequately limit federal censorship, so state law is structurally essential to stop it. And only when common-carrier antidiscrimination rules are applied to the platforms will the federal government be fully precluded from imposing censorship through them.
A decision that state common-carrier laws can’t be used to stop federal censorship through the platforms would render such censorship all but irremediable. Damages are generally unavailable for past censorship, and injunctions are too slow and otherwise inadequate against future censorship—so a decision against an antidiscrimination rule would make it a trifecta against free speech.
This risk is especially startling because it’s only recently that Americans have needed a remedy against censorship. The government once couldn’t actually suppress speech; it could only punish the speaker, and for this it had to go to court. The government once had to go to court to charge a particular defendant with seditious libel or some other offense and prove its accusation. Now, the government can simply pressure or induce the dominant social-media platforms to suppress speech en masse. That approach doesn’t merely punish speakers; it snuffs out speech. And it places the onus of going to court on the censored individuals.
Whereas the censored once merely had to defend themselves when prosecuted, they now need to persuade a court to stop the censorship. The current federal censorship thus silences Americans and puts the burden of proof on those who wish to speak. And even when they meet that burden, as in the current cases, they usually can’t get damages or a timely and effective injunction.
Mr. Hamburger teaches at Columbia Law School and is CEO of the New Civil Liberties Alliance, which represents the individual plaintiffs in Murthy v. Missouri. He is author of “Courting Censorship.”
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(1) SCOTUS SIGNALS IT WILL ALLOW BIDEN SOCIAL MEDIA CENSORSHIP: The Supreme Court of the United States (SCOTUS) heard oral arguments in Murthy v. Missouri yesterday, a lawsuit brought by Louisiana and Missouri against the Biden administration over communications between federal agencies and social media companies.
Louisiana Federal District Chief Judge Terry Doughty issued an injunction on 4 July 2023 against the Biden administration, which he called “the most massive attack against free speech in United States’ history.”
Justice Brett Kavanaugh said, “In my experience, the United States in all its manifestations has regular communications with the media to talk about things they don’t like, or don’t want to see, or complaining about factual inaccuracies.”
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Justice Ketanji Brown Jackson said.
Why It Matters: SCOTUS is signaling it is likely to side with the Biden administration, allowing federal agencies to restart what is effectively government censorship of online political speech just in time for the 2024 election. – R.C.
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An elegant formulation of what is at stake where Missouri v. Biden in concerned:
Liberals Fret They Have Lost The Disinformation Wars
We don’t need no thought control.
TIPPINSIGHTS EDITORIAL BOARD
March 19, 2024 . 7:30 AM 4 min read
On Sunday, the New York Times published an agonizingly long 4,200-word article on how former President Trump's allies are winning the war over disinformation.
"Waged in the courts, in Congress and in the seething precincts of the internet," the counteroffensive over censorship waged by Trump and his allies "has eviscerated attempts to shield elections from disinformation in the social media era."
The piece was a list of familiar liberal grievances around a central question: "In a world of unlimited online communications, in which anyone can reach huge numbers of people with unverified and false information, where is the line between protecting democracy and trampling on the right to free speech?"
The article's timing was to help influence the Supreme Court, which heard oral arguments on Monday in a lawsuit filed by the attorneys general of Missouri and Louisiana about how federal officials force social media platforms to limit speech critical of the government.
As ardent believers of free speech, we have repeatedly stressed in these pages that there should be no line as long as the speech is legal. Social media platforms have already established terms of use prohibiting any expression of criminal speech -one can't plan a drug deal or architect a crime.
The majority of speech on the Internet is civil, meaning it is not criminal. People may not be civil to each other, but this often happens during a vigorous debate. There are no legal contracts between people on a social media platform, so they are free to dispute facts and opinions all they want. The benefits of vibrant interactions in the public sphere thwart any harm resulting from disinformation.
Indeed, some people may express opinions that most others may find distasteful. In the 1988 Supreme Court case, People vs. Larry Flynt, attorney Alan Isaacman argued that Hustler magazine's parody depiction of the Rev. Jerry Falwell having sex with his mother, distasteful as it may have been, was permitted under the constitution: "This country is founded, at least in part, on the firm belief that unpopular speech is vital to the health of our nation." In an 8–0 decision, the Court agreed and held that the ad's infliction of emotional distress on Falwell was insufficient to deny the First Amendment protection of Hustler magazine to criticize public officials and figures.
Unfortunately, the modern establishments’ battle to constantly control the narrative has taken us far from the righteous path that the Supreme Court laid out for us in Flynt. Until Elon Musk took over Twitter and brought free speech back to one of the largest social media platforms, anything that did not meet the establishments’ speech code was immediately deemed as disinformation and harmful. The code was always under extraordinarily broad and laudable yet ambiguous terms, such as trust, safety, and concern for the public.
On October 14, 2020, the New York Post published a damaging story about then-candidate Biden asserting that Hunter Biden's abandoned laptop carried proof he sold influence while his father served as vice president and the elder Biden knew it. The story sought to sow doubts about Biden's prior statements that he never discussed Ukraine with his son. The Biden campaign immediately squashed the story, saying that it was a product of Russian disinformation.
Within hours of the Post's article appearing on Facebook, the platform had limited the story's distribution. The old Twitter went even further and blocked the article altogether. The reason? The report was based on "unverified material from Trump allies."
On October 19, Politico reported that more than 50 former intelligence officials signed a letter supporting the Biden campaign. In the letter, the signatories said, "If we are right, this is Russia trying to influence how Americans vote in this election, and we strongly believe that Americans need to be aware of this." The letter gave additional justification for Facebook and Twitter to keep the story off their platforms.
Two weeks later, America voted. Four days after the general election, the AP called the race for Biden.
Almost 11 months later, Politico found evidence that some of the purported Hunter Biden laptop material was genuine after all, including "two emails at the center of last October's controversy." On May 16, 2023, the Times conceded in a shocker: "Three years later, no concrete evidence has emerged to confirm the assertion that the laptop contained Russian disinformation and portions of its contents have been verified as authentic." This meant that the letter signed by 50 apolitical intelligence officials - a fact that Biden touted at a presidential debate to ridicule Trump - was nonsense.
The Hunter Biden story exemplifies what happens when central teams at the social media platforms block a story's distribution to prevent "disinformation."
Thanks to Elon Musk, Americans now know what a vibrant social media platform can do to citizen debate. All views are now permitted on X, formally Twitter, without prejudice or bias. Musk's definition of free speech is to allow someone we don't like to say something we don't like, as long as what is said is legal.
Suppose Facebook and Twitter had allowed the New York Post story to spread three weeks before the election? Numerous media outlets would have investigated the story to discover if the "October surprise" was genuine. Even if the facts were not dispositive, sufficient numbers of voters may have developed doubts not to cast a vote for Biden. "Just 44,000 votes in Georgia, Arizona, and Wisconsin separated Biden and Trump from a tie in the Electoral College," NPR reported. We calculated the 44,000 votes to be about a margin of 0.6% in each of these states - a small enough sample that could have swung the election.
It is not a stretch to say that Facebook and Twitter placed a thumb on the scale and probably tilted the 2020 election to Biden. Their disinformation effort, meant to protect democracy, had the opposite effect—wilfully withholding relevant information from voters that may have influenced their choice.
The remedy for wrong speech is not censorship or controlling disinformation but more right speech - a concept Musk has implemented through "Community Notes," when the original post stays and experts who disagree with the author provide information that users can see for themselves.
We fail to understand why the Left does not embrace this simple and elegant solution.
https://tippinsights.com/liberals-fret-they-have-lost-the-disinformation-wars/
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https://townhall.com/tipsheet/katiepavlich/2024/03/18/justice-jacksons-description-of-the-first-amendment-is-raising-eyebrows-n2636651
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Justice Ketanji Brown Jackson expressed concern that the First Amendment is “hamstringing the government in significant ways, in the most important time periods.”
https://www.americanthinker.com/articles/2024/03/censorship_is_a_deadend_road.html
"Reserving free expression and vigorous public debate for times of civil peace and relative social unity is like protecting a person’s Second Amendment right to own a gun only when his life is not threatened. "
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https://m.youtube.com/watch?v=HkoAn9x4-JM&embeds_referring_euri=https%3A%2F%2Fwww.powerlineblog.com%2F&source_ve_path=OTY3MTQ&feature=emb_imp_woyt
Column on video avoids the pay wall.
Government is the most dangerous form of misinformation.
Matt Taibbi discusses the Murthy case and his experience with government misinformation and government quashed dissent speech.
Unless I'm missing something, I can't believe this case isn't an easy call for every constitution based Justice.